Theresa Apruzzese v. Metro North Commuter Railroad et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (108.00)

I. FACTS

On May 30, 2012, the plaintiff, Theresa Apruzzese, filed a twenty-three-count complaint sounding in negligence, nuisance and recklessness against various persons and entities.¹  The plaintiff alleges the following facts in her complaint.   On September 27, 2011, the plaintiff was driving her car on Riverbend Drive South, a road in Stamford, CT, on her way to visit Stamford Advocate's offices in Riverbend Office Park. At the same time, a train operated by the defendant was traveling along the railroad tracks, approaching a private railroad crossing that intersects Riverbend Drive South.   At the crossing, the plaintiff's car was struck by the defendant's train.   It is alleged that the collision and the plaintiff's resulting injuries and losses were due to the defendant's failure to keep the railroad tracks and related equipment in a reasonably safe condition, even though the defendant knew or should have known of the dangerous condition of the private crossing, and numerous prior train and motor vehicle collisions at that crossing.

It is further alleged that Riverbend Office Park is serviced by three roads that have railroad crossings, including Riverbend Drive South.   Riverbend Drive South is, however, the only private crossing for which crossing gates have not been installed by either the defendant or other entities, even though the crossing gates used at the other two private railroad crossings have greatly reduced the occurrence of train and motor vehicle collisions at those crossings.   The defendant's use, operation and maintenance of the Riverbend Drive South private railroad crossing without crossing gates was unreasonable and created a dangerous condition to the plaintiff and other members of the public who use that road and crossing.

The plaintiff's claims against this defendant are contained in counts one, two, and seventeen of her complaint.   Count one of the plaintiff's complaint alleges a claim against the defendant for negligence.   Count two alleges that the private crossing is a dangerous condition that created a nuisance to the plaintiff and other members of the public, and that the plaintiff sustained injuries and losses as a direct and proximate result.   Count seventeen alleges a claim against the defendant for recklessness.

On July 30, 2012, the defendant filed a motion to strike count two of the plaintiff's complaint and a memorandum of law in support thereof, on the ground that the plaintiff did not allege that she was enjoying a public right at the time she was injured and, therefore, she has not alleged one of the required elements of a public nuisance cause of action.   On September 14, 2012, the plaintiff filed an objection to the defendant's motion to strike and a memorandum of law in support of her objection in which she asserts that count two of her complaint sets forth an adequate claim upon which relief may be granted because she alleges that she was driving on and using Riverbend Drive South, which is a public right.   The matter was heard at short calendar on September 17, 2012.

II. DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003);  see Practice Book § 10–39(a).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion”;  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980);  and “take[s] the facts to be those alleged in the [complaint] ․ [which is] construe[d] ․ in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)   Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

In its memorandum of law, the defendant argues that count two of the plaintiff's complaint is legally insufficient to state a claim upon which relief may be granted because the plaintiff has not alleged that she was exercising a public right at the time she was injured, which is fatal to her public nuisance claim.   The defendant argues that the plaintiff cannot recover on a theory of public nuisance if she was on private property at the time of injury because a member of the public who enters private property by express or implied invitation does not do so in the exercise of any public right.   Webel v. Yale University, 125 Conn. 515, 524 (1939).   The defendant asserts that for the foregoing reasons, the plaintiff has failed to allege facts to support one of the required elements of a public nuisance cause of action.

In her memorandum, the plaintiff argues that the act of driving on and using Riverbend Drive South is a public right, without regard to the fact that the road's status as a private or public roadway is unsettled.   The plaintiff also asserts that because she was required, by necessity, to cross the private railroad crossing in order to reach the office of the Stamford Advocate, she was clearly engaged in a public right.   The plaintiff argues that the use of Riverbend Drive South by members of the public mandates that such use be deemed a public right.

In order to support a cause of action sounding in nuisance, a plaintiff must allege facts supporting the four elements of nuisance:  “(1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property;  (2) the danger created was a continuing one;  (3) the use of the land was unreasonable or unlawful;  [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages.”   (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 561–62, 23 A.3d 1176 (2011).   To support a cause of action for public nuisance in particular, an additional fifth element requires the plaintiff “[t]o prove ․ that the condition or conduct complained of interferes with a right common to the general public.”  (Emphasis added;  internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 606, 955 A.2d 645 (“rights common to the general public can include, but ․ are not limited to, such things as the right to use a public park, highway, river or lake”), cert. denied, 298 Conn. 947, 959 A.2d 1011 (2008).   The public right requirement is grounded in the notion that “[a public] nuisance must [necessarily] affect an interest common to the general public, rather than [be] peculiar to one individual, or several.”  (Internal quotation marks omitted.)  Couture v. Board of Education, 6 Conn.App. 309, 316, 505 A.2d 432 (1986).   As such, these rights, to which every citizen is entitled, “typically involve conduct that allegedly interferes with ․ public health and safety.”  Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 561.   Overall, recovery under a public nuisance theory requires that the plaintiff was injured “in the exercise of a public right regardless of the plaintiff's physical location [at the time of injury].”   Wright v. DB Companies, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0486068 (May 3, 2007, Licari, J.).

In the present case, the plaintiff alleges that at the time of the accident, she was driving her car on Riverbend Drive South on her way to visit the Stamford Advocate.   She does not expressly allege whether this is a public or private road, although she does allege that the office park where the Stamford Advocate's office is located is privately owned.   Moreover, she consistently refers to the precise location where she was injured, the railroad crossing, as a “private crossing.”

Accordingly, the plaintiff has failed to allege that she was injured in the exercise of a public right, despite the fact that she identifies her conduct of driving on and using Riverbend Drive South as a public right in her memorandum of law.   Even when the allegations in the plaintiff's complaint are viewed in the manner most favorable to sustaining their legal sufficiency, the plaintiff's allegations that the defendant's conduct failed to protect “motorists” and “other members of the Public” allege, at most, that the dangerous condition and nuisance on Riverbend Drive South are not peculiar to just one individual, the plaintiff, but may be of concern to the general public.   This allegation, however, does not amount to an allegation that the plaintiff has a right as a citizen to be present in the area in which she was injured, the private crossing on Riverbend Drive South, and that she was exercising that right when she was injured.   The plaintiff has failed to allege that she was exercising a public right and has, therefore, failed to allege sufficient facts to support this element of a claim for public nuisance.

III. CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike count two of the plaintiff's complaint.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The persons and entities against whom the plaintiff filed her complaint are:  Metro North Commuter Railroad, city of Stamford, River Bend South, LLC, Riverbend Executive Center, Inc., Riverbend Partners, LLC, Milton B. Hollander, Betty Ruth Hollander, Omega Engineering, Inc., Research Park Properties, and Minturnese Social Club, Inc. Metro North Commuter Railroad filed the motion to strike that is presently before the court and will be referred to as “the defendant.”.  FN1. The persons and entities against whom the plaintiff filed her complaint are:  Metro North Commuter Railroad, city of Stamford, River Bend South, LLC, Riverbend Executive Center, Inc., Riverbend Partners, LLC, Milton B. Hollander, Betty Ruth Hollander, Omega Engineering, Inc., Research Park Properties, and Minturnese Social Club, Inc. Metro North Commuter Railroad filed the motion to strike that is presently before the court and will be referred to as “the defendant.”

Adams, Taggart D., J.T.R.