Joseph Policastro, Jr. v. The Property Group of Connecticut, Inc. et al. (2013)

Memorandum of Decision

The plaintiff in this action is the owner of a condominium unit in the Chesterfield Condominium located at 2289 Bedford Street in Stamford.   The defendants are Chesterfield Condominium Association, Inc., the unit owners association, (“Chesterfield”) and The Property Group of Connecticut, Inc., the managing agent for Chesterfield (“TPGC”).  The plaintiff claims to have sustained personal injuries on January 16, 2011 when he slipped and fell on an icy walkway outside the front door of his unit.   In his first count he alleges that his injuries were the result of the negligence of the defendants in allowing a dangerous and defective condition to exist within the common areas of the condominium.   The dangerous and defective condition was alleged to be a defective gutter which allowed water to pour from the gutter on to the walkway when it subsequently froze, creating the ice which caused the plaintiff to fall and sustain his injuries.   The plaintiff also alleges that both defendants had actual notice of the defect because, prior to the accident the plaintiff had notified the defendant of the dangerous condition and requested that they take action to repair the condition.   In the second count of his complaint the plaintiff claims that the defendants' conduct was reckless.   In his third count, the plaintiff claims that the defective gutter constituted a nuisance.

Presently before the court is the defendants' motion to strike, dated April 17, 2013 seeking to strike the second and third counts of the plaintiff's complaint.   In that motion, the defendants claim 1) “the Plaintiff has failed to sufficiently plead allegations constituting the requisite state of mind of the Defendants to support a claim of recklessness” and 2) “the Plaintiff has pled a cause of action of private nuisance for personal injuries.”   On May 9, 2013, the plaintiff filed a memorandum of law in opposition to the motion to strike.   The matter was heard on the short calendar on May 13, 2013.

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 (2003).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

RECKLESSNESS—SECOND AND THIRD COUNTS

In their motion to strike the second and third counts, the defendants claim that the plaintiff has not sufficiently plead allegations constituting the requisite state of mind of the defendants to support a claim for recklessness.

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent ․ More recently, [the Connecticut Supreme Court has] described recklessness as a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Citations omitted;  internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832–33 (2003).

“[N]egligence and wilful and wanton misconduct are separate and distinct causes of action ․ There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.”  (Internal quotation marks omitted.)  Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, cert. denied, 284 Conn. 927 (2007).

In the present case, the plaintiff alleges in the first count of his amended complaint that the defendants were negligent in failing to repair a leaking gutter which caused water to accumulate on the walkway outside the plaintiff's unit which, froze and became slippery.   In the second count, which attempts to state a cause of action in recklessness, the plaintiff repeats the allegations of the first count and adds the additional allegation that the defendants knew of the defective and dangerous conditions caused by the leaking gutter because the plaintiff had repeatedly brought that condition to their attention.   The second count alleges that the defendants took no action to remedy the condition, although they had adequate time to do so.   The issue presented by this motion to strike is whether the plaintiff has adequately alleged facts sufficient to support a claim based on recklessness.

“Merely using the term ‘recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law.”  Angiolillo v. Buckmiller, supra, 102 Conn.App. 705 (affirming a trial court's rendering of summary judgment on a common-law recklessness claim in a wrongful burial case where “[t]he plaintiffs, in the complaint, simply incorporated their allegations of negligence and labeled the conduct recklessness”).  “A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.”  Dumond v. Denehy, 145 Conn. 88, 91 (1958).

However “[i]t is ․ of no legal consequence if identical facts are alleged to support separate causes of action providing allegations are sufficient to support both claims.”   Long v. Taranto, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5002986 (December 23, 2008, Pavia, J.) “[S]imilarities between the allegations of the negligence and common-law recklessness count are not necessarily grounds for the claim to be stricken.   A cause of action of common-law recklessness may be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in another count sounding in negligence.   The similarity of allegations does not necessarily render one cause of action invalid.”  (Internal quotation marks omitted.)   Sullivan v. Sullivan, Superior Court, judicial district of Fairfield, Docket No. CV 10 6005919 (September 24, 2010, Gilardi, J.).   In Sullivan, the recklessness count incorporated by reference the allegations of a negligence count but added an allegation that “[t]he plaintiff was injured as a result of the defendant's recklessness in that the defendant was aware that opening the bedroom door would cause the closet door to abruptly shut.”  Id. Judge Gilardi denied the motion to strike the recklessness count.  Id.

See also, Alvarado v. Pavani Painting, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 5027658 (July 1, 2010, Tobin, J.), in which this court granted a motion to strike a recklessness count, which merely stated that the defendant recklessly violated unspecified state and federal statutes.   However the court observed that it “is of the opinion that a plaintiff can describe the same conduct as merely negligent in one count and in the same complaint allege that the same conduct was reckless.”

“[S]imilarity [of allegations] cannot be the sole focus.   To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts.   Focus must instead primarily rest on the recklessness-sufficiency of those counts.”   Maleski v. Connecticut Light & Power Co., Superior Court, judicial district of Waterbury, Docket No. CV 08 5008285 (March 26, 2009, Brunetti, J.).   In Maleski, the plaintiff alleged “that the defendants knowingly failed to shut off the power to the portions of the high voltage lines during the periods of time it had agreed to with reckless disregard for the rights and/or safety of the plaintiff, and with conscious knowledge of the fact that the injuries and substantial risk would be posed upon the public including serious personal injury incurred by the plaintiff.”  Id. In a well considered opinion, Judge Brunetti denied the motion to strike the recklessness count because “[a]n allegation of the defendants' knowledge of a hazard and the failure to take steps to prevent danger is sufficient to state a cause of action in recklessness.”  Id. Other Connecticut courts have used this reasoning to deny motions to strike recklessness counts.   Haley v. Connecticut Light & Power, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.) (intentional opening of a dam with conscious knowledge that injuries to the public would result);  Cruz v. Tosado, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 93 0531845 (May 22, 1995, Hennessey, J.) (14 Conn. L. Rptr. 272, 274–75) (property owner's alleged failure to ensure that children are not exposed to dangerous lead after being notified by an official that the property contained toxic levels of lead paint).

Similarly, in Henderson v. CVS Pharmacy, Superior Court, judicial district of New Haven, Docket No. CV 08 5017128 (July 31, 2008, Cosgrove, J.) (46 Conn. L. Rptr. 25, 26), where the plaintiffs alleged that a drugstore provided the wrong prescription medication, the complaint was brought in both negligence and recklessness, among other causes of action.   In deciding on the motion to strike the recklessness count, Judge Cosgrove noted that “the plaintiffs have distinguished their allegation by stating that the defendants not only provided the wrong medication and instructions, but also ‘did nothing to check the accuracy of the medications provided [to the plaintiffs] despite their clear professional responsibility to do so, and the grave danger posed to [the plaintiffs] by virtue of dispensing the wrong medications and instructions.’   “ Id., 27.   Because “[t]he plaintiffs have not merely appended adjectives to their negligence complaint” and because “[t]he plaintiffs' allegations of recklessness are not merely allegations of negligence suffused with legal conclusions,” “it [was] apparent that there [were] alleged facts contained within the second count that could allow for a finding that the defendants acted recklessly.”  Id. This, in turn, led Judge Cosgrove to deny the motion to strike.  Id.

In this case the court finds that the plaintiff has adequately alleged a fact supporting a claim for common law recklessness.   Accordingly the motion to strike the second count is denied.

NUISANCE—THIRD COUNT

In their motion to strike the third count, the defendants claim that the allegations of that the plaintiff “has pled a cause of action of private nuisance for personal injuries.”   In the memorandum of law filed in support of their motion to strike the defendants claim that the allegations of the third count do not constitute a proper cause of action for private nuisance.

In order to sustain a cause of action based on private nuisance “a plaintiff must prove:  1) there was an invasion of the plaintiff's use and enjoyment of his or her property;  2) the defendant's conduct was the proximate cause of the invasion;

3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless.”  Pestey v. Cushman, 259 Conn. 345, 358 (2002).

The defendants claim that there is not recognized cause of action in Connecticut for personal injuries arising out of a private nuisance.   In support of this claim the defendants rely on superior court cases such as Roman–Santiago v. Wakefern Food Corp., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 095013138 (January 7, 2010, Pittman, J.), MacLeod v. Gottlieb, Superior Court, judicial district of Fairfield, Docket No. CV 970345566 (July 27, 1998, Lager, J.) [22 Conn. L. Rptr. 456], and Ayala v. B & B Realty Co., 32 Conn.Sup. 58 (1974).

Roman–Santiago, supra, was a suit claiming damages for personal injuries sustained as the result of a slip and fall caused by a liquid substance on the floor of a retail market.   The plaintiff's first count alleges a claim for premises liability, the second count purported to claim damages based on “nuisance.”   The court found that the plaintiff's allegations could not sustain an action for public nuisance since the plaintiff did not claim that he was exercising a public right.   The court also found that the plaintiff had failed to allege any claim involving the use and enjoyment of land.

MacLeod, supra, was a claim for personal injuries allegedly sustained by a minor as the result of exposure to lead paint.   The minor child and his parents were tenants in a residence owned by the defendants.   In two of the counts of their complaint, the plaintiffs sought to recover damages on a claim of absolute nuisance.   Relying on Beckwith v. Stratford, 129 Conn. 506, 511 (1942), the court found that a claim founded on absolute nuisance required the plaintiff to plead that “the defendants act intentionally to bring about the conditions which are in fact found to be the nuisance.”   The court noted that the condition complained of was “cracked, chipped, blistered, flaking, loose or peeling lead paint.”   The court held that the allegations of the complaint could not be construed as containing allegations that the owner-landlords intended that the paint be cracked, chipped, blistered, flaking, loose or peeling.   The court also observed that it was reluctant to recognize a cause of action in absolute nuisance in contravention to the holding in Gore v. People's Savings Bank, 225 Conn. 360 (1995).¹

The plaintiff in Ayala, supra, was a three-year-old daughter of a tenant who sustained personal injuries when she fell from a second story window of a residence which allegedly was equipped with “ill-fitting adjustable screens.”   The court held that a tenant could not sue his landlord in nuisance for any defect in the demised premises, because by definition the demised premises were not longer under the landlord's control.   However, the court overruled the demurrer to the nuisance count noting that the plaintiffs had pled sufficient facts to show that the landlord retained control of the allegedly defective screen.   The court stated “Connecticut cases have held, in effect, that a tenant injured by a defective condition on that part of the premises retained in the control of his landlord may plead a proper cause of action private nuisance.”  32 Conn.Sup. at 63.   Accordingly, it appears that rather than supporting the defendant's motion to strike, the holding of Ayala actually supports the existence a cause of action based on private nuisance where the damages are personal injuries rather than injury to property.

In a recent, well-reasoned, Superior Court case the court considered and distinguished each of the cases relied on by the defendants.   Jullarine v. Briarcliff Realty, LLC., Superior Court, judicial district of New London, Docket No. CV 116008370 (November 25, 2011, Martin, J.) [53 Conn. L. Rptr. 15].   The court noted:  “The holdings of MacLeod v. Gottlieb and Roman–Santiago v. Wakefern Food Corp. rest on the premise that private nuisance can only arise from injury to land, not injury to a person.   This is accurate only with regard to the initial inquiry of whether a plaintiff has alleged a sufficient property interest that was harmed by the defendant's conduct.   See, e.g., Webel v. Yale University, supra, 125 Conn. 525.   Once it has been determined, however, that there has been an interference with the use and enjoyment of land, personal injuries and discomfort resulting from that interference are inseparable from the harm caused to the land.   Such damages are therefore recoverable under a private nuisance theory.   4 Restatement (Second), Torts § 821D, comment (a) (1979) (‘It is obvious from the history of the action for private nuisance that the interests originally protected were interests in the use and enjoyment of land ․ These interests continue to be the interests that are protected by actions for private nuisance.   When there is an invasion of these interests, the plaintiff may recover not only for harm arising from acts that affect the land itself and the comfortable enjoyment of it, but also for harm to members of his family and to his chattels').”

The court finds that the plaintiff's third count states a well-recognized cause of action for private nuisance.   Accordingly the motion to strike that count is denied.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. In that case, the Supreme Court held that violation of General Statutes § 47a–8 by a landlord did not constitute either negligence per se or subject the landlord to strict liability..  FN1. In that case, the Supreme Court held that violation of General Statutes § 47a–8 by a landlord did not constitute either negligence per se or subject the landlord to strict liability.

Tobin, David R., J.T.R.