Ann Meyerson v. Connecticut Tank Removal, Inc. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (MOTION # 106)

FACTS

On November 13, 2012, the plaintiff filed a three-count complaint alleging negligence, recklessness, and nuisance, respectively, against the defendant.   The plaintiff alleges the following facts.   The defendant engages in the removal and remediation of oil tanks, but is not in the business of removing or felling trees.   Nevertheless, on December 7, 2010, the defendant engaged in tree removal on Redding Road in Fairfield.   That afternoon, while, traveling on Redding Road, a large tree limb that the defendant was cutting down fell and struck the plaintiff's car.   In the recklessness count, the plaintiff alleges that the defendant deliberately engaged in an inherently dangerous task of felling a large tree without the necessary equipment, knowledge, skill or training needed to undertake such a task, and the defendant did not take due precautions or follow proper protocols, procedures or policies for the safety of others.   In the nuisance count, the plaintiff alleges that the defendant engaged in an inherently dangerous task of felling a large tree onto a public roadway without taking due precautions or following proper protocols, procedures or policies for the safety of others.

The defendant filed a motion to strike counts two and three alleging recklessness and nuisance, respectively, on the ground that the plaintiff failed to state a claim upon which relief may be granted.¹  The plaintiff filed an objection to the defendant's motion to strike.

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.   In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “[I]t 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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint 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).   A motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 588.  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).

I

The defendant argues that the recklessness claim in count two has not been pleaded properly because recklessness includes wilful misconduct and no facts have been alleged which show a design to injure, but instead the facts alleged merely mirror those of negligence in count one.²  The plaintiff counters that recklessness does not require wilful misconduct, but rather a conscious disregard for the just rights or safety of others and that the question of whether such conduct rises to the level of recklessness is for the finder of fact.

“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.”  (Internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).  “Wilful misconduct has been defined as intentional misconduct designed to injure for which there is no just cause or excuse.”  Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988).  “While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.   The result is that [wilful], wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”   (Internal quotation marks omitted.)  Id., 533.  “Whether [the] defendant's conduct constitute[s] heedless and reckless disregard of the plaintiffs' rights [is] a question of fact.”  (Internal quotation marks omitted.)   Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003).

“A cause of action claiming wanton and reckless misconduct is separate and distinct from a cause of action alleging negligence.”  (Internal quotation marks omitted.)  Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 513, 603 A.2d 1173 (1992).  “Simply using the word ‘reckless' or ‘recklessness' is not enough.   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, 139 A.2d 58 (1958).  “A cause of action in recklessness may be sufficiently alleged upon the same facts that would support a cause of action in negligence provided the allegations are independently sufficient to support a cause of action in recklessness.”  (Internal quotation marks omitted.)   Bogazis v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0519859 (October 7, 2003, Robinson, J.) [35 Conn. L. Rptr. 597].   In the present case, the plaintiff has not alleged facts which show a design to injure.   The plaintiff, however, has pleaded facts indicating that a conscious decision was made by the defendant to disregard a substantial risk that he knew, or should have known, presented a high degree of danger and which represents a highly unreasonable departure from an ordinary standard of care.   Intentional conduct designed to injure represents a higher standard which, if alleged, is sufficient to make out a claim for recklessness, but is not required under the lower “conscious disregard” standard approved by our courts.   Wilful misconduct is not a necessary prerequisite to a recklessness claim.   The failure to plead facts which show a design to injure is not fatal to the plaintiff's recklessness count.

Paragraphs 15(c), (d) and (e) of count two allege that the defendant acted deliberately in failing to provide safety precautions or follow proper protocols, procedures or policies while engaging in the process of felling a tree.   Black's Law Dictionary (6th Ed.1990) defines “deliberation” as “[t]he act of weighing and examining the reasons for and against a contemplated act or course of conduct or a choice of acts or means.”   The allegation that the defendant acted deliberately indicates that the defendant considered the potential danger and safety concerns of others and consciously chose to disregard them.   The facts alleged in count two of the plaintiff's complaint are sufficient to maintain a cause of action for recklessness.

II

As to count three, the defendant argues that the plaintiff failed to state a cause of action for nuisance because she did not allege that the danger created by the defendant's actions was continuing in nature as opposed to a single act of cutting a tree.   In response, the plaintiff counters that the defendant's actions violated General Statutes § 19a–335 ³ and, therefore, the requirement that the danger be continuing in nature is circumvented by the express language of the statute.⁴

“This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action:  (1) the condition complained of had a natural tendency to create danger and inflict injury upon 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 plaintiffs' injuries and damages.”  (Internal quotation marks omitted.)

Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).  “[T]he danger created must have been a continuing one, as opposed to a single act.”   (Internal quotation marks omitted.)  Kostyal v. Cass, 163 Conn. 92, 100, 302 A.2d 121 (1972).  “The essential element of nuisance is a continuing inherent or natural tendency to create danger and inflict injury.”  (Emphasis added.)   Cyr v. Brookfield, 153 Conn. 261, 264, 216 A.2d 198 (1965).

Section 19a–335 provides in relevant part:  “If any person places anything, or permits anything to remain, in a highway, or digs up the ground therein, by which the passage of travelers is obstructed or endangered or the highway encumbered, the same shall be a common nuisance ․” “The fact that [§ 19a–335] supplies a definition or standard does not convert the claim into one brought under the statute;  rather, the claim in nuisance arises at common law, and the statute merely permits the legal conclusion that certain conduct constitutes a nuisance.”   Voss v. Bozzi, Superior court, judicial district of New Haven, Docket No. CV 95 0373882 (September 13, 1995, Hodgson, J.) (15 Conn. L. Rptr. 37, 38).   Nevertheless, even where a claim for public nuisance is brought under § 19a–335, Connecticut courts have applied the four requirements for bringing a claim for common-law nuisance and have viewed a violation of the statute as satisfying the requirement that the use of land be unlawful.   See Malin v. Connecticut Zoological Society, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 044002258 (April 3, 2007, Robinson, J.).

The plaintiff's complaint alleges a common-law action for nuisance and not a statutory cause of action under § 19a–335.   The fact that the plaintiff argues that § 19a–335 was violated does not convert her common-law cause of action for nuisance into a statutory cause of action under the same name.   Therefore, the plaintiff is still required to allege facts which support a condition which creates a continuing danger.   Even assuming arguendo that the claim is brought under § 19a–335, the plaintiff would still be required to allege facts which either directly or impliedly point to a continuing nature of the condition which creates the danger as in Malin.   The plaintiff has not alleged any facts which could be construed as supporting the conclusion that the danger created was continuing in nature.   Rather, the complaint alleges that at particular time a tree limb fell on the roadway striking the plaintiff's car.   The plaintiff's complaint fails to allege the necessary elements of a cause of action for nuisance.

CONCLUSION

For the foregoing reasons the defendant's motion to strike is denied as to count two of the complaint and granted as to count three of the complaint.

GENUARIO, J.

FOOTNOTES

FN1. The defendant also moves to strike counts two and three on the ground that both counts fail to state a cause of action for an ultra-hazardous activity.   The plaintiff, however, has responded that she is only alleging recklessness and nuisance as causes of action.   Furthermore, “the proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites.”  (Citation omitted.)  Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988)..  FN1. The defendant also moves to strike counts two and three on the ground that both counts fail to state a cause of action for an ultra-hazardous activity.   The plaintiff, however, has responded that she is only alleging recklessness and nuisance as causes of action.   Furthermore, “the proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites.”  (Citation omitted.)  Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).

FN2. The defendant also argues that count two fails to state a cause of action because the felling of a large tree is not an inherently dangerous activity requiring special training and equipment.   In the context of recklessness, this argument is not dispositive to the issue of whether the defendant's actions amount to reckless conduct.   The defendant cites numerous cases holding that wood cutting and other similar activities do not constitute an inherently dangerous activity, however, the cases cited only discuss the nature of those activities with regard to strict liability as the underlying claim.   Common-law recklessness, on the other hand, does not require a showing that the activity engaged in was inherently dangerous.   See Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003).   Furthermore, at short calendar, the plaintiff stated that she is only alleging recklessness and not an ultra hazardous condition in count two..  FN2. The defendant also argues that count two fails to state a cause of action because the felling of a large tree is not an inherently dangerous activity requiring special training and equipment.   In the context of recklessness, this argument is not dispositive to the issue of whether the defendant's actions amount to reckless conduct.   The defendant cites numerous cases holding that wood cutting and other similar activities do not constitute an inherently dangerous activity, however, the cases cited only discuss the nature of those activities with regard to strict liability as the underlying claim.   Common-law recklessness, on the other hand, does not require a showing that the activity engaged in was inherently dangerous.   See Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003).   Furthermore, at short calendar, the plaintiff stated that she is only alleging recklessness and not an ultra hazardous condition in count two.

FN3. Although the plaintiff's response to the defendant's motion to strike cites a violation of § 19a–335, the plaintiff has not pleaded a violation of this statute as a basis for a cause of action in nuisance nor makes any mention of the statute in her complaint.   See Practice Book § 10–3(a)..  FN3. Although the plaintiff's response to the defendant's motion to strike cites a violation of § 19a–335, the plaintiff has not pleaded a violation of this statute as a basis for a cause of action in nuisance nor makes any mention of the statute in her complaint.   See Practice Book § 10–3(a).

FN4. The plaintiff also argues that an unreasonable obstruction in a public roadway is a nuisance and consequently does not need to meet the standard for a nuisance claim as outlined by the courts.   The plaintiff cites Yale University v. New Haven, 104 Conn. 610, 621, 134 A. 268 (1926), for the proposition that an “unauthorized obstruction in a highway unreasonably interfering with the lawful use of a highway is a public nuisance at common law.”   The plaintiff also cites State v. Merrit, 35 Conn. 314, 316–17 (1868), for the proposition that placing an obstruction within the limits of a highway is a nuisance.   The courts in Yale University and Merrit, however, do not address any of the modern requirements for a cause of action in nuisance as those requirements have been expressed and settled by the courts after those opinions were rendered..  FN4. The plaintiff also argues that an unreasonable obstruction in a public roadway is a nuisance and consequently does not need to meet the standard for a nuisance claim as outlined by the courts.   The plaintiff cites Yale University v. New Haven, 104 Conn. 610, 621, 134 A. 268 (1926), for the proposition that an “unauthorized obstruction in a highway unreasonably interfering with the lawful use of a highway is a public nuisance at common law.”   The plaintiff also cites State v. Merrit, 35 Conn. 314, 316–17 (1868), for the proposition that placing an obstruction within the limits of a highway is a nuisance.   The courts in Yale University and Merrit, however, do not address any of the modern requirements for a cause of action in nuisance as those requirements have been expressed and settled by the courts after those opinions were rendered.

Genuario, Robert L., J.