Arnaldo Cortes v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE SECOND COUNT

I. INTRODUCTION AND FACTUAL BACKGROUND

Pursuant to Connecticut Practice Book Section 10–39, 36 seq., the defendant, Westport Fish and Poultry Market, LLC (“defendant” or “Westport Fish”), has filed a motion to strike the Second Count of the plaintiff's complaint which asserts a public nuisance claim.   In his complaint the plaintiff claims to have been injured when he fell in the parking lot of the premises occupied by Westport Fish located at 732 Post Road, Westport, Connecticut.   Westport Fish maintains that the Second Count is legally insufficient because it fails to assert facts necessary to state a claim for public nuisance because the plaintiff was not injured while exercising a right that constitutes a right enjoyed by citizens as part of the public.

II. STATEMENT OF FACTS

In his complaint, the plaintiff, Arnaldo Cortes alleges three counts, including:  1) negligence against Westport Fish;  2) nuisance against Westport Fish;  and 3) negligence against the Town of Westport.   For the purpose of this motion the court accepts the following relevant facts as alleged by the plaintiff.   The defendant, Westport Fish, was in possession and control of the premises located at 732 Post Road, Westport, Connecticut, and was charged with the duty to keep and maintain the premises in a safe condition.   On November 2, 2011 the plaintiff, Arnaldo Cortes, was walking outside in the rear parking lot of the premises at 732 Post Road, Westport, Connecticut when he fell to the ground due to an open manhole cover in the rear parking lot at the premises.   As a result of the fall, the plaintiff claims he was injured.

In Count Two of the complaint, the plaintiff alleges that his injuries were the result of a nuisance created by the defendant in the following ways:

a.  In that it allowed the manhole in the rear parking lot of their premises to become uncovered, which constituted a defective condition, which condition was created by the defendant and had the natural tendency to inflict injury upon the public including the plaintiff, on the above described premises;

b. The herein described defective condition was a continuing danger created by the defendant;

c. The use of the above described premises permitted by the defendant was unreasonable and unlawful.

III. APPLICABLE LAW

The purpose of a motion to strike is to challenge the legal sufficiency of the complaint.  Conn. Prac. Book § 10–39;  Fort Trumbull Conservancy, LLC v. AIves, 262 Conn. 480, 498 (2003);  Novametrix Med. Sys. v. BOC Group, Inc., 224 Conn. 210, 214 (1992).   In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.  Faulkner v. United Techs.   Corp., 240 Conn. 576, 580 (1997).   Although the court must construe the allegations in the complaint in the manner most favorable to sustain its legal sufficiency, to maintain its claim, a plaintiff nevertheless, must plead “with particularity to allow evaluation of the legal theory upon which the claim is based.”  S.M.S. Textile Mills Inc. v. Brown, Jacobson, Tilinghast, Lahan & King, PC, 32 Conn.App. 786, 797, cert. den'd, 228 Conn. 903 (1993).   A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.  Novametrix, 224 Conn. at 215.

Westport Fish argues that the plaintiff's claim of nuisance in Count Two of the complaint should be stricken as the plaintiff was not injured while exercising a right that constitutes a public right enjoyed by citizens as part of the public.   To recover on a nuisance action, a plaintiff must prove that “(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 [plaintiff's] injuries and damage.”  Tomasso Brothers, Inc. v. October Twenty–Four, Inc., 221 Conn. 194, 197 (1992), aff'd, 230 Conn. 641, 646 (1994).   To successfully assert a nuisance claim in Connecticut, a plaintiff's complaint must contain facts supporting each of the essential elements of either a public or private nuisance.  Ayala v. B & B Realty Co., 32 Conn.Sup. 58 (Super.Ct.1974).

Where, as in this case, the plaintiff alleges a claim for public nuisance, he must further establish “that the condition or conduct complained of interfered with a right common to the general public ․” as a necessary element of his claim Doe v. Manheimer, 212 Conn. 748, 755–56 n.4 (1989).   Nuisances are public where they “violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ․ If the annoyance is one that is common to the public generally, then it is a public nuisance ․ The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.   A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.”  Couture v. Board of Education, 6 Conn.App. 309, 314–15 (1986), quoting Nolan v. New Britain, 69 Conn. 668, 678 (1897).

When the property in question is privately owned, yet it is held open to the public,”[o]ne who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant;  and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance.”  Webel v. Yale University, 125 Conn. 515, 524–25 (1939) (emphasis added).

The property where the plaintiff claims to have been injured in this case, specifically, the subject manhole, is located in the rear area of a privately owned business.   The defendant Westport Fish operates a retail business selling fish to the general public and, as such, is open to business invitees.   The fact members of the public enter upon property to conduct business does not, under any interpretation of the law transform private property to a public use.   Additionally, the fact that any person may enter upon private property which is open to the public does not create a public right.

Plaintiff's argument would eliminate the distinction between private property and property held for public use.   The cases upon which plaintiff relies in opposition to the motion to strike involve public property specifically dedicated to use by the general public or public utilities.   See, e.g., Duncan v. Groton, CV 565060 (August 3, 2004, Martin, J.), State v. Tippetts, Abbett, Mccarthy, Stratton, 204 Conn. 177 (1987).   In Couture v. Board of Education, 6 Conn.App. 309 (1986), the Appellate Court upheld the trial court's grant of a directed verdict on the plaintiff's public nuisance count concluding that at the time he was injured, the plaintiff was not exercising any right he held as a member of the general public.  “To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several ․” Prosser, Torts (3d Ed.) p. 606.  Colon v. Farmington, 29 Conn.Sup. 230, 231, 280 A.2d 896 (1971).

Plaintiff states that his claim for recovery is based on his particular position in relation to Westport Fish. Plaintiff's position in relation to Westport Fish was an invitee on private property which offered goods for sale to the public.   As indicated by the above cases, he was not exercising a right common to the general public.   Although any member of the public could enter upon the property, this was due to its commercial nature, not as a right enjoyed by citizens as part of the public, such as a municipal parking garage, school, skating, swimming or other public recreation facility, a public highway or bridge, etc.   Thus, although plaintiff relies on the “functional” test citing State v. Tippetts, Abbett, McCarthy, Stratton, 204 Conn. 177 (1987).

This case is not unlike Smith v. Monitor Management, in which the plaintiff alleged that she tripped and fell over a wrinkled area rug as she entered a shopping mall.   FBT–CV90–272186–S, 1991 Conn.Super., 1991 WL 27998 (Jan. 9, 1991) (Ballen, J.) [3 Conn. L. Rptr. 167].   In this case, cited by Westport Fish, the court held that plaintiff Smith “failed to allege facts and is unable to demonstrate that she was entering the shopping mall as a matter of public right or that the condition complained of interfered with a right common to the general public or that the ․ [m]all was public property.”  Id. at *2. The court reasoned:  “As a patron, the plaintiff was an invitee while in the defendant's establishment.   While members of the general public were unquestionably welcome to enter the [mall], and even solicited to do so, nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public.   The public was invited to enter, but there was no public right to do so, and the defendant's establishment was not a public place where the public had a right to be.   The plaintiff was not in the exercise of any public right while on the defendant's premises, and [she] cannot base [her] right to recover upon the existence of a public nuisance.”  Id.

The plaintiff here slipped and fell in the rear parking lot of defendant's business premises, facts similar to Anzellotti v. National Amusements, HHB–CV95–0546129–S, 1996 Conn.Super., 1996 WL 107036 (Feb. 20, 1996) (Hennessey, J.).   In that case the court granted a motion to strike a nuisance count where the plaintiff fell in the parking lot of a movie theater, holding that even though the theatre invited the general public to enter, the plaintiff was not exercising a public right by visiting the theatre.   It is thus clear under the law of this state that although the general public is invited to enter upon property, when they do so they are not exercising a public right.

Further, Connecticut courts have consistently held that a person who enters premises at the express or implied consent of a tenant or owner does not enter the premises in the exercise of a public right.  Hoffman v. Mohican Co., 136 Conn. 392 (plaintiff slipped and fell in the defendant's store);  D'Auria v. Toys “R” Us Inc., NNH–CV96–0391291–S, 1996 Conn.Super., 1996 WL 737485 (Dec. 11, (Devlin, J.);   Silveira v. Scheetz, KNL–CV00–549441–S, 2000 Conn.Super., 2000 WL 1429496 (Sept. 15, 2000) (Hurley, J.T.R.) [28 Conn. L. Rptr. 170] (plaintiff tripped and fell in a parking lot leased by the defendants);  Czark v. Westland Properties, Inc., FBT–CV00–0379394–S, 2001 Conn.Super., 2001 WL 835500 (Jul. 3, 2001) (Hauser, J.) (plaintiff slipped and fell in the defendant's shopping mall).

These decisions follow the analysis of the court in Webel v. Yale University, 125 Conn. 515 (1930), that “[o]ne who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant;  and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance.”  Id. at 524–25 (emphasis added).   Regardless of whether the defendant is a tenant or an owner of the subject premises, Connecticut courts have consistently held that a person who enters premises at the express or implied invitation of a tenant or owner is not exercising a public right, and, if injured, cannot base his right to recover upon the existence of a public nuisance.   See Zitzer, 1997 Conn.Super. at 1.

Indeed, the plaintiff alleges in Count 2, paragraph 5a of his complaint that he is a member of the public and in Count 1 that the property in question is privately owned.   As the relevant case law unambiguously demonstrates, the plaintiff here cannot base his right to recover upon the existence of a public nuisance when he was a visitor on private property, even if he is a member of the public.   Though the plaintiff, as a member of the public, was unquestionably welcome to enter the defendant's premises, he, like other members of the public, did not have a public right to do so as our courts have defined it.   The plaintiff's assertion that he was a member of the public does not change the underlying fact that the defendant's premises was privately owned.

Additionally, the plaintiff failed to allege in his complaint that he was injured while exercising a public right.   This is a further defect which is sufficient to subject Count 2 to being stricken.   See Doe v. Manheimer, 212 Conn. at 755–56, n.4.

CONCLUSION

The court therefore finds that the plaintiff has failed to plead a legally sufficient claim for public nuisance against the defendant Westport Fish and Poultry Market, LLC and accordingly, grants the motion to strike the second count.

SOMMER, J.

Sommer, Mary E., J.