James Hummel et al. v. Brian Elliot et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 114

On January 17, 2013, subsequent to this court's rulings on a prior motion to strike,¹ the plaintiffs, James and Carol Hummel, filed a six-count amended complaint against the defendants, Brian and Victoria Elliot.   In count three, which asserts a claim for private nuisance, the plaintiffs make the following allegations.   The plaintiffs own and reside on certain real property which is adjacent to and bounded on the east by certain real property belonging to and resided on by the defendants.   On or about May 9, 2011, the defendants requested that the plaintiffs allow them to remove the existing fence between the two properties so that the defendants could install a pool in their backyard and on the understanding that the fence would be reinstalled in the same location within three days of its removal.   The defendants intentionally and unreasonably authorized the construction of a number of sections of this replacement fence in a location which includes their own property.   This portion of the fence interferes with and has caused the plaintiffs substantial difficulty in using their own garage and driveway.   The defendants could have easily constructed the fence in a location which met their needs without unnecessarily burdening the plaintiffs' use and enjoyment of their property.   Consequently, the defendants' actions were the proximate cause of an unreasonable interference with and invasion of the plaintiffs' ownership, use, and enjoyment of their property, and this interference was intentional, substantial, and unreasonable.

On March 1, 2012, the defendants filed a motion to strike the third count of the amended complaint on the ground that, under the standards articulated in Petsey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002), their alleged behavior in erecting a fence on their own land could not, as a matter of law, constitute a substantial and unreasonable interference with the plaintiffs' use of their property.   They submitted a memorandum of law in support of their motion.   On March 27, 2013, the plaintiffs filed their objection to the motion to strike and a memorandum of law in support of their objection.   The court heard argument at short calendar on August 12, 2013.

“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   This court “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).  “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).   The motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Id., 588.

In the present case, the defendants argue that the behavior alleged in the amended complaint specifically, their construction of a fence around their in-ground pool to create a boundary and prevent children from entering the pool on their property cannot reach the level of interference required by law.   They premise this contention on the arguments that the construction of the fence was a reasonable use of their property and that, because the defendants located the fence on their own property, the plaintiffs have failed to allege facts which could show and cannot show that the interference was unreasonable.   The plaintiffs assert two counterarguments to the defendants' positions.   First, the plaintiffs argue that the defendants have impermissibly attempted to use a motion to strike to address a question of fact.   Second, under the recognized principles governing motions to strike and claims for private nuisances, the plaintiffs contend they have sufficiently alleged a cause of action for private nuisance.

“A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land ․ The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ․ The essence of a private nuisance is an interference with the use and enjoyment of land.”  (Citations omitted;  internal quotation marks omitted.)  Petsey v. Cushman, supra, 259 Conn. 352.

“[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property.   The interference may be either intentional ․ or the result of the defendant's negligence ․ Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case.   In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other actors that the fact finder deems relevant to the question of whether the interference is unreasonable.   No one factor should dominate this balancing of interests;  all relevant factors must be considered in determining whether the interference is unreasonable.”  (Citations omitted.)  Id., 361.

“The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society.   There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference.   Accordingly, the interference must be substantial to be unreasonable.”  Id. “Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.”  Id., 362.

In the present case, the defendants are mistaken when they say that the plaintiffs have only pleaded a legal conclusion without providing adequate factual support.   In paragraph five of count three as originally pleaded, the plaintiffs have alleged that the defendants, in reconstructing the removed fence, placed it in such a location on their property as to cause substantial difficulty to the plaintiffs in the use of their garage and their driveway.   They have also pleaded in paragraph seven of the third count that the defendants could have easily located the fence in a location that did not unnecessarily interfere with and invade the plaintiffs' ownership and enjoyment of their property.   Applying the balancing test articulated by the court in Petsey and viewing the allegations in the light most favorable to the plaintiffs, a reasonable fact finder could find that the defendants' conduct was the proximate cause of an unreasonable interference with the plaintiffs' use and enjoyment of their property.

For the foregoing reasons, the motion to strike count three is denied.

The Court

John W. Moran, J.T.R.

FOOTNOTES

FN1. The court granted in part and denied in part the defendants' motion to strike in its January 4, 2013 memorandum of decision [55 Conn. L. Rptr. 307]..  FN1. The court granted in part and denied in part the defendants' motion to strike in its January 4, 2013 memorandum of decision [55 Conn. L. Rptr. 307].

Moran, John W., J.T.R.