Cynthia Colangelo et al. v. Bay View Improvement Ass'n (2013)

MEMORANDUM OF DECISION ON MOTION TO STRIKE # 106

ISSUE

The defendant moves the court to strike all counts of the complaint because:

(1) illegal fireworks displays are not, as a matter of law, an ultrahazardous activity imposing strict liability under Connecticut law;

(2) the allegations of the complaint are legally insufficient to state a cause of action based on premises liability;  and/or

(3) plaintiffs' claims are barred by General Statutes § 52–557g because the land where the plaintiffs were injured was being used for recreational purposes.

FACTS

In their six-count complaint, the plaintiffs allege the following facts.   On July 4, 2011, the defendant owned, possessed and/or controlled Bayview Beach, a private beach accessible only to defendant's residents and their guests, in Milford, Connecticut, paragraphs 1 and 3 of all counts.   The defendant promoted and allowed its residents and their guests to ignite fireworks on Bayview Beach on July 4th of each year, paragraph 4 of all counts.   On July 4, 2011, the plaintiffs were at Bayview Beach to watch the fireworks display “as guests and/or business invitees of a resident(.),” paragraph 5 of all counts.   A “resident, guest, member agent, servant and/or employee of the defendant ignited a firework that went straight into the crowd, striking the plaintiffs and detonating on their bodies resulting in serious injuries(.),” paragraph 6 of all counts.

Each plaintiff alleges negligence in counts one and two, recklessness in counts three and four and strict liability in counts five and six.   In their negligence claims, paragraph 7 of counts 1 and 2, the plaintiffs allege that the defendant (1) promoted, allowed, and permitted illegal fireworks to be ignited on its property despite the risk of serious injury to the plaintiffs;  (2) knew, or in the exercise of reasonable care should have known, the illegal fireworks were being ignited by persons who were not properly trained in explosives;  (3) knew or should have known fireworks were being ignited from multiple locations on its property in direct contact with persons on the beach and were simply placed in the sand, creating an increased risk;  (4) failed to warn the plaintiffs that the fireworks were being ignited by persons not trained in explosives;  and (5) failed to provide security or supervision to ensure the safety of the plaintiffs, despite its duty to do so as the owner of the property.

In their recklessness claims, the plaintiffs allege that the defendant knowingly put the plaintiffs' safety at risk by allowing illegal fireworks to be ignited in close proximity to the plaintiffs by persons who had no training in the handling or igniting of fireworks.

In their strict liability claims, the plaintiffs allege that the “promotion and allowance of illegal fireworks displays is an ultrahazardous activity,” plaintiffs were injured as a proximate result of such activity and, therefore, the defendant is strictly liable for the harm the plaintiffs suffered.¹

On June 13, 2013, the defendant filed a motion to strike counts five and six for failure to state a legally sufficient cause of action for strict liability arising out of an ultrahazardous activity, and, for two additional reasons, to strike all counts.   The defendant attached a memorandum in support of its position.   On July 29, 2013, the plaintiffs filed an objection to the defendant's motion to strike and filed a memorandum of law in support of their objection the following day.²  Finally, on September 3, 2013, the defendant filed a reply brief in further support of its motion to strike.   The matter was heard at short calendar on September 3, 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, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).  “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 ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action ․” (Citations omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).   Nevertheless, a 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.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 588.

A

Strict Liability

The defendant moves to strike counts five and six on the ground that strict liability does not apply in this case, as the allegation of an ‘illegal fireworks displays' is not an ultrahazardous activity as a matter of Connecticut law.   Counts five and six are pleaded on the doctrine of strict liability imposed on persons who engage in what the FIRST RESTATEMENT refers to as “ultrahazardous activity,” RESTATEMENT (FIRST) OF TORTS § 520 (1938), and the SECOND RESTATEMENT terms “abnormally dangerous activity,” RESTATEMENT (SECOND) OF TORTS § 520 (1977).   Our Appellate Court has adopted the “abnormally dangerous activity” language, and standard, of the SECOND RESTATEMENT, and though the parties in the instant case adopt the language of the FIRST RESTATEMENT, this court will embrace the language and standard of the SECOND RESTATEMENT.   In addition, the defendant contends that the plaintiffs fail to allege facts that would support a conclusion that the circumstances were such that they were necessarily or obviously exposed to the danger of a probable injury.   The plaintiffs counter that, although there is a split of authority in other jurisdictions whether legal displays of fireworks may be an ultrahazardous activity, no Connecticut appellate court has addressed the issue as to whether illegal fireworks displays may be an abnormally dangerous activity or an ultrahazardous activity, but one Connecticut trial court denied a motion to strike the claim that illegal fireworks displays may be an ultrahazardous activity.

Strict liability imposes legal responsibility without regard to fault.  “To impose liability without fault, certain factors must be present:  an instrumentality capable of producing harm;  circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others;  and a causal relation between the activity and the injury for which damages are claimed.”   Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961).   Thus, a plaintiff must allege not only “that a dangerous instrumentality was used but [also] that it was used under such circumstances and conditions as necessarily and obviously to expose the person or property of another to probable injury even though due care was taken.”  Id., 83–84.   “The issue of whether an activity is [u]trahazardous] ․ is a question of law for a court to decide.”  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 485, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).

“The courts in Connecticut and other jurisdictions which recognize the doctrine of strict liability for dangerous activities, impose it only in narrow circumstances.   Typically, it has been found applicable when an activity, not regularly engaged in by the general public, is conducted in or near a heavily populated area, such that it necessarily subjects vast numbers of persons to potentially serious injury in the event of a mishap.”  Levenstein v. Yale University, 40 Conn.Sup. 123, 126, 482 A.2d 724 (1984).  “In Connecticut, the ultrahazardous activity doctrine has been applied only sparingly.   It has traditionally been applied in cases involving blasting and explosives ․ Our appellate courts have extended application of the doctrine beyond blasting in cases of damage from concussion resulting from pile driving ․ and injury caused by explosion resulting from experimenting with highly volatile chemicals.”  (Citations omitted.)   Rokicki v. Putnam Fish & Game Club, Inc., Superior Court, judicial district of Windham, Docket No. CV–11–6003596–S (May 21, 2012, Vacchelli, J.) [54 Conn. L. Rptr. 237].

Our Appellate Court directed “(T)he factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement 2nd as:  ‘(a) existence of a high degree of risk of some harm to the person, land or chattels of others;  (b) likelihood that the harm that results from it will be great;  (c) inability to eliminate the risk by the exercise of reasonable care;  (d) extent to which the activity is not a matter of common usage;  (e) inappropriateness of the activity to the place where it is carried on;  and (f) extent to which its value to the community is outweighed by its dangerous attributes.’  “ Green v. Ensign–Bickford Co., supra, 25 Conn.App. 486.³  “[C]omment (f) of § 520 clearly states that all of the factors need not be present for an activity to be considered abnormally dangerous.”  Id.;  see also 3 Restatement (Second), Torts § 520, comment (f), pp. 37–38 (1977).   Comment (f) also states, that “[a]ny one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability.   On the other hand it is not necessary that each of them be present, especially if others weigh heavily.”   (Emphasis omitted.)  Green v. Ensign–Bickford, Co., supra, 486.

Lipka v. DiLungo, Superior Court, judicial district of New Haven, Docket No. CV–98–407399–S (March 8, 2000, Blue, J.) [26 Conn. L. Rptr. 654], is the only Connecticut case addressing whether the allegation of illegal fireworks displays states a legally sufficient cause of action.⁴  In Lipka, supra, the court analyzed each of the Restatement Second, § 520 factors in the context of ruling on the defendant's motion to strike the plaintiff's cause of action for strict liability.   The court adopts the reasoning of Lipka in this matter.

In discussing the first factor, the existence of a high degree of risk of some harm, the Lipka court stated that “[e]ven jurists opposing the imposition of strict liability with respect to lawful fireworks displays have acknowledged that such displays satisfy this factor.”  Id. The Lipka court found the second factor, the likelihood that the resulting harm will be great, satisfied as well because “fireworks are capable of causing extremely serious injuries.”  Id. Factor three addresses the inability to eliminate the risk by the exercise of due care.   The Lipka court, noting the legislative efforts prohibiting illegal fireworks displays and highly regulating all legal fireworks displays, concluded that, even with due care, an unavoidable risk of harm remains even in the case of legal displays of modern fireworks, but the risk of harm inevitably increases with the unlawful or illegal fireworks displays.   Therefore, the Lipka court found that the first three factors of Restatement Second, § 520, were satisfied.   The court only considered common usage, addressed in factor four, to the extent of stating that, although the illegal fireworks displays are common, it would be “anomalous for the law to condone common illegal activity simply because it is common.”  Id. The Lipka court did not consider factor five, the inappropriateness of the activity to the place where it is carried on, because the complaint did not state facts sufficient to address it, however this court notes that in General Statutes § 29–357(b) the legislature delegates the issuance of permits to the State Fire Marshal's Office after the site is inspected and approved by the local fire marshal and approval by both the police and fire chiefs or other controlling local authorities.   The Lipka court determined that factor six, the value to the community, was satisfied because the legislature determined, by enacting § 29–357, that “the value of unlawful displays [of fireworks] is outweighed by their dangerousness.” ⁵

After analyzing the factors and concluding that four of the six were satisfied, the court decided that “the plaintiff had appropriately stated a case of strict liability in tort,” and denied the defendant's motion to strike.  Id.

This court finds the logic and reasoning of the Lipka is persuasive.   The allegations of an illegal fireworks display in this complaint are legally sufficient to state a cause of action arising out of an abnormally dangerous activity or an ultrahazardous activity which, if proved, imposes strict liability on the defendant for harm proximately caused to the plaintiffs.   The court declines to rule that, as a matter of law, that allegations of illegal fireworks displays cannot state a legally sufficient cause of action for strict liability based on abnormally dangerous activity or ultrahazardous activity standards.

Following the analysis provided by the court in Lipka, the plaintiffs have sufficiently alleged a cause of action sounding in strict liability in tort.   Accordingly, the court denies the defendant's motion to strike counts five and six of the complaint.

B

Plaintiffs' Alleged Status as Business Invitees

The defendant moves to strike the entire complaint on the ground that the plaintiffs were, at most, licensees at Bayview Beach and not invitees of the defendant.   According to the defendant, because the plaintiffs, as licensees, have failed to allege any facts demonstrating that their presence was known to the defendant, or that they were unaware of the activity that caused them injury, the defendant did not owe them a duty of care.   The plaintiffs contend that because they've alleged that they were social guests of a resident condominium owner, they were social invitees who were owed a duty of care due to a business invitee.   This duty includes “not only a duty to keep the premises in reasonably safe condition, but a duty to protect the invitees from dangers which might reasonably be anticipated to arise from activities taking place on the premises.

“In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee ․ A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ․ The duty that a ․ [possessor of land] owes to a licensee, [however,] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them.”   (Citations omitted;  internal quotation marks omitted.)  Morin v. Bell Court Condominium Ass'n, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).  “Invitees fall into certain general categories.   A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land ․ Section 52–557a of the General Statutes, which provides that ‘[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee,’ in effect recognizes a third kind of invitee, namely, the social invitee.   The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land to enter the land or remain on the land.   Although an invitation in itself does not establish the status of an invitee, it is essential to it.   Mere permission, as distinguished from an invitation, is sufficient to make the visitor a licensee but it does not make him an invitee.”  (Citations omitted;  internal quotation marks omitted.)  Cocoran v. Jacovino, 161 Conn. 462, 465–66, 290 A.2d 225 (1971), referring to 2 Restatement (Second), Torts § 332, p. 183 (1965).⁶

A unit owner's relationship with a condominium association has been analogized with a “tenant's relationship to a landlord with regard to the common areas, and that such a relationship involves the same duty of care as that owed to an invitee.”  Sevigny v. Dibble Hollow Condominium Ass'n, Inc, 76 Conn.App. 306, 322, 819 A.2d 844 (2003).   Moreover, this relationship has been extended to guests of unit owners in a number of superior court cases “since a social guest of a tenant is an invitee of the landlord when using common hallways or stairs.”  (Internal quotation marks omitted.)   Fermin v. Woodland Hills Condominium # 1, Inc., Superior Court, judicial district of New Haven, Docket No. CV–02–0459882–S (March 29, 2007, Skolnick, J.T.R.).   See Perkins v. Hill Condominium Ass'n, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–03–0401894–S (April 13, 2005, Skolnick, J.);   Falcon v. Deerfield Woods Condominiums Ass'n, Superior Court, judicial district of New Haven, Docket No. CV–98–0418521–S (December 19, 2000, Zoarski, J.).

In the present case, the plaintiffs allege that they were “guests and/or business invitees of a resident,” and that they were injured while they were on a beach on the property, which, it may be inferred for purposes of this motion, was a common area on the premises.   By alleging that they were “guests” of a condominium unit owner, as a result of which, they gained access to the beach, they have sufficiently alleged that they may be considered invitees to which the defendant owed a specific duty of care.   Accordingly, the court denies the defendant's motion to strike the entire complaint on the ground that the plaintiffs failed to allege sufficient facts to show that the defendant owed them a duty of care as licensees.

C

Recreational Use Statute (General Statutes § 52–557g)

The defendant argues the court should strike the entire complaint on the ground that the plaintiffs' claims are barred by General Statutes § 52–557g, which is known as the “recreational use statute.”   The defendant argues that § 52–557g provides it with immunity and bars the plaintiffs' claims.   The plaintiffs disagree and maintain that in order to qualify for immunity under the statute, the defendant must prove, inter alia, that it made its property available to the public for recreational use without charge, rent, or fee.   Because the complaint does not contain such allegations, but rather alleges that Bayview Beach is a private beach only open to residents and their guests, the plaintiffs claim that the defendant's argument fails in the context of its motion.

Section 52–557g(a) states, in relevant part, that “an owner of land who makes all or any part of the land available to the public without charge, rent, fee, or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.”   For the statute to apply, “the defendant must establish that it is the owner of land available to the public without charge for recreational purposes.”  Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 168, 508 A.2d 58 (1986).  “In essence, three separate prongs must be proven in order for a defendant to qualify for immunity under § 52–557g(a);  the defendant must:  (1) qualify as an owner;  and (2) all or part of the land must be available to the public free of charge;  and (3) the land must be available for recreational purposes.”   Alexson v. White Memorial Foundation, Inc., Superior Court, judicial district of Litchfield, Docket No. CV–07–5002299–S (March 5, 2008, Marano, J.) [45 Conn. L. Rptr. 122].

In the complaint in the present case, the plaintiffs allege that the defendant owned the property and that it “restricted access to Bayview Beach to its residents and their guests.”   They do not allege that the defendant allowed or invited members of the public to enter or use its property for free.   Taking the allegations in the light most favorable to the plaintiffs, as the court is required to do in deciding a motion to strike, they cannot be construed as alleging that the defendant's property is available to the public.   If the land is not available to the public, the statute will not provide immunity for the defendant.   The allegations in the complaint are sufficient to overcome the defendant's motion to strike on the ground that the claims are barred by § 52–557g.   Therefore, the court denies the defendant's motion to strike the entire complaint on this ground.

CONCLUSION

As explained above, the plaintiffs' complaint overcomes each of the grounds the defendant relies upon in its motion to strike.   Therefore, the court denies the defendant's motion to strike.

Zemetis, J.

FOOTNOTES

FN1. On August 28, 2013, Bayview Improvement Association filed an apportionment complaint against the second named defendant, Glen O'Neil.   Therein it alleges that if the plaintiffs were injured in the manner alleged in their complaint, their injuries were due to the negligence of O'Neil in that he, inter alia, ignited the illegal fireworks.   The term defendant, as used herein, refers to Bayview Improvement Association..  FN1. On August 28, 2013, Bayview Improvement Association filed an apportionment complaint against the second named defendant, Glen O'Neil.   Therein it alleges that if the plaintiffs were injured in the manner alleged in their complaint, their injuries were due to the negligence of O'Neil in that he, inter alia, ignited the illegal fireworks.   The term defendant, as used herein, refers to Bayview Improvement Association.

FN2. The plaintiffs originally filed a memorandum of law in support of their objection at the same time they filed their objection.   The plaintiffs subsequently requested to withdraw their memorandum and filed a new memorandum the following day..  FN2. The plaintiffs originally filed a memorandum of law in support of their objection at the same time they filed their objection.   The plaintiffs subsequently requested to withdraw their memorandum and filed a new memorandum the following day.

FN3. This issue is now addressed in § 20 of the Restatement (Third) of Torts, entitled “Abnormally Dangerous Activities,” which states, “(a) [a]n actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. (b) [a]n activity is abnormally dangerous if:  (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors;  and (2) the activity is not one of common usage.”   1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 20, p. 229 (2010)..  FN3. This issue is now addressed in § 20 of the Restatement (Third) of Torts, entitled “Abnormally Dangerous Activities,” which states, “(a) [a]n actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. (b) [a]n activity is abnormally dangerous if:  (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors;  and (2) the activity is not one of common usage.”   1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 20, p. 229 (2010).

FN4. The parties do not dispute the question of whether, as the plaintiffs allege, the fireworks display at issue was illegal.   As noted in footnote one, in the apportionment complaint, the defendant alleges that the apportionment defendant ignited illegal fireworks..  FN4. The parties do not dispute the question of whether, as the plaintiffs allege, the fireworks display at issue was illegal.   As noted in footnote one, in the apportionment complaint, the defendant alleges that the apportionment defendant ignited illegal fireworks.

FN5. General Statutes § 29–357 forbids the sale, use, and possession of fireworks, except as regulated and permitted by the State Fire Marshal.   The statute further provides that the state fire marshal shall adopt regulations for, among other things, the granting of permits for fireworks displays and shall not grant a permit unless the operator has a certificate of competency and financial responsibility to compensate for any harm caused.   A person who violates the statute may be charged with criminal offenses including misdemeanors or, in the event of death or injury resulting from such violation, a class C felony..  FN5. General Statutes § 29–357 forbids the sale, use, and possession of fireworks, except as regulated and permitted by the State Fire Marshal.   The statute further provides that the state fire marshal shall adopt regulations for, among other things, the granting of permits for fireworks displays and shall not grant a permit unless the operator has a certificate of competency and financial responsibility to compensate for any harm caused.   A person who violates the statute may be charged with criminal offenses including misdemeanors or, in the event of death or injury resulting from such violation, a class C felony.

FN6. These issues are addressed in §§ 49–51 of the Restatement (Third) of Torts.   2 Restatement (Third), Torts, Liability for Physical and Emotional Harm §§ 49–51, pp. 224–304 (2012)..  FN6. These issues are addressed in §§ 49–51 of the Restatement (Third) of Torts.   2 Restatement (Third), Torts, Liability for Physical and Emotional Harm §§ 49–51, pp. 224–304 (2012).

Zemetis, Terence A., J.