John Perry et al. v. Town of Putnam (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 107) and on OBJECTION TO MOTION TO STRIKE (# 110)

Plaintiffs sue the town of Putnam in a single-count complaint alleging a private nuisance on town property abutting their home.   They seek damages, injunctive relief, and such further equitable relief as the court deems just.   Defendant moves to strike their complaint, and the plaintiffs have objected to that motion.   The parties appeared before this court on February 10 and their arguments were fully heard.

Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder”;  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”;  Santorso v. Bristol Hospital, 308 Conn. 338, 349 (2013).

Plaintiffs claim that they live in Putnam on a homestead adjacent to a town-owned parking lot, and also contiguous with or at least in close proximity to a sports field connected to the parking lot.   They allege that unnamed persons use the parking lot for overnight parking, littering, motor vehicle storage and repair causing fluid leaks, overnight parking by trucks left running while the operators sleep in the cabs, inappropriate sexual activity, underage drinking, indecent exposure and public urination, illegal drug sales, overnight partying and boisterous behavior, dangerous driving, and parking vehicles with headlights illuminating plaintiffs' property.   The gravamen of this action is their claim that despite numerous requests on their part the town has taken inadequate steps to stop or alleviate the foregoing activities, and they specifically invoke General Statutes § 52–577n(a)(1)(C) as the source of a statutory duty depriving the town of its common-law immunity;  see, O'Connor v. Board of Educ. of Town of Wethersfield, 90 Conn.App. 59 (2005);  and allowing it to be held accountable if it creates or participates in the creation of a nuisance.   They further claim that the town's failure to enforce various town rules and regulations proscribing the conduct described implicates it as a creator or participant in the creation of the nuisance.

Aside from each party's citation of a few cases outlining motion to strike procedure generally, the parties have presented their substantive arguments as a choice between two cases.   The town relies upon the decision in Picco v. Voluntown, 295 Conn. 141 (2010).   The town of Voluntown owned an athletic field on which stood a white ash tree which was noticeably decaying.   Plaintiff was participating in school activities in the vicinity of the tree when a portion separated and struck her, causing serious injuries.   Her complaint among other charges alleged that the town had taken no action to remove the tree and hence was liable to her under § 52–577n(a)(1)(C) for creation of a nuisance.   The trial court had stricken this portion of plaintiff's complaint, on the basis that a failure to act is not equivalent to a positive act creating the nuisance, and that the statute expressly requires allegations and proof of the latter.   The Supreme Court affirmed.

Plaintiffs recognize the authority of Picco, but argue that it is distinguishable.   They rely upon the superior court decision in Coleman v. City of Stamford, 56 Conn. L. Rptr. 653 (2013;  Karazin, J.).   Plaintiff in that case claimed an injury resulting from a tree limb falling upon a child using a swing at a city-owned park.   The city moved for summary judgment citing Picco.   The court distinguished Picco in that the Coleman complaint alleged that the nuisance arose from the city's installation of the playground equipment too close to a tree which it knew was dangerous, and not merely from the tree's natural deficiency.   The “positive act” component of § 52–577n(a)(1)(C), it ruled, was met sufficiently by the city's alleged affirmative act of selecting that site upon which to install the equipment, and so the motion for summary judgment failed.

Each of these cases arose from a falling limb or other part of a tree, something aptly characterized as a “natural” circumstance.   The Picco decision noted the use of that very word in the complaint, and highlighted it to clarify that a defendant may only be sued under the statute if it “did something to cause”;  Picco, at 152 (emphasis in original);  the tree to decay or fall down.   An allegation that defendants knew or should have known of the dangerous propensities and that they unreasonably failed to act is insufficient.   The Coleman court clearly viewed the city's choice to site the playground equipment in an apparent zone of danger as an essential expression of a positive act permitting plaintiffs to survive summary judgment.

In the present case, a different species of dangerous or at least vexatious condition is alleged.   The plaintiffs complain of what reflects a hybrid of two man-made activities, the town's innocent construction of the parking lot, and its offensive use by unnamed third parties engaged in the behaviors recited in the complaint.   Likely anticipating a Picco challenge, plaintiffs took pains in drafting their complaint to steer clear of its impact by alleging that Putnam “created the nuisance,” “has taken specific actions which have allowed the nuisance activities to exist and continue,” and “continues to participate in the creation of the nuisance.”   Parsing their terminology, they literally allege that the town created the parking lot which is the locus of their complaints;  that the town enacted rules and regulations which, if enforced, arguably would abate the conditions they complain of, and that the town has failed to enforce those rules and regulations.   In their memorandum of law, they claim that discovery should be allowed to adduce proof that “the Town invited and welcomed non-residential parking on the Town Property by gravelling the area and affecting physical structures, thereby designating it as an area in which to park”;  p. 6;  which, though outside the four corners of the complaint, is an artful attempt to give further factual specificity to their claims.

In opposing the present motion they argue that by the use of these transitive verbs precisely tracking the statute they have sufficiently invoked its exceptions to the immunity which the town would have enjoyed at common law.   All of the above, however, is but a series of assertions that do not denote any active undertaking on the town's part to “create” or to participate in the creation of the “overnight parking, littering, motor vehicle storage and repair causing fluid leaks, overnight parking by trucks left running while the operators sleep in the cabs, inappropriate sexual activity, underage drinking, indecent exposure and public urination, illegal drug sales, overnight partying and boisterous behavior, dangerous driving, and vehicles parked with headlights illuminating plaintiffs' property” which are the acts comprising the nuisance.   The court will accept as provable that the parking lot was built by and remains owned by the town, and that the multiple nefarious activities complained of may have been observed to occur thereon in spite of local legislation.   The court finds fault with the plaintiffs' logic conflating the creation of a municipal improvement, of this or any other nature, with its abuse in the form of improper or illegal use of that improvement by unknown third persons.

Two recent decisions involving man-made rather than natural conditions shed further light on this subject.   Geanuracos v. Town of Farmington, Superior Court, judicial district of Hartford Docket No. CV 07 5013679 (2013;  Vacchelli, J.), involves a somewhat complicated fact pattern upon which plaintiffs filed a nuisance claim against the named town.   As owners of land adjacent to a town-owned parcel from which heating oil had leaked onto theirs, they pleaded that § 52–577n(a)(1)(C) supported their claim.   The court granted the town's motion to strike, since the overt act causing the discharge was that of third-party contractors not employed by the town.   Since the contractors were neither employees nor agents of the town, the town was not held accountable for their acts.   This was sufficient to overcome plaintiffs' claim under this statute.   Citing Picco, the court summarized its ruling in these words:  “[t]he town contends that the plaintiffs have failed to plead or show that the town caused the creation of the claimed nuisance, i.e., that the town caused the fuel leak on their property;  and that there is no evidence in the record to support such a claim.   The plaintiffs contend that the town was an active participant in the closure and abandonment of the UST system and that by completing its process without draining fuel oil from the system, it left in place a leaking fuel oil system that caused damage on the Geanuracos property ․ The acts identified by the plaintiffs as leading to the creation of the nuisance are omissions (failure to reasonably perform an act or omitting to take care in performing an act) rather than positive acts.   Allegations that municipal officials had knowledge of the situation, but failed or refused to address the problem are inadequate to state a claim for nuisance,” (emphasis added).

Also, in Rouleau v. Town of Suffield, Superior Court, judicial district of Hartford, Docket No. CV 06 5007179S (2013;  Sheridan, J.) [55 Conn. L. Rptr. 372], the absence of any allegation that the town's own acts produced the harm complained of—in this case, a drainage overflow from a culvert on town land—sufficed to allow the entry of a summary judgment in favor of the town.

Plaintiff may rightly point out that they have used a third verb here, in their claim that the town “allowed the nuisance activities to exist and continue.”   This is in essence a claim that the town has failed in the exercise of its police powers to protect law-abiding citizens from the predations of those less scrupulous.   In the Coleman case, the court noted favorably a pre-Picco ruling involving § 52–577n(a)(1)(C), Amex. Assurance v. New Britain, Superior Court, judicial district of New Britain Docket No. CV 05 500252 (May 16, 2006, Domnarski, J.).   The court there granted the city's motion for summary judgment against a plaintiff alleging that the city's failure to inspect and failure to abate a nuisance led to an injury to his car parked on private property adjacent to municipal land on which the nuisance stood (another rotting tree).   The crux of that decision was its holding, anticipating Picco, that neither a “failure to abate” a situation nor a mere “permissive continuation of the alleged unsafe condition” creates liability under the statute.   The Coleman case expressed its agreement with that conclusion as applied to the facts of the New Britain case.

Of further note is an early case under this statute, Maier v. Tracy, Superior Court, judicial district of Danbury, Docket No. 301766 (1993;  Fuller, J.) [8 Conn. L. Rptr. 418].   The court there struck several counts in a complaint claiming that the officials of the defendant town had committed a nuisance by failing to enforce the town's zoning ordinance's prohibition of land usage allegedly detrimental to plaintiffs property.   The court noted both that a “municipality is liable in nuisance only if the condition constituting a nuisance was created by the positive act of the municipality,” citing Wright v. Brown, 167 Conn. 464, 470 (1975) (dog warden's premature release from quarantine of a dog that had bitten another person satisfied the “positive act” requirement);  and that “[f]ailure to remedy a dangerous condition not of the municipality's own making is not the equivalent of the required positive act,” citing Brennan v. West Haven, 151 Conn. 689, 693 (1964) (jury ought to have been instructed that town was immune from nuisance liability for water pipe failure unless they found that town created the condition termed a nuisance by positive act).

The claim that a town “allowed the nuisance activities to exist and continue” has been held insufficient to support claims regarding natural conditions, by the Picco and Amex. Assurance courts;  and insufficient to support claims regarding conditions created by the negligence of non-town actors, by the Geanuracos and Roileau courts;  so ought there to be a different rule when the third-party activity complained of is criminal or quasi-criminal in character?   If anything, the intermittency of this behavior, the subjectivity involved in assessing how to respond to it, the balancing of town police resources to respond to this parcel rather than other areas of concern in town, are but three considerations suggesting that greater rather than less discretion ought to be accorded to municipal officials faced with this kind of situation than to those dealing with a rotting tree or a leaking fluid line.   To hold towns liable in damages and for equitable relief to citizens unhappy with how others use the town's property will swiftly inhibit the construction of any elective municipal improvement.

This court concludes that the statute's directive that a town may be held liable for a nuisance only if it has created or participated in the creation of that particular nuisance includes nuisances brought about by the unwelcome and unauthorized behavior on town property of persons not acting on behalf of the town.

Accordingly, the motion to strike is granted, and the objection thereto is overruled.

Boland, J.

Boland, John D., J.