Chrisandra Nails v. Oak Knoll Associates, L.P. et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 105.00

I. Facts

This case comes before the court as a motion to strike two counts of the complaint, which was filed on September 13, 2013.   Therein the plaintiff, Chrisandra Nails, alleged in relevant part as follows.   The defendants, Stanford Management, LLC, which maintains its principal place of business in the state of Maine and Oak Knoll Associates, LP with a principal office at 706 Bedford Street, Stamford, Connecticut “owned, possessed and/or controlled” at all relevant times the premises located at 554 Connecticut Avenue in Norwalk, known as Oak Knoll Apartments.   The plaintiff was a resident of unit # 102 of Oak Knoll Apartments.   On August 15, 2011, while exiting apartment unit # 105, the plaintiff “was caused to trip and fall down a staircase as a result of a ladder left on the floor by the defendants' agents ․ in close proximity to the top of the staircase adjacent to the entrance to unit # 105.”   As a result of the fall, the plaintiff suffered various injuries, including chest trauma, a closed head injury, and multiple contusions.

The plaintiff has framed count one of her complaint as an action for negligence, based upon, inter alia, the defendants' failure to cure, or warn the plaintiff of, the dangerous condition that resulted in the plaintiff suffering harm that was reasonably foreseeable.   In count two, which is labeled “Negligent Nuisance,” the plaintiff incorporates the allegations in count one and further alleges that “[t]he dangerous ․ condition ․ was an unreasonable use of the defendants' property, and had a natural tendency to create danger and inflict injury upon persons, including the plaintiff who were lawfully on the premises.”   In count three, which is labeled “Absolute Nuisance,” the plaintiff incorporates the allegations in count one and further alleges that “[t]he dangerous ․ condition ․ was intentionally created by the defendants ․ was of a continuous and ongoing nature, and ․ had a natural tendency to create danger and inflict injury up persons, including the plaintiffs, who traversed it.”

The defendant, Stanford Management, filed its motion to strike counts two and three of the plaintiff's complaint on December 12, 2013, accompanied by a memorandum of law.   The plaintiff has filed no opposition memorandum and was not present at the January 27, 2014 short calendar, at which this court agreed to consider this matter on the papers.

III. Discussion

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   A motion to strike “admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   The 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).

“Practice Book § 155, now § 10–42, previously provided that a party who failed to file ․ a memorandum [in opposition to a motion to strike] ‘shall be deemed by the court to have consented to the granting of the motion.’  ․ That language was subsequently removed from Practice Book § 10–42.”  (Citations omitted;  emphasis added.)  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003).   While there is no direct appellate authority on this issue, “a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike.”  (Internal quotation marks omitted.)   McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV–08–5024230–S (May 27, 2010, Wilson, J.).

The defendant contends that the plaintiff's nuisance claims, as stated in counts two and three, are legally insufficient because regardless of whether these counts are analyzed as public or private nuisances they necessarily fail.   The defendant elaborates as follows.   Applying the law of private nuisance, the plaintiff must allege injury to a property interest that she held in the use and enjoyment of land.   Because the alleged situs of her injury was in the proximity of apartment unit # 105, of which she was not a resident, her alleged property interest is not sufficient.   Applying the law of public nuisance, the plaintiff must allege harm to a right held by the general public.   Because no public right could be at stake in the location of the plaintiff's fall, the plaintiff has failed to plead a legally sufficient public nuisance action.

Connecticut law recognizes distinct actions for private and public nuisance and, further, permits both such actions to be advanced under alternate theories, i.e., either negligent or absolute (intentional) nuisance.¹  The defendant does not contest whether the complaint sufficiently alleges the requisite elements of absolute or negligent nuisance.   Thus, because the court may only consider the grounds specified in the motion;  Meredith v. Police Commission, 182 Conn. 138, 140, 38 A.2d 27 (1980);  the court will only address, as raised by the defendant, whether counts two and three of the complaint contain the requisite elements of either private or public nuisance.

“In order to sustain a cause of action based on private nuisance the plaintiffs must prove:  1) that they had an ownership interest in the property;  2) that the condition complained of had a natural tendency to create a continuing danger;  3) that the defendants' use of land was unreasonable or unlawful;  4) that the condition was the proximate cause of their injuries;  5) that the defendants exercised control over the property that is the source of the nuisance;  and 6) that the defendants intended to bring about the condition that was a nuisance.”   Ofir Sperling v. Sylvan Knoll Section I, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–12–0612268–S (May 31, 2013, Tobin, J.T.R.), citing New London Savings Bank v. Tucciarone, 48 Conn.App. 89, 98–99 (1998).

The plaintiff has alleged that she was injured in the area of a stairwell that sat adjacent to an apartment unit contained in the general complex, albeit not the unit in which she resided.   The court infers that this area was a common area of the apartment complex.

“A landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether a portion of the property on which the condition exists is in the landlord's control or the tenant's.  State v. Tippetts–Abbett McCarthy–Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987).   Superior Court cases have held in multiple decisions that a tenant may bring a claim against a landlord in nuisance if the purported defective condition is located in a common area under the control of the landlord.”  (Internal quotation marks omitted.)   Fanion v. Radel, Superior Court, judicial district of Windham, Docket No. CV–07–5001250–S (November 5, 2007, Martin, J.), citing Goyette v. Abadir, Superior Court, judicial district of Windham at Putnam, Docket No. CV–99–0061995–S (February 15, 2000, Sferrazza, J.) (26 Conn. L. Rptr. 507).

In Goyette, the plaintiff brought negligent and absolute nuisance actions, alleging “that the defendant was the landlord of real property upon which an eleven-year-old female tenant was injured as a result of a hole dug by the defendant in a common area located in a rear yard of the duplex building in which the girl resided along with other tenants.”  Id. The defendant moved to strike these actions by attempting to discount the plaintiff tenant's interest in the property by emphasizing that the defendant landlord was the actual owner of the premises.  Id., 508.   The court discussed:  “In Bentley v. Dynarksi, 150 Conn. 147 (1962), our Supreme Court held that a cause of action in nuisance was unavailable to the tenant against a landlord, Id., 153.   In that case, however, the structural defect was located in an area controlled by the tenant.   That opinion employs several paragraphs establishing the landlord's lack of control over the premises where the dangerous condition was alleged to exist.   No appellate level decision has since addressed this issue.   The leading trial level decision concerning this question is Jubb v. Maslanka, 22 Conn.Sup. 373 (1961).   That case held that a tenant may bring a nuisance action against the landlord if the defective condition is in a common area, Id., 376.   Except for the case of Muir v. Housing Authority, 24 Coun. Sup. 439 (1963), every reported Superior Court case dealing with this issue has followed the holding of Jubb v. Maslanka, supra ․ ² The court adopts the reasoning of the overwhelming majority of Superior Court decisions and denies the motion to strike.”  Id. According to this court's research, Goyette remains good law.

In the present case, the plaintiff has, as indicated above, alleged that she was injured in a common area of the apartment complex in which she was a lawful tenant.   Further, as indicated above, the plaintiff has alleged that the defendant controlled the apartment complex premises, which necessarily includes the common area where the plaintiff was injured.   Therefore, the argument, as asserted by the defendant, that the plaintiff has failed to allege a sufficient property interest in pleading a private nuisance action, fails under the persuasive Superior Court authorities of Goyette and Fanion.   Therefore, the court will not strike counts two and three.

Furthermore, the recognition that counts two and three are legally sufficient under a private nuisance analysis forecloses the court from further subjecting these counts to a public nuisance analysis.   Where, as here, the plaintiff has not designated the nuisance claims as public or private, but they have been found legally sufficient under a private nuisance analysis, there is no basis to strike the counts.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. “Claims of nuisance fall into two discrete categories:  (1) absolute nuisance and (2) negligent nuisance.   The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional ․ Intentional, in this context, means not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.”  (Citation omitted;  internal quotation marks omitted.)   Green v. Ensign–Bickford Co., 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919 (1991)..  FN1. “Claims of nuisance fall into two discrete categories:  (1) absolute nuisance and (2) negligent nuisance.   The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional ․ Intentional, in this context, means not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.”  (Citation omitted;  internal quotation marks omitted.)   Green v. Ensign–Bickford Co., 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919 (1991).

FN2. See, i.e., Roache v. Rogers, Superior Court, Fairfield J.D., Docket No. CV98–354114 (July 26, 1999), Skolnick, J., Sallisky v. Treetops Camping Club, Superior Court, Danbury J.D., Docket No. 328646 (March 30, 1998), Moraghan, J.;   Flavin v. Nolsen, Inc., Superior Court, Middletown J.D., Docket No. CV95–77442 (May 15, 1997) [19 Conn. L. Rptr. 518], Stanley, J.;   Gendreau v. Vitti, Superior Court, Milford J.D., Docket No. CV96–52879 (May 5, 1997), Flynn, J. [19 Conn. L. Rptr. 7];  Hall v. Rivera, Superior Court, Milford J.D., Docket No. 49449 (October 29, 1996), Skolnick, J. [18 Conn. L. Rptr. 211];  Cruz v. Cooper Village Ltd. Partnership, Superior Court, Waterbury J.D., Docket No. 127543 (November 30, 1995) Sullivan, J.;   Szporan v. Stasiak, Superior Court, Hartford J.D., Docket No. CV92–452914 (July 19, 1993), Goldberg, J.;   DiFrisco v. Shawmut Mortgage, Superior Court, Waterbury J.D., Docket No. 115155 (November 30, 1993), Kulawiz, J. [10 Conn. L. Rptr. 486];  and Fonseca v. Lavado, 28 Conn.Sup. 509, 512 (1970)..  FN2. See, i.e., Roache v. Rogers, Superior Court, Fairfield J.D., Docket No. CV98–354114 (July 26, 1999), Skolnick, J., Sallisky v. Treetops Camping Club, Superior Court, Danbury J.D., Docket No. 328646 (March 30, 1998), Moraghan, J.;   Flavin v. Nolsen, Inc., Superior Court, Middletown J.D., Docket No. CV95–77442 (May 15, 1997) [19 Conn. L. Rptr. 518], Stanley, J.;   Gendreau v. Vitti, Superior Court, Milford J.D., Docket No. CV96–52879 (May 5, 1997), Flynn, J. [19 Conn. L. Rptr. 7];  Hall v. Rivera, Superior Court, Milford J.D., Docket No. 49449 (October 29, 1996), Skolnick, J. [18 Conn. L. Rptr. 211];  Cruz v. Cooper Village Ltd. Partnership, Superior Court, Waterbury J.D., Docket No. 127543 (November 30, 1995) Sullivan, J.;   Szporan v. Stasiak, Superior Court, Hartford J.D., Docket No. CV92–452914 (July 19, 1993), Goldberg, J.;   DiFrisco v. Shawmut Mortgage, Superior Court, Waterbury J.D., Docket No. 115155 (November 30, 1993), Kulawiz, J. [10 Conn. L. Rptr. 486];  and Fonseca v. Lavado, 28 Conn.Sup. 509, 512 (1970).

Adams, Taggart D., J.T.R.