Deborah Quintero v. LLC (2015)

RULINGS ON MOTIONS TO STRIKE

INTRODUCTION

The plaintiff, Deborah Quintero (hereinafter “Quintero” or “plaintiff”) brought this action against the defendants Milltown Primitives, LLC, Alma Limpert, Frank Limpert (now deceased with Alma Limpert representing his estate as Administratrix), Ann Chesbro, Ronald Hart, and Madeline Hart, claiming damages for injuries sustained by her in a fall on the outside steps of a building located at 387 North–Westerly Road, North Stonington on June 1, 2012.   The plaintiff asserts that the defendants were each responsible for the condition of the building, as they each had “a business [in] and/or owned, and/or possessed, and/or controlled, and/or leased and/or maintained” the premises at the time of the fall.

In her amended complaint, the plaintiff alleged five causes of action under which each of the defendants was responsible for the damages suffered.   The first count sounded in negligence, the second in nuisance, the third in recklessness, the fourth in warranty of habitability, and fifth in the Connecticut Unfair Trade Practices Act (“CUTPA”), C.G.S. § 42–110a et seq.   Limpert individually and as administratrix, Milltown Properties, LLC, and Chesbro have moved to strike the nuisance, warranty of habitability, and CUTPA counts for failure to state a claim for which relief can be granted, and Limpert and Milltown have also moved to strike the recklessness count.  (The moving parties will be collectively referred to as the “defendants.”)

In response to these motions, the plaintiff has withdrawn the count premised on warranty of habitability, but contends that the nuisance, recklessness, and CUTPA counts should stand.   Following argument with permission of the court, the plaintiff filed a request to amend the complaint, describing in more detail how she was injured.   This request was filed on or about June 9, 2015, and as no party has objected to it, it will be deemed accepted as an amendment to the complaint.   See Practice Book Sec. 10–60(a)(3).

THE NUISANCE CLAIM

In her nuisance claim, the plaintiff alleges that the defendants owned, controlled and maintained the building located at 387 North–Westerly Road;  that the plaintiff was at all times relevant lawfully on the premises;  that the Plaintiff was attracted by a “For Rent” or “For Sale” sign;  that she walked up some stone steps to view the sign and look into the interior of the building through a window;  and that while walking back down the steps, she was caused to slip, fall and injure herself due to the defective condition of the stairway and steps.   The plaintiff claims that the steps, as constructed and maintained, constituted an actionable nuisance, due to their failure to comply with building and fire codes, as well as being dangerously defective and hazardous.   The plaintiff further alleges that the defendants allowed the steps to remain in a dangerous condition for an unreasonable amount of time.

The defendants, in their motion to strike, contend that the staircase, even in the condition described, did not create a private or public nuisance under Connecticut tort law.   They point out that a private nuisance is one which affects negatively the claimant's interest in property, citing Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002), and they point out that the plaintiff makes no claim to have any legal interest—such as a fee or leasehold—in 387 North–Westerly Road. The plaintiff, the defendants assert, was at best an invitee, and the plaintiff has cited no case law extending to invitees the standing to claim a private nuisance.

As to the claim for damages based on public nuisance, the defendants submit that the injuries incurred by the plaintiff did not occur in a public setting, but on private property.   They argue that only when rights “enjoyed by citizens as part of the public” are violated can a public nuisance claim exist.   See Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 357, 238 A.2d 431 (1967);  Norton v. Land Management, Inc., Superior Court, judicial district of New Haven, Docket No. 391950 (December 12, 1996, Blue, J.).   The Defendants assert that the alleged defective stairway cannot be considered a private nuisance because the injured party was an invitee and had no property interest in the structure.   In support of this argument the defendants again cite Pesty v. Cushman, supra, 259 Conn. 358, which holds that “[p]rivate nuisance law is concerned with conduct that interferes with an individual's right to the use and enjoyment of his or her land.”   See also Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939) (“A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land”).   In cases of fall downs caused by defects in private property, the defendants submit that the proper cause of action is not nuisance, private or public but premises liability grounded in negligence.   See Kelsey v. Schoolyard Three, 49 Conn.Sup. 338, 877 A.2d 963 (2005).

The plaintiff responds correctly that, in assessing a motion to strike, the court must construe the wording of the pleading “in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)   Sherwood v. Danbury Hospital, 252 Conn. 193, 212–13, 746 A.2d 730 (2000).   The plaintiff asserts that the defective staircase created a private nuisance, citing three cases, Ayala v. B & B Realty Co., 32 Conn.Sup. 58, 337 A.2d 330 (1974);  Gesswin v. Beckwith, 35 Conn.Sup. 89, 397 A.2d 121 (1978);  and Jubb v. Maslanka, 22 Conn.Sup. 373, 173 A.2d 604 (1961), to support her claim that defective premises may create an actionable private nuisance.   However, in each of these cases, the plaintiffs were tenants in the premises and had a leasehold property interest.   The plaintiff has not cited any case supporting a private nuisance claim by an invitee.

The plaintiff claims she was attracted to the site by the “For Rent” or “For Sale” sign, and she climbed the staircase to look into the premises.   Interpreting the allegations in the manner most favorable to the plaintiff, she was an invitee and had no property interest in the premises.   Accordingly, while she is free to proceed with a negligence claim, she has no basis for a claim of nuisance.   See Webel v. Yale, supra, 125 Conn. 525.   The defendants' motion to strike the nuisance count is granted.

THE RECKLESSNESS CLAIM

Defendants Milltown Properties, LLC and Alma Limbert, in her personal and representational capacities, move to strike the allegation of recklessness for failure to state a claim for which relief can be granted.   Specifically, they claim that the factual allegations for negligence and recklessness in the plaintiff's complaint are identical.   The only differences between the two counts, they contend, are the replacement of the word “negligence” with the words “recklessness and wanton and willful misconduct,” as well as the insertion of the charge at the beginning of each allegation that the defendants, “[e]xhibited an extreme departure from ordinary care by committing highly unreasonable conduct in a situation where a high degree of danger is evident;  and/or exhibited a design to injure, either actually entertained or to be implied from the conduct or circumstance;  and/or exhibited a reckless disregard for the just rights or safety of others or of the consequences of the action, and/or committed more than a mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention ․”

The defendants disagree, citing cases differentiating between recklessness and negligence.   For example, the defendants cite Sherman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985), which states, “[r]ecklessness is a state of consciousness with reference to the consequences of one's acts ․ It requires a conscious choice of a course of action either with knowledge of the serious dangers to others involved in it or with knowledge of facts which would disclose their danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)   Further they contend that merely describing “negligent” acts as reckless by adding “a string of adjectives” does not change the underlying action from negligence to recklessness, citing Steigerwald v. U.S. Surgical Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–93–0300787–S (August 2, 1993, Spear, J.).

The Plaintiff does not contest that recklessness and negligence are separate causes of action with different bases for establishing liability.   However, she argues that as long as the pleading informs the court and opposing counsel that both causes of action are being claimed and the language of the pleading establishes a legal basis for each cause of action, the recklessness count should not automatically be dismissed because of reference to the same underlying facts.   See Cappiello v. Steeves, Superior Court, judicial district of New Haven, Docket No. CV–02–0470424–S (June 24, 2003, Harper, J.).   Also, as noted in Craig v. Driscoll, 262 Conn. 312, 343 n.22, 68 A.3d 1150 (2003), superseded by statute on other grounds as stated in O'Dell v. Kozee, 307 Conn. 231, 265, 53 A.3d 178 (2012), a claim of recklessness should not be dismissed just because it is based on an “overinclusive” negligent count.

In assessing a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff.  Sherwood v. Danbury Hospital, supra, 252 Conn. 212–13.   Further, as long as some of the allegations support a cause of action in a count, the court should not as a general rule strike only a part of a count.   Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06–CV–12–6014260–S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 889).

In this case, the plaintiff alleges that the defendants knew or should have known of the defective and highly dangerous condition of the steps and that they failed to take any action to correct the condition or warn others of it.   These allegations, if proven, could be found to constitute reckless behavior, and while some of the other allegations in the count many not by themselves establish recklessness, it is not necessary or appropriate to strike them.   See Bon Ames v. East Brook F, LLC, Superior Court, judicial district of New London, Docket No. CV–13–6016325–S (December 17, 2013, Cole–Chu, J.).   Accordingly, the motion to strike the recklessness counts is denied.

THE CUTPA CLAIM

The defendants also move to strike the counts alleging that they violated CUTPA.   The plaintiff claims that by maintaining a building that does not meet applicable building and fire codes and as a result causes substantial injury to the plaintiff, the actions or inactions of the defendants are actionable under CUTPA.

The plaintiff specifically asserts that the stairway as constructed and maintained violates building and fire codes, thereby constituting the immoral, unethical, oppressive, and unscrupulous actions prohibited by CUTPA, which actions caused the plaintiff's injury.   In support of this contention, the plaintiff cites a series of cases sustaining CUPTA claims involving rental units which violated applicable codes, resulting in personal injuries to the tenants.   See Monsees v. Peta, Superior Court, judicial district of New London, Docket No. CV–10–6005376–S (March 20, 2012, Martin, J.) [53 Conn. L. Rptr. 742];  Simms v. Candela, 45 Conn.Sup. 267, 711 A.2d 778 (1998);  Bergeron v. DeSimone, Superior Court, judicial district of Danbury, Docket No. 323603 (October 2, 1998, Radcliffe, J.) (22 Conn. L. Rptr. 683);  Hernandez v. King, Superior Court, Docket No. CV–94–0536321–S (January 29, 1996, Hennessey, J.) [16 Conn. L. Rptr. 65];  Levesque v. Williamsburg Associates, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV–93–0526235–S (February 17, 1995, Sheldon, J.).

In each of the cases cited by the plaintiff, however, there was a rental agreement in place between the landlord and the tenant.   In this case, there was no rental agreement or commercial agreement of any kind between the plaintiff and the defendants.   To establish a CUTPA violation there must be more than a commercial party, a code violation, and an injured party;  there must be a commercial or trade relationship, in which one party takes advantage of another in an unscrupulous or illegal manner.   See Szekeres v. Szekeres, 126 Conn.App. 829, 842–43, 16 A.3d 713, cert. denied, 300 Conn. 940, 17 A.3d 475 (2011);  Biro v. Matz, 132 Conn.App. 272, 289, 33 A.3d 742 (2011);  Metcoff v. Lebovics, 123 Conn.App. 512, 517–18, 2 A.3d 942 (2010).   In this case there was no such relationship.  “Not every relationship, even assuming a landlord-tenant one, comes within the terms of CUTPA.   There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy.”  Muniz v. Kravis, 59 Conn.App. 704, 715, 757 A.2d 1207 (2000).   An informal and singular situation does not qualify.

In assessing the sufficiency of CUTPA claims, Connecticut courts often look to the three-pronged “cigarette rule” originally adopted by the Federal Trade Commission.   In “determining when a practice is unfair [under the “cigarette rule” a court must look at]:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].”  (Internal quotation marks omitted.)  State v. Acordia, Inc., 310 Conn. 1, 29, 73 A.3d 711 (2013).   While the condition of the stairway may satisfy the first prong of the rule—its defects under applicable codes are “within at least the penumbra of some common law” or statute, the failure of the defendants to make any representation to the plaintiff regarding the legality of the staircase fails to satisfy the second prong, which requires the defendant's action to be “immoral, unethical, oppressive, or unscrupulous.” ¹  In cases generally based on negligence claims, all three of these prongs must be satisfied.   Textile Mills, Inc. v. Brown, Jacobson, Tillinghast and King, P.C., 32 Conn.App. 786, 797 631 A.2d 340 (1993).   However, before the “cigarette rule” can even be applied, the underlying transaction must be a commercial trade practice, and that has not been established in this case either.   See Muniz v. Kraus, supra, 59 Conn.App. 715.

Under plaintiff's interpretation of CUTPA, almost any slip and fall in a rental property somehow related to a code violation could be a sufficient basis for a claim.   However, that is not the law;  there must be a commercial relationship.

In all the cases cited by the plaintiff, there was a claim of a leasehold relationship and the implied representation of code compliance that goes with it.   In this case, the defendants had no commercial relationship or even knowledge of the plaintiff.   Accordingly, the CUPTA claim is stricken.

Bates, J.

FOOTNOTES

FN1. The third-prong—requiring substantial injury—also appears satisfied..  FN1. The third-prong—requiring substantial injury—also appears satisfied.

Bates, Timothy, J.