II v. HSBC USA (2016)

MEMORANDUM OF DECISION (Motion to Strike # 106, Short Calendar, March 28, 2016)

The defendant moves to strike counts one and two of the plaintiffs' complaint on the ground that Connecticut has not recognized a cause of action between private land owners for damage claims attributed to a falling tree where the tree has fallen on private property, as opposed to a public highway.

On August 26, 2015, the plaintiffs, Clinton Corbin, II, and Barbara Bouthillier, filed a complaint against the defendant, HSBC Bank USA, National Association.  In the two-count complaint, the plaintiffs allege the following facts.  The plaintiffs are individuals that own and reside at 235 Ballouville Road, Killingly, Connecticut (plaintiffs' property).  The defendant is an out-of-state-corporation doing business within the state of Connecticut with a principal place of business at 3476 Stateview Boulevard, Fort Mills, South Carolina.  The defendant is the owner of the premises located at 231 Ballouville Road, Killingly, Connecticut (defendant's premises), and has had the premises listed for sale through a real estate agent.

The defendant's premises adjoins the plaintiffs' property.  The complaint further alleges that, at all relevant times, there was a work shed located on the plaintiffs' property.  On and prior to March 18, 2015, there was a tree located on the defendant's premises which was severely damaged and apparent to the defendant to be decayed and in a dangerous and unsafe condition.  On February 18, 2015, the plaintiffs notified the defendant's real estate agent, David Izzo, of the condition of the tree and Izzo came out to inspect and take pictures of the tree.  Thereafter, on March 18, 2015, the tree located on the defendant's property fell onto the plaintiffs' work shed, destroying the shed and all of the plaintiffs' work tools and personal effects.

In count one, alleging negligence, the plaintiffs claim that the defendant knew, or should have known, of the dangerous condition of the tree and failed to exercise reasonable care by not removing it.  Further, the plaintiffs allege that as a proximate result of the defendant's negligence, the plaintiffs' work shed and tools were destroyed.  In count two, alleging nuisance, the plaintiffs incorporate all prior paragraphs of the complaint, and allege that the defendant's conduct constituted an unreasonable interference with the plaintiffs' use and enjoyment of their own property.  The plaintiffs seek money damages and costs of this action.

On January 14, 2016, the defendant filed a motion to strike both counts of the complaint.  The defendant submitted a memorandum of law in support of this motion.¹  The plaintiff submitted a memorandum of law in opposition to the motion to strike on January 29, 2016.²  On March 28, 2016, the defendant submitted a supplemental memorandum in support of the motion to strike.³  This matter was heard at short calendar on March 28, 2016.

“A motion to strike shall be used whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted ․” Practice Book § 10–39(a).  “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).  “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.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 588.

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․” Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

The defendant moves to strike count one, alleging negligence, and count two, alleging nuisance, on the ground that Connecticut has not recognized a cause of action between private landowners for damage claims attributed to a falling tree where the tree has fallen on private property, and that the general rule at common law is that there is no liability between private landowners for damages caused by natural conditions on the land.  The defendant cites to the Restatement (Second) of Torts § 363 (1965) (Restatement), which provides:  “(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.  (2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” ⁴  The defendant also contends that the Connecticut Legislature has been attempting to pass a law that would make one adjoining land owner liable to the other for the cost of removal of a tree or tree limb under certain circumstances.  Such proposals have not become law.⁵

To the contrary, the plaintiffs argue that the Restatement is outdated and has fallen out of favor with the courts.  The plaintiffs contend that the applicable rule of law with regards to fallen trees on an adjoining landowner's property is that a landowner or possessor of land is liable for damages incurred by an adjoining landowner if the tree was in a decayed or defective condition, and the landowner had actual or constructive knowledge of the defective condition.  The plaintiffs cite to 1 Am.Jur.2d Adjoining Landowners § 21, which provides in relevant part:  “A landowner who knows that a tree on one's property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger even if the tree grew on and became part of the land by natural condition.  Moreover a landowner who knows or should know of a dangerous condition of a tree on one's property may be held liable for the injuries caused or damage done when the tree falls on an adjoining landowner's property.  Specifically, a homeowner may prevail in a cause of action against an adjoining landowner whose tree destroyed the homeowner's home when the homeowner shows that the diseased condition of the tree was a defect which presented an unreasonable risk of harm to others, that the adjoining landowner should have known about the rotted condition of the heartwood in the tree, and that the exercise of reasonable care could have prevented the destruction of the homeowner's house.”  Citing to jurisdictions outside of Connecticut, the plaintiffs contend that American Jurisprudence Section 21 is the modern trend in the law.

This court is not persuaded by the plaintiffs' argument that the Restatement is outdated.  A number of Connecticut courts have cited to the Restatement.  See Sawicki v. Connecticut Ry. & Lighting Co., 129 Conn. 626, 30 A.2d 556 (1943);  Credit v. Killingly, Superior Court, judicial district of Windham, Docket No. CV–12–6005315–S (October 21, 2014, Boland, J.) (citing to the Restatement to determine the obligations of multiple parties involved in litigation);  Herrera v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. 387059 (July 30, 2004, Levin, J.) (37 Conn. L. Rptr. 568) (“[t]his court holds that Restatement [Second], Torts, § 363 as recognized in its earlier version by the Supreme Court in Sawicki v. Connecticut Ry. & Lighting Co., supra, 129 Conn. 634–35, and followed in its current version by the Superior Court in Toomey v. State, [Superior Court, judicial district of Litchfield, Docket No. CV–91–0057183–S (February 17, 1994, Dranginis, J.) ], is the law of Connecticut”);  Toomey v. State, supra, Superior Court, Docket No. CV–91–0057183–S (adopting the Restatement in its current form).  Although the facts of the aforementioned cases differ from the present situation, courts have indicated their approval of the rule stated in the Restatement.⁶

Moreover, the tree on the defendant's property is clearly within the definition of a “natural condition of land” as defined by the Restatement.  Comment (b) to § 363 provides in relevant part:  “Natural condition of the land is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without consent of the then possessor.  It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them.”  (Emphasis added;  internal quotation marks omitted.)  There is nothing in the plaintiffs' complaint to suggest the tree in question is anything more than a natural condition upon the land, and for such reason the rule of the Restatement applies.  Because application of the Restatement in this particular case renders the complaint legally insufficient, the motion to strike counts one and two must be granted.

For the foregoing reasons, the defendant's motion to strike is granted as to counts one and two.

THE COURT

Calmar, J.

FOOTNOTES

FN1. The motion to strike is located at position # 106, while the memorandum of law in support is located at position # 107.  The defendant also submitted supporting exhibits at positions # 108, # 109, # 110, and # 111..  FN1. The motion to strike is located at position # 106, while the memorandum of law in support is located at position # 107.  The defendant also submitted supporting exhibits at positions # 108, # 109, # 110, and # 111.

FN2. The plaintiffs' memorandum of law in opposition is located at position # 112.  The plaintiffs also submitted supporting exhibits at positions # 113 and # 114..  FN2. The plaintiffs' memorandum of law in opposition is located at position # 112.  The plaintiffs also submitted supporting exhibits at positions # 113 and # 114.

FN3. The supplemental memorandum in support is located at position # 115.  The defendant also submitted supporting exhibits at positions # 116, # 117, # 118, and # 119..  FN3. The supplemental memorandum in support is located at position # 115.  The defendant also submitted supporting exhibits at positions # 116, # 117, # 118, and # 119.

FN4. Comment (a) to the Restatement (Second) of Torts § 363 provides:  “The rule stated in Subsection (1) applies although the possessor, vendor, or lessor recognizes or should recognize that the natural condition involves a risk of physical harm to persons outside the land.  Except under the circumstances in Subsection (2) of this Section, this is true although there is a strong probability that the natural condition will cause serious harm and the labor or expense necessary to make the condition reasonably safe is slight.”.  FN4. Comment (a) to the Restatement (Second) of Torts § 363 provides:  “The rule stated in Subsection (1) applies although the possessor, vendor, or lessor recognizes or should recognize that the natural condition involves a risk of physical harm to persons outside the land.  Except under the circumstances in Subsection (2) of this Section, this is true although there is a strong probability that the natural condition will cause serious harm and the labor or expense necessary to make the condition reasonably safe is slight.”

FN5. The defendant contends that the Legislature's efforts to create a statutory cause of action for removal and the text of the proposed statutes supports the defendant's argument that there is no cause of action existing at common law as it relates to private property owners and a case not involving a public highway..  FN5. The defendant contends that the Legislature's efforts to create a statutory cause of action for removal and the text of the proposed statutes supports the defendant's argument that there is no cause of action existing at common law as it relates to private property owners and a case not involving a public highway.

FN6. The court is also persuaded by the defendant's argument that the Connecticut Legislature has attempted (and failed) to enact legislation that would require private landowners to pay for the removal of tree branches and limbs.  The unsuccessful attempts provide support for the argument that no cause of action exists at common law for the present situation and a recognition of the potentially extraordinary costs such legislation could impose on adjoining landowners—especially in the wake of large storm events.  Moreover, the court recognizes the discussion in Cordeiro v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV–07–5001627–S (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 58), regarding negligence and the duty of reasonable care in inspection of trees.  However, this court does not find such argument persuasive in the present matter and again finds the Restatement to be the more applicable holding..  FN6. The court is also persuaded by the defendant's argument that the Connecticut Legislature has attempted (and failed) to enact legislation that would require private landowners to pay for the removal of tree branches and limbs.  The unsuccessful attempts provide support for the argument that no cause of action exists at common law for the present situation and a recognition of the potentially extraordinary costs such legislation could impose on adjoining landowners—especially in the wake of large storm events.  Moreover, the court recognizes the discussion in Cordeiro v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV–07–5001627–S (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 58), regarding negligence and the duty of reasonable care in inspection of trees.  However, this court does not find such argument persuasive in the present matter and again finds the Restatement to be the more applicable holding.

Calmar, Harry E., J.