Opinion
CV156053943S
05-17-2016
Leah Baca et al. v. Mandy Ferriolo et al
UNPUBLISHED OPINION
Filed Date May 18, 2016
MEMORANDUM OF DECISION RE MOTION TO STRIKE #113
Brian T. Fischer, J.
FACTS
The plaintiffs, Leah Baca (minor plaintiff) and Margorie Baca, on her own behalf and as parent and next friend of the minor plaintiff, filed a five-count complaint against the defendants, Mandy Ferriolo and Frank Davis, on April 15, 2015. On November 10, 2015, the plaintiffs filed a five-count, amended complaint, pleading count one pursuant to General Statutes § 22-357, and count two through five for bystander emotional distress, public nuisance, negligence, and strict liability based on ultrahazardous activities, respectively. In support of the claims, the plaintiffs allege in relevant part as follows. At all times mentioned in the complaint, the defendants resided and owned the property at 35 Stewart Street, New Haven, Connecticut. " On or about April 30, 2013 and for some time prior to, the defendants . . . were the owners of Lily, an English Bulldog. Lily was kept on or about the premises know as 35 Stewart Street . . ." On April 30, 2013, the plaintiffs were walking their three-month-old Boxer dog on a sidewalk adjacent to Stewart Street in the vicinity of the defendants' property. While the plaintiffs were on the sidewalk in front of the defendants' property, Lily " charged at them breaking through the chain link fence and attacked" the plaintiff Margorie Baca, who, as a result, sustained various injuries and losses, including but not limited to a bite to her lower lip, permanent and disfiguring scarring, emotional distress, anxiety, and costs related to medical treatments. The minor plaintiff, as a result of witnessing and experiencing the incident, sustained emotional distress.
With respect to the third count, the plaintiffs further allege in relevant part as follows. " The defendants, by harboring Lily in an unsecure, unsafe, and/or defective or damaged enclosure, created an ongoing and foreseeable danger and as a result have intentionally, negligently, or recklessly created and maintained a public nuisance." " The existence of the public nuisance created by the improperly installed, or defective fence adjacent to a public sidewalk was the proximate cause of the plaintiffs' injuries and damages."
With respect to the fifth count, labeled " strict liability, " the plaintiffs further allege in relevant part as follows. " The defendants are strictly liable to the plaintiff . . . for her injuries . . . as they created the basis for an abnormally dangerous activity by placing a potentially dangerous dog in an unsecure and unsafe enclosure." (Emphasis in original.)
On December 18, 2015, the defendants filed a motion to strike the third and fifth counts of the plaintiffs' complaint. That motion explicitly " renewed" the defendants' motion to strike and memorandum of law in support filed on September 11, 2015, which were directed against an earlier version of the complaint. The defendants assert that count three should be stricken on the ground that the facts alleged do not state that the condition complained of created a continuing danger, and that count five should be stricken on the grounds that it is duplicative of count one and that no Connecticut court has held that a fenced enclosure in which a dog is kept is an abnormally dangerous condition. The plaintiffs filed a memorandum of law in opposition to the defendants' motion on January 19, 2016. The matter was heard at the short calendar on February 16, 2016.
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 . . . 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 . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It 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. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
As to the claim of public nuisance in count three, the defendants argue that the facts alleged are insufficient to establish the element of continuing danger because the plaintiffs allege only a single act of danger, i.e., Lily breaking out of the fence surrounding the defendants' yard. In response, the plaintiffs argue that the alleged facts are sufficient to establish continuing danger.
In the memorandum of law in support of their motion to strike, the defendants also argue, as to count three, that the plaintiffs fail to allege causes of action for private nuisance and absolute nuisance. These arguments, however, originally were directed to the August 11, 2015 " revised" complaint, which framed the third count as a " nuisance" claim, while the operative complaint frames it as a " public nuisance." Moreover, the plaintiffs do not claim, in opposing the motion to strike, that count three sets forth anything other than a public nuisance claim. Thus, the court will not consider the arguments in the defendants' memorandum of law as to the plaintiffs' failure to allege a legally sufficient private nuisance or absolute nuisance cause of action.
In order to recover damages for public nuisance, " a plaintiff must prove the following elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Emphasis added; internal quotation marks omitted.) Sinotte v. Waterbury, 121 Conn.App. 420, 438, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). Our Supreme Court has stated, with regard to the second element, " the danger created must have been a continuing one, as opposed to a single act ." (Emphasis added; internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 100, 302 A.2d 121 (1972). The Supreme Court has also noted that " [t]he essential element of nuisance is a continuing inherent or natural tendency to create danger and inflict injury." (Emphasis added.) Cyr v. Brookfield, 153 Conn. 261, 264, 216 A.2d 198 (1965).
A survey of the case law on public nuisance indicates that if merely a single act is alleged, the plaintiff must further allege facts showing there was a condition of danger from which that single act sprang, in order to state continuing danger. For instance, in Meyerson v. Connecticut Tank Removal, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-12-6016177-S (June 5, 2013, Genuario, J.), an allegation of a tree limb suddenly falling on the plaintiff's car with no allegations about the tree having been in a dangerous condition beforehand was held not to be sufficient to allege a continuing danger. In Delmoral v. Tilcon Connecticut, Superior Court, judicial district of Waterbury, Docket No. CV-99-0155116-S, (May 12, 2000, Doherty, J.), a construction vehicle suddenly pulling onto a public highway without any allegation that act arose from a condition of the construction site that had existed beforehand, was held not to be a continuing danger.
By contrast, in Perkins v. Kallas, Superior Court, judicial district of Danbury, Docket No. CV-01-0343814-S (July 9, 2002, Moraghan, J.) (32 Conn. L. Rptr. 470), one of the plaintiffs was injured when the second story porch of an apartment collapsed beneath him. The defendants argued in support of their motion to strike the plaintiffs' nuisance claim that the plaintiffs had failed to sufficiently allege that the dangerous condition was a continuing one as they had only alleged the single act of the porch collapsing. In response, the plaintiffs asserted that they had sufficiently alleged a continuing danger by alleging that the " second floor rear porch [was] pulling away from the structure of the house and that this condition had a natural tendency to create danger and to cause injuries and damages to the plaintiff." (Internal quotation marks omitted.) Id., 471. In denying the motion to strike as to the nuisance claim, the court reasoned: " Contrary to the defendants' argument, the plaintiffs have alleged more than the single act of the rear porch collapsing. The court finds that the allegations sufficiently allege that the danger of the porch pulling away from the house was a continuing one." (Internal quotation marks omitted.) Id.
The allegations in the present case are more analogous to those in Perkins . Specifically, the plaintiffs have alleged a defective fence and a dog kept within that fenced enclosure for some time prior to the attack. The alleged act of Lily breaking through the enclosure and attacking Margorie Baca sprang from the existing dangerous condition of the defective fence. Put another way, the single act of Lily roaming and attacking the plaintiff Margorie Baca sprang from the dangerous condition of keeping Lily in a defective enclosure adjacent to a public sidewalk; because this condition existed sometime prior to the date of the attack the dangerous condition was continuing. The single-act dog attack is analogous to the sudden porch collapse in Perkins . As the porch collapse in Perkins sprang from the earlier condition of the pulling porch, the dog attack in this case sprang from the defective condition of the fence existing prior to the attack. Although the duration of time that the fence was in a defective condition is not alleged, the allegations, read in the light most favorable to the plaintiffs, are sufficient to establish that the dangerous condition existed for a period of time prior to the April 30, 2013 incident.
The defendants rely heavily on Skarupa v. Hincks, Superior Court, judicial district of Hartford, Docket No. CV-10-6007467-S, (December 21, 2011, Peck, J.). In Skarupa, the defendants' dog had roamed from the defendant's property on a single occasion and attacked the plaintiff, who was passing by on a bicycle. The court noted that " the incident occurred the only time . . . that Stella was freed . . . Stella was let off her lead on this one occasion." The court granted the defendants' motion for summary judgment on the plaintiffs nuisance count, observing that " since the incident occurred the only time there is evidence that Stella was freed, any danger could not be properly deemed 'continuing.'" As previously discussed, however, the facts presented here are different. In Skarupa, the dangerous condition lasted only as long as the duration of the single roaming incident; the dangerous condition here is not simply the attack incident itself but rather the act of keeping a dog in a defective enclosure on an ongoing basis. For all of the foregoing reasons, the court denies the defendants' motion to strike as to count three.
As to count five, the defendants argue that in the event that the court reads count five as alleging strict liability as a result of Lily contacting the plaintiff Margorie Baca, then the court should strike count five because the plaintiffs' exclusive right to pursue such a claim is under § 22-357. Moreover, the defendants argue, keeping a dog on one's property in a fenced enclosure does not constitute an inherently dangerous condition under Connecticut law.
As a preliminary matter, the court will address the defendants' argument that count five is duplicative of count one. The defendants assert that count five " should be stricken as Margorie Baca's right to pursue her claim for damages is afforded under C.G.S. § 22-357, " but they do not offer any authority to support their assertion that count five should be stricken as duplicative. Contrary to the defendants' assertion, under our rules of practice the proper instrument for a party " to obtain . . . the deletion of any . . . repetitious . . . allegations in an adverse party's pleading" is a request to revise. Practice Book § 10-35; see also Glorioso v. Police Dept., 48 Conn.Supp. 10, 13, 826 A.2d 271 (2003) (denying motion to strike challenging duplicative nature of counts because " such a pleading flaw is addressed properly not by a motion to strike but by a request to revise to eliminate the duplication").
Under the doctrine of strict liability of those engaged in ultrahazardous activities, " a plaintiff is not required to show that his loss was caused by the defendant's negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant's loss." Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). To impose strict liability on the basis of ultrahazardous activities, " certain factors must be present [which include]: 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).
With respect to the fifth count, labeled " strict liability, " the plaintiffs allege in relevant part as follows. " The defendants are strictly liable to the plaintiff . . . for her injuries . . . as they created the basis for an abnormally dangerous activity by placing a potentially dangerous dog in an unsecure and unsafe enclosure." (Emphasis in original).
Although the fifth count contains a reference to § 22-357, the plaintiffs, in objecting to the motion to strike, maintains that count five is legally sufficient because it sets forth a claim of strict liability based upon an abnormally dangerous activity.
The Connecticut Supreme Court has previously stated that " there is no strict liability for injuries caused by domestic animals under the common law of this state, even if the animal had known mischievous propensities." Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 315, 87 A.3d 546 (2014), citing Bischoff v. Cheney, 89 Conn. 1, 4, 92 A. 660 (1914). Thus, the plaintiffs allege in the fifth count a claim that our Supreme Court has indicated is not recognized as a basis for liability in this state; the allegation that Lily was a potentially dangerous dog does not change the result, according to Vendrella . Accordingly, the plaintiffs do not allege a legally sufficient cause of action in the fifth count. For all of the foregoing reasons, the court grants the defendants' motion to strike as to count five.
The doctrine of strict liability for those engaged in abnormally dangerous activities arises under the common law. See Green v. Ensign-Bickford Co., 25 Conn.App. 479, 485, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991) (discussing various sections of 3 Restatement (Second), Torts, as " address[ing] the doctrine of strict liability for ultrahazardous activities").
CONCLUSION
Accordingly, the court denies the defendants' motion to strike as to count three and grants the motion to strike as to count five.