Opinion
No. NNH CV 10-6014233
December 29, 2010
MOTION TO STRIKE #108
FACTS
This is a negligence action arising out of an alleged automobile accident at the public intersection of Huntington Street and Winchester Avenue in New Haven, Connecticut. The plaintiff claims she suffered serious injuries when Elana Raphael Tomkins failed to stop at a stop sign on Huntington Street and struck the car in which she was a passenger. On September 2, 2010, the plaintiff filed a two-count complaint against Tomkins and Albertus Magnus College (the College), the owner of real property near the intersection. In count two of the complaint, as against the College, the plaintiff alleges that the branches of a large tree located on the College's property, extended onto Huntington Street and obstructed the stop sign. Specifically, the plaintiff alleged that the College was negligent and careless in that it: (1) failed to use reasonable care to trim and cut the branches of its tree; (2) maintained a dangerous condition on its property; (3) failed to remedy a condition on its property which created an unreasonable risk of harm to drivers using the public highways adjacent to its property; (4) failed to perform a reasonable inspection of its property; and (5) failed to warn drivers using the public highways adjacent to its property that a condition on its property created an unreasonable danger to them.
The College moved to strike the second count of the original complaint on the grounds that it did not owe a duty to the plaintiff, pursuant to General Statutes §§ 23-59 and 23-65(b). By an order dated September 13, 2010, this court (Licari, J.) granted the College's motion, finding that tree warden had exclusive control over the branches at the public intersection and therefore, the College did not owe a duty to the plaintiff. As a result the plaintiff filed a substituted complaint on October 27, 2010, which is presently the operative complaint.
In the second count of the substituted complaint, the plaintiff again alleges a claim of negligence against the College related to the alleged automobile accident. The plaintiff, however, now alleges that the College was negligent and careless in that it: (1) caused a dangerous condition by stimulating too much growth of the tree on its property; (2) failed to perform a reasonable inspection of its property; (3) failed to warn persons using public highways adjacent to its property that a condition on its property created an unreasonable danger to them; (4) failed to request permission from the City of New Haven tree warden for defendant to prune or remove the branches; and (5) failed to request the City of New Haven or its tree warden to prune or remove the obstructing branches.
On November 8, 2010, the College moved to strike count two of the plaintiff's substituted complaint on the basis that the plaintiff fails to state a claim upon which relief can be granted. In support of its motion, the College filed a memorandum of law. The plaintiff filed an objection and memorandum in opposition to the College's motion to strike on December 7, 2010, and the College filed a reply on December 10, 2010.
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). "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). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
"[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., 252. Nevertheless, "[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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In support of its motion to strike, the College argues that based on the Supreme Court's holding in Muratori v. Stiles Reynolds Brick Co., 128 Conn. 674, 25 A.2d 58 (1942), Connecticut law prohibits a negligence claim against a private land owner for tree branches overhanging a public highway. Rather, pursuant to General Statutes §§ 23-59 and 23-65, the tree warden has exclusive control of trees extending over public roads and therefore, the College did not owe a duty to the plaintiff. The plaintiff admits that the Supreme Court in Muratori established that the tree warden has exclusive control of trees on private property that extend onto public highway, but however argues that the Court of Appeals in Kondrat v. Brookfield, 97 Conn.App. 31, 902 A.2d 718 (2006), "left open the issue of whether liability could attach to the landowner where the landowner affirmatively created the condition and failed to provide timely notice of the condition to the tree warden or town." The plaintiff maintains that in her substituted complaint she "takes pains to plead" that the College affirmatively created the defect "by stimulating too much growth of the tree" and thereafter failed to provide proper notice. In response, the College claims that the plaintiff misrepresents the court's holding in Kondrat, and that the case actually reaffirmed the Supreme Court's holding in Muratori that a private land owner cannot be held liable for trees within the tree warden's exclusive control. The College contends that "our Superior Courts have consistently rejected the very same claims" that the plaintiff makes and points out that the plaintiff does not cite any cases to support her argument that the College owed her a duty.
Section 23-59 provides in relevant part: "The town or borough tree warden shall have the care and control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town or borough . . . Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds . . . Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden's control, the tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough."
Section 23-65(b) provides in relevant part: "Any person, firm or corporation . . . who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction, may be ordered by the court in any action brought by the property owner or the authority having jurisdiction affected thereby to restore the land to its condition as it existed prior to such violation or shall award the landowner the costs of such restoration, including reasonable management costs necessary to achieve such restoration, reasonable attorneys fees and costs and such injunctive or equitable relief as the court deems appropriate." Additionally, § 23-65(f) states that "[a]ny person, firm or corporation, other than a tree warden or his deputy, who desires the cutting or removal, in whole or in part, of any tree or shrub or part thereof within the limits of any public road or grounds, may apply in writing to the town tree warden, the borough tree warden or the Commissioner of Transportation or other authority having jurisdiction thereof for a permit so to do. Upon receipt of such permit, but not before, he may proceed with such cutting or removal."
"In Muratori . . . our Supreme Court construed General Statutes §§ 23-59 and 23-65(b) as vesting exclusive control in a town tree warden over trees located in whole or in part in public roadways." Kondrat v. Brookfield, supra, 97 Conn.App. 33-34. In that case, the tree was on the defendant's property, however, its branches and foliage extended over the zone of public travel. The court held that "the two [statutes] read together make it clear that the legislative intent was to vest exclusive control in the tree warden of all trees standing within the limits of a highway or of any parts of trees extending within those limits, though the trees themselves stand on private grounds, except as other public authorities have jurisdiction." Muratori v. Stiles Reynolds Brick Co., supra, 128 Conn. 678. The court held that, "[i]f [the tree] stood within the highway bounds, exclusive control was vested in the public authorities, and the plaintiff, having failed to prove that it stood outside those bounds, cannot prevail against this defendant." Id., 678-79.
The Appellate Court in Kondrat, considered whether Muratori still controlled a private landowner's liability. In that case the plaintiffs sought damages for injuries they suffered when a tree, located in part on the defendant's property, fell onto their car. The defendant property owner contended that he was not liable to the plaintiffs because §§ 23-59 and 23-65(b) vested the tree warden with exclusive control of the tree. The plaintiff argued that unlike the landowner in Muratori, the defendant should be held liable because he caused the tree to die by cutting off its branches and therefore, intentionally created a nuisance.
The court stated, "[i]t may be that our Supreme Court will want to limit Muratori to its facts, but we are not persuaded that this court should do so." Kondrat v. Brookfield, supra, 97 Conn.App. 40. The court further noted that "[t]he fact that Muratori was decided many years ago does not mean that it is obsolete." Id., 42. As a result, the court concluded that Muratori governed the liability of the parties and affirmed summary judgment in favor of the landowner.
Just as the plaintiff in this case, the plaintiff in Watson v. Alpert, Superior Court, judicial district of New Haven, Docket No. CV 99 432749 (September 26, 2002, Robinson-Thomas, J.) ( 33 Conn. L. Rptr. 171), alleged that branches from a tree on a landowner's property obscured a stop sign on a public highway, causing a driver to drive through the stop sign and strike the plaintiff's car. Specifically, the plaintiff alleged that the landowner negligently caused her injuries by failing to prune and/or control the tree and by failing to demand that the tree be pruned and/or removed. In granting the property owner's motion for summary judgment, the court found that even though the tree was located on the defendant's property, §§ 23-59 and 23-65 vested the care and control of branches which extend over a public road with the municipal tree warden. Therefore, the court held that "the defendant did not owe a duty of care to the plaintiff with respect to the tree on his property," and "[w]ithout such a duty, there cannot be any actionable negligence on his part." Id.
The above cited cases make it clear that the College did not owe a duty of care to the plaintiff, even assuming that the College affirmatively created the condition. Although the tree in this case stands on the College's property, §§ 23-59 and 23-65 vest the care and exclusive control of the branches extending over Huntington Street with the tree warden. As a result, the plaintiff has failed to state a claim upon which relief can be granted and therefore the court grants the College's motion to strike.