Opinion
HHBCV166032294S
10-11-2016
John Chiaradio, Sr. v. Town of Southington et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Robert E. Young, Judge
In his complaint dated February 8, 2016, the plaintiff, John Chiaradio, Sr., claims that on February 19, 2014, he was unable to access sidewalks which were blocked by ice and snow and therefore forced to walk in a parking lot possessed and controlled by the defendant, town of Southington. Due to the accumulation of ice and snow on the parking lot, the plaintiff was caused to slip and fall, sustaining injuries and damages. In the first count, the plaintiff asserts a claim of statutory liability under General Statutes § 13a-149. In the second count, the plaintiff asserts a claim of negligence. In the third count, the plaintiff asserts a claim of nuisance.
The plaintiff asserts the same claims against the defendant, town of Southington Parking Authority. In the fourth count, he claims statutory liability. In the fifth count, he claims negligence. In the sixth count, he claims public nuisance.
The plaintiff asserts further causes of action against two other defendants. These include additional fifth, sixth and seventh counts. For the purpose of this memorandum, reference to the fifth and sixth counts refers to causes of action asserted against defendant Southington Parking Authority.
The defendants, town of Southington and town of Southington Parking Authority (defendants), have filed a motion to strike the third count and the sixth count, which assert a cause of action of public nuisance. The plaintiff has filed an objection to the motion to which the defendants filed a reply. The parties were heard at short calendar on August 29, 2016.
" 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). " [F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). Accordingly, " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17(2009).
" It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on a motion to strike, court cannot resort to information outside of the complaint). " [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." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
" [A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] 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 . . . In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." (Citation omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).
In the second paragraph of the third count and the sixth count, the plaintiff asserts respectively that the defendant was in possession and control of the parking lot; was charged with the duty to keep and maintain the parking lot in a reasonably safe condition; and that the ownership of the lot was done for the pecuniary and commercial business development interests of the defendant town of Southington. In the third paragraph of these counts, the plaintiff asserts that adjacent sidewalks were blocked by piles of snow and ice, forcing the plaintiff to walk in the parking lot rather than the pedestrian walkways, and that while so doing, he was caused to fall violently to the ground as a result of the accumulation of ice and/or snow.
The plaintiff further asserts in each count's fourth paragraph: " The aforesaid incident and the resulting injuries to the plaintiff were caused by the defendant's creation and/or maintenance of a public nuisance in that the defendant caused, allowed and/or permitted said parking lot to become unsafe, hazardous and dangerous for use by pedestrians in that the parking lot was covered with ice and/or snow and/or the manner in which the defendant plowed or shoveled the parking lot and walkways by plowing snow upon the walkways creating an obstruction to pedestrian traffic and, thereby, creating a nuisance. The nuisance and conditions created had a natural tendency to create danger and inflict injury, was a continuing one, was unreasonable and was a proximate cause of the plaintiff's injuries and losses."
In their motion to strike, the defendants assert that the plaintiff is making two separate claims of public nuisance. The first is that the defendants created a public nuisance by causing, allowing or permitting the parking lot to become unsafe or dangerous for use because of the accumulation of snow and/or ice. The second is that the defendants created a public nuisance by plowing or shoveling snow onto the walkways. Thus, the defendants claim that the plaintiff must allege the elements of public nuisance for each of these purportedly separate claims.
The court disagrees that the plaintiff has alleged two separate claims of public nuisance. Rather than two events, the court views the allegations as one continuous event. The defendants plowed or shoveled snow and/or ice onto the walkway, forcing the plaintiff onto the parking lot where he fell. Thus, it is the positive act of the defendants in moving snow or ice onto the walkway which is the public nuisance, not the natural occurrence of snow and ice in the parking lot where the plaintiff fell.
Based on their theory of two separate claims of public nuisance, the defendants have asserted three claims of legal insufficiency. The first is that the plaintiff has failed to allege that the defendants created the public nuisance. The plaintiff specifically alleges in the fourth paragraph, " The aforesaid incident [blocking the walkways with piles of snow and accumulation of ice and/or snow in the parking lot] and the resulting injuries to the plaintiff were caused by the defendant's creation and/or maintenance of a public nuisance . . ." Therefore, this claim of legal insufficiency must fail.
The defendants also assert that the accumulation of snow and ice is a natural occurrence and not created by the defendants. " We have had occasion to say that failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." Lukas v. New Haven, 184 Conn. 205, 210, 439 A.2d 949 (1984). However, it is not the accumulation of ice and snow in the parking lot which constitutes a public nuisance, it is the positioning of snow onto the walkways by the defendants that created the public nuisance.
The defendants assert that the conditions were not caused by the defendants' positive act, again basing this on a theory that there are two public nuisance claims alleged. In addition to the four elements of public nuisance, " when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." Picco v. Voluntown, supra, 295 Conn. 146.
In Perry v. Putnam, 162 Conn.App. 760, 131 A.3d 1284 (2016), the municipality was sued for the location of, and unlawful activity upon, a parking lot adjacent to the plaintiffs' home. " Connecticut cases have never deemed a parking lot to have a natural tendency to create danger and to inflict injury." Id., 766. Unlike in Perry, where third parties parked their cars, littered, committed criminal activity, played loud music and directed their headlights into the plaintiffs' home, here the plaintiff alleges in the fourth paragraph of the respective counts an affirmative act on the part of the defendants, not on third parties or natural conditions: " [T]he manner in which the defendant plowed or shoveled the parking lot and walkways by plowing snow upon the walkways creat[ed] an obstruction to pedestrian traffic and, thereby, creat[ed] a nuisance." Thus, the plaintiff has sufficiently alleged that the defendants undertook the positive step of moving snow onto the walkways which ultimately caused the plaintiff to slip and fall.
The defendants next assert that the plaintiff has failed to allege the third element, that the use of the land was unreasonable or unlawful. In response, the plaintiff argues that his claim was not of unlawful use but that the use of the walkways and parking lot was unreasonable. The plaintiff has alleged in the fourth paragraph of the respective counts, " The nuisance and conditions created . . . was [sic] unreasonable . . ." Again, the element has been asserted and this claim of legal insufficiency must fail.
In their motion, the defendants assert that the plaintiff failed to allege that the use was unlawful. In their reply, the defendants recast their assertion to claim that the plaintiff failed to allege that the use was unreasonable or unlawful, which is a correct statement of the third element.
Lastly, the defendants assert that these counts are legally insufficient because they do not assert that the nuisance was the proximate cause of the plaintiff's injuries. However the fourth paragraph of the respective counts asserts in the last sentence, " The nuisance and conditions created . . . was [sic] unreasonable and was [sic] a proximate cause of the plaintiff's injuries and losses." As the plaintiff has alleged the fourth element in a claim of public nuisance, the cause of action is sufficiently pleaded.
ORDER
The defendants' motion to strike (108.00) is denied. The objection to same (126.00) is sustained.