Opinion
No. HHB CV 10 6006906 S
January 13, 2011
MEMORANDUM OF DECISION RE DEFENDANT ESPN'S MOTION TO STRIKE
FACTS
This is an action in seven counts seeking compensation for personal injuries alleged to have been sustained by the plaintiff as the result of a rear end motor vehicle collision. The other vehicle is alleged to have been operated by defendant Nicole Briscoe a/k/a Nicole Manske and owned by defendant Alamo. The amended complaint further alleges that Briscoe was the agent, servant or employee of Walt Disney Company and/or its affiliate, defendant ESPN, Inc. The plaintiff claims that Walt Disney Company and/or ESPN, Inc. provided Briscoe with an Alamo vehicle through a travel service without the need to "demonstrate" [possession of] a valid motor vehicle operator's license. The plaintiff further alleges that Briscoe's Indiana license to operate a motor vehicle was "under suspension" at the time of the accident.
The complaint against Walt Disney Company was subsequently withdrawn and a new action was filed against that defendant. See HHB CV 10 6006966 S.
The seventh count of the amended complaint is directed against ESPN, Inc. and alleges that ESPN, Inc. is liable to the plaintiff because ESPN, Inc. was in violation of General Statutes § 14-215 and, therefore, "the defendant's vehicle was a nuisance upon the highway which the defendant, ESPN, Inc., has substantially contributed to by its conduct as hereinbefore described."
ESPN, Inc. has moved to strike the seventh count of the complaint as legally insufficient.
LEGAL STANDARD
"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). 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). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party 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). "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).
ANALYSIS
In the Seventh Count of the complaint, the plaintiff alleges that the defendant, ESPN, Inc., a corporation, "was in violation of CGS 14-215 [sic] for Nicole Manske [Briscoe] to be operating a motor vehicle upon Connecticut highways and as such the defendant's vehicle was a nuisance upon the highway which the defendant, ESPN, Inc., has substantially contributed to by its conduct as hereinbefore described." Subsection (a) of General Statutes § 14-215 states in relevant part, "No person shall operate or cause to be operated . . . any motor vehicle, the right to operate which has been suspended or revoked." General Statutes § 14-1(69) states that, in Chapter 246, under which § 14-215 is contained, "person" includes, among others, a corporation.
ESPN, Inc. argues in support of its motion to strike that negligent operation of a motor vehicle cannot be the basis of a claim of nuisance. This defendant further argues that, even if such a claim were recognized, the plaintiff has insufficiently pled the allegations of nuisance. The court considers these arguments and the counterarguments in reverse order.
I. Sufficiency of pleading
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. Picco v. Town of Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).
To survive a motion to strike, the plaintiff's complaint must allege all of the requisite elements of a cause of action. Stancuna v. Schaffer, 122 Conn.App. 484, 489, 998 A.2d 1221 (2010). In construing the complaint in the manner most favorable to the plaintiff, she fails to allege any of the requisite elements of nuisance and has failed to allege a legally sufficient cause of action of nuisance in the Seventh Count. Dodd v. Middlesex Mutual Assurance Co., supra.
II. Nuisance Based on Lack of Authority to Operate a Motor Vehicle
Defendant, ESPN, Inc. also argues in its motion to strike the Seventh Count that the plaintiff cannot maintain a claim of nuisance based solely on the lack of authority of Defendant Briscoe to operate a motor vehicle. This defendant has identified a portion of § 14-215 that concerns the operator of the vehicle. However, as set forth above, there is a provision in the statute dealing with persons who "cause to be operated . . . any motor vehicle, the right to operate which has been suspended or revoked." It is presumed that it is this portion of the statute which the plaintiff intended to allege as applicable.
ESPN, Inc. relies on Brock-Hall Dairy Co. v. City of New Haven, 122 Conn. 321, 189 A. 182 (1937). In that case, the defendant's fire truck collided with the plaintiff's automobile. The first count of the complaint sounded in negligence. The second count of the complaint alleged the same facts and substantially the same allegations of negligence. The plaintiff went on to allege that the defendant created a nuisance at the place and time in question and that the operation of the heavy fire truck at a high rate of speed in disregard of the statutes and traffic rules and regulations while returning to the firehouse after the extinguishment of the fire created a nuisance. The court held,
The substance of the second count of the complaint is that the truck was being operated in a negligent manner. The defendant had a perfect right to operate its truck upon the public highway and a momentary act of negligence upon the part of the operator would not thereby render the truck a nuisance. Under our conception of the term, a nuisance arises from the creation or maintenance of a condition having a natural tendency to cause danger and inflict injury; Stoto v. Waterbury, 119 Conn. 14, 22, 174 A. 189; also the use of an intrinsically dangerous agency, the necessary and obvious effect of which is to cause harm, would constitute a nuisance. Worth v. Dunn, 98 Conn. 51, 62, 118 A. 467. In Gonchar v. Kelson, 114 Conn. 262, 271, 158 A. 545, we said that the word (nuisance) in its proper use "involves as an essential element that it be the natural tendency of the act or thing complained of to create danger and inflict injury upon person or property." Inasmuch as the facts alleged in the second count of the complaint amount to no more than an allegation of negligence and do not set up a nuisance within the conception of the term as embodied in our decisions, it follows that the demurrer to this count was properly sustained.
Id. at 326-27.
It is understood that, in the case cited above, the "defendant has a perfect right to operate its truck upon the public highway" but here, defendant Briscoe allegedly did not possess a valid operator's license and consequently would not have such a right. However, the issue is not whether Briscoe had a right to operate, but whether ESPN's alleged violation of General Statutes § 14-215 can form the basis of a claim of nuisance. Looking at the plaintiff's complaint in the most favorable manner, it appears that the plaintiff is not alleging a momentary act of negligence on the part of defendant Briscoe. Rather, it appears that the plaintiff is attempting to allege that ESPN, Inc.'s conduct may result in an ongoing violation of § 14-215, constituting a dangerous and continuous nuisance. If so, Brock-Hall Dairy Co. v. City of New Haven is inapplicable. It would necessarily have to be proven that the conduct of ESPN, Inc. was a direct and proximate cause of the plaintiff's injuries and damages, the fourth element of nuisance. Black v. Hunt, 96 Conn. 663, 667, 115 A. 429 (1921).
Neither side has provided any case law which allows or prohibits a nuisance cause of action predicated upon a violation of this portion of § 14-215 concerning a person causing the operation of a motor vehicle statute by someone without the right to operate. The defendant cites Black v. Hunt, supra, for the proposition that an owner cannot be liable for the "negligence and nuisance" of a servant driver solely on the failure of the driver to possess a valid driver's license. The failure of the driver to possess a license is "merely a condition attending the collision, not a cause of it." Id. at 666. This is different from what it is presumed the plaintiff is attempting to allege, that there is a continuing course of conduct leading to a danger which is a proximate cause of the plaintiff's injuries and damages. Nevertheless, as indicated in I. above, the cause of action as pled is legally insufficient and it is upon that basis alone that the motion to strike the Seventh Count is granted.
ORDER
The defendant ESPN, Inc.'s motion to strike the seventh count of the amended complaint is granted.