Opinion
No. CV04 0287496-S
January 4, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
This action arises out of alleged injuries sustained by the plaintiff, Sheila Miller, on September 19, 2003. Miller, a kitchen worker and employee of Highview Manor, was at her place of employment when she attempted to light the pilot to use the stove. Thereafter, the stove backfired and exploded causing Miller numerous injuries. Prior to this incident on the evening before September 19, employees of the defendant, Simplex Grinnell, cleaned the hood and stove at Highview Manor. Miller alleges that the employees of Grinnell carelessly neglected to turn the stove's pilot back on after cleaning the stove. In counts one and two of her two-count complaint, Miller alleges negligence and nuisance, respectively. Grinnell moves to strike count two, the nuisance count, on the grounds that Miller fails to state a public nuisance claim because the complaint does not allege that a right common to the general public existed at the time of the incident.
Miller conceded, in her memorandum, that the complaint fails to allege a cause of action for private nuisance because she owned no interest in the property. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land." Webel v. Yale, 125 Conn. 515, 525 7 A.2d 515 (1939).
In order to succeed on a public nuisance claim the plaintiff must prove four 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." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public. [I]f the annoyance is one that is common to the public generally, then it is a public nuisance. The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. Moreover, a private individual may create a nuisance in a public place. Typical examples of public nuisances are: pollution, and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." (Citations omitted; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).
In ruling on a motion to strike, "[we] take the facts to be those alleged in the complaint and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
Miller alleges she was injured "as she was performing her duties as a kitchen worker at her place of employment." In her complaint, Miller does not allege that the stove was dangerous to the general public but rather that it was dangerous to "persons in the rightful exercise of their duties as employees of Highview Manor." Even though maintenance of a defective stove could constitute a fire hazard, the plaintiff has not alleged that the stove was in a public place or that her claim is based on her right as a member of the general public but rather, solely as an employee. As such, count two fails to support a cause of action for nuisance. See, Merritt v. Miller, 27 Conn.Sup. 330, 237 A.2d 381 (1967).
Grinnell's motion to strike count two is granted.
BY THE COURT
Tanzer, Judge