Opinion
No. CV 09-5013111
November 17, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#107)
The defendants moves to strike counts three and seven of the plaintiffs' complaint on the grounds that the allegations in the complaint are legally insufficient to state a cause of action for nuisance. For the reasons stated herein, the court denies the defendant's motion.
FACTS
On September 9, 2009, the plaintiffs, Tanya and Jason Petrarca, filed an eight-count complaint against their landlord, the defendant, Helena Doubleday. On November 25, 2007, Tanya Petrarca, while exiting her first-floor apartment, allegedly slipped and fell down the exterior stairs, suffering several injuries. The plaintiffs allege that the railings, landings, stairway risers, treads of the stairway, doorway threshold, handrails and stairway walking surface were all in defective condition. The plaintiffs further allege numerous violations of the Connecticut Building Code, the International Property Maintenance Code, the Connecticut Fire Code and industry standards, for which the defendant, as owner of the premises, is responsible. In the complaint, count three alleges that the condition of the property constituted a nuisance, while count seven alleges a claim by Jason Petrarca for loss of consortium based upon the maintenance of a nuisance.
On November 23, 2009, the defendant filed a motion to strike counts three and seven of the plaintiffs' complaint on the ground that a cause of action does not lie under the circumstances alleged in the complaint involving premises that, according to the defendant, are wholly demised to the plaintiffs.
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). "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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Id.
In her memorandum of law, the defendant argues that counts three and seven are legally insufficient because a cause of action brought by a tenant for injuries sustained upon wholly demised premises sounds in negligence and not in nuisance. The plaintiffs counter that their complaint alleges a legally sufficient cause of action in nuisance as she was injured by a defective condition on that part of the premises over which the defendant retained control.
"Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 786, 900 A.2d 18 (2006). Thus, the analysis for both counts the defendant seeks to strike will be the same.
"[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 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 plaintiff's injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).
In the present case, the plaintiffs have alleged facts in their complaint that comply with this four-prong test. First, the plaintiffs allege that the stairway was in a "highly imminently dangerous condition." Next, they allege the defendant "continued" the defective and unsafe condition. Further, the plaintiffs allege that "the defendant knew, or in the exercise of due care or reasonable diligence, should have known or foreseen and guarded against" the condition. Finally, the plaintiffs allege that the acts or omissions of the defendant were the cause of Tanya Petrarca's injuries.
The next issue is whether a tenant may state a claim sounding in private nuisance. "A private nuisance can exist 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 University, 125 Conn. 515, 525, 7 A.2d 215 (1939). "In the modern authorities it [private nuisance] includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure." (Internal quotation marks omitted.) Id. "[A] landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether the portion of the property on which the condition exists is in the landlord's control or the tenant's." State v. Tipets-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987). "[T]he overwhelming majority of Superior Court decisions . . . allow a cause of action in nuisance against a landlord if the landlord retains control of the premises where there is an alleged defect." Colangelo v. Main Street Development, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 0066498 (August 9, 2000, Grogins, J.) [ 27 Conn. L. Rptr. 627]. "The word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Citation omitted.) Panroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969). "Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises . . . and it becomes a question of fact and is a matter of intention in light of all the significant and attendant facts which bear on the issue." Id.
In the present case, the plaintiffs allege that the defendant "was the owner/landlord" of the building where the alleged injury occurred. Further, in paragraphs 3(r) and (s) of count one, which was incorporated into counts three and seven, the plaintiffs allege that the "owner of the premises shall maintain the structures and exterior property in compliance with industry standards." In her memorandum of law in support of her motion to strike, the defendant argues that the defects alleged in the complaint "existed upon the wholly demised premises leased to the plaintiff . . ." "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). "It is elementary that . . . a motion [to strike] must rely wholly upon the factual allegations of the pleading addressed and may not contain affirmative factual assertions which could only be proved by evidence." State v. Bashura, 37 Conn.Sup. 745, 748, 436 A.2d 785 (App.Sess. 1981).
Therefore, at this stage in the proceedings, the plaintiffs have alleged sufficient facts to show that the defendant, as owner of the premises, is responsible for and thus in control of the area where the alleged injury occurred.
CONCLUSION
For the foregoing reasons, the plaintiffs' third and seventh counts sounding in nuisance are legally sufficient, and accordingly, the defendant's motion to strike these counts is denied.