Opinion
FSTCV186039107S
10-07-2019
Audrey RICH v. TOWN OF WESTPORT
UNPUBLISHED OPINION
SOMMER, J.
INTRODUCTION
The defendant Town of Westport has filed a motion to strike the first and second counts of the plaintiff’s four-count complaint. The first count of the complaint alleges negligence against the town. The basis of the defendant’s motion as to the first count, which alleges negligence, is the claim that the defendant is entitled to the defense of governmental immunity. The second count alleges negligent nuisance. The defendant claims that the court should also strike the second count which alleges negligent nuisance because the plaintiff has failed to allege that the nuisance condition in question was the result of some positive act on the part of the defendant. Both sides briefed the issues and argued their positions to the court on the April 29, 2019 short calendar.
I. SUMMARY OF FACTS
The plaintiff, Audrey Rich, alleges the following facts in her complaint. On November 19, 2016, at approximately 11:20 AM, the plaintiff was walking her dog on Compo Beach, a public beach located in the Town of Westport (the "Town"). Compo Beach is bordered by a stone wall with access ways that allow passage between the beach and the adjoining sidewalk and road, with steps that descend from the sidewalk to the beach. The Town has placed steel railings extending onto the beach within the access ways. According to the plaintiff’s complaint, "Many of the steel railings are extremely old" and have "deteriorated over time," and the caps on the ends of some railings have fallen off, exposing "sharp edges" to members of the public who walk on the beach. The plaintiff further alleges that while walking near one of the railings with sharp edges, she fell and hit her head on a sharp exposed railing edge. She claims that the impact with the sharp edge caused her to sustain a severe laceration which has left a scar on her forehead.
In the first count of the complaint the plaintiff alleges that the defendant was negligent with respect to its maintenance of the steel railings because over the years the metal caps on the end of many railings have fallen off and have not been replaced, leaving sharp edges exposed. In the second count, she claims that the steel railings with exposed sharp edges constitute a nuisance and seeks to hold the defendant liable for negligent nuisance. The third and fourth counts of the complaint are not relevant to the court’s decision on the subject motion to strike.
In opposition to the defendant’s motion to strike the first count the plaintiff frames the issue as whether the Town’s responsibility for the subject railings was a governmental duty or a proprietary function. She argues that the Town is not entitled to claim governmental immunity because the facts of this case bring it within the provisions of Connecticut General Statutes 52-557(n)(a)(1) which creates an exception for municipal immunity for "Negligence in the performance of functions from which the political subdivision derives a corporate profit or pecuniary benefit." The plaintiff acknowledges that Connecticut courts have found that where a municipality engages in an activity for which it charges a fee and makes a profit, it is performing a proprietary function as in Carta v. Norwalk, 108 Conn. 697 (1929) but not where it charges only a nominal fee. See Consodine v. Waterbury, 279 Conn. 830 (2006). The plaintiff argues that the court should recognize the above statutory exception to municipal immunity because the Town charged a fee for parking at the parking area which was part of the same park as the Compo Beach area. Although she has not made any allegations regarding her claim that the Town was performing in a proprietary manner in her complaint, the plaintiff argues that she should be permitted to develop evidence through the discovery process to determine whether the operations of the Town at the subject beach were governmental or proprietary in nature.
By way of reply the defendant notes that the plaintiff does not allege in her complaint the facts which she has presented in support of her claim of proprietary conduct by the Town. Specifically, she has not alleged that the parking lot was part of the beach park or that the Town charged any fees, nominal or otherwise for parking there. Citing Novametrix Systems v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992) the defendant correctly notes that a court is limited to the facts alleged in the complaint in ruling on a motion to strike. The defendant thus argues and the court concurs that the plaintiff cannot rely on facts which she has not alleged in her complaint in opposition to a motion to strike.
In opposition to the defendant’s argument that the court should strike the second count of the complaint because the plaintiff has failed to allege that it performed an affirmative act, the plaintiff argues that the Town may be found liable for nuisance under the facts as alleged on the basis of negligent misfeasance or nonfeasance citing Keeney v. Town of Old Saybrook, 237 Conn. 135 (1996). The defendant distinguishes Keeney, supra, on the facts of that case. There, the court found that the town had intentionally created the alleged nuisance by prolonged or deliberate failure to act to remedy a known environmental and health hazard which included ignoring the mandate of the Department of Environmental Protection mandate to address failing septic systems and three DEEP orders for implementation of abatement which resulted in pollution of state waters. The court in Keeney found that these facts were sufficient for it to conclude that the defendant’s nonfeasance constituted a positive act. The defendant argues that the facts of this case as alleged by the plaintiff, that the Town’s prolonged and deliberate failure to abate, i.e., to replace the missing railing caps, leaving the edges exposed do not qualify as affirmative acts.
II. APPLICABLE LAW AND ANALYSIS
A. Motion to Strike- Legal Standard
A motion to strike challenges the legal sufficiency of the allegations of a complaint, or any counts of a complaint, to state a claim upon which relief can be granted. Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 170 (1988); Novametrix Med. Sys., Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." Novametrix Med. Sys., Inc., 224 Conn. at 214-15. "This includes the facts necessarily implied and fairly provable under the allegations ... It does not include, however, the legal conclusions or opinions stated in the complaint ..." S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn.App. 786, 796, cert. denied, 228 Conn. 903 (1993). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Id. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Med. Sys., Inc., 224 Conn. at 215. "It is incumbent upon a plaintiff to allege some recognizable cause of action in his complaint." Stavinger v. Sage Allen & Co., 146 Conn. 460, 461 (1959).
The court notes that as a procedural matter, it is established that the mere fact that a special defense, such as governmental immunity, must be alleged as a defense later in the normal course of pleadings does not preclude it from being raised at an earlier stage of the proceedings, such as by a motion to strike. Mihok v. Medtronic, Inc., Superior Court, judicial district of Stamford/Norwalk, at Stamford, Docket No. FST CV14-6023001-S, at *3 (October 20, 2016, Povodator, J.). A defendant may raise the defense of governmental immunity on a motion to strike under appropriate circumstances. Coe v. Watertown Bd. of Educ., 301 Conn. 112, 116 n.4 (2011). Where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions of which the plaintiff complains, the defendant may attack the legal sufficiency of the complaint through a motion to strike. Id.
B. Governmental Immunity As Applied to the First Count
In the first count of the complaint, the plaintiff seeks to hold the defendant liable in negligence. The defendant argues that the plaintiff fails to state an actionable negligence claim, however, because the defendant is entitled to the defense of governmental immunity pursuant to Conn. Gen. Stat. § 52-557n.
It is settled law that municipalities and their employees may be held statutorily liable for their negligence in certain circumstances. In determining whether municipal immunity applies in a case, the court must discern whether the alleged acts are ministerial or discretionary. "Generally, a municipal employee is liable for the misperformance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). Section 52-557n of the General Statutes delineates circumstances under which municipalities and their employees can be held liable in tort as well as circumstances under which they retain the shield of governmental immunity. Durrant v. Bd. of Educ. of Hartford, 284 Conn. 91, 105 (2007). Conn. Gen. Stat. § 52-557n(a)(1)(A) provides that a political subdivision of the state shall be liable for the negligent acts or omissions of the subdivision or its employees, officers, or agents occurring within the scope of their employment or official duties except as otherwise provided by law.
C.G.S. 52-557(a)(2) states, "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions ... which constitute criminal conduct, fraud, actual malice or willful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
A ministerial act is an act "which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citation omitted; internal quotation marks omitted.) Violano, 280 Conn. at 318. To allege the breach of a ministerial duty not encompassed in the statute, a plaintiff must allege the breach of some written "rule, policy, or directive that prescribed the manner in which" the contested conduct was to be performed. Id. at 326 (citation omitted; internal quotation marks omitted). Petrillo v. Town of Clinton, Superior Court, judicial district of Middlesex, at Middletown, Docket No. MMX CV13-6010856, at *4 (February 2, 2015, Aurigemma, J.).
In addition to prescribing the circumstances under which a plaintiff may hold a municipality liable for breach of a ministerial duty, Section 52-557 provides municipal employees with a qualified immunity for "negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Conn. Gen. Stat. § 52-557n(a)(2)(B). In such circumstances a plaintiff may not hold a municipal employee liable because the action at issue is discretionary. "The hallmark of a discretionary act is that it requires the exercise of judgment." (Citation omitted; internal quotation marks omitted.) Martel v. Metro. Dist. Comm’n, 275 Conn. 38, 48-49, (2005). Affording immunity to municipal officers in the performance of discretionary acts serves the policy goal of avoiding expansive exposure to liability which "would cramp the exercise of official discretion beyond the limits desirable in our society." (Citation omitted; internal quotation marks omitted.) Edgerton (Estate of Hopkins) v. Town of Clinton, 311 Conn. 217, 229 (2014). "Discretionary act immunity reflects a value judgment that- despite injury to a member of the public- the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, outweighs the benefits to be had from imposing liability for that injury." (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615 (2006).
"In general, the exercise of duties involving inspection, maintenance, and repair of hazards are considered discretionary acts entitled to governmental immunity." (Citations omitted.) Grignano v. City of Milford, 106 Conn.App. 648 (2008). "A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method [, ] and extent of inspections, maintenance [, ] and repairs." Id.
In her complaint the plaintiff alleges that the defendant was negligent in failing to provide proper maintenance of the railings to ensure that sharp edges were not exposed to the public by replacing missing caps, that it failed to post warnings or otherwise warn the public of the sharp edges of the railings, that it failed to redirect pedestrian traffic to avoid the dangerous condition, failure to inspect the railings which in the exercise of due care it would have discovered the dangerous condition, that it failed to reinstall covers on the ends of the railings and/or that it failed to erect barriers to prevent members of the public from coming close enough to the railings to result in injury.
The plaintiff does not cite to or identify in her complaint any rule, policy, or directive that prescribed the manner in which the defendant was to carry out these functions. All of the assertions listed above as they appear in the plaintiff’s complaint necessarily implicate discretionary acts. They describe the defendant’s alleged general duties to inspect, maintain and repair the allegedly hazardous condition of the steel railings.
Where there is no evidence of a written policy or guideline mandating that municipal officials must perform certain tasks in a prescribed manner Connecticut appellate case law recognizes that municipal defendants are entitled to governmental immunity because their acts and omissions are discretionary in nature. See, e.g., Violano, 280 Conn. at 323-24 (finding that governmental immunity applied where the plaintiffs failed to allege that the defendant was required by any city charter provision, ordinance, regulation, rule, policy, or other directive to secure property that had been robbed in any prescribed manner); Segreto v. City of Bristol, 71 Conn.App. 844, 857-59 (2002) (finding that the defendant was entitled to governmental immunity where the plaintiff failed to allege that the defendant had a policy or directive in place regarding those duties with which it or its employees had failed to comply); Colon v. City of New Haven, 60 Conn.App. 178, 182-83, cert. denied, 255 Conn. 908 (2000) (holding that governmental immunity applied to a teacher’s action in opening a door which allegedly struck and injured a student where the plaintiff failed to allege the existence of any directive describing the manner in which the teacher was to open the door); cf. Koloniak v. Bd. of Educ. of Bridgeport, 28 Conn.App. 277, 281-82 (1992) (concluding that governmental immunity did not apply where school maintenance personnel failed to comply with a board of education bulletin directing them to inspect and keep walkways clean on a daily basis).
Without any reference to a written policy or provision which would prescribe the defendant’s conduct with respect to inspection, maintenance, and repair of the steel railings, the allegations of the first count all involve the exercise of discretion. Under such circumstances the defendant is entitled to the protection of governmental immunity unless some exception to immunity applies.
C. Exceptions to Governmental Immunity
Connecticut recognizes three exceptions to governmental immunity, none of which are alleged in the complaint and none of which apply to the facts alleged therein. The first exception to immunity- the "identifiable person-imminent harm" exception- requires: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm. Haynes v. City of Middletown, 314 Conn. 303, 312-14 (2014); Cotto v. Bd. of Educ. of New Haven, 294 Conn. 265, 268 n.3 (2009). The second exception where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws or where the alleged acts involve malice, wantonness, or an intent to injure, rather than negligence are not applicable in this case.
The Supreme Court of Connecticut has construed the "identifiable person-imminent harm" exception to apply not only to "identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Citations omitted.) Burns v. Bd. of Educ. of Stamford, 228 Conn. 640, 646 (1994), overruled in part by Haynes v. City of Middletown, 314 Conn. 303 (2014). The only identifiable class of foreseeable victims the courts have recognized is that of schoolchildren attending public schools during school hours. Texidor v. Thibedeau, 163 Conn.App. 847, 862-63 (2016). Otherwise, Connecticut’s courts "have denied identifiable victim status unless the plaintiff was required to be at the location where the injury occurred." Strycharz v. Cady, 323 Conn. 548, 578 (2016).
"Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." (Citations omitted; internal quotation marks omitted.) Grady v. Town of Somers, 294 Conn. 324, 354 (2009). Whether a harm is imminent turns on "whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Footnote omitted.) Haynes, 314 Conn. at 323.
Here, the plaintiff has not pled facts tending to show that she was an identifiable person for purposes of this exception that she was required by law to be at the location where the incident in question occurred at the time it occurred or any other facts that would entitle her to the status of an identifiable person. See Chirieleison v. Lucas, 144 Conn.App. 430, 440 (2013).
In addition, the facts alleged by the plaintiff do not describe harm which was imminent, or that it was apparent to the defendant that the exposed steel railings were so likely to cause harm to create a clear and unequivocal duty to act immediately to prevent the harm to the plaintiff. Consequently, the allegations of the first count do not present the identifiable person-imminent harm exception to governmental immunity.
The second exception to governmental immunity, failure to comply with a specific statutory mandate is similarly inapplicable because there are no relevant statutes providing for a cause of action for failure to enforce any laws relating to the inspection, maintenance and repair of railings on municipal property. Likewise, the third exception, i.e., that the defendant acted with malice, wantonly, or with an intent to injure as required for the third exception to apply, is not relevant to the court’s analysis because the plaintiff did not plead such facts. The plaintiff has not alleged any facts that would entitle her to claim the statutory exceptions to the doctrine of governmental immunity. The court therefore concludes that because the allegations of the defendant as set forth in the plaintiff’s complaint describe discretionary actions and none of the exceptions to governmental immunity apply, the defendant is entitled to the defense of governmental immunity on the first count of the complaint.
D. Negligent Nuisance
In the second count of the complaint, the plaintiff seeks to hold the defendant liable for negligent nuisance. In order to maintain an actionable claim against the defendant for negligent nuisance, however, the plaintiff must allege that the alleged nuisance condition resulted from some positive act by the defendant. The defendant argues that the plaintiff fails to state an actionable claim for negligent nuisance in the second count of the complaint because she does not allege that the nuisance condition resulted from some positive act by the defendant.
A nuisance is described as an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property, and it refers to the condition that exists and not to the act or failure to act that creates it. Fisk v. Town of Redding, 164 Conn.App. 647, 652-53 (2016). A public nuisance claim requires proof that (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property, (2) the danger created is a continuing one, (3) the use of the land is unreasonable or unlawful, and (4) the existence of the nuisance was the proximate cause of the plaintiff’s injuries and damages. Smith v. Town of Redding, 177 Conn.App. 283, 287 (2017), cert. denied, 327 Conn. 996 (2018). In the case of a municipality, the plaintiff must also show that the condition constituting a nuisance was created by some positive act of the municipality. Keeney v. Town of Old Saybrook, supra, at 164 (1996). It is well established that a municipality is liable in nuisance only if the condition constituting a nuisance was created by the positive act of the municipality. Wright v. Brown, 167 Conn. 464, 470 (1975).
Connecticut courts have consistently held that failure to remedy a dangerous condition not of the town’s own making is not the equivalent of the required positive act. See Brennan v. West Haven, 151 Conn. 689, 693 (1964) where the Supreme Court held that the court should have instructed the jury that the town was immune from nuisance liability for water pipe failure unless they found that town created the condition termed a nuisance by a positive act. The court concludes that, similar to the Brennan case above, the acts identified by the plaintiff as leading to the creation of nuisance constitute omissions. Allegations that municipal officials had knowledge of the situation, but failed or refused to address the problem are inadequate to state a claim for nuisance. Thus, even if a plaintiff can establish the first four elements of nuisance, a plaintiff claiming public nuisance against a defendant municipality also "must prove that the defendant, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliott v. City of Waterbury, 245 Conn. 385, 421 (1998). A failure to remedy a condition not of the municipality’s own making is not the equivalent of a positive act necessary to impose liability in nuisance on a municipality. Lukas v. City of New Haven, 184 Conn. 205, 210 (1981). "Under the applicable common law ... a municipality is liable for maintaining a nuisance only if, in fact, the municipality both created and maintained the nuisance by some positive act." Starr v. Comm’r of Envtl. Prot., 226 Conn. 358, 388 (1993). A municipality is not liable for maintaining a public nuisance "if its conduct [is] merely negligent nonfeasance." Keeney, 237 Conn. at 164.
A Connecticut municipality may be liable in nuisance for "acts of [a] political subdivision which constitute the creation or participation in the creation of a nuisance." (Emphasis added.) Conn. Gen. Stat. § 52-557n(a)(1)(C). The Supreme Court has determined that the plain meaning of "acts," as used in Section 52-557n(a)(1)(C), demonstrates that the provision imposes liability in nuisance on a municipality "only when the municipality positively acts (does something) to create (cause) the alleged nuisance." Pico v. Town of Voluntown, 295 Conn. 141, 150 (2010). As such, "[a] failure to act to abate a nuisance does not fall within the meaning of the term ‘acts, ’ as used in [Section] 52-557n(a)(1)(C), because inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force." Id. at 149.
In the subject complaint the plaintiff incorporates the previously asserted allegations of negligence i.e., failure to properly inspect, maintain and repair the railings, against the defendant into the negligent nuisance count. The plaintiff does not allege that the defendant installed the steel railings with exposed sharp edges or without protective caps, nor does she allege any conduct by the defendant which could reasonably be construed as a positive act by the defendant. The words of plaintiff’s negligent nuisance claim are that the steel railings deteriorated over time, with the railing which caused her injury to be missing a cap, thereby creating a nuisance condition, and that the defendant failed to act to abate that condition. Viewing these facts most favorably on behalf of the plaintiff, her claims describe a condition of disrepair resulting from inadequate or negligent inspection. This is the language found in C.G.S. 52-557n(b) which states that a municipality shall not be liable for damages resulting from failure to make an inspection or making an inadequate or negligent inspection. Viewed in the light most favorable to the plaintiff, her claims of the town’s failure to inspect, maintain and repair the railings do not allege conduct which the court is able to construe as an affirmative act by the Town which created a nuisance as such conduct has been interpreted by the Supreme Court.
In addition, the superior and appellate court cases cited by defendant support its argument that the allegations are insufficient to impose liability for nuisance on the defendant. The following cases are illustrative of the court’s analysis in a variety of circumstances. Perry v. Town of Putnam, Superior Court, judicial district of Windham, at Putnam, Docket No. CV13-6006854-S (February 28, 2014, Boland, J.), aff’d, 162 Conn.App. 760 (2016), involving offensive behavior by individuals in a town parking lot adjacent to plaintiff’s property. On a motion to strike, the court observed that other courts had found claims that a town had "allowed the nuisance activities to exist and continue" insufficient to support claims regarding natural conditions as well as conditions created by the negligence of non-town actors. (Internal quotation marks omitted.) Id. at *4. Relying on the decisions of those courts, the court granted the defendant’s motion to strike. Id. at *4-5.
The case of Geanuracos v. Town of Farmington, Superior Court, judicial district of Hartford, at Hartford, Docket Nos. HHD CV07-5013679-S, HHD CV07-5011868-S (April 23, 2013, Vacchelli, J.), is instructive on the issue before the court. This case involved leakage from a fuel line which was part of a privately operated underground fuel storage system located on town property. The underground storage system was located in a subdivision approved by the local planning and zoning commission. Although the town did not operate the fuel storage system, the underground storage tanks which held the fuel were located on open space deeded to the town before the plaintiffs purchased their property. The fuel lines ran underground within the public right of way or street. Years later, a contractor working on the plaintiffs’ property accidentally punctured one of the old underground fuel lines located under the town property, releasing oil from underground tanks. It was also discovered that oil apparently had been leaking for some time prior to the incident.
The plaintiffs filed suit claiming public nuisance arising out of the presence of the area of older contamination. On a motion for summary judgment, the town argued that the plaintiffs had failed to plead or show that the town caused the earlier fuel leak on their property. The plaintiffs argued that, by closing the system without draining fuel oil from the system, the town left in place a leaking fuel oil system that caused damage to their property. The court concluded that the acts leading to the creation of the nuisance as omissions even combined with allegations that municipal officials had knowledge of the situation but failed or refused to address the problem are inadequate to state a claim of nuisance and that there was no evidence that the town did anything to cause the pipes to leak or that it even knew that there was leaking oil in the lines. Having concluded that the plaintiff failed to allege a positive act by the defendant, the court granted the defendant’s motion for summary judgment as to the nuisance claim. Id.
In Amex Assurance v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV05-500252 (May 16, 2006, Domnarski, J.), the court granted the city’s motion for summary judgment against a plaintiff alleging that the city’s failure to inspect and failure to abate a nuisance led to an injury to his car parked on private property adjacent to municipal land on which the alleged nuisance, a rotting tree, stood. The crux of that decision was its holding that neither a "failure to abate" a hazardous situation or a "mere permissive continuation of the alleged unsafe condition" creates liabilities under the statute.
In Rouleau v. Town of Suffield, Superior Court, judicial district of Hartford, at Hartford, Docket No. HHD CV06-5007197-S (January 16, 2013, Sheridan, J.) , the plaintiffs alleged that a "concrete structure" built by the town over a brook abutting their property to replace an existing bridge flooded their property due to water-borne debris blocking the culvert openings creating a nuisance. On a motion for summary judgment, the court noted that the plaintiffs’ allegations concerned the town’s alleged failure to reasonably design, maintain, repair, inspect, and clean the structure so as to prevent or correct the blockage by debris which acts were, in fact, omissions rather than positive acts. The allegations that the town had knowledge of the blocked culvert but failed to address the problem were inadequate to state a claim of nuisance. The court granted the motion for summary judgment.
In Leone v. Town of Portland, Superior Court, judicial district of Middlesex, at Middletown, Docket No. MMX CV12-6008054-S (May 9, 2014, Domnarski, J.) , the plaintiff alleged that the defendant town established, constructed, and maintained a defective water drainage system which caused flooding to her property. Id. The plaintiff alleged nuisance claims against the defendant and argued that the defendant committed a positive act by developing buildings around her property, which caused an increase in impervious surface area which increased water flow into the drainage system. Id. at *7. On the defendant’s motion for summary judgment, the court found that there was no proof that the defendant intended to direct water onto the plaintiff’s property, that the acts the plaintiff identified which created the alleged nuisance were "omission rather than positive acts" and that a municipality "is not liable where its sole fault is a failure to take remedial steps." (Citations omitted.) Id. The court therefore granted summary judgment on the nuisance claims. Id.
In the instant matter, the complaint is devoid of any allegation that the defendant, by some positive act, created the alleged nuisance condition. There are no allegations that the defendant installed the steel railings without caps and with exposed sharp edges. There similarly are no allegations that the defendant removed the caps so as to expose the sharp edges. There are no allegations whatsoever that the defendant intended that the steel railings have exposed sharp edges. The plaintiff instead alleges that many of the steel railings are "extremely old" and have "deteriorated over time" and that the caps on the ends of the railings have fallen off, exposing sharp edges to people who walk on Compo Beach. In these respects, the plaintiff’s allegations are akin to the allegations of a nuisance condition in Geanuracos, Rouleau, and Leone. The alleged nuisance conditions in those cases did not result from a positive act by the defendant municipality or municipal officials and were therefore insufficient to give rise to actionable public nuisance claims.
Based on a thorough review and analysis of cases in which courts have considered the requirement of a positive act to establish liability against a municipality for alleged negligent nuisance, the court concludes that the plaintiff’s negligent nuisance claim does not involve a condition that was allegedly caused by a positive act of the defendant. This court concludes that the statute’s directive that a town may be held liable for nuisance only if it has created or participated in the creation of that particular nuisance includes nuisance brought about by the type of inaction or failure to act alleged by the plaintiff. Therefore, the plaintiff has failed to state a claim upon which relief can be granted for negligent nuisance. The Court grants the motion to strike the second count of the complaint.
III. CONCLUSION
The motion to strike the first and second counts of the plaintiff’s complaint is granted.