Opinion
No. CV08-5010707S
February 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108
On December 30, 2008, Charles Rosa and Carol Rosa (the plaintiffs), filed a four-count revised complaint against Lawrence Walsh and Carol Walsh (the defendants) alleging negligence, trespass upon land, absolute nuisance and the violation of a condominium association's bylaw per General Statutes §§ 45-75 and 47-278, respectively. Specifically, the revised complaint alleges that: (1) the defendants were owners and part-time residents of Unit 20E, a condominium located in the Heritage Village in Southbury, Connecticut; (2) the plaintiffs were owners in possession of Unit 20A, a condominium located in Heritage Village and directly below Unit 20E; (3) on October 7, 2006, a rubber hose connecting a water supply to the washing machine in Unit 20E failed, causing water to flood into Unit 20A; and (4) the flooding caused substantial property damage to Unit 20A.
On January 29, 2008, the defendants filed a motion to strike counts two, three and four of the plaintiffs' revised complaint on the grounds that they are legally insufficient. The plaintiffs filed their memorandum of law in opposition, and argument was heard before this court on February 17, 2009.
"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). "[I]n 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]t does [not, however,] admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
I. Count Two (Trespass)
"The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Emphasis added; internal quotation marks omitted.) City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007). "Regarding the element of intent, [i]t is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of the foreign matter." (Emphasis added; internal quotation marks omitted.) Id. 88.
In their motion to strike and corresponding memorandum in support thereof, the defendants argue that count two should be stricken because the plaintiffs have failed to allege that the purported trespass was performed intentionally. The plaintiffs argue that they did indeed satisfy the intent element and rely on the following passage from City of Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 89, for the proposition that to do so only requires a showing that the defendants had reason to know that the invasion might occur:
"Applying a similar standard in the present context, we conclude that the [defendant] had the requisite intent to satisfy a claim of trespass because it knew that it was placing toxic substances in the landfill and that the landfill, which was not enclosed by a protective barrier, was located uphill from [the plaintiff's] adjacent property. Consequently, the [defendant] had reason to know that leachate from the landfill might invade the groundwater and migrate downhill to off-site locations." (Emphasis added.) Id. See also Scribner v. Summers; 84 F.3d 554, 558 (2d Cir. 1996).
The plaintiffs, however, mischaracterize the meaning of this dictum from City of Bristol. Picking up from where the plaintiffs left off, the Supreme Court further rationalized their decision, stating " [i]n addition, the [defendant] was permitted under the terms of the consent order to release contaminants into the groundwater flowing under property owned by [the plaintiff] and taken by the easements. The [defendant] thus had reason to know that contaminants released during testing and remediation would travel to nearby locations, including [the plaintiff's] adjoining land. Accordingly, the trial court properly concluded that the [defendant] was liable for [trespass] . . ." (Emphasis added.) Id., 89-90. Additionally, the facts in City of Bristol are easily distinguishable from those we are dealing with here. The invasion in that case was said to have been intentional because toxic substances were stored in a landfill uphill from the plaintiff's adjacent property without being contained by a protective barrier. Id. Whereas in the present case, the plaintiffs merely allege that the defendants failed to take proper precautions to ensure that a rubber hose was in sound condition or that they were alerted in the event of a flood. Indeed, the plaintiffs never allege that the defendants had any reason to suspect, let alone know to a substantial certainty, that this hose would fail.
Therefore, because the plaintiffs have not pleaded facts that would support allegations that the defendants intentionally intruded upon their unit, or that they had reason to know that the invasion would occur, their trespass claim is legally insufficient. The defendants' motion to strike count two is granted.
II. Count Three (Absolute Nuisance)
"A nuisance has been described as a condition, the natural tendency of which is to create danger and inflict injury upon person or property . . . To establish a nuisance four elements must be proven: (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 (defendant's] land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages . . . These elements are required in a nuisance action against a town as well as against a private individual . . ." (Citations omitted; internal quotation marks omitted.) Dingwell v. Litchfield, 4 Conn.App. 621, 624-25, 496 A.2d 213 (1985).
"Claims of nuisance fall into two discrete categories: (1) absolute nuisance and (2) negligent nuisance . . . The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional . . . `Intentional,' in this context, means `not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance . . .'" (Citations omitted; emphasis added; internal quotation marks omitted.) Green v. Ensign Bickford Co., 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).
In the present case, it is clear that the plaintiffs' nuisance claim as pleaded is legally insufficient. The plaintiffs have not sufficiently alleged that the condition complained of had a natural tendency to create a continuing danger and inflict injury upon person or property, or that the use by the defendants was unreasonable or unlawful. Indeed, it cannot be said that an otherwise functioning, albeit "old" hose, connecting a washing machine to a water supply, is a condition that fits within the definition of an absolute nuisance. Furthermore, the plaintiffs have failed to allege that the defendants intended to bring about the conditions which they alleged to be a nuisance. Accordingly, the defendants' motion to strike count three of the plaintiffs' revised complaint is granted.
III. Count Four (Violations of a Condominium Association's Bylaws)
"There are two distinct statutory schemes governing condominiums in Connecticut. The Condominium Act of 1976 (Condominium Act), General Statutes § 47-68 et seq., applies to condominiums created on or before December 31, [1983]; and the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq., applies to condominiums created after that date." (Internal quotation marks omitted.) Mercado v. Giesing, Superior Court, judicial district of New London, Docket No. CV 04 5100009 (January 30, 2006, Devine, J.); see also General Statutes §§ 47-201, 47-214, 47-219; Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 4 n. 1, 717 A.2d 77 (1998).
In count four, the plaintiffs attempt to assert a cause of action authorized by General Statutes § 47-278 of the Common Interest Ownership Act (CIOA) and § 47-75 of the Condominium Act of 1976 (Condominium Act) arising from the defendants' alleged violations of the Heritage Village's bylaw prohibiting nuisances and annoyances to its residents.
The bylaw at issue, Article V, section 1(c) of the Second Amendment to Restated Bylaws, as stated in the plaintiffs' complaint, provides: "No nuisances shall be allowed on the Property, nor shall any use or practice be allowed, which is a source of annoyance to its residents or which interferes with the peaceful possession or proper use of the Property by its residents."
In their memorandum in support of their motion to strike, the defendants argue that count four is legally insufficient because: (1) the plaintiffs' third count sounding in nuisance is legally insufficient; (2) they are aware of no cases where a court has allowed one unit owner to bring a cause of action directly against another unit owner for a violation of their condominium association's bylaws; and (3) the plaintiffs have not properly alleged that the condominiums at issue are subject to either of these acts.
With respect to the defendants' first argument, because this court has already stricken the plaintiffs' claim for nuisance, it will proceed in its analysis on the plaintiffs' claim that allowing water to flood into the defendants' condominium constituted a "use or practice" which was a source of annoyance to the plaintiffs and/or interfered with their peaceful possession or proper use of their property. In construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court finds that the practice of allowing water to flood into another's condominium unit, thereby causing extensive property damage therein, may constitute a sufficient annoyance to be considered a violation of the aforementioned bylaw.
The defendants' second argument must also fail. In Grey v. Coastal States Holding Co., 22 Conn.App. 497, 578 A.2d 1080, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990), the Appellate Court implicitly recognized a claim of one unit owner against another in the same condominium association under the CIOA. See also Lenhart v. Chamberlain Development Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 91 0326065 (April 24, 1995, Hodgson, J.).
Additionally, a plain reading of the General Statutes reveals that an action may indeed be brought by one unit owner against another under the Condominium Act. General Statutes § 47-86(a) sets forth the persons bound by the act and provides in relevant part that: "[a]ll unit owners, tenants of such owners, employees of owners and tenants, or any other persons who may in any manner use property or any part thereof submitted to the provisions of this chapter shall be subject to this chapter and to the declaration and bylaws of the association of unit owners." (Emphasis added.) General Statutes § 47-75(a) also provides in relevant part: "[e]ach unit owner, and the association of unit owners, shall comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto. Failure to so comply shall be ground for an action to recover damages or for injunctive relief, or for any other relief to which the party bringing such action may be entitled. Such action may be brought by the association of unit owners against any unit owner or owners or, in any proper case, by one or more aggrieved unit owners on their own behalf or as a class action. (Emphasis added.)
The court is, nevertheless, swayed by the defendant's third argument. While a cause of action may be maintained by one unit owner in a condominium association against another, a plaintiff may not simply plead as the plaintiffs have done here; in essence stating legal conclusions without factual predicates. Indeed, when dealing with a motion to strike, a court must read the plaintiffs' complaint in the light most favorable to sustaining its legal sufficiency, but it does not "admit legal conclusions . . . stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 588.
Count four of the plaintiffs' revised complaint provides in relevant part: "This Fourth Count of the Complaint is an action to recover damages for injuries sustained as a result of the defendants' failure to comply with the covenants . . . and . . . bylaws of the condominium. The theory of liability is that the covenants and bylaws . . . are designed to protect the plaintiff from the type of injuries caused by the defendants. This cause of action is explicitly authorized by Sections 47-278 and 47-75 of the Connecticut General Statutes."
The plaintiffs may not allege a cause of action under both the Condominium Act and the CIOA without alleging facts in their complaint that demonstrate that the Heritage Village Condominiums is an association subject to either of the aforementioned acts. Additionally, a condominium association may not be governed by both acts. Therefore, the defendants' motion to strike count four of the plaintiffs' revised complaint is granted.