Opinion
FSTCV176033010
06-07-2018
Carleigh WELSH v. Edward NUSBAUM
UNPUBLISHED OPINION
GENARIO, J.
I. INTRODUCTION
In this multi-count complaint the plaintiff alleges that her parents rented a single family residence owned by the defendants Kathleen Nusbaum and Edward Nusbaum (hereinafter the defendants) from March 1995 to March 2016. The plaintiff began residing in the premises in November 2013 with the knowledge and without objection of the defendants. The plaintiff alleges that she was a neighbor to the defendants who often communicated with the defendants in person or by text mail. The plaintiff alleges that the residence in which she lived was constructed prior to 1978 and that accordingly the defendants had an obligation to provide lessees and "by association the plaintiff" with a lead hazard information pamphlet pursuant to the Toxic Substances Control Act (the TSCA), 42 U.S.C. § 2681 and the regulations enacted pursuant to the TSCA. The plaintiff alleges that the defendants failed to do so. The plaintiff’s parents and the defendants executed a written lease in March 2012 covering the period through March 31, 2014 which written lease contained an option to extend the lessees’ occupancy for an additional two years. In March 2014 one of her parents during a telephone call with the defendant Kathleen Nusbaum, in the presence of the plaintiff, agreed to extend the lease agreement for an additional year.
The plaintiff’s parents have brought a separate action against the defendants which action has been consolidated with this case.
The complaint then proceeds to outline a series of events by which the defendants notified the parents and eventually the plaintiff that the house was to be painted. When the painters came they began with power sanding and power washing of the exterior of the premises with the result that there was significant dust and residue which permeated not only the exterior of the premises but the interior of the premises including hazardous substances which required the plaintiff and her parents to vacate the premises and incur various expenses and a variety of damages as a result.
The plaintiff sets forth her claims against the defendants in nine counts as follows: Count One- Breach of Contract (lease), Count Two- Constructive Eviction, Count Three- Retaliatory Eviction, Count Four- Negligence Per Se, Count Five- Negligence (Common Law), Count Six- Nuisance, Count Seven- Abatement of Rent, Count Eight- Intentional Infliction of Emotional Distress, Count Nine- Negligent Infliction of Emotional Distress. The defendants have moved to strike all of the counts addressed against them except Count Five which sounds in common law negligence. There are also claims directed against the co-defendant Top Quality Painting & Remodeling, LLC which are not addressed in the subject motion or this memorandum.
II. MOTION TO STRIKE
"A motion to strike challenges the legal sufficiency of a pleading and consequently requires no factual findings by the trial court." Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720 (2002). (Internal quotation marks omitted.) "For purposes of ruling upon a motion to strike, the facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." Bridgeport Harbor Place I, LLC v. Ganim, 11 Conn.App. 1997, 2003 (2008), aff’d, 303 Conn. 205 (2011) (emphasis added). Pleadings must be construed broadly and realistically rather than narrowly and technically. Asylum Hill Problem Solving Revitalization Association v. King, 227 Conn. 238, 246 (2006). "The motion to strike is properly granted when the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Bridgeport Harbor Place I, LLC v. Ganim, 303 Conn. 205, 213 (2001).
III. DISCUSSION
A. Count One- Breach of Contract (lease), Count Two- Constructive Eviction, Count Three- Retaliatory Eviction
The defendants move to strike the breach of lease count arguing that the allegations of the complaint make it clear that there is no lease between the plaintiff and the defendants. The defendants point out that the plaintiff expressly alleges that the rental agreement was between the defendants and her parents, and assert that the plaintiff cannot bring a claim for breach of a lease to which she was not a party. The plaintiff argues that the facts as alleged are sufficient to raise a claim that she is a third party beneficiary of the lease and therefore entitled to enforce it. The plaintiff points out various allegations to the affect that the defendants knew she was residing at the property and did not object to her so residing, that they communicated to her on multiple occasions, that they knew she cared for her infirm father, that she was present with her mother when one of the defendants and her mother agreed to extend the lease (telephonically). The plaintiff alleges a variety of other facts indicating the defendants’ knowledge of her occupancy and interaction with her as an occupant and neighbor. The plaintiff states that these facts are sufficient for her to try her claim that she is a third party beneficiary and therefore entitled to rights under the agreement.
The law regarding the creation of contract rights in third parties in Connecticut is ... well settled ... The ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promissor should assume a direct obligation to the third party [beneficiary] and ... that intent is to be determined from the terms of the contract read in light of the circumstances attending its making, including the motives and purposes of the parties ... Although ... it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary ... [T]he only way a contract could create a direct obligation between a promissor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended.
The requirement that both contracting parties must have intended to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder ... Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee.Dow & Condon, Inc. v. Brookefield Development Corp., 266 Conn. 572, 580-81 (2003) (Emphasis added.).
In Dow & Condon the court looked directly to the language of the contract and cited particular language in the contract that evidenced a clear intent that the parties to the contract intended to be bound to a third party. See also Wykehan Rise, LLC v. Federer, 305 Conn. 448, 473 (2012). However, in the present case the plaintiff has provided the court with no language whatsoever in the lease agreement which would lead the court to the conclusion or set forth facts from which the court could infer the possibility in light of all the circumstances that the defendants intended to be contractually obliged to the plaintiff. The mere fact that the defendants were aware that the plaintiff benefited from their agreement with her parents does not in and of itself create a contractual obligation or evidence an intent that the defendants intended to be bound to the plaintiff. See e.g., Paventi v. Kusmirek, 15 Conn.L.Rptr. 106 (1995), and Mertz v. Otis Elevator Company, 10 Conn.L.Rptr. 84 (1993).
The facts alleged in the complaint do not, without more, provide a basis for determining that the defendants intended to be bound to the plaintiffs. Such an inquiry starts with the language of the lease and if the language is ambiguous or provides some basis for establishing that intent, the surrounding circumstances can then be considered to shed light on any ambiguities in the lease. In the case at bar the plaintiff has not provided the court with any language in the lease from which such an inquiry can begin. In fact, the only reference to the lease itself in the complaint is that it was an agreement between the plaintiff and the defendants which was initiated many years before the plaintiff became a co-occupant. Even the most recent written document was executed in 2012, well before the plaintiff became an occupant. Specifically, the plaintiff alleges that the defendants and her parents entered into the most recent written lease in 2012 prior to her occupancy, which 2012 lease contained an option to extend. It was that optional extension of the 2012 lease agreed to in a conversation between the plaintiff’s mother and the defendant Kathleen Nusbaum which the parties were operating under at the time of the events that required the plaintiff to vacate the premises. Thus at the time that the most recent written lease was executed by the defendants and the plaintiff’s parents, the plaintiff was not residing at the premises. If anything the factual pattern indicates an intent to be bound to the plaintiff’s parents with a mere subsequent acquiescence in the plaintiff’s subsequent occupancy. The defendants could not have intended to be bound to the plaintiff in 2012, when they executed the most recent lease, since the plaintiff was not even an occupant at the time. There is nothing in the allegations of the complaint that indicate that the language of the lease evidences the intent necessary to create a third-party beneficiary relationship between the plaintiff and the defendants. Accordingly, the motion to strike the first count is granted.
With regard to the third count alleging retaliatory eviction, C.G.S. § 47a-20 allows a claim of retaliatory eviction to be set up as a defense to an eviction but not as a claim for money damages as a result of the retaliatory eviction. See Wilson v. Jefferson, 98 Conn.App. 147 (2006). Accordingly, the motion to strike the third count must be granted.
With regard to the second count alleging constructive eviction, the defendants argue that since the plaintiff is not a third-party beneficiary, she has no rights pursuant to the lease and therefore cannot state a claim for constructive eviction. While the court agrees that the plaintiff has not set forth a claim as a third-party beneficiary, she has alleged that she was an occupant of the premises. As an occupant she had certain rights as a person in possession. If those rights to possession were compromised by the defendant’s action she may have a claim for constructive eviction. Those rights and or damages may be less than a person who has long term rights pursuant to a lease, but that goes to the measure of damages. Accordingly, the motion to strike the second count must be denied.
B. Count Four- Negligence Per Se
In the fourth count the plaintiff alleges that the defendant is liable under the doctrine of negligence per se for violation of certain provisions of the TSCA and the regulations promulgated thereunder. In moving to strike this count the defendants rely on the case of In re: E.I. duPont de Nemours & Company. See- Personal Injury Litigation, 2015 WL 4092866 (U.S.D.C. S.D. Ohio, Eastern Division). In the duPont case the Federal District Court in a thorough and comprehensive opinion analyzed multiple cases in which a party had tried to bring a private cause of action pursuant to the TSCA and noted the many decisions which had ruled that such Act provides no private cause of action. The duPont court went on further to discuss the additional theory of negligence per se when a private cause of action is not expressly authorized under a certain federal statute and similarly provided a thorough listing of cases which have held that a negligence per se count cannot be brought under state common-law theory for violation of the TSCA primarily for the reason that such common-law actions would be inconsistent with the federal intent in enacting the law which in effect preempts such actions. Notably, the plaintiff in her opposition brief provides no authority that would in any way contradict the holding of duPont and the cases it relies upon. Since the law is clear that a negligence per se claim cannot be brought for violation of the Federal Toxic Substances Control Act, the motion to dismiss Count Four must also be granted.
C. Count Six- Nuisance
In the sixth count the plaintiff asserts a claim sounding in nuisance. While the plaintiff does not clearly indicate whether the count attempts to state a claim in public nuisance or private nuisance, it would appear from the allegations that it more closely fits within the realm of private nuisance. The plaintiff cannot state a claim for public nuisance because there is no allegation of an interference with a public right as a result of the defendant’s actions. In Pestey v. Cushman, 259 Conn. 345 (2002), the court distinguished between claims for private nuisance and public nuisance and set forth the elements of a claim for private nuisance under modern law. Adopting the basic principles of § 822 of the Restatement (Second) of Torts, the Court concluded "that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property." Pestey at 361. While much of the Pestey case involved a discussion about the nature of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The defendant’s motion to strike in the case at bar is directed at the fact that the plaintiff does not allege an ownership interest in the property.
In support of their position the defendants rely on the case of Webel v. Yale, 125 Conn. 515 (1939), Meizoso v. Bajoros, 12 Conn.App. 516 (1987), and Graves v. United Technologies, 1993 WL 171324 (May 10, 1993 Sylvester, J.). The defendants assert that all three cases stand for the proposition that in order to state a claim in private nuisance the defendant must allege interference with an ownership interest (or at least a substantial interest) in real property.
In all three of the cited cases the courts ruled that the plaintiff could not maintain an action in private nuisance but in all three of those cases the plaintiff had no interest whatsoever in the real property other than a short term interest as an invitee on to property. In Webel the plaintiff was a customer in a beauty shop operated by one of the defendants. In Meizoso the plaintiff was an attendee at a picnic that he had paid fifteen dollars to attend. In Graves the plaintiff appears to have been an invited guest to the premises.
While there is language in the Meizoso case that "in order to recover in a private nuisance action a plaintiff must have an ownership interest in the land" Meizoso at 518. The Meizoso case did not have to deal in any significant way with the nature of the interest in land a plaintiff must have in order to establish a claim in private nuisance because the plaintiff therein had virtually no interest in land and was merely a short term attendee at a picnic. Meizoso in turn relied upon Webel which likewise did not have to delve into the nature of the interest in land because the plaintiff therein had virtually no interest in land beyond that of being a short term customer of the proprietor of the business. But the language of Webel allows for a more broader group of plaintiffs who might have an interest in land other than an ownership interest. In Webel, decided in 1939 the court acknowledged that historically "[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," but went on to say that "[i]n 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 " Webel at 525 quoting Pollock, torts, 13th Ed., page 422. (Emphasis added.) Graves expressly acknowledged the same quote from Pollock . The case law stands for the proposition that one does not need to be an owner of real property to assert a claim in private nuisance but must have an interest in the land. The plaintiff’s allegations, when read in the manner most favorable to her, indicate that she was a long term occupant of the property and even though she is not a lessee or even a third-party beneficiary of the lease she still had an interest in the property as a long term occupant that is recognized in law. In order to state a cause of action in private nuisance it is not "the quality of the tenure" that matters but rather whether or not the plaintiff is an occupier who retains the use of the property of which [she] is in possession. The plaintiff’s complaint alleges facts when read in a manner most favorable to her indicates that she was an occupier, though not an exclusive occupier, of the premises and as such had an interest in the real estate. If the defendants wanted to regain possession from her, they would have properly done so pursuant to a summary process action. While the court does not conclude that the nature of the plaintiff’s occupancy is sufficient for her to ultimately prevail in her claim on private nuisance, the plaintiff is entitled to provided evidence under her allegations as to the nature of that occupancy to determine whether it is sufficient to establish that element of a cause of action in private nuisance. The allegations are simply sufficient to survive a motion to strike.
D. Count Eight- Intentional Infliction of Emotional Distress and Count Nine- Negligent Infliction of Emotional Distress
In the Eighth Count the plaintiff seeks damages for intentional infliction of emotional distress and in the ninth count the plaintiff seeks questions for negligent infliction of emotional distress. In the landmark case Carrol v. Allstate Insurance Company, 262 Conn. 433 (2003), the Connecticut Supreme Court distinguished between the two claims. In Carrol a fire had occurred in the plaintiff’s home and the defendant insurer denied coverage asserting that the plaintiff had intentionally set the fire. The jury found for the plaintiff, not only on the breach of contract count, but also on the intentional infliction of emotional distress and negligent infliction of emotional distress counts. The Supreme Court noted that the evidence could have supported a finding that the insurer’s investigation was hurried and insufficient and neither thorough nor neutral. The jury could have also found that the defendant insurer’s investigator had a tendency to find arson as the cause of suspicious fires and ignore facts counter to the conclusion of arson. The Supreme Court held that such facts were insufficient to support a verdict for intentional infliction of emotional distress stating
Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Carrol, supra, at 443 (internal citations and quotations omitted). See also Appleton v. Board of Education, 254 Conn. 205 (2000).
However, on the same facts the Carrol court refused to set aside the plaintiff’s verdict for negligent infliction of emotional distress. Noting that the four elements of a claim for negligent infliction of emotional distress are:
(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress.Carrol at 444. The allegations contained in the complaint are sufficient to allow the plaintiff to introduce proof to support each of these elements. The heart of the defendant’s assertion in its motion to strike the count for negligent infliction of emotional distress is that the allegations are insufficient to allow evidence from which a jury could find that the emotional distress was severe enough that it might result in illness or bodily harm. The defendant’s claim raises reasonable issues. In a negligent infliction of emotional distress claim the plaintiff must prove that "the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Carrol at 446-47, quoting Scanlon v. Connecticut Light and Power Company, 258 Conn. 436, 446 (2001). Thus at trial the defendants must introduce evidence that, at the time of their conduct, the defendants should have realized that their conduct not only involved an unreasonable risk of emotional distress but that the defendants would have realized, at that time, that the distress would have been severe enough that it might result in illness or bodily harm. This is different than proving that the plaintiff might have suffered harm from the power sanding and power washing activities. The harm that the defendants should have realized in order for the plaintiff to prevail in this claim is that the emotional distress from the paint removal activities was so severe that the emotional distress could have resulted in illness or bodily harm.
However, reading the pleadings in a manner most favorable to the plaintiff, the court cannot say in this procedural context that the plaintiff has not set forth a viable cause of action for negligent infliction of emotional distress and accordingly the motion to strike the Ninth Count must be denied.
E. Abatement of Rent
Since there is not allegation that the plaintiff paid rent the motion to strike the Seventh Count must also be denied.
IV. CONCLUSION
For all these reasons the motion to strike the First Count (breach of lease), the Third Count (retaliatory action), the Fourth Count (negligence per se), the Seventh Count (abatement of rent), the Eighth Count (intentional infliction of emotional distress) is granted; the motion to strike the Second Count (constructive eviction), the Sixth Count (private nuisance) and the Ninth Count (negligent infliction of emotional distress) is denied.