Opinion
No. CV 07 5007195
January 13, 2009
MEMORANDUM OF DECISION
FACTS
On May 1, 2007, the plaintiff, Peter D. Zizzamia, filed an eight-count complaint against defendants Neil Paisey, Timothy Paisey, Andrew Pisano, Gregory Burke, General Motors Corporation and Betty Ous, alleging the following facts. Ous was the owner of a parcel of vacant land located on Pine Brook Road in Colchester, Connecticut. This parcel of land abuts Pinebrook Road and Route 16, which are public highways in Colchester. Members of the public, including Pisano and Neil Paisey, frequently operated unregistered all-terrain vehicles on this parcel. On March 30, 2005 at approximately 7:30 p.m., Pisano and/or Neil Paisey operated a motorcycle from Ous' parcel onto Route 16 and continued east. At the same time, the plaintiff was operating his 1987 Chevrolet Camaro eastbound on Route 16. The defendants' motorcycle lacked any illuminating devices. The plaintiff came suddenly upon the unilluminated motorcycle in the middle of the eastbound lane of Route 16. The plaintiff swerved into the westbound lane to avoid hitting the motorcycle and collided with another vehicle, operated by Susan L. McMinn. As a result of the crash, the plaintiff was thrown from his vehicle, through the windshield, and suffered severe and permanent injuries.
Count seven of the complaint alleges public nuisance against Ous. Specifically, in paragraph eleven, the plaintiff alleges that the defendant allowed members of the public to regularly use her property to operate all-terrain vehicles without also providing space for legally registered transport vehicles. The plaintiff alleges that this created a dangerous condition, whereby members of the public entering or exiting the defendants property were operating unregistered all-terrain vehicles on the adjacent public highway, and, as such, constituted a public nuisance.
From this point forward, "the defendant" will refer only to Ous.
The defendant filed an answer to the complaint on May 21, 2007, addressing only count seven, leaving the plaintiff to his proof on most of the allegations but denying the allegations in paragraph eleven. Subsequently, on June 11, 2008, the defendant filed a motion for summary judgment on count seven, arguing that there is no genuine issue of material fact, and she is entitled to judgment in her favor as a matter of law. The plaintiff filed a memorandum in opposition on October 6, 2008. On December 2, 2008, the defendant filed an amended memorandum in support of her motion and a memorandum in reply to the plaintiff's October 6 memorandum. No supporting affidavits or additional evidence were submitted by either party.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn, 243, 253, 926 A.2d 656 (2007).
In her motion for summary judgment, the defendant attacks only the legal sufficiency of the complaint. Although she argues that there is no genuine issue of material fact and she is entitled to judgment as a matter of law, she does not offer any evidence tending to show that the facts were different than what the plaintiff pleaded. As such, the defendant's motion for summary judgment closely resembles a motion to strike.
"[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Accordingly, "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id. Thus, pursuant to Larobina, this court must determine whether a motion for summary judgment was the proper method by which to challenge the allegations in the plaintiff's complaint.
First, this court must address the defendant's argument that count seven of the plaintiff's complaint fails to set forth a legally sufficient cause of action. The defendant argues that she owned no duty to the plaintiff because "[i]t was not foreseeable that a motor vehicle accident would result after trespassers to [her] property exited the premises," and, therefore, count seven is legally insufficient. The plaintiff, quoting Maggiore v. Courcey, Superior Court, judicial district of New Haven, Docket No. 278319 (August 2, 1991, Clark, J.) ( 2 Conn. L. Rptr. 231), counters that a land owner whose property abuts a public way must use reasonable care "to keep his premise in such condition as not to endanger travelers in their lawful use of the highway."
In count seven of his complaint, the plaintiff alleges that defendant was negligent in failing to either restrict the use of her property or provide access for lawfully registered transport vehicles, and this failure created a condition whereby members of the public were operating unregistered vehicles on public roads in order to access the defendant's parcel. The plaintiff further alleged that this condition was dangerous and had a natural tendency to inflict injury on travelers on the public roads. "Under the common-law tort of nuisance, not only an act but also an omission may form the basis for liability. `The conduct necessary to make the actor liable for . . . a public nuisance or a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest.' 4 Restatement (Second), Torts, Nuisance § 824, p. 116 (1979)." BEC Corp. v. Dept of Environmental Protection, 256 Conn. 602, 620, 775 A.2d 928 (2001). The plaintiff's cause of action is based on an alleged negligent omission, it is therefore necessary to decide whether the defendant had a duty to take positive action to prevent the trespassing motorists from entering and exiting her property on unregistered all-terrain vehicles.
"The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). "There can be no actionable negligence . . . unless there exists a cognizable duty of care . . . Whether a duty of care exists is a question of law to be decided by the court." (Citations omitted.) Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).
In the present action, the defendant had no duty to abate the alleged condition. It is a well settled rule that an "individual owes no duty to the public in reference to the [public] way except . . . to refrain from doing or placing anything thereon dangerous to the traveler." (Internal quotation marks omitted.) Salamone v. Boulanger, 32 Conn.Sup. 115, 117, CT Page 1415 342 A.2d 61 (1975) (quoting Hartford v. Talcott, 48 Conn. 525, 532 (1881)). "If one by his acts creates a dangerous condition in a highway, or so conducts his own affairs that such a condition follows and he has notice of it, he is under a duty to use reasonable care to protect travelers from it . . ." Calaway v. Schaal Son, Inc., 113 Conn. 586, 590, 115 A. 813 (1931) (imposing liability where water dripping off defendant's roof created ice on the sidewalk); see also Perkins v. Weibel, 132 Conn. 50, 42 A.2d 360 (1945) (imposing liability where grease leaked onto sidewalk from defendant's building).
The defendant is not alleged to have caused the condition. The plaintiff only alleges that the defendant "allowed" this condition to exist by failing to prevent trespassers from accessing her land by illegally operating all-terrain vehicles on the abutting highways. "The general rule is . . . that a landowner is not liable for injuries sustained by travelers upon the highway as the result of conditions which he has not been instrumental in creating or maintaining." (Citation omitted.) Sawicki v. Connecticut Railway Lighting Co., 129 Conn. 626, 633, 30 A.2d 556 (1943). Without more of an affirmative role in creating or maintaining the alleged condition, the defendant did not have a duty to protect the plaintiff from it.
The plaintiff's reliance on Maggiore v. Courcey, supra, ( 2 Conn. L. Rptr. 231), is misplaced. Maggiore is distinguishable from the present action because, in that case, the alleged dangerous condition was the defendant's placement and maintenance of a large pine tree on his property that obstructed the view of travelers on the abutting highway. Again, in the present action the plaintiff does not allege that the defendant was active in creating or maintaining the condition, and the passive role played by the defendant imposes no duty on her to public travelers vis à vis this condition.
In Marino v. Branford, Superior Court, judicial district of New Haven, Docket No. 431477 (October 12, 2000, Blue, J.) ( 28 Conn. L. Rptr. 297), the court discussed the distinction between an affirmative act and an omission with regard to an alleged nuisance a public way. The court stated that the test between acts and omissions is "[i]f the defendant did not exist, would the harmful outcome in question still have occurred in the way it did?" Id., 298. In the present case, even if the defendant did not exist, the trespassers would still have been free to ride on the public highway in vehicles unfit for highway operation to access the same parcel of land. Thus, the defendant was under no duty to prevent this alleged interference with the public highway because she did not actively create it, and her alleged omissions do not form the basis for a public nuisance. Consequently, the plaintiff's allegations in count seven do not set forth a legally cognizable cause of action.
That, however, does not end the inquiry. "In light of Larobina . . . it is not enough for the person filing a motion for summary judgment to demonstrate that, on the record as it stands, the plaintiff cannot prevail . . . [T]he person pursuing summary judgment also must demonstrate that the plaintiff is unable to remedy this defect through repleading." (Citation omitted.) Carrasquillo v. Carlson, 90 Conn.App. 705, 713-14, 880 A.2d 904 (2005).
In light of the allegations in the complaint, however, it is clear that the plaintiff would be unable to cure the legal defects of count seven. In the plaintiff's complaint and memorandum there are no allegations from which the court could conclude that the defendant actively caused the alleged condition. Furthermore, there are no allegations from which an implication could be drawn that the defendant played a sufficiently affirmative role in creating or maintaining this condition to impose liability. Accordingly, the motion for summary judgment is granted.