DocketNumber: No. 111357
Citation Numbers: 1993 Conn. Super. Ct. 3297
Judges: SYLVESTER, J.
Filed Date: 4/6/1993
Status: Non-Precedential
Modified Date: 4/18/2021
There are two classifications of nuisance recognized in Connecticut: public and private. D. Wright J. Fitzgerald Connecticut Law of Torts (2d Ed.) 130. Nuisances are public where they violate public rights, "that is, rights enjoyed by citizens as part of the public." Couture v. Board of Education CT Page 3298
Prior Supreme Court decisions have established that in order to prevail on a claim of public nuisance, a plaintiff must prove that:
(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 a proximate cause of the plaintiffs' injuries and damages.
Doe v. Manheimer,
The defendants, in their memorandum of law in support of its motion to strike, argue that a patron who enters private premises with the express or implied invitation of a tenant is not exercising a public right. Therefore, argue the defendants, an invitation to the general public does not create a public right which would enable the plaintiff to pursue an action based in public nuisance for an injury occurring on private property.
In Dahlstrom v. Roosevelt Mills, Inc.,
As a patron, the plaintiff was an invitee while in the defendant's establishment. While members of the general public were unquestionably welcome to enter the store, and even CT Page 3299 solicited to do so, nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public. The public was invited to enter, but there was no public right to do so, and the defendant's establishment was not a public place where the public had a right to be. The plaintiff was not in the exercise of any public right while on the defendant's premises, and he cannot base his right to recover upon the existence of a public nuisance. It does not not appear in the complaint whether the defendant was the owner of the premises in question or a tenant thereof, but in either case the same principles of law must be applied.
Id., 357.
In Lindsay v. Supermarket General Corp.,
See also Smith v. Monitor Management
Thus, to recover for public nuisance the plaintiff must allege that she was injured in the exercise of a public right. CT Page 3300
In the case at bar, the plaintiff contends that "the maintenance of said nuisance interfered with the right common to the general public to be free from such hazards upon the property to which it was invited." This allegation is lodged against both defendant, Waz, Inc., in count two and co-defendant, Antoinette Walsh, count four.
The plaintiff has not alleged sufficient facts to support the conclusion that she was injured in the exercise of a public right. Therefore, in construing the complaint in the light most favorable to the plaintiff, Counts two and four are legally insufficient for they fail to come within the elements of a nuisance claim as provided, supra, and defendants' motion to strike is granted.
SYLVESTER, J.