DocketNumber: No. CV96 0152078 S
Citation Numbers: 1996 Conn. Super. Ct. 9923
Judges: RYAN, J.
Filed Date: 11/5/1996
Status: Non-Precedential
Modified Date: 4/17/2021
DISCUSSION
"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. 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 CT Page 9924 favorably to the plaintiff." Novametrix Medical Systems, Inc. v.BOC Group, Inc.,
According to the defendant the first count alleges public and private nuisance, and the plaintiffs have not refuted this characterization. The defendant argues that the count does not state a cause of action. "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. In the modern authorities 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." (Internal quotation marks omitted.) Couture v. Board of Education,
"Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public. . . . A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." Couture v. Board of Education, supra,
The sixth count alleges a breach of the Connecticut Unfair Trade Practices Act, General Statutes §
The fifth count alleges bystander emotional distress. The CT Page 9925 defendant argues that the injury is not serious, and does not rise to the level contemplated by the Supreme Court, and the plaintiff's reaction is abnormal. To allege a cause of action in bystander emotional distress, "the injury to the victim must be substantial, resulting in either death or serious physical injury." Clohessy v.Bachelor,
The complaint alleges that Emily "suffered a displaced condylar fracture of the right elbow with 90% malrotation; was admitted for hospitalization as a result of her injuries; and suffered severe pain, suffering and emotional distress; and has been substantially limited in her usual life's activities." (Complaint, ¶ 7, Count 1). Whether an injury is substantial is normally a question of fact for the trier of fact, however the Supreme Court's language, that a cause of action will not lie for minor injuries, suggests that the plaintiff does have to plead a sufficiently serious injury to sustain a cause of action. While the injury does not appear to be "substantial, resulting in either death or serious physical injury," the court prefers to await further evidence and a decision by a trier of the fact.
The defendant also argued that Nancy's alleged reaction was abnormal. The count, however, alleges several reactions, and the court cannot selectively eliminate some words from a paragraph and not others. Edelwich v. 33 Sumner Associates, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 0527767 (May 19, 1994, Hennessey, J.).
In summation, the defendant's motion to strike counts one and six are granted, and count five is reserved for a decision by the trial judge as to whether the evidence at the trial raises the issue to a question of fact.
RYAN, J.