DocketNumber: No. CV 94 0539334
Judges: HENNESSEY, J. CT Page 583
Filed Date: 1/25/1996
Status: Non-Precedential
Modified Date: 7/5/2016
The revised complaint, filed on December 14, 1994, alleges, and for the purposes of this motion it is undisputed, that on January 5, 1992, Hansen slipped and twisted her ankle on a cracked and uneven, egress and ingress rear walkway to her apartment building. As a result, Hansen allegedly suffered economic and noneconomic damages. Huntington owned, possessed and controlled the property consisting of the rear walkway. White Co. was employed by Huntington to act as the managing agent for the plaintiff's apartment complex.
The revised complaint is in five counts. The first count alleges that the plaintiff's personal injuries, and resulting economic and noneconomic damages, were caused by the defendants' negligence, in that the defendants failed to maintain the rear walkway in a condition safe for its intended use. The second and third counts allege that the plaintiff's injuries and resulting damages were caused by a nuisance created by the defendants. The fourth count alleges that the plaintiff's injuries and damages were caused by the defendants failure to maintain the property in a safe condition as required by General Statutes §
On June 13, 1995, the defendants moved for summary judgment as to counts one through four, inclusive, claiming that the causes of actions therein are barred by the applicable statute of limitations. The standard of review of a motion for summary judgment is well settled: "Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384 provides: ``The judgment sought shall be rendered forthwith if the CT Page 584 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. The trial court must ``view the evidence in the light most favorable to the nonmoving party.' (Internal quotation marks omitted.) Water Way Properties v. ColtMfg. Co.,
The defendants filed a memorandum of law in support of the motion for summary judgment, and the plaintiff filed a memorandum in opposition.
A. Count One — Negligence
The first count alleges a cause of action in negligence. At oral argument, the plaintiff conceded that the negligence action is time barred by the applicable statute of limitations, General Statutes §
B. Counts Two and Three — Nuisance
The defendants contend that both the second and third counts allege a cause of action for negligent nuisance. The defendants further claim that the statute of limitations applicable to a negligent nuisance cause of action is General Statutes §
The plaintiff's argument in response is two-fold. First, the plaintiff claims that the second count is a cause of action for absolute nuisance, not negligent nuisance as the defendants contend. The plaintiff therefore argues that the applicable statute of limitations for the second count is General Statutes §
Second, the plaintiff admits that the third count alleges a cause of action for negligent nuisance. Contrary to the defendants, however, the plaintiff argues that §
"The burden rests on the plaintiff to allege a recognizable cause of action. . . . ``Such a requirement has its basis in two principles inherent in our procedure: The first is that in any action the complainant is required to set forth facts upon the basis of which, if true, he may be able to establish in law a right to relief, for unless that is done, the pleading is [subject to a motion to strike] . . . and the second [principle] is that a pleading must fairly apprise the court and the adverse party of the claims to be made. . . .'" (Citations omitted.) Rossignolv. Danbury School of Aeronautics, Inc.,
"A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property.State v. Tippetts-Abbett-McCarthy-Stratton,
In the second count, the plaintiff alleges that Huntington owned and possessed the property consisting of the rear walkway, and that the White Co. was hired by Huntington to manage its property, including the rear walkway. The second count further alleges that the defendants created and/or maintained the rear walkway in a cracked and uneven condition, and said walkway constituted an unreasonable and inherently dangerous condition based on the rear walkway's intended use.
These allegations, viewed in the most favorable light to the plaintiff, sufficiently allege a cause of action for absolute nuisance. See Restatement (second) of Torts, §§ 822, 824, 839. Evidence may be offered under these allegations that the defendants knew about the rear walkway's state of disrepair, yet, nevertheless intentionally decided not repair it. Such evidence would evince an intentional decision not to abate a condition inherently dangerous to others on the property. If so proven, the defendants may be liable to the plaintiff under an absolute nuisance theory. Restatement (Second) of Torts, § 822, 824, 839. Accordingly, the court finds that the second count sufficiently pleads a cause of action for absolute nuisance, and the third count CT Page 587 sufficiently pleads a cause of action for negligent nuisance.
The time in which a plaintiff has to commence an action for absolute nuisance is governed by General Statutes §
D. Count Four — Negligence Per Se
The defendants claim that the fourth count alleges a cause of action for negligence per se. The defendants assert that General Statutes §
The plaintiff claims that the fourth count is a breach of contract action, and thus, the time permitted to file said action is governed by either General Statutes §
"Damages for breach of contract are such as arise naturally from the breach itself or as may reasonably be within the contemplation of the parties at the time of making the contract as a probable result of a breach CT Page 588 thereof." Nowakowski v. Rozbicki,
Therefore, the court concludes that the fourth count alleges a cause of action for negligence per se. The statute of limitations that governs actions for negligence per se is §
CONCLUSION
The plaintiff commenced her action approximately two and one-half years after she sustained her injuries. Therefore, counts one, three and four, which set forth causes of actions based in negligence, are time barred by the applicable statute of limitations, General Statutes §
M. Hennessey, J.