DocketNumber: No. LPL-CV-96-0473382S
Citation Numbers: 1997 Conn. Super. Ct. 2932
Judges: LAGER, JUDGE.
Filed Date: 3/17/1997
Status: Non-Precedential
Modified Date: 4/17/2021
"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." Waters v.Autuori,
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions
stated in the pleadings." (Emphasis in original.) Mingachos v.CBS, Inc.,
The facts common to the disputed counts are as follows: The minor plaintiff Luis Martinez resided with his mother Carmen Gonzalez at 21-23 Webster Street, Hartford, Connecticut from approximately April 1, 1992 to April 20, 1993 pursuant to a lease agreement with First Federal. First Federal was the owner of record, landlord and otherwise in control of the property.
Twenty-Second Count (Negligence Per Se)
The defendant, relying on Gore v. People's Savings Bank,
To state a cause of action in negligence per se in light ofGore, the complaint must not only allege that the statute was violated and that the acts violative of the statute were causally connected to the plaintiffs' injuries, see Commercial Union Ins.Co. v. Frank Perrotti Sons, Inc.,
In this case, the twenty-second count alleges that First Federal leased premises that exposed the plaintiff to dangerous, hazardous and toxic levels of lead paint (¶ 5), that the lead hazard existed before the plaintiff occupied the property (¶ 6), and that the defendant failed to "de-lead" the premises before the plaintiff resided there (¶ 7). These allegations, CT Page 2934 read in the light most favorable to the plaintiff, support a claim that an alleged defect violative of statute or regulation existed before or at the time the minor plaintiff moved into the premises, thus imputing notice to the defendant.
In addition, the twenty-second count alleges that First Federal knew or should have known of the lead hazard in the exercise of due care and reasonable inspection and failed to remedy the condition "within a reasonable time after having notice" (¶ 7). These allegations, read in the light most favorable to the plaintiff, support a claim based on actual notice to the landlord.
The twenty-second count alleges both constructive and actual notice to the landlord. Therefore, the motion to strike the twenty-second count is denied.
Twenty-Fourth Count (Absolute Nuisance)
The revised complaint alleges in the twenty-fourth count that, pursuant to a lease agreement, the plaintiff leased and inhabited the premises and was exposed to dangerous, hazardous and toxic levels of lead paint on the interior and exterior surfaces "the existence of which has a natural tendency to create danger, especially to children under the age of six" (¶ 5). It further alleges that the existence of toxic levels of lead paint was violative of statute and regulation1 and thus "constitutes an absolute nuisance" (¶ 6).
In Sanchez v. General Urban Corp., supra, and Lovick v.Nigro, supra, this court concluded that allegations identical to these were insufficient to state a cause of action for absolute nuisance. For the reasons stated in those decisions, the defendant's motion to strike the twenty-fourth count is granted.
Twenty-Fifth Count (Abnormally Dangerous Activity)
The defendant moves to strike the twenty-fifth count on the ground that lead paint is not ultrahazardous as a matter of law. The court agrees.
In Sanchez v. General Urban Corp., supra, this court concluded as a matter of law that leasing premises that contain allegedly toxic levels of lead paint is not an abnormally dangerous activity, agreeing with many other decisions of the CT Page 2935 Superior Court. Hall v. Rivera, Superior Court, judicial district of Milford, Docket No. 049449 (Oct. 29, 1996, Skolnick, J.);Wilson v. Bellisle, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 546030 (Oct. 3, 1996, Hennessey, J.); Scott v. Duhl, Superior Court, judicial district of New Haven, Docket No. 379299 (Sept. 30, 1996, Corradino, J.); Delgado v. Learmand, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 471591 (July 12, 1996, Arena, J.); Leblanc v. Munger, Superior Court, judicial district of Windham at Putnam, Docket No. 052267 (March 13, 1995, Sferrazza, J.); Gutierrez v. Jefferson Street MedicalBldg., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 529230 (September 27, 1994, Hennessey, J.,
The plaintiff also makes a policy argument, based on Branchv. Western Petroleum, Inc.,
Accordingly, for the reasons stated in Sanchez and Lovick, the defendant's motion to strike the twenty-fifth count is granted.
Twenty-Eighth Count (CUTPA)
First Federal moves to strike the twenty-eighth count on two grounds: that the provisions of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. §§
In analyzing claims that CUTPA does not apply to personal injury actions, other judges of this court have looked to whether the conduct at issue constitutes an unfair or deceptive trade practice within the meaning of the "cigarette rule". See e.g.,Sipperly v. Burger King Corp., Superior Court, Judicial District of New London at Norwich, Docket No. 094646 (March 17, 1992, Hurley, J.). The "cigarette rule" contains three criteria by which a practice or act is deemed unfair. Fink v. Golenbock,
In paragraph 8 of the twenty-eighth count, the plaintiff alleges that the course of conduct described in the twenty-second through twenty-seventh counts against First Federal constitute the unfair and deceptive acts. Those counts allege, among other things, violations of statute (count 22) and willful, wanton and reckless conduct (count 27). In Lovick v. Nigro, supra, this court concluded that a similarly worded CUTPA count survived a motion to strike. This conclusion was premised, in part, onConaway v. Prestia,
Likewise, in Lovick this court concluded that allegations of injuries similar to those alleged in paragraph 9 of the twenty-eighth count (incorporating ¶ 8(a) — (1) of the first count) were sufficient to satisfy the "substantial injury to consumers" criterion of the "cigarette rule." The FTC has established three tests which must be met to justify a finding of unfairness: the injury (1) must be substantial, (2) is not outweighed by any countervailing benefits to consumers and (3) could not be reasonably avoided by the consumer. Williams Ford Inc. v.Hartford Courant Co.,
Finally, First Federal claims the plaintiff has failed to allege sufficient facts to satisfy the "ascertainable loss of money or property" requirement of a CUTPA action. As this court stated in Lovick v. Nigro, supra:
To meet this requirement, plaintiffs do not need to allege a specific amount of ascertainable loss but rather need only allege that they purchased an item partially as a result of an unfair practice or act and that the item is different from that for which they bargained. Hinchliffe v. American Motors Corporation,
184 Conn. 607 ,614-615 ,440 A.2d 810 (1981). Here, the plaintiffs claim that because of the defendants' unfair acts, as discussed above, they rented and inhabited apartments which contained toxic levels of lead and caused them to become lead poisoned — a result they certainly didn't bargain for. This was held sufficient in Guitterez, supra. Moreover, the revised complaint contains certain specific allegations that have been held to meet the threshold requirement regarding ascertainable loss: that the premises were leased pursuant to a lease agreement . . . under which it may be inferred that the defendants received rent, Conway v. Prestia, supra,191 Conn. at 494 , and that the plaintiffs have incurred bills and expenses for medical care and treatment and increased costs associated with obtaining a suitable education . . . . Mulqueen v. Nutri System Weight Loss, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 113014 (May 29, 1992, Rush, J.,6 Conn. L. Rptr. 459 ); Hov v. Westland Inc., Superior Court, judicial district of Fairfield at CT Page 2938 Bridgeport (Sept. 28, 1989, Thompson, J.4 Conn. Super. Ct. 729 ).
Accordingly, based on this court's decision in Lovick v.Nigro and for the other reasons stated above, the defendant's motion to strike the twenty-eighth count is denied.
Conclusion
The defendant's motion to strike the twenty-second and twenty-eighth is denied. The defendant's motion to strike the twenty-fourth and twenty-fifth counts is granted.
LINDA K. LAGER, JUDGE