DocketNumber: No. CV93 0519498
Citation Numbers: 1993 Conn. Super. Ct. 7340
Judges: WAGNER, J.
Filed Date: 8/10/1993
Status: Non-Precedential
Modified Date: 4/17/2021
Defendant has moved to strike the second count on the grounds that the plaintiff cannot maintain a cause of action for private nuisance because she has not alleged an injury in relation to a right enjoyed by reason of an ownership interest in land, and the plaintiff cannot maintain a cause of action for public nuisance because she has failed to allege facts demonstrating that she was entering the Wadsworth Atheneum as a matter of public right.
A motion to strike challenges the legal sufficiency of a pleading. Mingachos v. CBS, Inc.,
In order to establish a claim of nuisance, a plaintiff must prove:
"(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 the proximate cause of the [plaintiff's] injuries and damages . . . . "
Tomasso Bros., Inc. v. October Twenty-Four, Inc.,
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 . . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. 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,
The plaintiff alleges that the Wadsworth Atheneum "was open to the general public, and invited the general public including the Plaintiff . . ., to patronize said facility and at all times held itself out as a safe place for the public to use its CT Page 7342 museum, entertainment and educational facilities." (Second Count, par. 1). The plaintiff further alleges that she entered the Wadsworth Atheneum and was "a patron, customer or otherwise invitee" (par. 2). The plaintiff alleges that the defendant's creation or allowance of a dangerous condition on the premises had a natural and inevitable tendency to cause injury to the plaintiff "and to members of the public in general and this condition . . . constituted a nuisance . . . to those patrons on said premises and in particular to the Plaintiff, . . . and the Defendant knew or should have known that such condition . . . was one which involved an unreasonable risk of serious injury to the patrons and to the Plaintiff in particular." (par. 12). The plaintiff further alleges that the conduct of the defendant "interfered with the rights common to the general public of which the Plaintiff . . . was a member." (par. 13).
Defendant argues that although the plaintiff was unquestionably welcome to enter the Wadsworth Atheneum, she was not entitled to do so by virtue of any public right. However, if we view the language in the second count in a light most favorable to the plaintiff, it would appear that plaintiff has alleged that she was entitled to enter by virtue of a public right. Because proof of that element of the plaintiff's nuisance claim is a factual isssue [issue], it would require consideration of additional facts not alleged in the pleadings, but that is in the province of the trier of fact.
Motion to strike the second count of the amended complaint is denied.
Wagner, J. CT Page 7343