DocketNumber: No. CV 91 0290274S
Citation Numbers: 1992 Conn. Super. Ct. 2505
Judges: LEWIS, J.
Filed Date: 3/18/1992
Status: Non-Precedential
Modified Date: 4/17/2021
On January 9, 1992, the defendants filed (#103) a motion to strike count two of the complaint on the basis that this count fails to allege the essential elements of a cause of action in either public or private nuisance.
A motion to strike is the proper procedure with which to test the legal sufficiency of any count of a complaint. Practice Book 152(1). In ruling on a motion to strike the court is limited to the facts alleged in the plaintiff's complaint. Gordon v. Bridgeport Housing Authority,
"A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property." Quinnett v. Newman.
The allegations necessary to maintain a cause of action in nuisance are: (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. Tommasso Bros., Inc. v. October Twenty-Four, Inc.,
In addition to the four preliminary elements, the plaintiff must allege either a public or private nuisance. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his own 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 CT Page 2507 quality of the tenure." Couture v. Board of Education,
On the other hand, a public nuisance violates "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." Couture v. Board of Education, supra, 314-15. "If 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, Id., 315.
In count two, plaintiff alleges: (1) that the stairwell had a natural tendency to inflict injury; (2) the use of the land was unreasonable or unlawful; (3) and the existence of the nuisance was a proximate cause of plaintiff's injuries. Plaintiff concedes that a private nuisance is not claimed in count two, so an analysis of private nuisance is not required. Rather, plaintiff contends she has alleged facts which if proven would support an action for public nuisance.
The court must now determine whether the plaintiff has alleged facts, construed most favorably to her, sufficient to support an action for public nuisance.
In Yvonne J. Smith, et al v. Monitor Management. et al,
A clear public right has been held essential to a claim of public nuisance. See LaPalme v. Tottle,
In the case at bar, the complaint fails to allege that she was: (1) on the condominium stairwell as a matter of public right; or (2) that the defective stairs interfered with a right common to the general public; or (3) that the stairs were public property. As a result, plaintiff has not sufficiently alleged a public nuisance, and the motion to strike her second count is therefore granted.
So Ordered.
Dated at Bridgeport, Connecticut this 18th day of March, 1992.
WILLIAM B. LEWIS, JUDGE