DocketNumber: No. 32 08 98
Citation Numbers: 1995 Conn. Super. Ct. 13100
Judges: MORAGHAN, J.
Filed Date: 11/27/1995
Status: Non-Precedential
Modified Date: 4/18/2021
Count four sounds in private nuisance. It alleges Marie Bouchard rented certain property from the Covells. As young Sandra Lee was playing on the porch she fell and her face was slashed due to a protruding piece of metal that was on the porch . . . This defective condition was known or should have been known to them if acting with reasonable care by the Defendant who failed to return phone calls, answer correspondence calling said defective condition to their attention, or to fix the aforesaid defective condition. . . . Said metal protruding from the porch hereinbefore mentioned had a natural tendency to create danger and inflict injury upon person or property. . . . Said protruding metal hereinbefore mentioned was a continued condition which existed prior to the Plaintiff's injuries. . . . Said condition of the property located at 17 Griffin Avenue was unreasonable or unlawful in that it interfered with the Plaintiff's right to use and enjoy her leasehold as tenants." The plaintiff thereafter alleges that the protrusion was the proximate cause of Sandra Lee's injuries.
In count six, alleging a CUTPA violation, based on General Statutes §
"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.'" NovametrixMedical Systems v. BOC Group, Inc.,
In count four of the amended complaint, the plaintiffs plead a cause of action sounding in private nuisance. "Generally speaking, `to establish a nuisance four elements must be proven: (1) the condition complained of had a natural tendency to create damage 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; (4) the existence of the nuisance was a proximate cause of the plaintiff's injuries and damages.'Filisko v. Bridgeport Hydraulic Co.,
Since the plaintiff has pleaded facts in support of each element of her nuisance claim and the determination of a nuisance theory is a question of fact, the motion to strike should be and is denied. See Immick v. Sears, Roebuck Co., Superior Court, Judicial District of Danbury, Docket No. 30 51 77 (January 22, 1992, Fuller, J.) (motion to strike must be denied where questions of fact exist).
In count six, the plaintiff pleads a cause of action based on a violation of CUTPA. In Conaway v. Prestia,
Other Superior Court judges have followed the Supreme and Appellate Courts' lead, generally requiring a statutory violation as a prerequisite to a CUTPA claim. See, e.g., Pollio v.Santillo, Superior Court, Judicial District of New Haven, Docket No. 35 90 30 (April 10, 1995, Hodgson, J.) ("collection of rent in the presence of a violation of statutory safety requirements offends stated public policy and is therefore actionable under CUTPA"); Levesque v. Williamsburg Associates, Judicial District of Hartford/New Britain at Hartford, Docket No. 52 62 35 (February 17, 1995, Sheldon, J.) (violation of General Statutes §
In the present case, however, the plaintiff has not pleaded that the Covells violated any statutory duty in connection with Sandra Lee's injuries. "Practice Book [§] 109A requires that when a claim is grounded on a statute, the statute must be specifically identified by number." Pollio v. Santillo, supra. Therefore, "this court is not free to infer that the . . . [plaintiff] . . . [is] invoking noncompliance with a statute. Moreover, the Appellate Court has stated that a claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based. S.M.S. TextileMills, Inc. v. Brown, Jacobson, Tillinghast, Lahan King, P.C.,
Therefore, since the plaintiff has not set forth any statutory violation perpetrated by the Covells in maintaining the metal spike on the porch, she has not pleaded her CUTPA claim with the requisite particularity. Accordingly, the Covells' motion to strike count six of the plaintiff's complaint is granted and is denied as to count four.
Moraghan, J. CT Page 13103