Bennetta v. Derby

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ARLENE BENNETTA v. CITY OF DERBY
(AC 44871)
Bright, C. J., and Alvord and Alexander, Js.

Syllabus

The plaintiff sought to recover damages from the defendant city for public
nuisance in connection with injuries she sustained when she was physi-
cally and sexually assaulted while walking along a public trail in the
city. The plaintiff’s complaint alleged, inter alia, that the city has a high
crime rate and is one of the least safe municipalities in the state, that
the city had created or participated in the development of the trail and
had invited people of all ages to walk the trail and that the trail was
isolated, lacked security and was prone to criminal activity. The plaintiff
sought damages under the statute (§ 52-557n (a) (1) (C)) that imposes
liability on a municipality when its acts constitute the creation or the
participation in the creation of a nuisance. The city moved to strike the
complaint, asserting, inter alia, that the plaintiff’s public nuisance action
was barred by governmental immunity. The trial court granted the city’s
motion to strike, concluding that the complaint failed to allege that the
city created the nuisance by some positive act as required by § 52-557n
(a) (1) (C) and that there was no logical nexus by which to attribute
the criminal actions of the plaintiff’s assailant to the city. Thereafter,
the plaintiff filed a substitute complaint, which contained the same
allegations as the original complaint and an additional allegation that
the city permitted ‘‘vandals and other non-law-abiding people’’ to loiter,
roam and congregate on the trail, which created a dangerous condition
for people walking the trail. The city filed a motion to strike the substitute
complaint, which the trial court granted for the same reasons that it
had granted the city’s previous motion to strike. Subsequently, the trial
court granted the plaintiff’s motion for judgment and rendered judgment
thereon, from which the plaintiff appealed to this court. Held that the
plaintiff could not prevail on her claim that the trial court erred in
granting the city’s motion to strike because she properly had alleged in
her substitute complaint that the city created the nuisance by a positive
act as required by § 52-557n (a) (1) (C): although the plaintiff contended
that the nuisance was the dangerous condition of the trail, the allegations
viewed in the light most favorable to the plaintiff indicated that the
nuisance, if any, was created by the ‘‘vandals and other non-law-abiding
people’’ on the trail, and, despite alleging that the city permitted those
individuals to be on the trail, the plaintiff did not allege that the city
took any action to cause them to commit crimes, and, therefore, because
the acts giving rise to the alleged nuisance were those of third parties
and because the city’s act of participating in the construction of the
trail did not create or participate in the creation of a nuisance, the
plaintiff failed to allege a legally sufficient cause of action for public
nuisance; moreover, insofar as the plaintiff relied on her allegations that
the city itself is especially dangerous in arguing that the city’s conduct
of constructing a trail, permitting ‘‘vandals and other non-law-abiding
people’’ on that trail, and inviting the public to walk on the trail created
the nuisance, such allegations were not a sufficient basis on which to
conclude that the city positively acted to create the alleged nuisance,
as the acts giving rise to the nuisance were of third parties and, therefore,
were not positive acts of the city, and there was no logical nexus by
which to attribute the criminal conduct of the ‘‘vandals and other non-
law-abiding people’’ to the city.
Argued April 5—officially released May 24, 2022

Procedural History

Action to recover damages for public nuisance, and
for other relief, brought to the Superior Court in the
judicial district of Ansonia-Milford, where the court,
Pierson, J., granted the defendant’s motion to strike the
complaint; thereafter, the court granted the defendant’s
motion to strike the substitute complaint; subsequently,
the court, Pierson, J., granted the plaintiff’s motion for
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Andrew J. Pianka, for the appellant (plaintiff).
Scott R. Ouellette, for the appellee (defendant).
Opinion

ALVORD, J. In this public nuisance action, the plain-
tiff, Arlene Bennetta, appeals from the judgment of the
trial court rendered after it granted the motion filed by
the defendant, the city of Derby, to strike the plaintiff’s
substitute complaint. On appeal, the plaintiff claims that
the court erred in striking her complaint because she
properly alleged that the defendant created the nui-
sance by a positive act as required by General Statutes
§ 52-557n.1 We disagree and, therefore, affirm the judg-
ment of the court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiff com-
menced this action on March 27, 2020, by way of a
one count complaint, alleging the following: ‘‘For many
years, from at least the late 1990s to the present, the
city of Derby has ranked as one of the least safe munici-
palities in the state of Connecticut, and continuously
experiences high rates of violent and nonviolent crimes.’’
In 2005, the defendant ‘‘created or participated in the
development of a walking trail located on the west side
of Derby along the Naugatuck and Housatonic Rivers.
The project sought to invite people of all ages, including
women, children, and the elderly to walk the trail.’’
Specifically, the plaintiff alleged that an area of the
public trail located near the ‘‘Commodore Hull Bridge
was constructed in an isolated area, lacked security, and
was prime grounds for criminal activity.’’ The plaintiff
alleged that the trail did not have ‘‘adequate surveillance
cameras, phone stations, emergency call boxes, [or]
police patrol,’’ and was ‘‘out of sight from the general
public.’’ In addition, this area frequently was vandalized
and often was visited by panhandlers. On November 2,
2019, the plaintiff, a senior citizen, went for a walk
along the trail, and, in the area near the bridge, she was
physically and sexually assaulted, suffering prolonged
physical and mental injuries as a result. On the basis
of these facts, the plaintiff alleged that the defendant
was liable in nuisance.
On April 23, 2020, the defendant filed a motion to
strike, arguing that the plaintiff’s public nuisance action
was ‘‘barred by recreational use immunity pursuant to
[the Connecticut Recreational Land Use Act, General
Statutes §§ 52-557f through] 52-557i, and governmental
immunity pursuant to . . . § 52-557n for failure to state
a claim and failure to allege a positive act.’’ The plaintiff
objected. On November 30, 2020, the court, Pierson,
J., granted the defendant’s motion, determining that,
‘‘[e]ven when read in the light most favorable to the
plaintiff, the complaint fails to allege any positive act
taken by the defendant which led to the creation of a
public nuisance’’ and that ‘‘there is no logical nexus by
which to attribute the criminal actions of the plaintiff’s
assailant to the defendant.’’ On December 2, 2020, the
plaintiff filed a motion to reargue, which was denied.
On January 4, 2021, the plaintiff filed a substitute
complaint. In addition to the original allegations, the
substitute complaint alleged that ‘‘the defendant permit-
ted vandals and other non-law-abiding people to loiter,
roam, and congregate on and along the [public trail],
which created a dangerous condition for those seeking
to walk the trail.’’2 The defendant filed a motion to strike
the substitute complaint as barred by recreational use
immunity and governmental immunity. The defendant
referenced the court’s decision granting its first motion
to strike and argued that the inclusion of the allegation
that the defendant ‘‘permitted vandals and other non-
law-abiding people’’ in the area did ‘‘not cure the defec-
tive pleading of the plaintiff’s original complaint . . . .’’
Thereafter, on June 11, 2021, the court granted the
motion to strike the substitute complaint, stating that
‘‘[t]he court agrees with the defendant that the addi-
tional allegations of the substitute complaint . . . fail
to allege positive acts on the part of the defendant. As
a result, and for the reasons stated previously by the
court in its November 30, 2020 order . . . the defen-
dant’s motion to strike is granted.’’ This appeal followed.3
On appeal, the plaintiff claims that she stated a legally
sufficient public nuisance claim by alleging that the
defendant (1) created or participated in the creation of
the public trail in an area prone to criminal activity, (2)
invited women, children, and the elderly to walk on the
trail, and (3) permitted ‘‘vandals and other non-law-
abiding people to loiter, roam, and congregate along the
[trail] . . . .’’ The plaintiff contends that this conduct
constituted positive acts within the meaning of § 52-
557n (a) (1) (C). In response, the defendant argues
that, although ‘‘the plaintiff alleges that the [defendant]
created the [trail], the plaintiff has failed to allege that
the criminal attack on her was created by some positive
act by the [defendant]. The alleged positive act of creat-
ing the [trail] did not harm the plaintiff; it was the
positive act of the perpetrator.’’4 We agree with the
defendant.
‘‘We begin by setting out the well established standard
of review in an appeal from the granting of a motion
to strike. Because a motion to strike challenges the legal
sufficiency of a pleading and, consequently, requires
no factual findings by the trial court, our review of the
court’s ruling on the [defendants’ motion] is plenary.
. . . We take the facts to be those alleged in the com-
plaint that has been stricken and we construe the com-
plaint in the manner most favorable to sustaining its
legal sufficiency. . . . Thus, [i]f facts provable in the
complaint would support a cause of action, the motion
to strike must be denied. . . . Moreover, we note that
[w]hat is necessarily implied [in an allegation] need
not be expressly alleged. . . . It is fundamental that in
determining the sufficiency of a complaint challenged
by a defendant’s motion to strike, all well-pleaded facts
and those facts necessarily implied from the allegations
are taken as admitted. . . . Indeed, pleadings must be
construed broadly and realistically, rather than nar-
rowly and technically.’’ (Internal quotation marks omit-
ted.) Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d
206 (2010).
We next set forth the principles applicable to a nui-
sance claim brought against a municipality. Our Supreme
Court ‘‘has stated often that a plaintiff must prove four
elements to succeed in a nuisance cause of action: (1)
the condition complained of had a natural tendency to
create danger and inflict injury [on] 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 plaintiffs’ injuries and damages. . . . In
addition, when the alleged tortfeasor is a municipality,
our common law requires that the plaintiff also prove
that the defendants, by some positive act, created the
condition constituting the nuisance.’’ (Citation omitted;
internal quotation marks omitted.) Picco v. Voluntown,
295 Conn. 141, 146, 989 A.2d 593 (2010). This common-
law rule is codified at § 52-557n (a) (1) (C), which pro-
vides in relevant part that ‘‘a political subdivision of the
state shall be liable for damages to person or property
caused by . . . acts of the political subdivision which
constitute the creation or participation in the creation
of a nuisance . . . .’’
Our Supreme Court has described the positive act
requirement as follows: ‘‘[A]t a bare minimum, § 52-
557n (a) (1) (C) requires a causal link between the ‘acts’
and the alleged nuisance. A failure to act to abate a
nuisance does not fall within the meaning of the term
‘acts,’ as used in § 52-557n (a) (1) (C), because inaction
does not create or cause a nuisance; it merely fails to
remediate one that had been created by some other
force. Accordingly, the plain meaning of § 52-557n (a)
(1) (C) leads us to conclude that provision imposes
liability in nuisance on a municipality only when the
municipality positively acts (does something) to create
(cause) the alleged nuisance.’’ (Emphasis omitted; foot-
note omitted.) Picco v. Voluntown, supra, 295 Conn.
149–50.
A positive act is conduct that ‘‘intentionally created
the conditions alleged to constitute a nuisance.’’ Elliot
v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).
‘‘[F]ailure to remedy a dangerous condition not of the
municipality’s own making is not the equivalent of the
required positive act.’’ (Internal quotation marks omit-
ted.) Brown v. Branford, 12 Conn. App. 106, 112, 529
A.2d 743 (1987). Similarly, permissive continuation of
the alleged nuisance is not a positive act. See id. Further,
when the conditions comprising the nuisance are acts
committed by third parties, there must be a ‘‘logical
nexus by which to attribute any of the acts of the [third
parties] to the defendant.’’ Id., 113.
The following cases guide our resolution of this
appeal. In Brown v. Branford, supra, 12 Conn. App.
107, the plaintiff instituted a nuisance action against the
town of Branford after he ‘‘was struck by a motorcycle
being driven by an unidentified youth.’’ The plaintiff
alleged that the town had ‘‘deliberately created’’ the
nuisance; (internal quotation marks omitted) id., 112
n.4; and that ‘‘there existed in said area of public land
. . . an unsafe and dangerous condition which was the
source of numerous complaints from area residents, in
that it has been used and frequented by youths from
Branford and surrounding towns as a motorcycle race
course and as an area where they could congregate,
drink alcohol, use drugs and carouse not subject to any
control.’’ (Internal quotation marks omitted.) Id., 112
n.5. The trial court granted the defendant’s motion to
strike. Id., 107. On appeal, this court concluded that,
‘‘although perfunctorily stating that ‘the said nuisance
was deliberately created by the defendant,’ [the com-
plaint] recites nothing but a litany of acts amounting
at most to a permissive continuation of the alleged
nuisance.’’ Id., 112. Because the nuisance was created
by the youths with no connection to the defendant, the
plaintiff’s nuisance complaint failed to set forth a legally
sufficient claim for want of a positive act. Id., 112–13.
Similarly, in Elliot v. Waterbury, supra, 245 Conn.
389, ‘‘[the decedent] was jogging on . . . an unpaved
road in Morris when he was unintentionally shot and
killed by . . . a person who was hunting in the water-
shed area adjacent to the road and owned by Water-
bury.’’ Although the defendant city of Waterbury
allowed hunting in the watershed area, the defendant
town of Morris did not allow hunting on the road. Id.
Our Supreme Court concluded that ‘‘[t]he plaintiff . . .
has offered no evidence that reasonably could be
viewed as establishing that the Morris defendants, by
some positive act, intentionally created the conditions
alleged to constitute a nuisance.’’ Id., 421. Because
‘‘[h]unting adjacent to the public roadway is the condi-
tion alleged to constitute the nuisance,’’ and because
the plaintiff alleged no facts establishing that the town
of Morris did anything to create the nuisance, the plain-
tiff could not maintain a nuisance cause of action
against the town. (Internal quotation marks omitted.)
Id., 421–22.
Finally, in Perry v. Putnam, 162 Conn. App. 760,
762, 131 A.3d 1284 (2016), this court considered the
plaintiffs’ claim that the trial court improperly had
granted the defendant town’s motion to strike on the
basis that they had failed to allege facts sufficient to
support a nuisance action. The plaintiffs alleged that
the defendant had constructed a public parking lot next
to their home and further alleged ‘‘a litany of annoy-
ances emanating from the parking lot, ranging from
vehicle noise, littering of automotive parts, assorted
criminal activity, loud music, and headlights shining
directly into the plaintiffs’ home,’’ interfering with the
use and enjoyment of their property. (Internal quotation
marks omitted.) Id., 762–63. This court determined that,
because ‘‘the acts giving rise to the annoyances of which
the plaintiffs complain are those of third parties,’’ the
defendant’s ‘‘act of siting and constructing a parking
lot did not [create] or [participate] in the creation of a
nuisance . . . .’’ (Internal quotation marks omitted.)
Id., 767–68. Accordingly, this court concluded that the
trial court properly granted the motion to strike. Id., 768.
In the present case, although the plaintiff argues that
the nuisance is the dangerous condition of the public
trail, namely, the location of the trail, a reading of the
allegations in the light most favorable to the plaintiff
discloses that the nuisance, if any, was created by the
‘‘vandals and other non-law-abiding people’’ on the trail.
See Brown v. Branford, supra, 12 Conn. App. 112. Thus,
in order to survive a motion to strike, the plaintiff was
required to allege facts that establish that the defendant
did something to cause the conduct of the ‘‘vandals
and other non-law-abiding people . . . .’’ See Picco v.
Voluntown, supra, 295 Conn. 149–50. She has failed to
do so. Although the plaintiff alleged that the defendant
permitted the ‘‘vandals and other non-law-abiding peo-
ple’’ to be on the trail, she did not allege that the defen-
dant took any action to cause those individuals to com-
mit crimes. Because the acts giving rise to the alleged
nuisance are those of third parties, namely the ‘‘vandals
and other non-law-abiding people’’ on the trail, and
because the act of participating in the construction of
the trail did not create or participate in the creation of a
nuisance, the plaintiff has not alleged a legally sufficient
public nuisance cause of action. See Perry v. Putnam,
supra, 162 Conn. App. 768.
Ultimately, the plaintiff relies on her allegations that
Derby itself is especially dangerous in arguing that the
defendant’s conduct of constructing a trail, ‘‘permit-
t[ing] vandals and other non-law-abiding people’’ on
that trail, and inviting the public to walk on the trail
created the nuisance.5 We disagree that such allegations
create a sufficient basis on which to conclude that the
defendant positively acted to create the alleged nui-
sance. As in Perry v. Putnam, supra, 162 Conn. App.
767–68, and Brown v. Branford, supra, 12 Conn. App.
112, the acts giving rise to the nuisance in the present
case are those of third parties and, therefore, are not
positive acts of the defendant as required by § 52-557n
(a) (1) (C).
Finally, although the plaintiff alleged that ‘‘[t]he defen-
dant permitted vandals and other non-law-abiding peo-
ple’’ on the public trail, she did not allege any facts
to create a logical nexus between the behavior of the
‘‘vandals and other non-law-abiding people’’ and the
defendant. See Brown v. Branford, supra, 12 Conn. App.
113. The only positive acts alleged with respect to the
nuisance are those on the part of the ‘‘vandals and
other non-law-abiding people’’ and the individual who
attacked the plaintiff while she was walking on the
public trail. There is no logical nexus by which the
conduct of the ‘‘vandals and other non-law-abiding peo-
ple’’ can be attributed to the defendant because the
only connection between the two is the fact that the
conduct occurred on a public walking trail that the
defendant helped create.6 See id., 112–13. We therefore
conclude that the trial court properly granted the defen-
dant’s motion to strike and rendered judgment thereon.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by . . . (C) acts of the political
subdivision which constitute the creation or participation in the creation
of a nuisance . . . .’’
2
In the substitute complaint, the plaintiff also stated that the section of
the trail at issue ‘‘is owned and controlled by the state of Connecticut, but
developed by the defendant . . . for the benefit of the defendant.’’
3
The plaintiff’s first appeal was dismissed by this court for lack of a final
judgment because the trial court had not yet rendered judgment on the
stricken pleading. Thereafter, on August 2, 2021, the trial court granted the
plaintiff’s motion for judgment, and this appeal followed.
4
The defendant also argues that the judgment can be affirmed on the
alternative ground that it is immune from liability pursuant to §§ 52-557f
through 52-557i. Because we conclude that the plaintiff failed to allege a
positive act on the defendant’s part, we need not address this argument.
5
During oral argument before this court, in response to a hypothetical
question, the plaintiff’s attorney conceded that, if the public trail was con-
structed before the crime rate in Derby allegedly increased, the plaintiff
would have no argument that the defendant intentionally created the nui-
sance.
6
The plaintiff also argues on appeal that the motion to strike could not
be granted on this basis because the issue of causation was not raised in
the motion to strike. The defendant did, however, assert that there is no
logical nexus by which to attribute the acts of the plaintiff’s assailant to
the defendant in its initial motion to strike, which was incorporated by
reference into the second motion to strike. Furthermore, the defendant
argued this point before the trial court during the hearing on its second
motion to strike.
The plaintiff argues, in the alternative, that there is a logical nexus because
‘‘[t]he history of the area, the manner in which it was developed and main-
tained, and the invitation [to] vulnerable people to be exposed to non-law-
abiding people, created a foreseeable risk that people would be victimized.’’
Whether there is a ‘‘logical nexus by which to attribute any of the acts of
the [third parties] to the defendant’’; Brown v. Branford, supra, 12 Conn.
App. 113; is not a question of causation but one of whether the alleged
acts of the defendant constitute a positive act—it asks whether there is a
connection between the defendant’s actions and the third party’s actions.
See id. In the present case, there is no logical nexus connecting the creation
of the public trail to the conduct of the ‘‘vandals and other non-law-abiding
people’’ on the trail.