MONICA PICCO et al. v. TOWN OF VOLUNTOWN et al., SC 18375

Judicial District of New London at Norwich

 Municipalities; Public Nuisance; Whether Trial Court Properly Granted Town's Motion to Strike Public Nuisance Claims on the Ground that the Claims were Legally Insufficient Because they Failed to Allege that the Town Created the Nuisance by some Positive Act.  In 2005, Monica Picco was injured when a portion of an ash tree fell on top of her while she was waiting to pick up her daughter, who was participating in a school soccer game in the town of Voluntown.  Thereafter, she and her family brought this action against the town and the town's board of education, alleging, among other things, that the dangerous condition of the tree constituted a public nuisance.  The defendants filed motions to strike the nuisance claims, contending that the claims were legally insufficient because they failed to allege that the defendants created the nuisance by some positive act.  The trial court agreed and granted the motions.  In doing so, the court emphasized that the plaintiffs merely alleged that the defendants knew or should have known of the dangerous condition of the tree but failed to remedy that condition.  The failure to remedy a condition not of a municipality's own making, the court opined, is not the equivalent of a positive act.  In coming to this conclusion, the court acknowledged that in an environmental case, Keeney v. Old Saybrook, 237 Conn. 135, 166 (1996), the Supreme Court held that "a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance."  It determined, however, that the holding in Keeney was limited to environmental cases, or at least to cases implicating public policy concerns similar to those present in environmental cases.  The court went on to conclude that the plaintiffs' nuisance claims would still be legally insufficient even if the Keeney holding were applicable.  It reasoned that while the plaintiffs alleged that the defendants failed to act although they knew or should have known of the dangerous condition, they neglected to allege that the defendants were aware that an injury was substantially certain to result from the dangerous condition as required by Keeney.  In this appeal, the Supreme Court will determine whether the trial court properly granted the defendants' motions to strike.