Opinion
No. NNH CV 09 5028239 S
January 15, 2010
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (#110)
PROCEDURAL AND FACTUAL BACKGROUND
On April 6, 2009, the plaintiff, Mark Spiegelhalter, commenced this action by service of process against the defendants, the town of Hamden (the town), Craig Henrici, Thomas Wydra, Frank Ruzzuti and Richard Stoecker. In his revised complaint filed on July 29, 2009, the plaintiff alleges the following facts. Since at least the 1940s, employees of the town have continuously maintained a parcel of land in Hamden commonly known as Bassett Park. The subject parcel makes up a portion of town lot 112, which is bordered by Ridge Road and Waite Street. Bassett Park operates as a public park, and it has a baseball diamond, soccer field, tennis courts and playground, along with other improvements. During the early 1990s, local residents began to construct numerous mounds, ramps and trails in the woods on the southern side of the park, with the purpose making a BMX (bicycle motorcross) bicycle park. According to the complaint, these "trails were created on a hillside sloping towards a golf course interspersed with dirt ramps, moguls and half-pipes, some of which towered as high as six feet. Tools and water buckets were left in the woods for repairs and bikers were constantly in the area of the BMX bicycle park using the ramps for dirt ramp jumping and bicycle tricks and riding on the trails." The plaintiff alleges that the town was aware of all of this activity and knew that it was a potentially dangerous area.
The individual defendants are all being sued in their official capacity. At the time of the subject incident, Craig Henrici was the town's mayor, Thomas Wydra the town's police chief, Frank Rizzutti the town's director of parks and recreation and Richard Stoecker the town's planner, respectively.
In 2002, the town destroyed a large portion of the BMX bicycle park in order to form a dog park. Shortly thereafter, town residents began to construct additional dirt mounds, ramps, moguls and trails in the area immediately adjacent to the dog park. This newly created BMX bicycle park was even larger than the original one that the town had destroyed, and it was plainly visible from the dog park. In approximately 2005, Stoecker, the town planner, as well as other town officials, received a directive to either destroy the BMX bicycle park or lease it to the Hamden/North Haven YMCA so that it could be professionally supervised. Similarly, on March 1, 2007, Henrici, the town's mayor, received a memorandum with the subject line "Bike Park" from Art Giulietti, the town's risk manager. This memorandum stated: "We need to either 1) tear the bike park down or 2) lease the park to the YMCA. Keeping the current situation puts upward pressures on our Insurance Premiums due to the potential of a catastrophic loss." Despite these suggestions, the town never destroyed or otherwise regulated the BMX bicycle park, nor did the town post warning or "no trespassing" signs on the subject premises. The town also failed to lease the BMX bicycle park to the YMCA.
On November 8, 2007, the plaintiff entered the BMX bicycle park with his bicycle. While riding over a dirt mound along the trail nearest to the dog park, the front tire of the plaintiff's bicycle became stuck at the top of the mound. Consequently, the plaintiff was propelled over the handlebars of his bicycle and he landed head first on the ground. The plaintiff broke his neck and suffered numerous serious physical injuries, including being rendered a quadriplegic.
As a result of these events, count one alleges a cause of action for negligence against all of the defendants. Specifically, the plaintiff alleges that the defendants were negligent in that they: (1) failed to properly supervise the BMX bicycle park; (2) allowed members of the public to use the BMX bicycle park without implementing adequate safeguards; (3) allowed "indiscriminate use of said property" when they knew there was a risk of harm; (4) failed to provide adequate safety measures; (5) did not properly warn the plaintiff or members of the public of the potential for danger, including failing to post "no trespassing" or "Ride at your own Risk" signs; (6) failed to make proper inspection of the BMX bicycle park and (7) maintained the property in a dangerous and unreasonable condition. In count two, the plaintiff alleges a claim for indemnification, pursuant to General Statutes § 7-465, against the town for the negligence of its employees. Finally, count three states a claim for public nuisance against the town. In count three, the plaintiff alleges that the BMX bicycle park "had a natural tendency to create danger and to inflict injury upon users thereof due to the inherent danger associated with it and is a nuisance to the public at large . . ." Furthermore, the plaintiff alleges that the town participated in the creation of the dangerous condition when it destroyed the first BMX bicycle park and allowed a newer, larger, one to be created.
On August 12, 2009, the defendants filed a motion to strike and a memorandum of law in support. The defendants move to strike counts one and two, negligence and indemnification, on the ground that they are barred under the doctrine of discretionary act governmental immunity. Additionally, the defendants move to strike count three on the ground that the plaintiff fails to allege a prima facie case for public nuisance. On September 16, 2009, the plaintiff filed a memorandum of law in opposition. Attached to the plaintiff's memorandum of law are: (1) a copy of a letter from Art Giulietti to Scott Jackson in the mayor's office dated March 1, 2007 and (2) a notarized affidavit from Stephen Cahill. In response, the defendants filed a reply memorandum on November 19, 2009. The court heard this matter at short calendar on November 30, 2009.
"It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). As such, the court will not consider this evidence offered in support of the plaintiff's memorandum of law in opposition.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. When ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
I GOVERNMENTAL IMMUNITY
In their memorandum of law, the defendants argue that the court should grant their motion to strike counts one and two, negligence and its corresponding claim for indemnification, on the ground that these counts are barred under the doctrine of discretionary act governmental immunity. As the revised complaint alleges that the town and its employees took certain actions regarding the maintenance of a BMX bicycle park, the defendants contend that their alleged malfeasances were all discretionary, as opposed to ministerial acts. Furthermore, the defendants argue that none of the governmental immunity exceptions apply in the present case, including the identifiable person/imminent harm exception. The plaintiff responds by arguing that his complaint alleges that the defendants engaged in ministerial acts in that the defendants had a duty to inspect and destroy the BMX bicycle park once they were on notice of its existence. Additionally, the plaintiff argues that it can maintain a cause of action for negligence under General Statutes §§ 52-557n(b)(4) and (8) and that the defendants' actions could fall within two of the exceptions to governmental immunity, the identifiable person/imminent harm exception and wanton misconduct. In their reply memorandum, the defendants argue that the town and its employees only engaged in discretionary acts, even if they operated in response to a policy or directive and had a duty to inspect the BMX bicycle park. The defendants also argue that the plaintiff cannot state a claim against the town under § 52-557n(b)(4) and (8) and that the identifiable person/imminent harm exception does not apply because the plaintiff was not within a class of foreseeable victims.
At the outset, it should be noted that it is usually inappropriate for the defense of governmental immunity to be raised on a motion to strike. Our Supreme Court has "previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint though a motion to strike . . . Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321-22, 907 A.2d 1188 (2006). Accordingly, in order to succeed on this motion to strike, the defendant must demonstrate that the allegations of the revised complaint establish that the town and its employees were engaged in governmental functions as a matter of law.
General Statutes § 52-557n(a) provides in relevant part: "(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Under § 52-557n, "a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 318.
In Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), our Supreme Court discussed the dichotomy between a discretionary and a ministerial act in the context of inspections by municipal officials. The Supreme Court noted that while failure to inspect can be classified as a ministerial duty, "what constitutes a reasonable, proper or adequate inspection involves an exercise of judgment." Id., 506. In contrast, when a town employee acts pursuant to "any city charter provision, ordinance, regulation, rule, policy or any other directive," then courts have held that the employee was engaging in a ministerial function. Violano v. Fernandez, supra, 280 Conn. 323. For instance, in Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), the Appellate Court determined that maintenance workers who failed to remove snow from the sidewalk were involved in ministerial acts because they acted contrary to a directive from the board of education "indicating that walkways were to be inspected and kept clean on a daily basis." Id., 279. Therefore, according to this case law, when a plaintiff alleges that the defendant conducted inadequate inspections, the duty is usually held to be discretionary, but when a municipal employee acts in response to a policy directive, then the duty can be ministerial.
In paragraph twenty-eight of the revised complaint, the plaintiff alleges that: "Between 2002 and November 8, 2007, and continuing through the present date, the mayor and/or town risk manager directed Hamden police officers, town recreation department officials and/or town planning department officials to destroy the BMX bicycle park, regulate or prevent access to it, lease it to a management and/or maintenance organization, place warning signs upon it to notify the public of the danger inherent in its use as a BMX bicycle park or place `no trespassing' signs upon it, and/or issue citations to residents building onto the park or otherwise prevent access to it, but they failed and/or refused to do so . . ." If these allegations are accepted as true, as they must be on a motion to strike, this paragraph alleges that town officials received a directive to police the park, erect "no trespassing" signs and prevent people from entering the park. This policy directive could conceivably create a ministerial duty for employees of the town to act. See, e.g, Bentley v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0403487 (September 4, 2001, Zoarski, J.T.R.) (denying motion for summary judgment on governmental immunity grounds because "the alleged failure to inspect could be ministerial in nature because the staff of the appropriate department of the defendant [municipality] could be required to conduct periodic inspection of the park in a prescribed manner, without the exercise of judgment or discretion as to the propriety of the action").
Furthermore, the allegations in the revised complaint are very similar to those in a case where our Supreme Court determined that the plaintiff's complaint could be construed as alleging a ministerial duty. In Tango v. New Haven, 173 Conn. 203, 377 A.2d 284 (1977), the plaintiff alleged that he had suffered injury in a sledding accident that occurred at a municipal golf course in New Haven. The complaint alleged that the city and its employees were negligent in that they "caused or allowed and permitted" members of the public to use the golf course without supervision, failed to erect any safeguards to determine courses of travel, and failed to provide adequate safety measures, including a failure to warn or properly inspect the premises. Our Supreme Court stated that "[t]he allegations of the complaint are broad and formulated in the alternative, i.e., `caused, or allowed and permitted.' As they stand they would permit proof of facts which would establish that the defendant failed properly to discharge ministerial functions. The demurrer, therefore, should have been overruled and the plaintiffs allowed an opportunity to prove that the acts or omissions which led to the injuries of the minor plaintiff were ministerial and not discretionary or supervisory." Id., 205-06.
In the present case, paragraph thirty-three of the revised complaint alleges that the defendants were negligent by "[c]ausing or allowing or permitting members of the public to use Bassett Park for the purposes of a BMX bicycle park without providing any supervision . . ." The revised complaint further alleges, inter alia, that the defendants negligently caused, allowed or permitted individuals to enter the park without "implementing any safeguards," "providing any safety measures," erecting no trespassing signs or adequately inspecting the property. As these allegations are virtually indistinguishable from those that the Supreme Court deemed in Tango as sufficient to allege a ministerial duty, it is submitted that the defendants have failed to meet their burden to demonstrate that the plaintiff's revised complaint alleges that the defendants engaged in discretionary acts as a matter of law. Accordingly, it is submitted that the court should deny the defendants' motion to strike counts one and two.
Since this court has concluded that the plaintiff's revised complaint can be construed to allege that the defendants committed ministerial acts, it is unnecessary for this court to examine the plaintiff's additional arguments in opposition to the motion to strike counts one and two. However, if this court were to examine the plaintiff's other arguments, those arguments are unavailing. First, the plaintiff argues that the plain language of General Statutes § 52-557n(b)(4) and (8) preclude the town from invoking governmental immunity. "In several cases, plaintiffs have attempted to state causes of action predicated on the exceptions to non-liability stated in General Statutes § 52-557n(b). Connecticut courts have rejected these arguments that the exceptions in § 52-557n(b) create or authorize a cause of action against municipalities." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602 (April 24, 2008, Robinson, J.) ( 45 Conn. L. Rptr. 452, 455), citing, Curtin v. Brookfield, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 020178124 (April 14, 2005, Schuman, J.) ( 39 Conn. L. Rptr. 173), aff'd sub nom, Kondrat v. Brookfield, 97 Conn.App. 31, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006); Videll v. New London, Superior Court, judicial district of New London, Docket No. CV 03 0565368 (May 17, 2005, Hurley, J.T.R.); Gonzalez v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 97 0143396 (July 17, 1998, Hodgson, J.) ( 22 Conn. L. Rptr. 446).
In his memorandum of law, the plaintiff also argues that the identifiable person/imminent harm and willful and wanton acts exceptions to governmental immunity could apply in the present case. While our Supreme Court has extended the identifiable person/imminent harm exception to include classes of foreseeable victims, this exception is narrowly construed. To date, "[t]he only identifiable class of foreseeable victims that [the Supreme Court] has recognized for these purposes is that of schoolchildren attending public schools during school hours." Cotto v. Board of Education, 294 Conn. 265, 274 (2009), Durrant v. Board of Education, 284 Conn. 91, 107, 931 A.2d 859 (2007). When determining if a plaintiff qualifies as a foreseeable victim subject to imminent harm, the focus has been on the plaintiff's compelled presence at the location of the tort. For instance, our Appellate Court has held that a plaintiff who was injured when a rotten tree limb fell on her automobile was not a foreseeable victim because "[t]he plaintiff has not cited any statute, regulation or municipal ordinance that compelled her to drive her car on the . . . [street] where the accident occurred. She has not shown that her decision to take that particular route was anything but a voluntary decision that she made as a matter of convenience." DeConti v. McGlone, 88 Conn.App. 270, 275, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). Since the plaintiff's revised complaint fails to allege that his presence in the park was required, the plaintiff cannot avail himself of the identifiable person/imminent harm exception to governmental immunity.
Furthermore, the revised complaint does not allege that the defendants committed acts involving malice, wantonness or intent to injure. "In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). According to our Supreme Court, "the use of the words `maliciously or wantonly' impliedly excludes conduct characterizable as negligent." Stiebitz v. Mahoney, 144 Conn. 443, 449, 134 A.2d 71 (1957). At worst, the plaintiff may have alleged that the defendants engaged in gross negligence in that they had knowledge of the potential for danger in Bassett Park but did nothing to rectify the situation. The revised complaint certainly does not allege that the defendants intentionally caused harm to the plaintiff.
Accordingly, this exception to governmental immunity is inapplicable in the present case.
II NUISANCE
The defendants next move to strike count three, nuisance, on the ground that the plaintiff's complaint does not allege the requisite elements of a cause of action for public nuisance. First, the defendants argue that the plaintiff fails to plead that the alleged nuisance was created by a positive act of the defendant municipality. Alternatively, the defendants contend that the plaintiff fails to allege any interference with a right common to the general public because the plaintiff chose to ride his BMX bicycle over terrain that was visibly and obviously dangerous.
In response, the plaintiff argues that he has sufficiently pleaded the positive act element in that the complaint alleges that the town "caused used of the BMX park with no supervision, safeguards and/or safety measures" because "the defendants caused the BMX bicycle park to be built into an even more dangerous hazard after 2002 by destroying the first version of it then and failing to prevent access to it . . ." The plaintiff also contends that he sufficiently alleges that the defendants interfered with a right common to the general public because the defendants had a duty to exercise reasonable care to maintain a public park.
The defendants, in their reply memorandum contend that, in an attempt to satisfy the positive act element, the plaintiff merely alleges that town failed to remedy a dangerous condition, which is insufficient to state a claim for public nuisance. Furthermore, the defendants argue that the "plaintiff was not prevented from exercising any of his common rights as a member of the public in the park, but instead decided to undertake activities that he did not have to with respect to particular aspects of the park." For all of these reasons, the defendants argue that the court should grant their motion to strike count three.
General Statutes § 52-557n(a)(1)(c) provides 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 . . ." "[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 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 plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 469 (2002). Additionally, "[t]o prove that a public nuisance exists, the plaintiff must prove . . . that the condition or conduct complained of interferes with a right common to the general public . . . Nuisances are public where they . . . produce a common injury . . . 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 . . . The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." (Citations omitted; internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 606-07, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).
When the defendant is a municipality, the plaintiff must satisfy an additional element in order to prevail on a claim for public nuisance. As stated by our Supreme Court, "[l]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164 (1996). A municipality is "not . . . liable for maintaining a public nuisance through its failure to abate [a nuisance] under the common law if its conduct were merely negligent nonfeasance . . . [F]ailure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Id. "A nuisance is created intentionally if the creator of the condition intends the act that brings about the condition . . . [or] if the [municipality] . . . knows that it is resulting or is substantially certain to result from [its] conduct." (Citation omitted; internal quotation marks omitted.) Id., 163. As aptly summarized by Judge Jones: the "[s]ubsequent cases interpreting Keeney require that the plaintiff allege either a positive act or an intentional disregard of known hazards." Monaco v. Old Saybrook, Superior Court, judicial district of Middlesex, Docket No. CV 08 5004879 (November 13, 2008, Jones, J.) ( 46 Conn. L. Rptr. 676, 677).
In paragraph six of count three of his revised complaint, the plaintiff alleges that the "[d]efendants' destruction of the first BMX bicycle park and construction of a dog park caused the BMX bicycle park to be reconstructed in a larger and more dangerous fashion with both actual and constructive knowledge of the defendants, and thereby constitutes defendants' participation in the creation of the BMX bicycle park in the dangerous condition in which it existed in November of 2007." If construed in a light most favorable to the non-moving party and accepted as true, as the court must on a motion to strike, this paragraph alleges that the defendant municipality engaged in an affirmative action that helped to form the alleged nuisance. Furthermore, in count one, which is incorporated by reference into count three, the plaintiff alleges that the town and its employees had actual notice of the potential for danger in the BMX bicycle park, and they nevertheless failed to ameliorate the conditions in the park. As such, the plaintiff alleges both that the town engaged in a positive, intentional act that formed an alleged nuisance, and that the town's employees failed to act even though they knew there was a substantial certainty of a risk of harm. Accordingly, the plaintiff sufficiently alleges the requisite positive act element necessary to establish a cause of action for public nuisance.
The defendants' alternative argument is that the revised complaint fails to allege any facts that could demonstrate interference with a right common to the general public. Specifically, the defendants argue that the plaintiff fails to allege this element because the plaintiff admits that he voluntarily rode his BMX bicycle over a portion of the park that was "visible" and "obvious." As such, the defendants contend there was no interference with a right common to the general public. The only case cited in this portion of the defendants' memorandum of law is Stewart v. Federated Department Stores Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0103721 (May 17, 1991, Lewis, J.) ( 6 C.S.C.R. 561) [ 4 Conn. L. Rptr. 67]; 234 Conn. 597, 662 A.2d 753 (1995) (appealed and aff'd on other grounds). While the court in Stewart did strike a claim for nuisance on the ground that the plaintiff failed to allege a right common to the general public, a close examination of the facts in Stewart reveals that the subject incident in that case took place in a private parking garage and the plaintiff entered at the invitation of the defendant owners and operators of that garage. In the present case, however, the plaintiff alleges that he was injured in a public park. Thus, Stewart is factually inapposite to this case. Moreover, the defendants offer no case law to support their contention that voluntarily choosing to ride one's BMX bicycle over a visible hazard operates per se to bar the plaintiff from asserting that there was an interference with a right common to the general public.
In the revised complaint, the plaintiff alleges that the town owns Bassett Park, which is "a park for the use and enjoyment of the public and has various portions of the park dedicated as, inter alia a baseball diamond, a soccer field, tennis courts, and a playground along with attendant buildings and other improvements." (Emphasis in original.) Paragraph three of count three alleges that "the condition of the BMX bicycle park at Bassett Park had a natural tendency to create danger and to inflict upon users thereof due to the inherent danger associated with it and is a nuisance to the public at large and specifically to users thereof." Read together, these statements allege that the BMX bicycle park had a natural tendency to interfere with the plaintiff's use of a public park. As appellate case law establishes that the use of a public park is a right common to the general public; see, e.g., Boyne v. Glastonbury, supra, 110 Conn.App. 607; and the plaintiff alleges an interference with the use of a public park, the court denies the motion to strike count three.
CONCLUSION
For all of the foregoing reasons, the court denies the defendants' motion to strike in its entirety.