Wylie v. APT Found., Inc.

317 A.3d 1160

226 Conn.App. 267

Nadine WYLIE, Administratrix (Estate of Keith Wylie)

v.APT FOUNDATION, INC.

(AC 46061)

Appellate Court of Connecticut.

Argued January 16, 2024

Officially Released June 18, 2024

Matthew D. Popilowski, New Haven, for the appellant (plaintiff).

Steven J. Zakrzewski, Glastonbury, with whom were Kelcie B. Reid and, on the brief, John J. Robinson, for the appellee (defendant).

Cradle, Seeley and Norcott, Js.

NORCOTT, J.

₂₆₈The plaintiff, Nadine Wylie, acting in her capacity as the administratrix of the estate of Keith Wylie (decedent), appeals from the judgment rendered by the trial court in favor of the defendant, APT Foundation, Inc., following the granting of a motion to strike her amended substitute complaint dated July 21, 2021. On appeal, the plaintiff claims that the court improperly concluded that she failed to allege sufficient facts to support her public nuisance claim. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the plaintiff’s amended substitute complaint and construed in the manner most favorable to sustaining its legal sufficiency,¹ and procedural history are relevant to our discussion. The defendant operated a center for drug rehabilitation and provided methadone treatment for opioid dependent patients at 495 Congress Avenue in New ₂₆₉Haven (premises). In 2017, the decedent was in a relationship with K, who was receiving treatment at the premises for her drug addiction. The decedent regularly accompanied K to her appointments at the premises. At some point, the decedent ended his relationship with K and, in September, 2017, commenced a new relationship with A, who also was receiving treatment at the premises. K, who attended group therapy with A, was unhappy about the decedent’s new relationship and she entered into a romantic relationship with Daniel Streit.

On multiple occasions between September and October, 2017, the decedent was on the premises while visiting A, as was permitted by the defendant’s patient handbook. During each of these occasions, Streit approached the decedent and a physical fight ensued. Despite the animosity between the decedent and Streit, the defendant did not take any action against K.

On October 7, 2017, the decedent traveled to the premises to visit A. Streit, wearing purple latex gloves and holding a knife, was waiting for the decedent at the end of the driveway leading to the parking lot of the premises. The defendant owned, controlled and/or maintained the driveway. As the decedent began to walk up the sidewalk toward the entrance to the driveway, Streit approached him. A physical altercation ensued and resulted in Streit fatally stabbing the decedent on the public sidewalk directly in front of the premises.

[1] The plaintiff thereafter brought this wrongful death action² against the defendant pursuant to General Statutes₂₇₀ § 52-555.³ In a two count amended substi- tute complaint, the plaintiff set forth claims of negligence and public nuisance.⁴ With respect to the negligence count, the plaintiff generally alleged that the defendant failed (1) to provide adequate security for the premises and surrounding area, (2) to remove and prevent Streit from loitering, and (3) to recognize and remedy the hostilities between the decedent, Streit, K, and A, which ultimately resulted in the decedent suffering lethal injuries.

As to the public nuisance count, the plaintiff alleged that local residents have developed concerns regarding loitering, drug use, crime, prostitution, and public defecation on private property in the immediate vicinity surrounding the premises. Next, she alleged that the defendant "created a magnet for criminal activity in the immediate vicinity surrounding the premises by providing a methadone treatment program without also providing for proper security, safety protocols, and monitoring of its facility, its patients, and the immediate ₂₇₁vicinity in order to protect the general public." For the time period from January 1 to October 7, 2017, the police responded to forty-two complaints of criminal activity, including multiple calls for violent behavior and altercations. The plaintiff also alleged that the lack of adequate security and safety protocols had a tendency to create a risk of danger and injury to those coming in contact with the premises and that the numerous calls to the police evidenced the continuous and ongoing threat to the public. The plaintiff further claimed that allowing feuding patients and their visitors to "mingle and loiter" on or near the premises, which provided methadone treatment in a high crime neighborhood without providing adequate security, safety protocols, and monitoring, constituted an unreasonable use of the property. Finally, the plaintiff alleged that the nuisance created by the defendant was the direct and proximate cause of the death of the decedent.

On January 5, 2022, the defendant moved to strike the plaintiff’s amended substitute complaint pursuant to Practice Book § 10-39.⁵ In its attached memorandum of law, the defendant noted that the amended substitute complaint alleged that the stabbing occurred on the public sidewalk that it neither owned nor controlled. As to the negligence count, the defendant argued that, in the absence of a special relationship with the decedent, it had no duty to prevent fights on the public sidewalk outside of its premises. As to the public nuisance count, the defendant claimed that the allegations set forth in the amended substitute complaint did not support the claims that the operation of a methadone clinic at the premises had a natural tendency to create ₂₇₂danger and to inflict injury on public property or that the defendant’s use of its property was unreasonable or unlawful.

On March 4, 2022, the plaintiff filed an objection to the defendant’s motion to strike. Therein, the plaintiff argued that, because she had pleaded sufficient facts that the defendant owed a duty to the decedent, the motion to strike her negligence claim should be denied. Additionally, she claimed that a cause of action for public nuisance had been pleaded sufficiently. Specifically, the plaintiff stated: "Here, the existence and operation of the methadone clinic by the defendant has continually attracted crime and allowed individuals to loiter in the driveway and in the immediate vicinity surrounding the premises while partaking in illegal activities such as drug use, prostitution, and defecation. This continuous danger has been evidenced by numerous 911 calls for criminal activity from January 1, 2017, to October 7, 2017…. The amended complaint alleges that the [defendant’s] allowing individuals like [Streit] to loiter on or near their property and use their parking lot to wait to attack [the decedent] is an unreasonable use of the property." The defendant filed a reply in support of the motion to strike on March 11, 2022.

On October 3, 2022, the court, Wilson, J., issued a memorandum of decision granting the defendant’s motion to strike as to both counts of the plaintiff’s amended substitute complaint. Regarding the negligence count, the court concluded that the plaintiff failed to demonstrate that the defendant owed a duty to the decedent.⁶ With respect to the public nuisance count, ₂₇₃the court first stated that the amended substitute complaint contained conclusory allegations that were not supported by facts. Next, the court noted that the amended substitute complaint lacked "factual allegations to indicate that the methadone clinic itself had a natural tendency to create danger and inflict injury upon person or property." Relying on this court’s decision in Perry v. Putnam, 162 Conn. App. 760, 131 A.3d 1284 (2016), the trial court explained that, "unpleasant as the activities are in the surrounding area of the methadone clinic, such activities do not imbue the methadone clinic with a natural tendency to create danger and to inflict injury."

On October 19, 2022, the defendant moved for judgment on the plaintiff’s amended substitute complaint, which had been stricken in its entirety.⁷ The court granted the defendant’s motion on November 14, 2022, and rendered judgment thereon. This appeal followed.

On appeal, the plaintiff contends that she pleaded sufficient facts to support her public nuisance claim.⁸ Specifically, she argues that the court improperly determined that the allegations regarding inadequate security were conclusory and that there were no factual allegations₂₇₄ to indicate that the methadone clinic itself had a natural tendency to inflict injury upon person or property. The defendant counters that the allegations in the amended substitute complaint regarding its rehabilitation and treatment facility being located at the premises do not satisfy any of the four elements of a public nuisance claim. We conclude that the court properly granted the defendant’s motion to strike the public nuisance claim as alleged in the amended substitute complaint.

[2–10] We begin by setting forth our standard of review and the relevant legal principles. "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…. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court…. [The court takes] the facts to be those alleged in the complaint … and [construes] the complaint 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 … [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...