Case of the Day – Friday, September 20, 2019

SHIPS PASSING IN THE NIGHT

When Al Mattikow finally tripped and fell on a walkway outside of his rented townhouse, all because of a hickory tree that dropped twigs nuts, leave and sap all over the common area, he sued the condo association for negligence and for maintaining a nuisance.

The condo folks defended, showing that they maintained the tree carefully, using the services of an arborist, in order that it not become a hazard. Because they were so dutiful, the condo folks argued, they could not possibly be negligent. And that meant that the tree couldn’t be a nuisance, either.

“Whoa,” you’re thinking, “that’s so-o-o wrong!” And you are right. The defendant condo association people’s arguments and Al’s complaint were like ships passing in the night. It’s laudable that the condo folks took care of the hickory, so that it didn’t fall on Al’s pad some dark and stormy midnight. But that was hardly Al’s point. It wasn’t the tree’s falling that bothered Al. It was the falling leaves, twigs, nuts and sap, that covered the walkways and made Al’s perambulation difficult.

Negligence and nuisance both start with “n,” but they’re not synonyms. You can be negligent without creating a nuisance, and you can create and harbor a nuisance without ever being negligent. The condo association conflated the two terms, as well as conflating “safe tree” with “well-behaved tree.”

Viva la difference!

Mattikow v. West Lyon Farm Condominium Association, 2019 Conn. Super. LEXIS 2296; 2019 WL 4344368 (Superior Ct of Connecticut, Aug. 20, 2019). Al and Nina Mattikow rented a condominium unit in which they had lived for a number of years. They had complained to West Lyon Farm Condominium Association, the condominium association that managed the common areas of the property and enforced the regulations, about the extent to which leaves, hickory nuts, pollen, and sap continually fell onto the surface of the common deck near their unit, making walking hazardous. The Mattikows contended that their complaints explained that Al walked with a cane, making him more vulnerable to the conditions of the surface upon which he was walking.

Eventually, Al fell because of the droppings, he claimed, seriously injuring his ankle.

The Mattikows sued, alleging negligence and nuisance claims. The Association argued that pursuant to the bylaws and rules of the association, to which the Mattikows were bound by their lease agreement, the deck was considered to be a “limited common element.” A “limited common element” benefitted one condo unit over the others, due to its location, and the condo unit most benefitted was responsible for maintenance, including clearing leaves and other debris. The Association claimed it had no duty with respect to the maintenance of the surface of the deck under the bylaws.

The Association moved for summary judgment, claiming there is no issue of fact – it simply had no duty to maintain the premises upon which Al fell, and conversely, Al had the obligation to maintain the deck surface himself.

Held: The Association’s motion for summary judgment was denied.

In addition to claiming negligence, Al claimed that the Association is liable under a theory of nuisance. The Association was dismissive of the claim, arguing that it is derivative of the negligence claim such that if the Association wins on the negligence count, it will necessarily win on nuisance as well. But that ain’t necessarily so.

The Court noted that “the elements of nuisance are different—otherwise it wouldn’t be a distinct cause of action. Simplistically, private nuisance is based on a theory of invasion of property rights rather than a breach of the duty to use reasonable care to avoid causing harm to others. Thus, even if there were no duty to maintain the deck on the part of the defendant, as the defendant vigorously argues, the lack of any duty of maintenance or control over the deck would have no automatic consequence for the nuisance claim… Generally speaking, a duty of maintenance or right of control over the affected premises is irrelevant to a claim of nuisance, which focuses on the conduct of a party external to the affected property and the effect of that conduct on the use of the affected property.”

The Court noted that there were at least a few allegations of negligence that focused on the tree depositing debris, rather than any claimed duty to clear the debris. The main focus, however, is the responsibility of the owner of the common areas, including the hickory tree, for the debris constantly being rained down on the deck. The Association, the Court complained, paid more attention to the seemingly clearer issue of lack of duty of maintenance and less attention to possible liability emanating from the claimed negligence relating to the tree, for which the defendant is and was responsible.

Factually, the Court said, the evidence showed the Mattikows had lodged numerous complaints about the tree. The Association called in a licensed arborist, and he had inspected the tree on a number of occasions, repeatedly giving the tree a clean bill of health so long as it was properly pruned and had sufficient cables to ensure stability. The focus of the inspections by the arborist was on the viability of the tree — was it likely to fail. He also focused on the stability of the tree, given the apparent shallowness of the root system. The Association did not ask the arborist to evaluating the extent to which nuts, leaves, sap, and branch detritus were being deposited on the deck of the Mattikows’ condominium unit or whether anything could or should be done in that regard.

The Mattikow complaint claimed the Association was negligent “[i]n that it failed to trim, remove or maintain the hickory tree or to prevent the deposit of materials on the subject deck in that it failed to remedy the condition of the deck as described in paragraph four in the deck although it or should have known that such a condition(s) existed.” In turn, the condition described in paragraph four is that there was “an accumulation of materials, including but not limited to sap, mold, liquids and acorns from a large hickory tree, whose branches and limbs hung directly over said deck.”

The Association argued that it had undertaken to trim and maintain the hickory tree. Specifically, the arborist had been called in 2013, and his recommendations had been promptly followed. He was again called to inspect the tree in 2015, and his recommendations were implemented promptly. He came again in 2018, at which time his assessment was that as long as the Association “continued to prune and monitor the tree, the tree posed no hazard.”

And there was the problem, the Court said. The Association focused on whether the tree was a “hazard,” that is, not viable and likely to fall. But, the Court said, these conditions “are irrelevant to the claims being made” by Al and Nina.

The Court noted that the Association’s evidence said nothing about whether the tree should have been removed, for reasons unrelated to its viability or likelihood of toppling or shedding large branches, despite the fact that removal was the Mattikows’ stated goal. The Association did not address the issue of the existence or nonexistence of a duty to “prevent the deposit of materials on the subject deck.”

The Court compared the situation to Connecticut General Statute § 13a-149. In the absence of an ordinance enacted pursuant to General Statutes § 7-163a (and limited to snow/ice conditions), a municipality is liable for maintenance of sidewalks and the abutting property owner cannot be held responsible for any injuries caused by a failure to maintain the sidewalk, even if there is an ordinance directing the abutting property owner to maintain the sidewalk. However, if the a property owner is responsible for creating the condition on the sidewalk — and that often is a result of depositing snow on the sidewalk or having a drain/downspout releasing water onto the sidewalk which subsequently freezes — then despite the absence of any legal duty to maintain the sidewalk, an abutting property owner may be held responsible for injuries resulting from a condition causally related to the conduct of that owner of the abutting property.

The Association is in a similar role here, the Court said. “It is in control of the common areas abutting the condominium unit for which the occupant of the condominium unit has primary responsibility of maintenance. It is a situation on property over which the defendant had no control but emanating from property within the control of the defendant, with an ability of control implicating the condition causing an injury to the plaintiff.

Returning to the nuisance claim, the Association rather perfunctorily asserted that if it is right with respect to the claim of negligence, then necessarily the nuisance claim must also be a matter for which the defendant is entitled to judgment as a matter of law. This is wrong. To succeed under a nuisance theory, a plaintiff need not establish the predicate for a negligence claim. An invasion of a person’s interest in the private use and enjoyment of land by any type of liability-forming conduct is private nuisance. The invasion that subjects a person to liability may be either intentional or unintentional.

Generation of malodorous smells offensive to neighbors can form the basis for a private nuisance, and the location of the odor-generating activity is an appropriate factor to be considered. The odors do not have to be formed negligently. “The benchmark,” the Court said, “is the reasonableness or unreasonableness of the interference with the ability of another (the plaintiff) to enjoy his/her property.”

The Court ruled that it could not grant summary judgment in favor of the Association on the nuisance claim, particularly given the focus of the court on the negligence claims that did not implicate possession and control over the deck but rather control over the tree on property that was within the control of the defendant. Those claims, the Court said, were closely aligned with the possible existence of a private nuisance.

– Tom Root

TNLBGray140407

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