Mulcahey v. International Tel. & Tel. Corp.

• Decision Date: 04 April 1974
• Docket Number: No. 136850,136850
• Court: Connecticut Superior Court
• Parties: Gail N. MULCAHEY v. INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION et al.

Page 804

318 A.2d 804

31 Conn.Supp. 1

Gail N. MULCAHEY v. INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION et al.

No. 136850.

Superior Court of Connecticut, New Haven County, at New Haven.

April 4, 1974.

Joseph B. Clark, New Haven, for plaintiff.

Sperandeo, Weinstein, Carangelo & Donegan, New Haven, for named defendant.

Thomas F. Keyes, Jr., Assistant Corporation Counsel, New Haven, for defendant city of New Haven.

HULL, Judge.

The named defendant was the lessee of the Temple Street garage in New Haven owned by the defendant city of New Haven. The plaintiff was a parking customer in the garage and claimed injuries caused by certain basic structural and design defects in a pedestrian area of the garage as set forth in the plaintiff's complaint. The first count against the defendants is based on negligence, and the second count is based on nuisance, reading in part: 'The conduct of defendants was such as to create a condition, the natural tendency of which was to create danger or inflict injury to persons legally on said premises, and such conditions constituted a nuisance.'

The defendant lessee demurred as follows: 'It does not appear, nor is it alleged that the plaintiff was injured in relation to a right she enjoyed by reason of her ownership of an interest in land, and there can be no cause of action for public nuisance against this defendant under the circumstances alleged in the Complaint.'

There are no allegations in the complaint, nor indeed could there be any under the circumstances of this case, which would sustain a claim to a public nuisance. The brief of the plaintiff does not claim a public nuisance and apparently no such claim is made. Therefore, insofar as a public nuisance is concerned, the demurrer must be sustained.

The plaintiff, who did not allege whether the claimed nuisance was a public or a private nuisance, has relied in her brief on the existence of a private nuisance.

The settled law of this aspect of the demurrer is cited to one extent or another in both briefs. It controls the decision of this demurrer as set forth in Webel v. Yale University, 125 Conn. 515, 524, 7 A.2d 215, 219, wherein the court stated: 'One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance. A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. 'In the modern authorities it (private nuisance) includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure.' Pollock, Torts, 13th Ed., 422; Salmond, Torts, 8th Ed., 235; Harper, Torts, § 179.'

In accordance with the Webel case, public nuisance would be inapplicable even if alleged or claimed by the plaintiff. The...