A state court in Connecticut has denied a school district’s bid to dismiss the claim of a soccer player, who sued after he was injured in a game. The player alleged that a fence constructed less than 10 feet from a soccer playing field constituted “a danger to any member of the public enjoying the field.”
The court “liberally construed” the relevant statutes as including not just a member of the general public, but also an individual participating in a high school soccer game.
The incident occurred when plaintiff Caleb MacDonald was pushed by an opposing player into the fence during a game, suffering significant injuries as a result. MacDonald and his family sued, alleging in each count that “the proximity of the fence to the field constituted a public nuisance for which the defendants are liable under Connecticut General Statutes §52-557n.”
The court wrote the “essential elements to establish a claim for nuisance are as follows:
(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.”
The defendant’s motion to strike was “predicated on the contention that the complaint fails to allege a public nuisance, there being no contention plaintiff can assert a claim for private nuisance.” In support of their argument, the defendants cited Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432 (1986), “which upheld the granting of a motion for directed verdict involving a claim for public nuisance against similar defendants also arising from an athletic contest. In Couture, the plaintiff was injured during a football game when a player was forced out of bounds hitting the plaintiff and driving him into unprotected grandstands. Of significance there was the fact that at the time of the collision, the plaintiff had been recruited to act as a sidelines official and was standing in an area not then accessible to the general public. The specific language from Couture, and on which defendants rely, focuses on this; ‘The plaintiff’s claim for recovery was based on his particular position in relation to the defendants. At the time he was injured, the plaintiff was not exercising any right he held as a member of the general public. In fact, he was in the area where he was injured only because of his special status as a game official.’ Id.
“Here, the defendants correctly point out that at the time of the injury alleged, the plaintiff was on the soccer field as a player on a high school team, circumstances this court cannot infer were applicable to the public generally at the time of the injury. Arguing that at the time of the injury, the plaintiff was not exercising a right of the general public, defendants say any claim for public nuisance must fail.
“On the other hand, liberally construed, the allegations of these counts allege a condition which would also constitute a danger to the general public. The complaint alleges the field was open to the general public and, regardless of federation rules, was too close to the field of play. In short, the condition alleged is one which could endanger any member of the public using the field for a vigorous game of soccer while the field was open to the public. Many public facilities, particularly school grounds and athletic fields, are areas open to the public except when being used for a particular purpose such as school events. Under defendant’s reading of Couture, in hypothetical cases involving otherwise identical facts, circumstances and injuries, the plaintiff here would have a claim for public nuisance if he were playing with his friends in a pickup game when the field was open to the public, but no claim for the same injuries during a high school match.”
The court noted that the “difficult question” it faces “is whether Couture should be read as excluding claims for public nuisance, simply because at the moment of injury, the plaintiff was not acting as a member of the public.
“While there is phrasing in the case which could lead to such a conclusion, this court declines to adopt that reading. Couture’s holding was in the context of a directed verdict, where all evidence had been placed into the record and the circumstances of the nuisance claim were fully known. These circumstances involved a player forced out of bounds who in turn drove a person standing on the sidelines as an official during a game into unpadded stands. In that case, there was also some contention that team players not then in the game were allowed to crowd the sidelines hampering the plaintiff’s ability to avoid the injury. The court’s decision in Couture could have reflected an assessment that such circumstances were unique to a game and could not exist when the field was open to the public. In other words, a member of the public could never be injured in the same manner. In the present case, this court cannot presently come to such a conclusion.
“Second, Couture relied heavily on the decision in Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 30 A.2d 388 (1943), which did not involve any differentiation of the rights the injured party was enjoying based on the time of the accident. In Higgins, the plaintiffs had been injured while climbing 30-foot trees and coming into contact with electrical lines. The Couture court’s reading of Higgins was that members of the general public would not be climbing 30-foot trees and thus the claims did not rest on their rights as members of the general public.”
The court went on to cite Carabetta v. Meriden, 145 Conn. 338, 339, 142 A.2d 727 (1958) and the following passage: “The essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury.”
Thus, “so long as that danger is continuous, legal protection should be afforded. Where a party would suffer substantially the same exposure to substantially the same danger, the common law of nuisance should not deny protection to injured parties solely on the fortuitous capacity of their access at the moment of injury.
“In this case, the plaintiff has alleged a condition which might constitute a danger to any member of the public enjoying the soccer field. Liberally construed, this condition could constitute a nuisance to the public and the fact that the injury occurred while the plaintiff had access as a team member and not as a member of the general public should not, for that fact alone, shield the defendants.”
Caleb MacDonald et al. v. Regional School District No. 12 et al.; Super Ct. Conn., Jud. Dist. Of Danbury; DBDCV116007995S, 2012 Conn. Super. LEXIS 728; 3/14/12
