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*********************************************** 
ARLENE BENNETTA v. CITY OF DERBY

(AC 44871)

Bright, C. J., and Alvord and Alexander, Js.

Syllabus

The plaintiff sought to recover damages from the defendant city for public

nuisance in connection with injuries she sustained when she was physically and sexually assaulted while walking along a public trail in the

city. The plaintiff’s complaint alleged, inter alia, that the city has a high

crime rate and is one of the least safe municipalities in the state, that

the city had created or participated in the development of the trail and

had invited people of all ages to walk the trail and that the trail was

isolated, lacked security and was prone to criminal activity. The plaintiff

sought damages under the statute (§ 52-557n (a) (1) (C)) that imposes

liability on a municipality when its acts constitute the creation or the

participation in the creation of a nuisance. The city moved to strike the

complaint, asserting, inter alia, that the plaintiff’s public nuisance action

was barred by governmental immunity. The trial court granted the city’s

motion to strike, concluding that the complaint failed to allege that the

city created the nuisance by some positive act as required by § 52-557n

(a) (1) (C) and that there was no logical nexus by which to attribute

the criminal actions of the plaintiff’s assailant to the city. Thereafter,

the plaintiff filed a substitute complaint, which contained the same

allegations as the original complaint and an additional allegation that

the city permitted ‘‘vandals and other non-law-abiding people’’ to loiter,

roam and congregate on the trail, which created a dangerous condition

for people walking the trail. The city filed a motion to strike the substitute

complaint, which the trial court granted for the same reasons that it

had granted the city’s previous motion to strike. Subsequently, the trial

court granted the plaintiff’s motion for judgment and rendered judgment

thereon, from which the plaintiff appealed to this court. Held that the

plaintiff could not prevail on her claim that the trial court erred in

granting the city’s motion to strike because she properly had alleged in

her substitute complaint that the city created the nuisance by a positive

act as required by § 52-557n (a) (1) (C): although the plaintiff contended

that the nuisance was the dangerous condition of the trail, the allegations

viewed in the light most favorable to the plaintiff indicated that the

nuisance, if any, was created by the ‘‘vandals and other non-law-abiding

people’’ on the trail, and, despite alleging that the city permitted those

individuals to be on the trail, the plaintiff did not allege that the city

took any action to cause them to commit crimes, and, therefore, because

the acts giving rise to the alleged nuisance were those of third parties

and because the city’s act of participating in the construction of the

trail did not create or participate in the creation of a nuisance, the

plaintiff failed to allege a legally sufficient cause of action for public

nuisance; moreover, insofar as the plaintiff relied on her allegations that

the city itself is especially dangerous in arguing that the city’s conduct

of constructing a trail, permitting ‘‘vandals and other non-law-abiding

people’’ on that trail, and inviting the public to walk on the trail created

the nuisance, such allegations were not a sufficient basis on which to

conclude that the city positively acted to create the alleged nuisance,

as the acts giving rise to the nuisance were of third parties and, therefore,

were not positive acts of the city, and there was no logical nexus by

which to attribute the criminal conduct of the ‘‘vandals and other nonlaw-abiding people’’ to the city.

Argued April 5—officially released May 24, 2022

Procedural History

Action to recover damages for public nuisance, and

for other relief, brought to the Superior Court in the

judicial district of Ansonia-Milford, where the court,

Pierson, J., granted the defendant’s motion to strike the
complaint; thereafter, the court granted the defendant’s

motion to strike the substitute complaint; subsequently,

the court, Pierson, J., granted the plaintiff’s motion for

judgment and rendered judgment thereon, from which

the plaintiff appealed to this court. Affirmed.

Andrew J. Pianka, for the appellant (plaintiff).

Scott R. Ouellette, for the appellee (defendant).
Opinion

ALVORD, J. In this public nuisance action, the plaintiff, Arlene Bennetta, appeals from the judgment of the

trial court rendered after it granted the motion filed by

the defendant, the city of Derby, to strike the plaintiff’s

substitute complaint. On appeal, the plaintiff claims that

the court erred in striking her complaint because she

properly alleged that the defendant created the nuisance by a positive act as required by General Statutes

§ 52-557n.1 We disagree and, therefore, affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff commenced this action on March 27, 2020, by way of a

one count complaint, alleging the following: ‘‘For many

years, from at least the late 1990s to the present, the

city of Derby has ranked as one of the least safe municipalities in the state of Connecticut, and continuously

experiences high rates of violent and nonviolent crimes.’’

In 2005, the defendant ‘‘created or participated in the

development of a walking trail located on the west side

of Derby along the Naugatuck and Housatonic Rivers.

The project sought to invite people of all ages, including

women, children, and the elderly to walk the trail.’’

Specifically, the plaintiff alleged that an area of the

public trail located near the ‘‘Commodore Hull Bridge

was constructed in an isolated area, lacked security, and

was prime grounds for criminal activity.’’ The plaintiff

alleged that the trail did not have ‘‘adequate surveillance

cameras, phone stations, emergency call boxes, [or]

police patrol,’’ and was ‘‘out of sight from the general

public.’’ In addition, this area frequently was vandalized

and often was visited by panhandlers. On November 2,

2019, the plaintiff, a senior citizen, went for a walk

along the trail, and, in the area near the bridge, she was

physically and sexually assaulted, suffering prolonged

physical and mental injuries as a result. On the basis

of these facts, the plaintiff alleged that the defendant

was liable in nuisance.

On April 23, 2020, the defendant filed a motion to

strike, arguing that the plaintiff’s public nuisance action

was ‘‘barred by recreational use immunity pursuant to

[the Connecticut Recreational Land Use Act, General

Statutes §§ 52-557f through] 52-557i, and governmental

immunity pursuant to . . . § 52-557n for failure to state

a claim and failure to allege a positive act.’’ The plaintiff

objected. On November 30, 2020, the court, Pierson,

J., granted the defendant’s motion, determining that,

‘‘[e]ven when read in the light most favorable to the

plaintiff, the complaint fails to allege any positive act

taken by the defendant which led to the creation of a

public nuisance’’ and that ‘‘there is no logical nexus by

which to attribute the criminal actions of the plaintiff’s

assailant to the defendant.’’ On December 2, 2020, the
plaintiff filed a motion to reargue, which was denied.

On January 4, 2021, the plaintiff filed a substitute

complaint. In addition to the original allegations, the

substitute complaint alleged that ‘‘the defendant permitted vandals and other non-law-abiding people to loiter,

roam, and congregate on and along the [public trail],

which created a dangerous condition for those seeking

to walk the trail.’’2 The defendant filed a motion to strike

the substitute complaint as barred by recreational use

immunity and governmental immunity. The defendant

referenced the court’s decision granting its first motion

to strike and argued that the inclusion of the allegation

that the defendant ‘‘permitted vandals and other nonlaw-abiding people’’ in the area did ‘‘not cure the defective pleading of the plaintiff’s original complaint . . . .’’

Thereafter, on June 11, 2021, the court granted the

motion to strike the substitute complaint, stating that

‘‘[t]he court agrees with the defendant that the additional allegations of the substitute complaint . . . fail

to allege positive acts on the part of the defendant. As

a result, and for the reasons stated previously by the

court in its November 30, 2020 order . . . the defendant’s motion to strike is granted.’’ This appeal followed.3

On appeal, the plaintiff claims that she stated a legally

sufficient public nuisance claim by alleging that the

defendant (1) created or participated in the creation of

the public trail in an area prone to criminal activity, (2)

invited women, children, and the elderly to walk on the

trail, and (3) permitted ‘‘vandals and other non-lawabiding people to loiter, roam, and congregate along the

[trail] . . . .’’ The plaintiff contends that this conduct

constituted positive acts within the meaning of § 52-

557n (a) (1) (C). In response, the defendant argues

that, although ‘‘the plaintiff alleges that the [defendant]

created the [trail], the plaintiff has failed to allege that

the criminal attack on her was created by some positive

act by the [defendant]. The alleged positive act of creating the [trail] did not harm the plaintiff; it was the

positive act of the perpetrator.’’4 We agree with the

defendant.

‘‘We begin by setting out the well established standard

of review in an appeal from the granting of a motion

to strike. Because a motion to strike challenges the legal

sufficiency of a pleading and, consequently, requires

no factual findings by the trial court, our review of the

court’s ruling on the [defendants’ motion] is plenary.

. . . We take the facts to be those alleged in the complaint that has been stricken and we construe 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, we note that

[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 admitted. . . . Indeed, pleadings must be

construed broadly and realistically, rather than narrowly and technically.’’ (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education

Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d

206 (2010).

We next set forth the principles applicable to a nuisance claim brought against a municipality. Our Supreme

Court ‘‘has stated often that 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 [on] 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. . . . In

addition, when the alleged tortfeasor is a municipality,

our common law requires that the plaintiff also prove

that the defendants, by some positive act, created the

condition constituting the nuisance.’’ (Citation omitted;

internal quotation marks omitted.) Picco v. Voluntown,

295 Conn. 141, 146, 989 A.2d 593 (2010). This commonlaw rule is codified at § 52-557n (a) (1) (C), which 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 . . . .’’

Our Supreme Court has described the positive act

requirement as follows: ‘‘[A]t a bare minimum, § 52-

557n (a) (1) (C) requires a causal link between the ‘acts’

and the alleged nuisance. A failure to act to abate a

nuisance does not fall within the meaning of the term

‘acts,’ as used in § 52-557n (a) (1) (C), because inaction

does not create or cause a nuisance; it merely fails to

remediate one that had been created by some other

force. Accordingly, the plain meaning of § 52-557n (a)

(1) (C) leads us to conclude that provision imposes

liability in nuisance on a municipality only when the

municipality positively acts (does something) to create

(cause) the alleged nuisance.’’ (Emphasis omitted; footnote omitted.) Picco v. Voluntown, supra, 295 Conn.

149–50.

A positive act is conduct that ‘‘intentionally created

the conditions alleged to constitute a nuisance.’’ Elliot

v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).

‘‘[F]ailure to remedy a dangerous condition not of the

municipality’s own making is not the equivalent of the

required positive act.’’ (Internal quotation marks omitted.) Brown v. Branford, 12 Conn. App. 106, 112, 529

A.2d 743 (1987). Similarly, permissive continuation of

the alleged nuisance is not a positive act. See id. Further,

when the conditions comprising the nuisance are acts
committed by third parties, there must be a ‘‘logical

nexus by which to attribute any of the acts of the [third

parties] to the defendant.’’ Id., 113.

The following cases guide our resolution of this

appeal. In Brown v. Branford, supra, 12 Conn. App.

107, the plaintiff instituted a nuisance action against the

town of Branford after he ‘‘was struck by a motorcycle

being driven by an unidentified youth.’’ The plaintiff

alleged that the town had ‘‘deliberately created’’ the

nuisance; (internal quotation marks omitted) id., 112

n.4; and that ‘‘there existed in said area of public land

. . . an unsafe and dangerous condition which was the

source of numerous complaints from area residents, in

that it has been used and frequented by youths from

Branford and surrounding towns as a motorcycle race

course and as an area where they could congregate,

drink alcohol, use drugs and carouse not subject to any

control.’’ (Internal quotation marks omitted.) Id., 112

n.5. The trial court granted the defendant’s motion to

strike. Id., 107. On appeal, this court concluded that,

‘‘although perfunctorily stating that ‘the said nuisance

was deliberately created by the defendant,’ [the complaint] recites nothing but a litany of acts amounting

at most to a permissive continuation of the alleged

nuisance.’’ Id., 112. Because the nuisance was created

by the youths with no connection to the defendant, the

plaintiff’s nuisance complaint failed to set forth a legally

sufficient claim for want of a positive act. Id., 112–13.

Similarly, in Elliot v. Waterbury, supra, 245 Conn.

389, ‘‘[the decedent] was jogging on . . . an unpaved

road in Morris when he was unintentionally shot and

killed by . . . a person who was hunting in the watershed area adjacent to the road and owned by Waterbury.’’ Although the defendant city of Waterbury

allowed hunting in the watershed area, the defendant

town of Morris did not allow hunting on the road. Id.

Our Supreme Court concluded that ‘‘[t]he plaintiff . . .

has offered no evidence that reasonably could be

viewed as establishing that the Morris defendants, by

some positive act, intentionally created the conditions

alleged to constitute a nuisance.’’ Id., 421. Because

‘‘[h]unting adjacent to the public roadway is the condition alleged to constitute the nuisance,’’ and because

the plaintiff alleged no facts establishing that the town

of Morris did anything to create the nuisance, the plaintiff could not maintain a nuisance cause of action

against the town. (Internal quotation marks omitted.)

Id., 421–22.

Finally, in Perry v. Putnam, 162 Conn. App. 760,

762, 131 A.3d 1284 (2016), this court considered the

plaintiffs’ claim that the trial court improperly had

granted the defendant town’s motion to strike on the

basis that they had failed to allege facts sufficient to

support a nuisance action. The plaintiffs alleged that

the defendant had constructed a public parking lot next
to their home and further alleged ‘‘a litany of annoyances emanating from the parking lot, ranging from

vehicle noise, littering of automotive parts, assorted

criminal activity, loud music, and headlights shining

directly into the plaintiffs’ home,’’ interfering with the

use and enjoyment of their property. (Internal quotation

marks omitted.) Id., 762–63. This court determined that,

because ‘‘the acts giving rise to the annoyances of which

the plaintiffs complain are those of third parties,’’ the

defendant’s ‘‘act of siting and constructing a parking

lot did not [create] or [participate] in the creation of a

nuisance . . . .’’ (Internal quotation marks omitted.)

Id., 767–68. Accordingly, this court concluded that the

trial court properly granted the motion to strike. Id., 768.

In the present case, although the plaintiff argues that

the nuisance is the dangerous condition of the public

trail, namely, the location of the trail, a reading of the

allegations in the light most favorable to the plaintiff

discloses that the nuisance, if any, was created by the

‘‘vandals and other non-law-abiding people’’ on the trail.

See Brown v. Branford, supra, 12 Conn. App. 112. Thus,

in order to survive a motion to strike, the plaintiff was

required to allege facts that establish that the defendant

did something to cause the conduct of the ‘‘vandals

and other non-law-abiding people . . . .’’ See Picco v.

Voluntown, supra, 295 Conn. 149–50. She has failed to

do so. Although the plaintiff alleged that the defendant

permitted the ‘‘vandals and other non-law-abiding people’’ to be on the trail, she did not allege that the defendant took any action to cause those individuals to commit crimes. Because the acts giving rise to the alleged

nuisance are those of third parties, namely the ‘‘vandals

and other non-law-abiding people’’ on the trail, and

because the act of participating in the construction of

the trail did not create or participate in the creation of a

nuisance, the plaintiff has not alleged a legally sufficient

public nuisance cause of action. See Perry v. Putnam,

supra, 162 Conn. App. 768.

Ultimately, the plaintiff relies on her allegations that

Derby itself is especially dangerous in arguing that the

defendant’s conduct of constructing a trail, ‘‘permitt[ing] vandals and other non-law-abiding people’’ on

that trail, and inviting the public to walk on the trail

created the nuisance.5 We disagree that such allegations

create a sufficient basis on which to conclude that the

defendant positively acted to create the alleged nuisance. As in Perry v. Putnam, supra, 162 Conn. App.

767–68, and Brown v. Branford, supra, 12 Conn. App.

112, the acts giving rise to the nuisance in the present

case are those of third parties and, therefore, are not

positive acts of the defendant as required by § 52-557n

(a) (1) (C).

Finally, although the plaintiff alleged that ‘‘[t]he defendant permitted vandals and other non-law-abiding people’’ on the public trail, she did not allege any facts
to create a logical nexus between the behavior of the

‘‘vandals and other non-law-abiding people’’ and the

defendant. See Brown v. Branford, supra, 12 Conn. App.

113. The only positive acts alleged with respect to the

nuisance are those on the part of the ‘‘vandals and

other non-law-abiding people’’ and the individual who

attacked the plaintiff while she was walking on the

public trail. There is no logical nexus by which the

conduct of the ‘‘vandals and other non-law-abiding people’’ can be attributed to the defendant because the

only connection between the two is the fact that the

conduct occurred on a public walking trail that the

defendant helped create.6 See id., 112–13. We therefore

conclude that the trial court properly granted the defendant’s motion to strike and rendered judgment thereon.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as

otherwise provided by law, a political subdivision of the state shall be liable

for damages to person or property caused by . . . (C) acts of the political

subdivision which constitute the creation or participation in the creation

of a nuisance . . . .’’

2

In the substitute complaint, the plaintiff also stated that the section of

the trail at issue ‘‘is owned and controlled by the state of Connecticut, but

developed by the defendant . . . for the benefit of the defendant.’’

3 The plaintiff’s first appeal was dismissed by this court for lack of a final

judgment because the trial court had not yet rendered judgment on the

stricken pleading. Thereafter, on August 2, 2021, the trial court granted the

plaintiff’s motion for judgment, and this appeal followed.

4 The defendant also argues that the judgment can be affirmed on the

alternative ground that it is immune from liability pursuant to §§ 52-557f

through 52-557i. Because we conclude that the plaintiff failed to allege a

positive act on the defendant’s part, we need not address this argument.

5 During oral argument before this court, in response to a hypothetical

question, the plaintiff’s attorney conceded that, if the public trail was constructed before the crime rate in Derby allegedly increased, the plaintiff

would have no argument that the defendant intentionally created the nuisance.

6 The plaintiff also argues on appeal that the motion to strike could not

be granted on this basis because the issue of causation was not raised in

the motion to strike. The defendant did, however, assert that there is no

logical nexus by which to attribute the acts of the plaintiff’s assailant to

the defendant in its initial motion to strike, which was incorporated by

reference into the second motion to strike. Furthermore, the defendant

argued this point before the trial court during the hearing on its second

motion to strike.

The plaintiff argues, in the alternative, that there is a logical nexus because

‘‘[t]he history of the area, the manner in which it was developed and maintained, and the invitation [to] vulnerable people to be exposed to non-lawabiding people, created a foreseeable risk that people would be victimized.’’

Whether there is a ‘‘logical nexus by which to attribute any of the acts of

the [third parties] to the defendant’’; Brown v. Branford, supra, 12 Conn.

App. 113; is not a question of causation but one of whether the alleged

acts of the defendant constitute a positive act—it asks whether there is a

connection between the defendant’s actions and the third party’s actions.

See id. In the present case, there is no logical nexus connecting the creation

of the public trail to the conduct of the ‘‘vandals and other non-law-abiding

people’’ on the trail.