212 Conn.App. 617
Conn. App. Ct.2022Background
- Plaintiff Arlene Bennetta was sexually and physically assaulted while walking on a public trail in Derby that the city helped develop.
- Complaint alleged Derby is a high‑crime, unsafe municipality and that the trail (near Commodore Hull Bridge) is isolated, lacks security, and is prone to criminal activity.
- Plaintiff alleged the city created/participated in creating the trail, invited women/children/elderly to use it, and permitted “vandals and other non‑law‑abiding people” to loiter and congregate there.
- Trial court granted the city’s motion to strike the original complaint for failing to allege a positive act by the city and for lack of a logical nexus to the assailant’s criminal acts; a substitute complaint adding the “permitted vandals” allegation was also stricken.
- On appeal, plaintiff argued the added allegations pleaded the required positive act under Conn. Gen. Stat. § 52‑557n(a)(1)(C); the appellate court affirmed the trial court, holding the alleged nuisance was created by third parties and the city’s conduct was not a positive act that caused the nuisance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint alleges a “positive act” by the municipality under § 52‑557n(a)(1)(C) | Bennetta: constructing/participating in the trail, inviting vulnerable users, and permitting vandals are positive acts that created the nuisance | Derby: the harmful acts were committed by third parties; building or permitting use of a trail is not an affirmative act that caused the criminal conduct | Court: No — the alleged nuisance arose from third‑party conduct, and the city did not positively act to cause that conduct |
| Whether allegations that the city “permitted” vandals create a logical nexus attributing third‑party criminal acts to the city | Bennetta: permitting loitering and inviting vulnerable people made victimization foreseeable and links city conduct to the nuisance | Derby: permissive conduct or omission is not a positive act; foreseeability alone does not create the required nexus | Court: No — permissive continuation and allegations of permissiveness are insufficient; there is no logical nexus linking the vandals’ acts to the city |
Key Cases Cited
- Picco v. Voluntown, 295 Conn. 141 (2010) (statutory/codified positive‑act requirement for municipal nuisance liability)
- Elliot v. Waterbury, 245 Conn. 385 (1998) (positive act defined as intentional creation of conditions constituting a nuisance)
- Brown v. Branford, 12 Conn. App. 106 (1987) (permissive continuation of a nuisance and third‑party acts do not satisfy positive‑act requirement)
- Perry v. Putnam, 162 Conn. App. 760 (2016) (siting/constructing property did not constitute participation in creation of nuisances caused by third parties)