–Plaintiff Gregg Fisk was injured after jumping off a retaining wall onto asphalt pavement approximately 6 feet below.
–He broke his leg in several places, and brought suit against the Town of Redding, alleging that the lack of a protective fence at the top of the retaining wall constituted an absolute public nuisance.
–The Town had installed a Merritt Parkway style guard rail at the edge of a parking lot that was several feet away from the wall, and there was dense vegetation between the guard rail and the top of the wall, but there was no fence at the edge of the wall to protect someone from falling off or to prevent someone from jumping off the wall.
At trial we submitted jury interrogatories that tracked the essential elements of a public nuisance claim, which are:
(1) the condition complained it was inherently dangerous;
(2) the condition it was created and maintained by the public entity;
(3) the dangerous condition was an unreasonable or unlawful use of the land (Plaintiff in our suit only alleged unreasonable);
(4) the condition was the proximate cause of the plaintiffs injury;
(5) the condition interfered with a right common to the general public; and
(6) that the condition was the result of intentional conduct on the part of the public entity (positive act requirement).
–The jury found the Plaintiff proved element 1, that the condition was inherently dangerous, but also found the Plaintiff did not prove element 3, that the condition was an unreasonable use of the land, and returned a Defense verdict.
–Post-trial, the Plaintiff argued that the jury’s responses regarding elements 1 and 3 were internally inconsistent because an inherently dangerous condition could never be found to be a reasonable use of the land.
–We argued that elements 1 and 3 address different sets of facts—element 1, whether the condition is inherently dangerous, examines the condition itself, whereas element 3, whether the condition is a reasonable use of land, examines all of the surrounding circumstances.
–Thus, even though the jury found that the lack of a fence at the wall’s top edge was inherently dangerous, the jury was free to conclude that it was a reasonable use of land given that that
(1) there was a Merritt Parkway guardrail and vegetation that kept people from encountering the retaining wall;
(2) that the retaining wall served the useful purpose of stabilizing the earth so that the businesses at the high side of the wall could exist and have a parking lot for customers;
(3) that the wall was so far away from the closest pedestrian walkway that the building code did not require a fence at the top of the wall, and
(4) there was no history of persons unwittingly encountering the dangerous condition and winding up injured.
–The trial court agreed with our argument and allowed the jury verdict in favor of the Town to stand; but the Connecticut Appellate Court reversed, in a 2 -1 decision, favoring the plaintiffs argument.
–The Connecticut Supreme Court, in a 7-0 decision, has now reversed the Appellate Court and reinstated the Defendants verdict for the Town of Redding. In this decision the Supreme Court has given clear direction that when evaluating whether an admittedly dangerous condition is an unreasonable use of land all surrounding circumstances bear on the issue of reasonableness, including utility of the use of land, expectation of injury, compliance with codes, and other safety-mitigating factors.
–Note that the defenses of assumption of the risk and recklessness are available as defenses to a public nuisance claim. We had an excellent chance of successfully defending based on these defenses if the jury found that the Plaintiff proved elements 1-6 above.