The first named plaintiff claimed to have been injured after a portion of a tree fell on top of her while she was watching a soccer game at a field she claimed was owned, maintained and/or controlled by the town of Voluntown and/or its Board of Education. As such, she, her husband and two children brought a lawsuit against the town of Voluntown and certain named town officials and the Board of Education of the town of Voluntown and certain named board officials. The seventy count complaint purported to state claims sounding in negligence, nuisance, loss of consortium and bystander emotional distress. Halloran & Sage represented the town and its officials.

At the trial court level, Halloran & Sage moved to strike all of the plaintiffs’ claims against the town, asserting that they were barred by the doctrine of governmental immunity. At oral argument before the trial court, the plaintiffs conceded that the motion to strike should be granted on all counts except those alleging nuisance. Thereafter, the trial court concluded that the nuisance claims were likewise barred because the plaintiffs did not allege any facts indicating that the town, by any positive act, created the alleged nuisance. The trial court entered judgment accordingly.

The plaintiffs then appealed and, after transferring the case to itself, the Connecticut Supreme Court affirmed the trial court’s judgment. In doing so, it analyzed and interpreted the language of Connecticut General Statute § 52-557n(a)(1)(c), a section of the statute it had not previously had occasion to review. The Connecticut Supreme Court specifically concluded that the plain language of that section clearly and unambiguously precludes liability in nuisance against a municipal defendant unless the alleged nuisance was created by a positive act of the defendant. Thus, the plaintiffs’ failure to allege any positive act of creation in relation to their claims was fatally defective.