United States District Court, D. New Jersey
HONORABLE FREDA L. WOLFSON UNITED STATES DISTRICT JUDGE
MATTER having been opened to the Court by Spector
Gadon & Rosen, PC, Heather M. Eichenbaum, Esq.,
appearing, counsel to Defendants Six Flags Great Adventure,
LLC (named in the Complaint as Six Flags Great Adventure and
Six Flags Entertainment Corporation, and hereinafter
“Six Flags”), on a motion for partial dismissal
of the Complaint of Plaintiff Maryann Barnett
(“Plaintiff”), for failure to state a claim,
pursuant to Fed.R.Civ.P. 12(b)(6); it appearing that
Plaintiff, through counsel, Herbert I. Ellis, P.C., Amy B.
Francesco, Esq., appearing, opposes Six Flags' Motion;
its October 5, 2017 Motion, Defendant Six Flags sought
dismissal of Counts I and II of the Complaint (i) to the
extent raised as claims for breach of an implied warranty;
(ii) to the extent raised as claims for breach of an express
warranty; and (iii) to the extent raised under any theory
“averring conduct beyond ordinary negligence.”
ECF No. 3-4.
her one-page, March 12, 2018 Letter Opposition, Plaintiff
consented to the dismissal of all claims under both breach of
warranty theories, but opposed dismissal of any other claims
beyond ordinary negligence as premature before the full
exchange of discovery.
Reply, Defendant Six Flags clarified that, given
Plaintiff's partial consent to the Motion,  the only
remaining claim for which Defendant seeks dismissal is any
nuisance claim Plaintiff intended to raise in paragraph 5 of
Count I of the Complaint.
Count I, paragraph 5, in relevant part, states as follows:
Defendant(s), SIX FLAGS GREAT ADVENTURE . . . [et al.] were
negligent in that they created, maintained, and allowed a
hazardous condition to exist on said premises; failed to
exercise reasonable care to keep the premises safe; and
further maintained a nuisance. As a result thereof, Plaintiff
was caused to fall and sustain injuries and damages
hereinafter set forth.
“A cause of action for private nuisance derives from
the defendant's ‘unreasonable interference with the
use and enjoyment' of the plaintiff's
property.” Ross v. Lowitz, 222 N.J. 494,
505, 120 A.3d 178, 185 (2015) (quoting Sans v. Ramsey
Golf & Country Club, Inc., 29 N.J. 438, 448, 149
A.2d 599 (1959) (emphasis added)). “[T]he elements of a
cause of action for private nuisance [are] . . . an invasion
of another's interest in the private use and enjoyment of
land, and the invasion is either (a) intentional and
unreasonable, or (b) unintentional and otherwise actionable
under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions or
activities. Id. at 505.
“[A] public nuisance, by definition, is related to
conduct, performed in a location within the actor's
control, which has an adverse effect on a common right. . . .
[A] private party who has suffered special injury may seek to
recover damages to the extent of the special injury and, by
extension, may also seek to abate.” In re Lead
Paint Litig., 191 N.J. 405, 429, 924 A.2d 484, 499
(2007). A common or “‘public right is one common
to all members of the general public. It is collective in
nature and not like the individual right that everyone has
not to be assaulted or defamed or defrauded or negligently
injured. Thus the pollution of a stream that merely deprives
fifty or a hundred lower riparian owners of the use of the
water for purposes connected with their land does not for
that reason alone become a public nuisance. If, however, the
pollution prevents the use of a public bathing beach or kills
the fish in a navigable stream and so deprives all members of
the community of the right to fish, it becomes a public
nuisance.'” Id. at 426 (citing
Restatement (Second) of Torts § 821B cmt. g.
(1979)). To demonstrate “special injury” a
private plaintiff must have “suffered harm of a kind
different from that suffered by other members of the
public.” Id. at 427 (citing Restatement
(Second) of Torts § 821C(1) (1979)).
causes of action in Plaintiff's Complaint sound in
personal injury, do not involve real property, and do not
allege intentional and unreasonable conduct or abnormally
dangerous conditions or activities. Accordingly, the
Complaint does not state a claim for private nuisance.
Moreover, Plaintiff's personal right not to be
negligently injured is not a common right actionable in
public nuisance. The Court therefore agrees with Defendant
that paragraph 5 of Count I of the Complaint should be
construed as supporting Plaintiff's claim for negligence
only and does not state a claim for nuisance. Moreover,
dismissal of the Complaint to the extent raised as a cause of
action for private or public nuisance is not premature
because discovery cannot cure these deficiencies.
the Court having reviewed the parties' submissions in
connection with the Motion; pursuant to Fed.R.Civ.P. 78; the
for the reasons set forth above; and for good cause shown;
IS on this 2nd Day of May, 2018,
ORDERED that Defendant Six Flags'
partial motion to dismiss the Complaint is
GRANTED as follows: the Complaint is
DISMISSED WITH THE CONSENT OF THE PARTIES to
the extent raising causes of action for breach of an implied
or express warranty; and the ...