HELEN LODGE, ADMRX. vs. CITY OF MERIDEN

HELEN LODGE, ADMRX. vs. CITY OF MERIDEN Superior Court New Haven County File #46759 Present: Hon. ALLYN L. BROWN, JUDGE. Lewis J. Somers, Attorney for the Plaintiff. John E. McNerney, Attorney for the Defendant. MEMORANDUM FILED JUNE 12, 1935. [MAJORITY — BROWN, J.] BROWN, J. The allegations of the plaintiff’s complaint set forth a case practically upon all fours with what was held in Hoffman vs. Bristol, 113 Conn. 386, 389, to constitute an absolute nuisance. That case is authority for the proposition that governmental duty affords no defense to the plaintiff’s cause of action in such a case. Since the defendant’s First Special Defense setting up governmental duty, is pleaded as a defense generally to the plaintiff’s complaint, even though it might ah ford a defense to an action predicated solely upon negligence within the wording of the complaint, for the reason above stated it does not constitute a defense to the action based on the absolute nuisance alleged. The demurrer to this defense is therefore sustained. Had it been pleaded as a defense “in so far only” as the complaint alleges a cause of action for mere negligence, a different conclusion might be called for. What has been said as to the First Special Defense, under the authority of the same case above cited, at page 393, applies with equal force to the Third Special Defense of contributory negligence. The demurrer to this Third Special Defense is therefore sustained. The Second Special Defense of an assumption of risk by the plaintiff, is a sufficient defense even in a case of absolute nuisance. Hill vs. Way, 117 Conn. 359, 364. The demurrer to this defense is therefore overruled.