Rubin v. City, New Haven and the Conn. Co. , 5 Conn. Super. Ct. 88 ( 1937 )

This demurrer to the complaint is based on a failure to give a written notice within ten (10) days as prescribed in Sec. 1420 of the General Statutes, Revision 1930, where the defect is alleged to have consisted of ice or snow. The case of Coburn vs. The Connecticut Company,84 Conn. 654 recognized the possibility of alleging an action apart from the statute for common-law negligence in a proper case.

In this case by paragraph 2 of the complaint the statutory obligation of the defendant Connecticut Company is set forth. In the Coburn case, as the Court points out, there was a studious effort made to state a cause of action at common law. As long as the plaintiff continues that paragraph in his complaint it must be assumed that he is relying on the statute, but this is not to say that there exists an action at common law in the absence of negligence. The complaint, therefore, would be deficient for lack of notice.

The demurrer is sustained.