Silvernail v. Barsalou, No. Cv92 05134 12 (Dec. 10, 1992) , 1992 Conn. Super. Ct. 10936 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE SECOND AND THIRD SPECIAL DEFENSE This is an action for personal injuries resulting from a motor vehicle accident. Plaintiff moves to strike defendant's Second special defense alleging "sudden emergency" and the third special defense alleging "unavoidable accident."

165 Connecticut Practice Book draws a line between those facts which must be pleaded by way of special defense and those facts which may be proven under a simple denial. Under Connecticut practice, facts tending to show that there was a sudden emergency or unavoidable accident can be proven under a simple denial since they bear on the degree of care required by that person confronted with the emergency.

Defendant has cited several pattern instructions from Wright to show that courts have instructed juries on the issues of emergency and unavoidable accident, but these instructions merely confirm that these issues were submitted to the trier of fact on the question of the degree of care required in a particular situation.

While no great harm would result by permitting these special defenses to remain in the case, and some judges have so permitted them, the better practice seems to require that such issues be raised and pleaded under a simple denial of CT Page 10937 negligence. Tomczuk v. Alvarez, 184 Conn. 182, 190-191 (1981)

Motions to strike Second and Third Special Defenses granted.

WAGNER, J.