DocketNumber: No. 539920
Citation Numbers: 1995 Conn. Super. Ct. 10657, 15 Conn. L. Rptr. 569
Judges: BLUE, J.
Filed Date: 9/18/1995
Status: Non-Precedential
Modified Date: 7/5/2016
The principal question raised by this motion to strike is whether the defense of assumption of risk applies to a variety of causes of action not sounding in negligence. For the reasons discussed below, I conclude that the defense is inapplicable in the context of this case.
This case involves a landlord-tenant dispute, transferred to this forum from the housing session of the Superior Court, that has escalated into a thick file replete with a multi-count complaint and multiple special defenses. Jerry Donahue ("Donahue"), the plaintiff, is the tenant. He claims that his landlord, S.J. Fish Sons, Inc. ("Fish"), interfered with his tenancy and wronged him in a number of ways. His third revised complaint states six causes of action. Count one is intentional CT Page 10658 infliction of emotional distress. Count two is vexatious suit. (This count arises from a summary process action that was later withdrawn.) Count three is trespass. Count four alleges that Fish failed to comply with Conn. Gen. Stat. §
Fish asserts three special defenses in its revised answer to the third complaint: assumption of the risk, estoppel, and — with respect to the sixth count only — the expiration of the statute of limitations. Donahue has moved to strike each of these special defenses. His contentions will be reviewed in turn.
II. ASSUMPTION OF THE RISK
Fish's assumption of the risk defense is stated as follows:
1. The plaintiff refused help to move to alternative housing and refused to leave the premises after a) receiving notification months in advance that the land would be redeveloped and b) receiving notice prior to the commencement of construction on the surrounding properties.
2. Any injuries, distress, or consequential damages sustained by the plaintiff were caused by his assuming the risk by choosing to remain on the premises while construction occurred on the surrounding parcels of land.
Donahue's attack on this defense is twofold. He first claims that the defense of assumption of the risk has been statutorily abolished by Conn. Gen. Stat. §
Donahue's second argument is more persuasive. He claims that assumption of the risk is not a defense to the causes of action asserted in his complaint. This contention is correct.
"The defense of assumption of risk is relatively new to the common law." Thomas v. Holliday ex rel. Holliday,
The harsh doctrine of Hayden is plainly "morally unacceptable" in modern times. Tiller v. Atlantic Coast LineR.R., supra,
No persuasive authority or argument has been submitted to justify the use of the doctrine as a defense in the context of this case. In fact, the controlling authority is quite to the contrary. This is a landlord-tenant dispute, in which the tenant claims that certain statutes enacted for the protection of renters have been violated, and the landlord says that the tenant knew of the risk and was free to leave. The landlord's position is not consistent with Connecticut law. "A tenant does not assume a risk which has its basis in the violation of a legislative requirement enacted for his benefit." Panaroni v. Johnson,
L'Heureux is dispositive of Fish's asserted assumption of risk defense to counts four, five, and six of Donahue's complaint. Those counts allege that Fish has violated certain statutes enacted for the protection of tenants and the public interest. Those statutory protections cannot be waived in the way that Fish claims that Donahue has waived them.
Counts one, two, and three are common law counts alleging, respectively, intentional infliction of emotional distress, vexatious suit, and trespass. Fish has cited no authority holding that assumption of the risk is a defense to any of these causes of action, and no such authority, either on the form of case law or of commentary, has been discovered. "Assumption of the risk is a defense to an action for negligence. . . . This is not a negligence action or a defense." First Maryland FinancialServices Corp. v. District-Realty Title Insurance Corp.,
For these reasons, Fish's first special defense must be stricken.
III. ESTOPPEL
The remaining two special defenses can be considered much more expeditiously. Donahue claims that Fish's estoppel defense must fail because Fish has "failed to plead any facts which support estoppel." A defense of estoppel, however, need not be pleaded at all. Mercanti v. Persson,
IV. STATUTE OF LIMITATIONS
The background of Fish's statute of limitations defense to Donahue's sixth count must briefly be described. On March 8, 1995, Fish filed a motion to strike the sixth count on the ground that the statute of limitations for the cause of action asserted therein had expired. The essential question raised by that motion was whether the statute of limitations for entry and detainer actions or the longer statute of limitations for CUTPA claims applies to that count. On May 24, 1995, the Hon. Michael Sheldon denied the motion to strike, citing Lees v. Middlesex InsuranceCo.,
V. CONCLUSION
For the reasons stated above, the motion to strike the first CT Page 10662 and third special defenses is granted. The motion to strike the second special defense is denied.
Panaroni v. Johnson , 158 Conn. 92 ( 1969 )
Mercanti v. Persson , 160 Conn. 468 ( 1971 )
Thomas v. Holliday by and Through Holliday , 764 P.2d 165 ( 1988 )
Blackburn v. Dorta , 348 So. 2d 287 ( 1977 )
Hanson v. Carroll , 133 Conn. 505 ( 1947 )
L'Heureux v. Hurley , 117 Conn. 347 ( 1933 )
Halepeska v. Callihan Interests, Inc. , 371 S.W.2d 368 ( 1963 )
Tiller v. Atlantic Coast Line Railroad , 63 S. Ct. 444 ( 1943 )