DocketNumber: No. 32 28 61
Citation Numbers: 1996 Conn. Super. Ct. 7410
Judges: MORAGHAN, J.
Filed Date: 12/3/1996
Status: Non-Precedential
Modified Date: 7/5/2016
The defendant filed an answer and special defense, and in the special defense, the defendant asserts that "[t]he accident was the result of a sudden emergency and was unavoidable." The plaintiff has filed a motion to strike this special defense pursuant to Sec. 152(5) of the Practice Book, challenging the defense as being legally insufficient.1
A motion to strike tests the legal sufficiency of a special defense. Section 152(5) of the Practice Book; Nowak v. Nowak,
In her memorandum in support of her motion to strike, O'Dwyer argues that the defendant has not alleged in its special defense that the plaintiff's facts as alleged are untrue. Further, the plaintiff argues that the "defenses of sudden emergency and unavoidable accident are more appropriately proven under a simple CT Page 7412 denial," and that "it has been found to be the better course of action to strike those defenses." In his memorandum in opposition, the defendant argues that the defenses of unavoidable accident and sudden emergency are appropriate as defenses and that "there can be no harm to the plaintiff having these special defenses remain. . . ."
The defendant's special defense states only the legal conclusion that "[t]he accident was the result of a sudden emergency and was unavoidable." This defense does not sufficiently plead facts tending to show that the plaintiff has no cause of action. See Sec. 164 of the Practice Book; Grant v.Bassman, supra. In fact, this defense does not plead facts at all. "For [the defendant's special defense] to withstand a motion to strike, these allegations must contain facts supporting the legal conclusions and not simply bare legal conclusions."Interlude, Inc. v. Skurat, Superior Court, judicial district of Danbury, Docket No. 319118 (September 1, 1995, Stodolink, J.) As such, the defendant's special defense is legally insufficient and should be stricken.
The plaintiff also argues that the defenses of unavoidable accident and sudden emergency are better pleaded as a general denial. Several Superior Court cases have stricken these defenses using that reasoning,2 and Sec. 164 does not require these defenses to be specially pleaded. Each of the Superior Court cases relied on the theory that unavoidable accident and sudden emergency are better pleaded as denials. See Tomczuk v. Alvarez,
Nevertheless, Sec. 164 is permissive, not mandatory,Buitekant v. Zotos Corporation, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 135874 (February 20, 1996, Karazin, J.), and while it may be "unnecessary for the defendant to plead this defense specially . . . this does not mean that a pleader may not plead specially a defense which he is entitled to assert under a general denial." Davis v. Gleeson,
Notwithstanding the above stated case law that would support a denial of the plaintiff's motion to strike the defendant's special defense, the defendant herein has failed to plead a legally sufficient special defense. Accordingly, the plaintiff's motion to strike is granted.
Moraghan, J.