DocketNumber: File No. 153189
Citation Numbers: 243 A.2d 84, 27 Conn. Super. Ct. 463, 27 Conn. Supp. 463
Judges: GRILLO, J.
Filed Date: 4/10/1968
Status: Precedential
Modified Date: 1/12/2023
The second count of the complaint purports to set forth a cause of action against the defendants Timko and Lewis, sidewalk inspector and building superintendent, respectively, employed by the codefendant municipality, the cardinal ground of negligence being that they failed to perform their duties to inspect and repair the particular area of a defective sidewalk adjacent to the municipal building of the defendant town. The plaintiff claims that his injuries resulted from a fall. The substance of the demurrer is to the effect that these duties are supervisory and discretionary, as opposed to being ministerial, and are related to the performance of a governmental function, and that the defendants are therefore insulated from liability. It is conceded by the plaintiff that the duties are governmental. *Page 464
Unless the duties of these defendants were ministerial, the plaintiff, even if negligence was proven, could not establish liability on their part. Pluhowsky
v. New Haven,
That the duties allegedly violated were discretionary as maintained by the defendants via demurrer does not appear on the face of the pleadings. VanEpps v. Redfield,
While the court must not pretend to be more ignorant than the rest of mankind, and while the court has a general conception as to the overall duties performed by the defendants, it cannot, without indulging in an unwarranted presumption, categorize *Page 465
the work relating to the incident set forth in the plaintiff's complaint as being supervisory, discretionary, or ministerial. A demurrer is to be tested by the allegations of the pleading demurred to, which cannot be aided by the assumption of any fact not therein alleged. Santoro v. Kleinberger,
To summarize, for the court to accept the claims advanced, attacking the complaint, would be to incorporate a conclusion of fact neither alleged nor reasonably to be deduced from the language of the complaint. The demurrer comes close to being a speaking demurrer. Blanchard v. Nichols,
The parties have agreed that the action of the court relative to the demurrer to count two shall be applicable to its determination of the demurrer to count three.
The demurrers to both counts are overruled.
Blanchard v. Nichols , 135 Conn. 391 ( 1949 )
Wadsworth v. Middletown , 94 Conn. 435 ( 1920 )
Santoro v. Kleinberger , 115 Conn. 631 ( 1932 )
Masline v. New York, N. H. H.R. Co. , 95 Conn. 702 ( 1921 )
Pluhowsky v. City of New Haven , 151 Conn. 337 ( 1964 )