DocketNumber: No. 59701
Citation Numbers: 1992 Conn. Super. Ct. 5546, 7 Conn. Super. Ct. 944
Judges: <footnote_body>[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]</footnote_body> PICKETT, JUDGE
Filed Date: 7/16/1992
Status: Non-Precedential
Modified Date: 4/18/2021
On May 28, 1992, the plaintiff, Rebecca Guendelsberger, ten years old, filed a complaint, through her father, Robert Guendelsberger, against the defendants Ruth Knight and Roberta Guendelsberger. Count one of the complaint is directed against defendant Knight. Count two is directed against defendant Guendelsberger. In that count, the plaintiff alleges, inter alia, that on or about May 12, 1990, defendant Knight temporarily placed her dog in the plaintiff's home under the care of defendant Guendelsberger. Said dog allegedly attacked and bit the minor plaintiff, resulting in injury thereto. The plaintiff alleges that, at the time of the attack, she was neither trespassing nor teasing and tormenting the dog. The plaintiff claims that, pursuant to General Statutes
In count three, plaintiff Robert Guendelsberger repeats the allegations set forth in count two and further contends that he is entitled to money he expended as a result of this incident.
On June 19, 1992, defendant Guendelsberger filed a motion to strike the second and third counts of the complaint and attached thereto a supporting memorandum. On July 2, 1992, the plaintiffs filed a memorandum in opposition to the motion to strike.
The motion to strike is provided for in Practice Book 151-158. The motion to strike tests the legal sufficiency of a pleading and "admits all facts well pleaded". Ferryman v. Groton,
In both her motion to strike and memorandum in support thereof, the defendant contends that counts two and three of the complaint are legally insufficient because they are brought against the mother of the minor plaintiff, and, as such, the doctrine of parental immunity bars such action. In its opposing memorandum, the plaintiffs rebut this contention.
Because, in her motion and memorandum, the defendant raises the issue of parental immunity through her assertion that she is the minor plaintiff's mother, she has relied upon facts not alleged in the complaint. Indeed, the plaintiff has not alleged that defendant Guendelsberger is the minor plaintiff's mother. This relationship was only raised by the defendant in her motion to strike. Consequently, defendant Guendelsberger's motion to strike constitutes a speaking motion and, as such, is improper. Kernsco, supra, Liljedahl, supra. Whether or not the issue of parental immunity may be determined in a motion for summary judgment is not now before the court. The motion to strike is denied.