Jablowski v. the Peoples Savings Bank

Memorandum Sustaining Demurrer in Same Action. MEMORANDUM FILED NOVEMBER 25, 1936. The action is to recover damages for injuries which are alleged to have been proximately caused by negligence of the defendant, which negligence is alleged to have consisted in the creation by the defendant's agents of a dangerous condition of premises owned by the defendant whereon the plaintiff was by the defendant directed to perform certain work.

In the defense demurred to the defendant sets forth that the plaintiff in his employment assumed the risk of the condition of the premises in question. "There can be no assumption of a hazard without knowledge, either actual or implied, of its existence." Arnold vs. Connecticut Company,83 Conn. 97-101.

In the pleading as filed it does not appear that the plaintiff had knowledge of the condition, the risk of which he is alleged to have assumed; consequently, it could not properly be said that he assumed it. It is obvious, therefore, that the pleading does not properly set forth a defense of assumption of risk and the demurrer thereto is accordingly sustained.