McCarthy v. City of New Britain

The complaint alleges a personal injury sustained in a fall on a defective "path" in a public park maintained by the defendant city of New Britain. The first count sounds in negligence, the second count in nuisance, and the third count relates to damages claimed by the parent of the plaintiff minor as related to both said theories of action.

Defendant's first special defense of governmental immunity, as pleaded, reaches the whole complaint. The parties are agreed that this defense does not apply to the second count and that the demurrer to the first special defense should be considered only as that defense may be directed to the first count of the complaint, which necessarily invokes the third count pro tanto. Hence, the demurrer here will be considered only as it searches the record with respect to the first and third counts of the amended complaint.

In support of the demurrer, plaintiffs claim that the first count spells out a cause of action under the defective highway statute; General Statutes § 13-11; to which the defense of governmental immunity does not apply. Assuming, but without holding, this to be so, this question may not be decided as a question of law under the pleadings and must await the presentation of evidence.

The purpose of § 13-11 is the protection of the traveling public. Valin v. Jewell, 88 Conn. 151, 154;Salzman v. New Haven, 81 Conn. 389, 393; Frechette v. New Haven, 104 Conn. 83, 88. "`[I]n the common understanding, a park, in this country, is a piece of ground in or near a city or town for ornament and as a place . . . for recreation and amusement, and it is usually laid out in walks, drives and recreation grounds.'" Epstein v. NewHaven, 104 Conn. 283, 284; cf. Fenwick v. Old Saybrook,133 Conn. 22, 29. Important considerations as to any liability of defendant city under the first count of the amended complaint include questions whether the alleged "path" is a part of the public highway system of the defendant and was being used by plaintiff minor as a traveler within the meaning of § 13-11, or whether it was merely a facility and part of the public park and was being used by said plaintiff for his amusement and recreation in enjoyment and exercise of the park purposes. What may be these circumstances presents questions of fact which must await the trial of the case. A demurrer raising a question in part dependent upon facts to be proven fails. Beattie v. McMullen,80 Conn. 160, 176.

The demurrer of plaintiffs to the first special defense, in so far as the latter applies to the first and third counts of the amended complaint, is overruled.