Opinion
File No. 9795
The defense of governmental immunity does not avail against a cause of action founded on a nuisance created by a municipality by positive act. The complaint alleged that the plaintiff child was struck by a bat which slipped from the hands of another child during a recreational period at school. The first count sounded in negligence and the defense of governmental immunity was good against it, but the second count set forth all the essentials of a claim of nuisance and therefore a demurrer was overruled.
Memorandum filed December 8, 1947.
Memorandum on demurrer to complaint; demurrer overruled.
Pelgrift, Dodd, Blumenfield Nair, of Hartford, and Everett J. Peckham, of Deep River, for the Plaintiffs.
Nathan A. Schatz, J. Ronald Regnier, Thomas W. Flood, for the Defendants.
This is an action for personal injuries brought against a municipality. The demurrer is on the ground that there can be no cause of action because of the principle of governmental immunity. It runs to the complaint as a whole and, therefore, if the complaint in part states a cause of action the demurrer fails.
Briefly, the complaint alleges that the plaintiff, a child, was injured by reason of being struck by a bat which slipped from the hands of another child while they were playing in a school yard during a recreational period of the school. The school was maintained and operated by the defendant. The first count sounds in negligence and obviously the defense of governmental immunity is good as against that count.
The second count, however, alleges in paragraph 9: "The practice of the defendant in providing and furnishing for pupils of the age, experience and physical capacity of those participating in said recreation on said day, a dangerous and unreasonably heavy baseball bat, for use in a game which was improperly and inadequately supervised by competent personnel, constituted a condition, the natural tendency of which was to create danger and inflict injury upon person or property."
This allegation sets forth all of the essentials of a claim of nuisance. It alleges a continuing condition created by a practice. It alleges that that condition was one of inherent danger to persons and property. It also alleges that the nuisance was created by positive act as distinguished from mere failure to act. It is now well established that the defense of governmental immunity does not avail as against a cause of action founded on a nuisance created by a municipality by positive act. Beckwith v. Stratford, 129 Conn. 506; Karnasiewicz v. New Britain, 131 Conn. 691, 694. Accordingly, governmental immunity is no defense against the second count of the complaint.