Hill v. Lahey

5 Conn. Super. Ct. 480, 5 Conn. Supp. 480, 1938 Conn. Super. LEXIS 13

• Court: Connecticut Superior Court
• Decided: January 7, 1938
• Docket: File #53278
• Status: Published

Opinion

DALY, J.

In the first count of the complaint it is alleged that the defendants, the Town of Hamden and the Hamden School District, kept and maintained a white rat at the Ham-den High School, well knowing said rat to be of a wild, vicious and ferocious and mischievous nature and disposition, and that there was reasonable probability that it might attack and bite people.

It is also alleged that on the day the plaintiff claimed to have been bitten by the rat that it was even more wild, vicious and ferocious than similar animals ordinarily are, due to the fact that defendants had starved it for some time prior to said day.

The defendant the Town of Hamden in its answer has alleged as a special defense that at the time alleged, as part of its school system, it was operating and maintaining the Ham-den High School in the exercise of a governmental function and as such was not liable for the alleged injuries of the plaintiff.

This (first) count sounds in and is based upon negligence and therefore the special defense is proper as one in a negligence action.

In Baldwin vs. Ensign, 49 Conn. 113, at page 117, the Court said:

“It is the duty of a man who owns a vicious animal to give notice of his propensity or to restrain him; his omission to do so is negligence which makes him liable for the consequences.”

Accordingly, the demurrer to the special defense, stated in the answer of the defendant Town of Hamden, in so far as it purports to set forth a defense to the cause of action alleged in the first count of the complaint is overruled.

The demurrer to the special defense stated in the answer of the defendant Town of Hamden in so far as it purports to set forth a defense to the cause of action alleged in the second count of the complaint is sustained for the reasons therein stated.