Warner v. Liimatainen
| Decision Date | 24 November 1965 |
| Citation | 153 Conn. 163,215 A.2d 406 |
| Court | Connecticut Supreme Court |
| Parties | John WARNER v. Heidi K. LIIMATAINEN. Supreme Court of Errors of Connecticut |
Henry F. Cooney, Hartford, with whom, on the brief, was Vincent J. Dowling, Hartford, for appellant (defendant).
Paul B. Groobert, Manchester, with whom was John J. Mahon, Manchester, for appellee (plaintiff).
Before KING, C. J., and MURPHY, ALCORN, SHANNON and DOHERTY, JJ.
The plaintiff, a passenger in an automobile owned and operated by the defendant, sued to recover damages for personal injuries claimed to have been sustained when the automobile left the highway and collided with a light pole. The defendant pleaded, inter alia, a first special defense of assumption of risk. The plaintiff demurred to this defense, and the demurrer was sustained. Thereafter a summary judgment was rendered on the issue of liability, and a hearing in damages was held to the jury, which returned a verdict in a substantial amount.
The sole assignment of error pursued in this court is the sustaining of the demurrer to the first special defense of assumption of risk, the allegations of which are set forth in the footnote. 1
To test the sufficiency of the special defense, it becomes necessary to analyze its allegations. The first sentence is a mere conclusion and, if it stood alone, would leave the defense demurrable under the rule of cases such as Smith v. Furness, 117 Conn. 97, 99, 166 A. 759, and Antman v. Connecticut Light & Power Co., 117 Conn. 230, 235, 167 A. 715. See also Practice Book § 71. While the other allegations of the special defense are somewhat lacking in clarity and precision of statement, the defense considered as a whole, fairly alleges (1) that the defendant has consumed intoxicating liquor to such an extent as to impair her ability to operate her automobile; (2) that the plaintiff, having been in the company of the defendant when she consumed the liquor, knew and appreciated, or should have known and appreciated, the impairment so caused; and (3) that the plaintiff thereafter voluntarily and with understanding assumed the risk of any injury proximately caused by the impairment, if a result of the consumption of intoxicating liquor, of the defendant's ability to operate the car. It is important to note that the risk alleged to have been assumed is the risk of injury caused, not by impairment of operating ability however arising, but only by such impairment arising from the consumption of intoxicating liquor.
In the field of negligence the defense of assumption of risk is applicable only to a risk arising out of the defendant's negligence. 2 Where, as in the ordinary case, the risk alleged to have been assumed is that of injury from an act of negligence specified in the complaint, the effect of the defense is to deny to a plaintiff against whom it is proven a recovery based upon that specification of negligence. This is so, even though that specification of negligence was proven to have been a proximate cause of that particular plaintiff's injuries. Here, however, the complaint contains no specification of negligence based on, or even suggestive of, any consumption of intoxicating liquor by the defendant. The element of liquor was injected into the case by the defendant in her special defense. But it is not alleged in the special defense that any act of negligence specified in the complaint was the result of the only risk alleged to have been assumed, that is, an impairment of operating ability resulting from the consumption of intoxicating liquor. Thus the plaintiff could prove any or all of the specifications of negligence in his complaint, and still none would have been attacked by, or vulnerable to, the special defense of assumption of risk as now drawn.
From this it follows that under the peculiar form which the special defense took, in order for it to be efficacious it would be necessary for it to contain an allegation to the effect that the particular risk alleged to have been assumed was a superseding cause of the collision and resulting injuries to the plaintiff. See cases such as Corey v. Phillips, 126 Conn. 246, 256, 10 A.2d 370; Virelli v. Benhattie, Inc., 146 Conn. 203, 209, 148 A.2d 760....
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...deemed admitted. Under these circumstances, Plaintiff is entitled to summary judgment on liability as against Swift. See Warner v Liimatainen, 153 Conn. 163, 164 (1965) (summary judgment on liability granted in favor of passenger after driver's automobile went off the highway and hit a ligh......
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...v. Great Northern Railway Co., 147 Mont. 185, 411 P.2d 379, 390; Maser v. Klein, 224 Or. 300, 356 P.2d 151, 153; Warner v. Liimatainen, 153 Conn. 163, 215 A.2d 406, 408; Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069, 1071; General Portland Cement Co. v. Walker, C.C.A. 5, 2......
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Todd M. v. Richard L.
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