171 A.2d 427 | Conn. Super. Ct. | 1961
In this action, the plaintiff is seeking to recover damages of the defendants as the owners and keepers of a dog alleged to have bitten her as she was attempting to stop a fight in progress between their dog and her own dog. As drawn, the allegations of the complaint are designed to bring the alleged cause of action against the defendants under the statute which is presently §
By way of special defense, the defendants plead as follows: "If the plaintiff suffered any injury, loss or damage, the same was caused by her own act in attempting to intervene in a dog fight when she knew or should have known that to do so was likely to result in injury, and in so doing she assumed the risk of injury from said act." To this defense the *333 plaintiff demurs on the ground that it is not a properly pleaded special defense to the cause of action alleged.
In the Connecticut law, there is a distinction between contributory negligence as a defense and the assumption of risk as a defense. L'Heureux v. Hurley,
It is the considered opinion of the court that the special defense has no place in this action, which is brought under the statute. This does not mean that the plaintiff's own conduct in respect to the *334 dog is not of importance. It is of prime importance, as is indicated by the approach to the problem by the Supreme Court in the Schonwald case, supra, which differed in part from that of the trial court whose judgment for the defendant was affirmed on appeal. The burden of establishing the requirements for a recovery under the statute is upon the plaintiff. The subject of the pleaded special defense would add nothing to the case from the defendants' standpoint except confusion at the trial as to burden of proof between the plaintiff on the one hand and the defendants on the other.
The differences between an action at common law for damage caused by a dog and the statutory extension of that liability in Connecticut, with increased limitations thereon by amendments over the years, were reviewed by Chief Justice Brown inVerrilli v. Damilowski,
In view of the foregoing, the plaintiff's interposed demurrer to the pleaded special defense of the defendants is sustained.