Summary
In Dewing v. Black Point Association, 19 Conn.Sup. 230 (1954), the court similarly held that the plaintiff had not been exercising a "public right" despite her utilizing a swimming raft in public waters.
Summary of this case from PETRUSHONIS v. ORDER OF ELKSOpinion
File No. 99364
An allegation that the named plaintiff, a guest of the defendant beach club, was injured by diving from the club's raft, moored in the public waters of Long Island Sound, into water that was too shallow did not state a cause of action against the club for a public nuisance. No interference with the plaintiff in her exercise of a public right was shown.
Memorandum filed December 13, 1954.
Memorandum on demurrer to second count of complaint. Demurrer sustained.
Davis, Lee, Howard Wright, of Hartford, for the plaintiffs.
Schatz, Weinstein Seltzer, of Hartford, for the defendant.
The second count of the original complaint has been amended by amendments and by a more specific statement, and in its present form purports to allege a cause of action for injuries from a public nuisance.
The plaintiff, a young girl, was a guest at the defendant beach club, and, with its knowledge and acquiescence, was diving from a float or raft which it maintained for the purpose, moored in the public waters of Long Island Sound. The injury occurred because the plaintiff dove into shallow water.
It is true that the plaintiff in swimming in the public waters was exercising a public right. However, the complaint does not allege any interference with her in the exercise of that right. Her right, in so far as it was a public right, was to use the water; not to use the defendant's raft. Had the injury been caused to her in her enjoyment of a public right by some act or conduct of the defendant, which interfered with the exercise of that right, the plaintiff might well have stated a cause of action. Zatkin v. Katz, 126 Conn. 445, 449; Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611. But as the complaint now stands, it does not adequately set forth a cause of action for a public nuisance.