Summary
In Schlesinger v. Guasp, 2005 WL 701681 *1 (2005) (Miller, J.) [38 Conn.L.Rptr. 667, ], Judge Miller struck a special defense of unavoidable accident citing Tomczuk, and other superior court decisions that had stricken similar special defenses.
Summary of this case from Carter v. Philadelphia Indemnity Ins. Co.Opinion
No. CV 04-4000457S
February 3, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSE ( NO. 113)
The plaintiff by pleading dated December 7, 2004, moves to strike defendant's special defense.
The motion is granted, but not for the reasons advanced by the plaintiff. The brief in support of the motion characterizes the special defense as one of "superseding cause," which plaintiff describes as being the same as the defense of "unavoidable accident." The doctrines are simply not the same, and the special defense in question clearly raises the issue of unavoidable accident.
The Court will therefore address the legal sufficiency of a special defense which raises the issue of unavoidable accident. It is well settled that "[t]he so-called defense of inevitable or unavoidable accident is nothing more than a denial by [the defendant] of his negligence, or a contention that his negligence, if any, was not the proximate cause of the injury." Tomczuk v. Alvarez, 184 Conn. 182, 190 (1981). Unavoidable accident, therefore, may be raised by a denial of the plaintiff's allegations of negligence. Practice Book § 10-50. Special defenses of unavoidable accident have been stricken by at least two Connecticut trial court judges. Orifice v. Ducci Electrical, 34 Conn. L. Rptr. 535 (Fairfield J.D., 2003) (Levin, J.); Bikakis v. Alcock, 1995 WL 462425 (Fairfield J.D., 1995) (Maiocco, J.).
The Motion to Strike Special Defense is therefore granted.
Miller, J.