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Wright v. Brown - 167 Conn. 464, 356 A.2d 176 (1975)

Rule:

Liability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality. Failure to remedy a dangerous condition not of the municipality's own making is not the equivalent of the required positive act. In testing a complaint against attack by demurrer, the allegations of the complaint are construed in the manner most favorable to the pleader. If any facts provable under its allegations would support a cause of action, the demurrer must fail. What is necessarily implied need not be expressly alleged.

Facts:

Fourteen days prior to the accident, William Brown’s dog attacked Mary F. Wright, which resulted in the quarantine of the dog. The dog warden released the dog prior to the expiration of the 14-day quarantine period required by Conn. Gen. Stat. § 22-358. Wright alleged that the dog warden and the town allowed the dog to roam freely, which gave rise to a condition the natural tendency of which was to create danger. The complaint also stated a cause of action for negligence, alleging that the dog warden and the town failed to comply with the standard of conduct required by § 22-358. The trial court sustained the demurrer of the dog warden and the town on the counts for negligence and nuisance. Wright challenged the trial court's decision. 

Issue:

Did the trial court err in sustaining the demurrer of the dog warden and the town on the counts for negligence and nuisance?

Answer:

Yes as to the counts for nuisance.

Conclusion:

The court set aside the judgment and determined that the demurrer should have been overruled as to the counts for nuisance. The court found that the release by the dog warden constituted a positive act. The court concluded that the town was not immune because the duty to quarantine the dog was mandatory; therefore ministerial. The court found that § 22-358 did not protect against the type of injury sustained by plaintiff.

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