Earley v. Town of West Haven

The demurrer assumes, and counsel for defendant argued, that no liability was claimed and no recovery could be allowed except upon the basis of negligence.

It is clear that the plaintiff has attempted to charge the de' fendant with the maintenance of a nuisance. True, it is alleged that the injury occurred because there was a hole in the back' stop; whereas it is not alleged that the defective condition which made the backstop a nuisance was the hole.

If the plaintiff intends to prove that the defendant maintained a backstop with a hole in it, and that the backstop, as used by authority of the defendant municipality, was such a continuing menace as to constitute a public nuisance, and if this is the cause of action on which he relies, a more concise and explicit complaint might easily be achieved.

*128 But to sustain this demurrer on the ground of governmental immunity and upon the assumption that no nuisance is alleged would involve a too narrow construction of the complaint.

The demurrer is overruled.