Paradis v. City of New Britain, No. Cv92 0452333s (Sep. 28, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO STRIKE CT Page 7955-M The instant action arises out of an accident which occurred in Walnut Hill Park in the City of New Britain on or about July 30, 1990. The plaintiff alleges she suffered personal injuries as a result of being struck by a fallen tree while she was jogging in the park.

The defendant City of New Britain claims that 13a-149 of the Conn. Gen. Stat. does not permit recovery in an action for personal injuries based upon a fallen limb and that, in any event, the plaintiff's claims are barred by 52-557g of the Conn. Gen. Stat. which state as follows:

(a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee, or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous CT Page 7955-N condition, use, structure or activity on the land to persons entering for recreational purposes.

(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner.

The plaintiff claims that 52-557f(4) does not include jogging within the definition listed therein. That section states as follows:

"`Recreational purpose' includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, CT Page 7955-O sledding, hang gliding, sport parachuting, hot air ballooning, and viewing or enjoying historical, archeological, [archaeological] scenic or scientific sites."

Jogging is defined as "exercise that consists of running at a slow regular pace or alternately running and walking." American Heritage Dictionary, 2nd College Edition. It falls within the purview of 52-557(g)protecting the landowner including property owned by the City of New Britain.

The City has filed a Motion to Strike alleging that the claim is not actionable under 13a-149 of the Conn. Gen. Stat., the defective highway statute and further that the recreational land use statute, 52-557(g) of the Conn. Gen. Stat. bars the plaintiff's cause of action.

"A motion to strike challenges the legal sufficiency of a pleading. Practice Book 152. Mingachos v. CBS, Inc., 196 Conn. 91,108. A motion to strike "admits all facts well pleaded; it does not admit legal conclusions of the truth or accuracy of opinions stated in the pleadings." Mingachos, supra, 108. CT Page 7955-P

Section 52-557(g) constitutes a bar to the plaintiff's claim irrespective of the provision of 13a-149 of the Conn. Gen. Stat.

The defendant is protected by 52-227(g) of the Conn. Gen. Stat.

Accordingly, the motion to strike is granted.

Jackaway, J.