Antinozzi v. D. V. Frione & Co.

• Decision Date: 13 March 1951
• Citation: 137 Conn. 577,79 A.2d 598
• Court: Connecticut Supreme Court
• Parties: ANTINOZZI v. D. V. FRIONE & CO., Inc. Supreme Court of Errors of Connecticut

Page 598

79 A.2d 598

137 Conn. 577

ANTINOZZI v. D. V. FRIONE & CO., Inc.

Supreme Court of Errors of Connecticut.

March 13, 1951.

George J. Yudkin, Derby, Harold B. Yudkin, Derby, for the appellant (plaintiff).

John E. McNerney, New Haven, A. R. Moquet, New Haven, (Francis J. Moran, New Haven, on the brief), for the appellee (defendant).

Before JENNINGS, SHEA, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Judge.

The plaintiff is the owner of greenhouses located on his premises in Derby, where he is engaged in business as a florist. Between September 27, 1946, and October 15, 1947, the defendant, in constructing a highway in the immediate vicinity of the greenhouses, carried on blasting operations which caused damage to them by flying fragments of rock and debris as well as by concussion and vibration. This action to recover for the resulting damage was instituted October 21, 1948. The complaint, as amended, contained three counts, the first alleging negligence, the second, nuisance arising out of negligence, and the third, that the defendant conducted the 'blasting in such a manner that the concussions and vibrations and flying particles of rock and debris caused numerous window panes and glass in the Plaintiff's greenhouses to become cracked and broken.' The defendant by its answer denied the essential allegations of all three counts, and pleaded by three identical special defenses that each, in so far as it purported 'to be a cause of action based upon negligence, did not accrue within one year next before the commencement of this action.' It is conceded that as to the first and second counts this constituted a valid defense. The questions upon this appeal are concerned solely with the cause of action under the third count. The plaintiff claims that this is founded on absolute liability for the ultrahazardous activity of blasting. The court found that the defendant, in doing the blasting as it did, had engaged in an ultrahazardous activity which resulted in damage to the plaintiff, but concluded that the third count stated a cause of action based on negligence or reckless misconduct and that, therefore, recovery was barred by the one-year Statute of Limitations which is now § 8324 of the General Statutes. The court rendered judgment for the defendant.

Section 8324 in so far as material provides: 'No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, * * * shall be brought but within one year from the date of the act or omission complained of * * *.' Section 8316 states: 'No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.' The gist of the plaintiff's claims made in the trial court was: The third count is founded on the defendant's absolute liability for damages caused by its intrinsically dangerous activity of blasting and is not a cause of action for damages due to negligence or reckless or wanton misconduct falling within the terms of § 8324; consequently the three-year limitation of § 8316, instead of that of one year under § 8324, applies, and therefore the action is not barred. The court overruled these claims. The...