Bartha v. Waterbury House Wrecking Co., Inc.

• Decision Date: 03 May 1983
• Citation: 459 A.2d 115,190 Conn. 8
• Parties: Dezso BARTHA, Jr. v. WATERBURY HOUSE WRECKING COMPANY, INC., et al.
• Court: Connecticut Supreme Court

Page 115

459 A.2d 115

190 Conn. 8

Dezso BARTHA, Jr. v. WATERBURY HOUSE WRECKING COMPANY, INC., et al.

Supreme Court of Connecticut.

Argued Feb. 4, 1983.

Decided May 3, 1983.

Donald C. Simmons, Waterbury, for appellant (plaintiff).

Thomas L. Brayton, Waterbury, with whom, on the brief, was Terence D. Mariani, Waterbury, for appellee (named defendant).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

This appeal contests the propriety of a summary judgment rendered for the named defendant, Waterbury House Wrecking Company, Inc., in an action based upon negligence and nuisance. In a complaint, which was served July 5, 1979, the plaintiff alleged that he sustained serious injuries when he fell into a large hole or excavation while on duty as a Waterbury policeman on August 5, 1977. The accident occurred on property owned by the city of Waterbury. The defendant had entered into a contract with the Waterbury Urban Renewal Agency in September, 1972, to provide demolition and site clearance services for that parcel of land. The plaintiff asserted two grounds for the defendant's liability: (1) the negligent performance of its 1972 contract with the Waterbury Urban Renewal Agency and (2) the creation of a hazardous condition having a tendency to cause injury by failing properly to safeguard in some manner the hole into which the plaintiff fell.

In its answer the defendant admitted entering into the alleged contract in September, 1972. By way of special defense, however, the defendant asserted that it had completely discharged its duties under the contract as of September, 1973, and claimed that the plaintiff's action was barred by two statutes of limitations, General Statutes §§ 52-577 ¹ and 52-584. ² Once the pleadings were closed, the defendants moved for summary judgment on this special defense. Accompanying the motion was an affidavit of the president of the defendant company, Peter Vileisis, who stated that the work on the site was completed as required by the contract with the Waterbury Urban Renewal Agency in November, 1972. The plaintiff filed an objection to the motion for summary judgment and a brief, but submitted no counter-affidavit. The trial court granted summary judgment, ruling that the statutes of limitations barred the action because the affidavit supporting the motion indicated that the defendants had ceased work on the site and that the contract had been completed more than three years before "the date of the act or omission complained of." General Statutes §§ 52-577, 52-584.

The plaintiff has appealed from the judgment. He claims that the trial court erred in granting the motion for summary judgment because (1) the completion date of the defendant's work on the site was a genuinely disputed issue of material fact and, therefore, summary judgment should not have been rendered and (2) the second count of the complaint, alleging the creation of a hazardous condition, implicated a continuing course of tortious conduct, and, therefore, was not subject to defeat by the statutes of limitations. We find no error.

Both the plaintiff's claims of error founder upon his failure to present properly to the trial court sufficient countervailing facts for consideration in accordance with the procedures governing summary judgment. ³ A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969). When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant. Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). "Such affidavits, documents and pleadings will be considered in determining whether there is a genuine issue as to any material fact. 10 Wright & Miller, Federal Practice and Procedure § 2722; 73 Am.Jur.2d, Summary Judgment § 32." Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); see Conference Center, Ltd. v. TRC, 189 Conn. 212, 217, 455 A.2d 857 (1983). Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979); see Farrell v. Farrell, supra, 182 Conn. 39, 438 A.2d 415; Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967). "The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence." Practice Book § 380.

The essence of the plaintiff's first claim of error is that the trial court could not rule on the statute of limitations defense because the issue of when the defendant completed the work was a controverted material fact. We disagree. The affidavit submitted by the defendant stated that all its work on the site had been completed in November, 1972. No counter-affidavit disputing that fact was submitted. The plaintiff does not attack the defendant's affidavit as insufficient in form; Practice Book § 381, or as made in bad faith. Practice Book § 383. Nor does the plaintiff claim that "the facts essential to justify his opposition" were unavailable. Practice Book § 382. No motion was made pursuant to Practice Book § 382 for a continuance or a discovery order. Nevertheless, the plaintiff maintains that the trial court was not entitled to rely on the affiant's statement that the defendant's work on the site was completed in November, 1972, because its answer stated that the contract was completed and accepted by the Waterbury Urban Renewal Agency in September, 1973. This discrepancy was immaterial, however, because the limitation of three years for commencement of suit from "the date of the act or omission complained of" would have expired even if the later date was the critical one. Since the trial court had before it an affidavit sufficient in form and not controverted in any material respect by the plaintiff, the court was entitled to rely upon it.

The plaintiff's second claim of error, that he has alleged a continuing tortious conduct which tolls the statute of limitations must also fail because of the absence of any factual presentation to the trial court. The defendant did not dispute the existence at the time it performed the contract of the hazardous condition which the plaintiff alleged to have resulted from its work. The fact that the defendant may have been aware of this hole at the time the contract was completed, however, would not in itself establish that it had a continuing duty to warn of the danger or to safeguard the hole. See ...