Creaser v. Bixby, 440-79

• Decision Date: 08 September 1980
• Docket Number: No. 440-79,440-79
• Citation: 138 Vt. 582,420 A.2d 102
• Parties: David P. CREASER, Admr. of the Estate of Ross David Creaser v. Milton BIXBY, Town of Ludlow and Village of Ludlow.
• Court: Vermont Supreme Court

Page 102

420 A.2d 102

138 Vt. 582

David P. CREASER, Admr. of the Estate of Ross David Creaser v. Milton BIXBY, Town of Ludlow and Village of Ludlow.

No. 440-79.

Supreme Court of Vermont.

Sept. 8, 1980.

Peter P. Plante and John C. Candon, of Black & Plante, Inc., White River Junction, for plaintiff.

Kiel, Freeman & Boylan, Springfield, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

Plaintiff's decedent met his death when a ditch in which he was working collapsed. He was employed at the time by O'Bryan Construction Company, Inc., which was installing a private sewer line to connect with municipal services, under a private contract. During the course of construction a water service leading to another customer was broken, requiring repair. Defendant Milton Bixby, an employee of the Town and Village of Ludlow, notified of the break, came to repair it. He was making this repair, working in the ditch dug by the contractor, when the ditch collapsed. Decedent was also working in the ditch at the time, with other employees of the contractor, installing a section of sewer pipe.

Plaintiff's theory of recovery is set out in his amended complaint. His allegation is that the collapse of the ditch was due to the negligence of the defendants, who had "assumed supervisory capacity and control of the work" at the point where decedent was working. But he was met with a motion for summary judgment, based upon affidavits submitted and depositions on file. The motion, under V.R.C.P. 56(b), squarely raised the question whether there was any genuine issue as to the material fact of control of the operation. The defendants contended that there was none, that Bixby, although employed by the other defendants, had no supervision or control of the operation in question, that the ditch was dug by and maintained by decedent's employer, and that Bixby was merely working in the ditch along with decedent and other employees of the contractor. The trial court heard extensive argument, permitted reargument, gave opportunity to submit counteraffidavits, and eventually granted the motion, giving judgment for all defendants. After reviewing the record at length, we are convinced that this judgment was correct, and affirm.

We are not here confronted with precipitous action on the part of the trial court. Each party was given full opportunity to submit materials in the form of affidavits, depositions and the like. Not only hearing, but rehearing, was afforded. Memoranda and countermemoranda were filed and considered. We are convinced that if the proceedings below show the absence of a factual issue on the question of control, there is no such issue; and justice can be served by deciding the case in its present posture. To that end we have carefully examined the record.

It is, of course, axiomatic that, faced with a motion for summary judgment supported by affidavits, a party may not rest on the allegations in its pleading. Wisell v. Jorgensen, 136 Vt. 604, 398 A.2d 283 (1979); V.R.C.P. 56(e). It is not, therefore, determinative of the issue before us that the amended complaint states a cause of action. Here, the affidavits and depositions must control, and under them we can see no factual issue on control of the operation which allegedly caused decedent's death.

Defendants submitted the affidavit of defenda...