Dorazio v. M. B. Foster Elec. Co.

• Decision Date: 03 December 1968
• Citation: 157 Conn. 226,253 A.2d 22
• Court: Connecticut Supreme Court
• Parties: Michael P. DORAZIO v. M. B. FOSTER ELECTRIC COMPANY et al.

Page 22

253 A.2d 22

157 Conn. 226

Michael P. DORAZIO v. M. B. FOSTER ELECTRIC COMPANY et al.

Supreme Court of Connecticut.

Dec. 3, 1968.

William F. Gallagher, New Haven, with whom, on the brief, were Cyril Cole and Bernard Poliner, Hartford, for appellant (plaintiff).

Jerome I. Walsh, Manchester, for appellee (defendant C. N. Flagg and Co., Inc.).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

THIM, Associate Justice.

The plaintiff brought an action for negligence against the M. B. Foster Electric Company (hereinafter called Foster) and the C. N. Flagg and Company (hereinafter called Flagg), and the trial court rendered judgment for Flagg after a hearing on its motion for summary judgment. The plaintiff has taken the present appeal, claiming that the trial court committed error by granting Flagg's motion for summary judgment.

In his complaint, the plaintiff alleged that he fell from a defective scaffolding while he was working in the R. C. Macy building, which was being erected in New Haven; that Foster erected, maintained and controlled the scaffolding; that Flagg also had the use and control of the scaffolding; and that both the defendants caused, maintained and failed to remedy the defective condition.

Flagg moved for summary judgment and submitted a supporting affidavit and documentary evidence pursuant to Practice Book § 299. The supporting affidavit averred that the plaintiff admitted in a deposition, which had been filed with the clerk of the Superior Court, that Foster was in control of the scaffolding in question. An attorney associated with the law firm which represented the plaintiff filed his own affidavit in opposition to Flagg's motion for summary judgment and averred that the adjuster employed by the insurance company which insured both defendants had stated to the deponent that his file indicated that Flagg was in control of the scaffolding. The attorney also stated in his counteraffidavit that a foreman of Foster told an investigator from the office of the plaintiff's attorney that Flagg owned the scaffolding. After a hearing on the motion for summary judgment, the court concluded that the plaintiff's affidavit did not give rise to any genuine issue of fact and rendered judgment for Flagg.

A motion for summary judgment is designed to eliminate the delay and expense incident to a trial when there is no real issue to be tried. Stephenson, Conn.Civ.Proc. (1966 Sup.) § 131. The function of the trial court, in applying the summary judgment rules, is to determine whether an issue of fact exists but not to try that issue if it does exist. Rathkopf v. Pearson, 148 Conn. 260, 264, 170 A.2d 135. Pursuant to § 300 of the Practice Book, affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit. In order to oppose successfully a motion for summary judgment, the opposing party must recite facts in accordance with Practice Book § 300 which contradict those offered by the moving party. Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149.

The plaintiff's counteraffidavit clearly failed to comport with these requirements. All of the evidence set forth in the counteraffidavit was inadmissible hearsay. The plaintiff's counteraffidavit contained no recital of facts which would be admissible in evidence, nor was any documentary proof submitted under § 299 of the Practice Book to show that the question of Flagg's control over the scaffolding was a triable issue of fact. Therefore, the trial court correctly granted Flagg's motion for summary judgment. Loubet v. Loubet, 155 Conn. 695, 696, 230 A.2d 552.

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