Plouffe v. New York, N. H. & H. R. Co.
| Decision Date | 03 March 1971 |
| Court | Connecticut Supreme Court |
| Parties | Raymond A. PLOUFFE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY et al. |
John J. Mahon, Manchester, for appellant (plaintiff).
Jackson T. King, Jr., Norwick, for appellant (intervening plaintiff Fred B. Clark Corp).
Joseph P. Cooney, Hartford, with whom, on the brief, was David T. Ryan, Hartford, for appellees (named defendant was others).
Before ALCORN, C. J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.
This action was brought in five counts. The first two were directed against the town of East Hampton and we are not concerned with them on this appeal. The third and fourth counts were directed against the named railroad defendant and its trustees in reorganization. The fifth count was directed against The Penn Central Company which, it was alleged, had assumed the obligations and liabilities of the New Haven Railroad. The third count alleged that the New Haven Railroad trustees were charged with the duty of operating that railroad, that as trustees they 'owned, controlled, maintained and operated' a railroad which passed under Flat Brook Road, a public highway in East Hampton, that some time prior to April 27, 1968, they caused a wooden bridge 'to be legally placed upon' that road in order to maintain and operate the railroad and allow vehicles to cross the road, that on and for a long time prior to that date they were charged with the proper care, maintenance 'and/or' repair of the bridge and that on April 27, 1968, the plaintiff was operating a truck across the bridge when it collapsed, causing injuries to him. It is also alleged that the bridge was then and, for a long time prior thereto had been, in a dangerous and defective condition and that the defendant trustees knew or should have known of the condition and neglected to remedy the defective condition. It is further alleged that the collapse of the bridge and the plaintiff's injuries were due to the negligence and carelessness of the defendant trustees, their agents, servants 'and/or' employees in that they caused, allowed, 'and/or' permitted the bridge to be constructed and maintained in a defective, unsafe and dangerous manner, in that they maintained it so that it was a trap and inherently dangerous to users, and in that they failed to inspect, repair and maintain the bridge in a safe condition and warn members of the public of the dangerous and hazardous conditions. The fourth count, directed against the New Haven Railroad only, incorporated the general allegations of the third count with respect to the condition of the bridge and the duties and actions of the trustees in constructing and maintaining the bridge and also alleged that the accident was due to the fault of the railroad in creating and maintaining the bridge as a nuisance. The fifth count, directed against The Penn Central Company alleged that as it had assumed the obligations and liabilities of the New Haven Railroad, including those alleged in the third and fourth counts, the plaintiff would seek from it satisfaction for any judgment 'and/or' settlement to which he might be entitled as a result of the claims alleged in those counts. The complaint, as amended, also alleged that on May 9, 1968, the plaintiff had given to the New Haven Railroad notice of the accident and his intention to hold that railroad liable for his damages. A copy of the notice was annexed to the amended complaint as an exhibit.
The plaintiff's employer, having paid workmen's compensation to the plaintiff, on June 6, 1969, filed an intervening complaint repeating all the allegations in the five counts of the plaintiff's complaint. See General Statutes § 31-293. The writ, summons and complaint were dated April 16, 1969, and made returnable to the Superior Court on the first Tuesday of June, 1969. On June 10, 1969, the defendant trustees and the New Haven Railroad filed a joint answer to the third, fourth and fifth counts of the complaint and a similar answer to the intervening complaint. In brief, they admitted the corporate existence of the New Haven Railroad, the status of the trustees charged with the duty of operating it and that the trustees had been ordered to turn over all the assets of the New Haven Railroad to The Penn Central Company. They denied all the allegations regarding the bridge and pleaded no knowledge as to the plaintiff's alleged accident and injuries.
On the same date on which they filed their answers, June 10, 1969, the defendant trustees and the New Haven Railroad filed a motion for summary judgment, claiming that there was no genuine issue of any material fact with respect to the nonliability of these defendants. With the motion they filed two affidavits executed by former employees of the New Haven Railroad. The purport of the affidavits was that in 1966 the railroad tracks had been removed from beneath the Flat Brook Road bridge, that the railroad under the bridge had been abandoned upon removal of the tracks and that a letter to that effect dated January 19, 1966, had been written to the first selectman of the town of East Hampton with a copy to the public utilities commission.
On June 26, 1969, when the motion came on for hearing, the plaintiff filed a pleading entitled 'Objection Of The Plaintiff Raymond A. Plouffe To The Defendants' * * * Motion For Summary Judgment On The Complaint And Intervening Complaint.' The pleading stated that the plaintiff 'claims that there is a genuine issue as to any material fact with respect to the liability of said defendants', referred to an 'explanatory affidavit' submitted with the motion and moved that the motion for summary judgment be denied or the court order a continuance in order to permit affidavits to be obtained or discovery to be had to ascertain the facts. The only affidavit submitted by the plaintiff was one executed by his attorney. The purport of the affidavit was that neither the plaintiff nor his counsel had any personal knowledge as to the facts stated in the defendants' affidavits, that those facts were within the exclusive knowledge of the defendant railroad and the plaintiff was still in the process of investigating the defendants' claims and the questions of law arising from the facts recited in those affidavits. It further asserted that the plaintiff's complaint alleged causes of action sounding in common-law negligence and nuisance as well as a cause of action based on statutory liability and that since the affidavits of the defendants contained no facts relative to the common-law causes of action the motion for summary judgment should be denied. The affidavit concluded with a request that the court deny the motion for summary judgment or order a continuance to permit affidavits to be obtained, motions for disclosure and production to be filed, 'and/or' depositions to be taken in order to ascertain the truth of the facts as set forth in the defendants' motion for summary judgment.
On August 28, 1969, the court granted the motion for summary judgment for the defendant trustees and New Haven Railroad and, suo motu, directed the entry of summary judgment for The Penn Central Company on count five of the complaint on the ground that the plaintiffs had no legal standing against that company in the absence of such standing against the New Haven Railroad and its trustees. While the court did not expressly deny the plaintiff's motion for a continuance, such a denial is implicit in the decision it reached and the memorandum of decision states: 'The plaintiff has had ample opportunity to put in issue and to question the veracity of the subject matter of the two affidavits submitted by the moving defendant railroad and its trustees.' From the judgment rendered the plaintiffs have taken this appeal.
Summary judgment procedure is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial. We have recently discussed the proper procedure in such cases as McColl v. Pataky, 160 Conn. 457, 280 A.2d 146 (32 Conn. L.J., No. 37, p. 3), Dowling v. Kielak, 160 Conn. 14, 273 A.2d 716, United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 260 A.2d 596, and Dorazio v. M. B....
To continue reading
Request your trial
-
Heyman Associates No. 1 v. Insurance Co. of State of Pa.
...520 F.2d 255 (2d Cir.1975); and our state summary judgment rule is closely patterned after the federal rule. Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 280 A.2d 359 (1971); New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 214 A.2d 375 The mere theoretica......
-
Daily v. New Britain Mach. Co.
...Fire Ins. Co., 204 F.Supp. 311, 314 (D.Conn.1962); Farrell v. Farrell, supra, 182 Conn. 39, 438 A.2d 415; Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); Hartmann v. Smith, 158 Conn. 613, 614, 259 A.2d 645 (1969)." Burns v. Hartford Hospital, 192 Conn. 451, 45......
-
Maltas v. Maltas.
...for summary judgment merely by pointing to lack of evidence on essential element of movant's claim); Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 491, 280 A.2d 359 (1971) (nonmoving party “under no obligation to establish by counter affidavit the truth of the unattacked allegations”......
-
Manifold v. Ragaglia
...motion for summary judgment on the basis of our review of the federal courts' approach to that issue. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 487, 280 A.2d 359 (1971) (noting that Connecticut's summary judgment practice substantially similar to Federal Rule of Civil Procedu......