459 A.2d 115
(10885)Supreme Court of Connecticut
PETERS, HEALEY, PARSKEY, SHEA and GRILLO, Js.
The plaintiff sought damages for injuries he sustained when he fell into a large excavation or hole on land for which the named defendant, W Co., had contracted to provide demolition and site clearing services. The trial court granted W Co.’s motion for summary judgment, ruling that the plaintiff’s action against it was barred by the applicable statutes of limitations (52-577 and 52-584) because an affidavit submitted by W Co. in support of that motion indicated that it had ceased work on the site in question and that its contract had been completed more than three years before “the date of the act or omission complained of.” On the plaintiff’s appeal to this court, held: 1. Since the plaintiff had submitted nothing to controvert the facts contained in W Co.’s affidavit, the trial court was entitled to rely on it. 2. The plaintiff’s claim that he had alleged a continuing course of tortious conduct which tolled the statutes of limitation was unavailing, he not having presented to the trial court any facts to support that claim.
Argued February 4, 1983
Decision released May 3, 1983
Action to recover damages for personal injuries alleged to have been sustained in a fall on property worked on by the named defendant, brought to the Superior Court in the judicial district of Waterbury, where the court, J. Healey, J., granted a motion by the named defendant for summary judgment and rendered judgment as to that defendant only, from which the plaintiff appealed to this court. No error.
Donald C. Simmons, for the appellant (plaintiff).
Thomas L. Brayton, with whom, on the brief, was Terence D. Mariani, for the appellee (named defendant).
SHEA, J.
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,
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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 52584.[2] Once the pleadings were closed, the defendants moved for summary judgment on this special defense. Accompanying
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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]
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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
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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, 39; 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
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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 Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174, 127 A.2d 814 (1956). The plaintiff presented no facts, by affidavit or in some other form required by Practice Book 380, 381, which would reasonably support an inference of a continuing breach of duty by the defendant. The complaint itself contains no allegation of facts giving rise to a continuing duty on the part of the defendant.[4] Without any
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indication of a continuing breach of duty properly presented, the trial court was entitled to rely on the statement in the affidavit that the contract work was completed and that the company’s contact with the site ceased more than three years before the commencement of the action. Since the facts were not disputed and there appeared no countervailing circumstances impeding the normal application of the statute of limitations, the summary judgment was properly rendered.
There is no error.
In this opinion the other judges concurred.