Carol Batch, Executrix of the Estate of Gary Batch et al. v. A.O. Smith Corporation et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 204.00)

FACTS

This action arises out of the exposure of the decedent, Gary Batch, to asbestos-containing products while he worked as a naval fireman from 1960 to 1962, as a pipefiller from 1963 to 1966, and as a firefighter from 1967 to 1979.   The plaintiff, Carol Batch, as executrix of the estate of Gary Batch and as surviving spouse, filed her first amended complaint on November 7, 2011, against various defendants including Gardner Denver, Inc. Count one alleges a violation of the Connecticut Product Liability Act, § 52–572m et seq., and the second count alleges a cause of action pursuant to General Statutes § 52–555, Connecticut's wrongful death statute and/or General Statutes § 52–572m et seq.   The third count claims a loss of consortium, and count four asserts that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous because, since 1929, the defendants possessed data indicating that asbestos-containing products were hazardous to the health of Gary Batch and to all humans who were exposed to such products.

The defendant Gardner Denver, Inc. filed its summary judgment motion on September 16, 2011.   The plaintiff filed an objection on September 23, 2011, and the defendant filed a reply to the plaintiff's opposition on October 14, 2011.   The parties argued the matter before the court on January 17, 2012.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Id. “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

Here, the defendant Gardner Denver, Inc. has moved for summary judgment;  accordingly, “the burden is on [that] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to demonstrate the existence of a genuine issue of fact that would justify a trial.  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

The defendant moves for summary judgment on the ground that discovery has concluded and the plaintiff has failed to identify that Gary Batch was exposed to any product that the defendant manufactured, distributed or sold.   The defendant has attached a copy of the complaint, excerpts of Gary Batch's deposition testimony, and plaintiff's responses to interrogatories and requests for production.

The plaintiff counters that the defendant has failed to establish the nonexistence of all genuine issues of material fact, as evidence was submitted that the defendant's asbestos-containing products—drains and other pumps—were present onboard the USS Cavalla during the period that Gary Batch served aboard the vessel as a fireman, assisting workers doing repairs in the Cavalla's engine room.   The plaintiff has attached excerpts of Gary Batch's deposition testimony, naval records, the affidavit and deposition of Dr. Edwin C. Holstein and case law.   In its response to the plaintiff's opposition memorandum, the defendant argues that it is the plaintiff's burden to establish certain material facts such as, with respect to proximity, where Gary Batch was in relation to the alleged pumps of the defendant and whether the pumps even contained asbestos.

The defendant maintains that the plaintiff's evidence fails to establish that Gary Batch was exposed to a product manufactured, distributed or sold by it.   As the summary judgment movant, however, it is the defendant's initial burden to dispel all genuine issues of material fact that go to the issue of Gary Batch's alleged exposure to any of the defendant's alleged asbestos-containing products.   Here, the defendant has failed to dispel such genuine issues of material fact.   For example, the defendant has not presented any evidence as to whether its pumps were located at any of Gary Batch's worksites, or whether such pumps were not asbestos-containing products.   Further, if the defendant's products were located at Gary Batch's worksites, and contained asbestos, the defendant's evidence does not establish that Gary Batch was not exposed to this asbestos.

As the Connecticut Supreme Court has emphasized, “the burden of proof on a motion for summary judgment remains with the moving party even when, as here, the nonmoving party will bear the burden of persuasion at trial.”  Maltas v. Maltas, 298 Conn. 354, 370, 2 A.3d 902 (2010).   Accordingly, for the reasons discussed above, the court denies the defendant's motion for summary judgment.

By the Court,

BELLIS, J.

Bellis, Barbara N., J.