Irene Taska Administratrix of the Estate of Donald Taska v. Acmat Corp. et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 212.00)

On January 9, 2012, the plaintiffs, Irene Taska, in her capacity as administratrix of the estate of Donald Taska, filed a third amended complaint in four counts against various defendants.   The complaint arises from Donald Taska's alleged exposure to various asbestos-containing products.   The alleged exposure occurred due to his frequent presence at Park City Hospital visiting his mother, Irene Taska, and her friend, Martin Slabey, both hospital employees.   The plaintiff brought the present defendant, Park City Hospital, into this action by way of a motion to cite in filed on January 12, 2010.

In count one, addressed to all of the defendants except for Park City Hospital, the plaintiffs allege a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and the second count alleges a violation of Connecticut's wrongful death statute, General Statutes § 52–555.   Count three alleges that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and/or outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, studies and reports all indicating that asbestos-containing products were hazardous.   Despite the existence of this information, the defendants allegedly failed to acknowledge or publish this information.   The fourth count alleges negligence as to Park City Hospital, only.

The fourth count claims that between the years of 1978 through 1983, Donald Taska was exposed to asbestos and asbestos-containing products and materials as a result of his presence on the defendant's premises.   Specifically, the plaintiff alleges that the defendant's employees' use of such products caused the liberation of asbestos fibers from these products, resulting in Donald Taska's alleged exposure to the respirable asbestos.   She further claims that asbestos is a “hazardous pollutant” that falls within the definition of General Statutes § 52–577c(a), the statute limiting actions for damages caused by exposure to hazardous chemical substances or hazardous pollutants.   Pursuant to the definitions contained within § 52–577c(a), the plaintiff claims that the defendant's premises constitute an “environment,” Donald Taska's inhalation and contact was an “exposure” and the release, dispersion and/or escape of the asbestos into the environment was a “release.”   The fourth count also asserts that the defendant knew or should have known that asbestos posed a serious health hazard to those exposed to it, had a duty to use reasonable care in providing safe premises, and breached its duty in various ways.   As a result of the defendant's actions and/or omissions, the plaintiff claims physical, emotional, economic and noneconomic harms.

The defendant Park City Hospital has moved for summary judgment and the plaintiff has filed its memorandum in opposition.   At the March 19, 2012, short calendar argument, the court granted the defendant a week to file a supplemental brief to address a case raised by the plaintiff for the first time in her brief.   The defendant filed its supplemental brief on March 26, 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ 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.)  Grimm v. Fox, 303 Conn. 322, 329 (2012).

The plaintiff alleges that Donald Taska was exposed to asbestos materials from 1978 through 1983 during his frequent visits to the defendant's premises to visit his mother who was a hospital employee.   The defendant moves for summary judgment on the ground that the plaintiff failed to bring its action within the statute of limitations contained within General Statutes § 52–584.¹  It emphasizes that it asserted special defenses invoking the statute of limitations contained within this statute.   It maintains that § 52–584 permits an action to be brought no more than three years following the defendant's alleged negligent acts, therefore, the plaintiff had until 1986, at the latest, to bring her action.   The defendant further argues that such claims are also time barred under § 52–577c, the statute governing actions for damages caused by exposure to hazardous chemical substances or mixtures or hazardous pollutants.   The defendant contends that the plaintiff fails to demonstrate that a hazardous pollutant was released into the environment, or that Donald Taska suffered exposure from “ambient air” as required by the statute.   Accordingly, it maintains that the plaintiff's claims are barred by § 52–577c(b) ² because she cannot establish that her action was commenced within two years from the date when Donald Taska complained of his injury, the injury was discovered, or in the exercise of reasonable care should have been discovered.   In support of its summary judgment motion, the defendant has attached a copy of the plaintiff's responses to its interrogatories and its requests for production.

In her memorandum in opposition, the plaintiff argues that the defendant's reliance on § 52–584 is misplaced because her action fits within the parameters of § 52–577c;  accordingly, it is governed by that statute's two-year period of limitations with no repose period.   The plaintiff argues that asbestos is a “hazardous pollutant,” asbestos was “released” into the defendant's premises, as well as into its outside environs, i.e., creating an “environment,” and that Donald Taska suffered “exposure,” all within the meaning of § 52–577c(a).   She claims that the evidence reveals that Donald Taska was a regular presence at the defendant's premises while visiting his mother there, Irene Taska, who was a hospital employee, and that deposition testimony from another worker stated that the doors in the boiler room, which housed asbestos-containing materials and products, were opened so that air flowed from the boiler room, past the employee time clock area, through the back entrance and into the employee parking lot outside.   In addition, the plaintiff claims that the hospital was undergoing renovation projects that released asbestos both inside and outside of the hospital property.   The plaintiff supports her memorandum in opposition with a series of exhibits, including deposition testimony, discovery responses, medical records, Park City Hospital abatement records and case law.

The defendant filed a supplemental brief to address the application of an earlier decision rendered on a motion for summary judgment in an asbestos case by this court.   Butler v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. CV 106011710 (January 24, 2012, Bellis, J.) [53 Conn. L. Rptr. 468].   The resolution of the summary judgment in that matter depended, in part, upon whether the statute of limitations contained in § 52–577c(b) barred a plaintiff's action.   The issue was whether there had been a failure to demonstrate that the plaintiff was exposed to asbestos in an “environment” due to the introduction of “ambient air.”   This court determined that the defendant failed to dispel all genuine issues of material fact on the matter of whether air, free-flowing in and out of the building and possibly containing asbestos, constituted “ambient air” for purposes of § 52–577c.

The defendant distinguishes the Butler case on its facts and argues that, unlike the building under construction in that case, the defendant here was a functional, operative medical facility during the time of Donald Taska's alleged exposure, and that merely opening an exterior door of the hospital premises was insufficient to create “ambient air” for purposes of § 52–577c.

In this case, the defendant 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).   Accordingly, the defendant must establish the nonexistence of all genuine issues of material facts concerning Donald Taska's claimed exposure to the asbestos-containing products allegedly in existence on the defendant's premises as that alleged exposure relates to the appropriate statute of limitations to be applied in this action.

As previously set forth, § 52–577c provides a two-year statute of limitations for actions for damages caused by exposure to hazardous chemical substances or hazardous pollutants.   Concerning the application of the statutory phrase “ambient air,” there was evidence submitted that Donald Taska was in and around the defendant's environs “all the time” visiting his mother, an employee of the hospital.   Evidence was also submitted as follows.   A maintenance worker of the hospital, employed in the boiler room, David Raschke, testified that, in order to ventilate the boiler room, the boiler room back doors were opened into an inside hall entryway.   This created a draft, or an air flow, passing the time clock area and out of the building's back entrance into the parking lot area.   The doors were constantly subject to opening and closing throughout the day as people entered and exited the building.   David Raschke further testified that asbestos-containing equipment was present in the boiler room;  and at the hospital site in general.   In addition, there was testimony relating to hospital renovation projects and asbestos abatement projects that may have caused the release of asbestos both inside and outside of the hospital property.

In Tolchin v. Shell Oil Co., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 97 0510328 (July 30, 2004, Peck, J.) [37 Conn. L. Rptr. 575], the court examined whether § 52–577c(b) preempted § 52–584 in a case arising out of injuries incurred from well water allegedly contaminated by petroleum products.   The court recognized that “our appellate courts have not specifically addressed the question ․” Upon reviewing the parties' case law and a portion of the legislative history of § 52–577c, the court determined that “ § 52–577c is a specific and free-standing exception to § 52–577 and operates in lieu of § 52–584 as to claims for personal injury and property damage caused by negligence and/or willful misconduct arising out of exposure to hazardous chemical substances or mixtures ․” Id. (Internal quotation marks omitted.)

More specifically, in Madden v. ACMAT Corp., Superior Court, judicial district of Fairfield, Docket No. BA 065005733 (April 21, 2008, Skolnick, J.T.R.) [46 Conn. L. Rptr. 220], the issue was whether the limitation period of § 52–577c, or the limitation period contained in § 52–584, applied in a case in which the plaintiff had brought a claim for illness suffered as a result of asbestos exposure.   As a threshold matter, the court observed that § 52–577c “incorporates the chemicals covered by § 42 U.S.C. § 9601(14), [the federal statute] which defines ‘hazardous pollutants'—in a list that includes asbestos.”  Id. It emphasized that “[b]arring further statement by the legislature or [appellate] division, the court is disinclined to prevent the plaintiff from applying § 52–577c, especially in light of the statute's explicit reference to federal law in identifying the toxic substances for which exposure to may lead to liability.”   The court was troubled by the application of § 52–577c, however, insofar as the phrase “ambient air” was used to define the term “environment” for purposes of the statute.   Although the statute did not define “ambient air,” the court surveyed other courts and found that “ambient air” referred to “the air that is outdoors and accessible by the public at large and not the air that is confined to enclosed spaces such as buildings.”   The plaintiff, who had worked in the Danbury Hospital boiler room, claimed exposure from his workplace.   Due to an existing hole in the boiler room's outside wall, the plaintiff could have been exposed to “ambient air.”   The court concluded that “[w]hether such conditions existed thereby allowing the plaintiff's work area to be exposed to ambient air is a material question of fact that would make summary judgment inappropriate at this time.”

At the summary judgment stage of the proceedings, it is the movant's burden to establish that no genuine issue of material fact exists here with respect to Donald Taska's claimed exposure to any of this defendant's containing products existing at the defendant's facility, and the defendant has failed to meet its burden.   Here, the evidence produced by the defendant does not exclude doubt and resolve the factual dispute as to the statutory application of the phrase “ambient air” to Donald Taska's alleged exposure to the alleged asbestos-containing products located at the defendant's premises.

The defendant's argument that the plaintiff's claim is barred, even under an application of the two-year limitations period of § 52–577c(b), is also unavailing because the defendant has not demonstrated the absence of all genuine issues of material fact concerning this issue.

The limitations period of § 52–577c(b) begins to run “within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”   Evidence was submitted that Donald Taska was not completely sure when he began experiencing symptoms that were later diagnosed as related to his asbestos disease, but he believed that it may have been around May of 2007.   He observed that his abdomen was swollen and that he was experiencing frequent tiredness.   Initially, the doctors believed that Donald Taska suffered from acid reflux, and it was not until December of 2008 that he was diagnosed with cancer.   The final diagnosis was contained in a surgical pathology report from surgical pathology slides taken on December 19, 2008 and reported on December 31, 2008.   The plaintiff attached a report from Jerrold L. Abraham, M.D., who, upon reviewing Donald Taska's “records and pathology materials,” observed, that “[t]he information provided indicates that Mr. Taska had second hand exposure to asbestos through his mother who worked as a medical technician at Park City Hospital in Bridgeport from 1978 to 1993.”   Dr. Abraham farther explained that “[a]sbestos exposure is well known to be the cause of nearly all malignant mesotheliomas.   Mr. Taska had a history of asbestos exposure and developed a malignant mesothelioma ․ Therefore, based on all the available information, I can conclude to a reasonable degree of medical certainty that Mr. Taska's asbestos exposure was the cause of his malignant mesothelioma and will likely be the cause of his death.”

The plaintiff commenced this action by service of process on the original defendants on April 13 and 14, 2009.   She filed a motion to cite in the present defendant, accompanied by an amended complaint, on January 9, 2010.   “[A]ctionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another.”  (Internal quotation marks omitted.)  Lagassey v. State, 268 Conn. 723, 749, 846 A.2d 831 (2004).   In this case, Donald Taska testified that he began experiencing symptoms in May of 2007 but he was diagnosed only with acid reflux at that time.   He did not receive his diagnosis of cancer until December of 2008.   “[T]he determination of when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily a question reserved for the trier of fact.”  (Internal quotation marks omitted.)  Id., 749.   Again, this court finds that the defendant has not dispelled all genuine questions of material fact as to the running of the statute of limitations in this action.

“[T]he 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 set forth above, the court denies the defendant's motion for summary judgment.

BELLIS, J.

FOOTNOTES

FN1. General Statutes § 52–584 provides in relevant part that “No action to recover damages for injury to the person ․ caused by negligence, or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․.  FN1. General Statutes § 52–584 provides in relevant part that “No action to recover damages for injury to the person ․ caused by negligence, or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․

FN2. General Statutes § 52–577c(b) imposes a two-year statute of limitations on an action to recover damages caused by exposure to hazardous chemicals or pollutants released into the environment.   The action “shall be brought ․ within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”.  FN2. General Statutes § 52–577c(b) imposes a two-year statute of limitations on an action to recover damages caused by exposure to hazardous chemicals or pollutants released into the environment.   The action “shall be brought ․ within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”

Bellis, Barbara N., J.