Mary J. Russo v. A.O. Smith Corp. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 177.00)

FACTS

The plaintiff, Mary J. Russo, filed this four-count complaint on September 8, 2011 against various defendants, including the moving defendant, New England Insulation Co. Generally, she alleges that she “was secondarily exposed to various asbestos containing products through her father, brother and ex-husband's employment as insulators from 1946–1979.   Such exposure contributed in part or totally to the plaintiff's contraction of asbestos-related mesothelioma and other asbestos-related pathologies.”

Specifically, the first count alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   Count two alleges a conspiracy claim solely against the defendant Metropolitan Life Insurance Co. Count three claims that the various defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans who were exposed.   Count four asserts negligence, pursuant to General Statutes § 52–577c(a), against the present defendant, as well as against ACMAT Corp., Riley Power and Bechtel Corp.

DISCUSSION

On August 14, 2012, the defendant filed a motion for summary judgment and memorandum in support on the basis that the plaintiff “has failed to identify exposure to any product manufactured or distributed by New England Insulation.   Without evidence of some exposure to a product manufactured or distributed by New England Insulation, [p]laintiff has not—and cannot—establish causation.   Nor can [p]laintiff establish any duty of care owed to her by New England Insulation or any breach thereof.   Accordingly, there are no genuine issues of material fact, and New England Insulation is entitled to judgment as a matter of law.”   Initially, the defendant did not file any evidence in support of its summary judgment motion.   In her memorandum in opposition to the defendant's summary judgment motion, filed on October 17, 2012, the plaintiff argues that the defendant has failed to prove the nonexistence of all genuine issues of material fact.   She observes that the defendant has a long history of distributing and installing asbestos-containing products during the time periods in question and she insists that the defendant was a product seller.   The plaintiff has attached various exhibits in support of her opposition to the defendant's summary judgment motion.

On February 20, 2013, the plaintiff filed a supplemental memorandum in opposition to the defendant's motion to address the defendant's contention that it did not owe a duty of care to the plaintiff.   The plaintiff emphasizes that the defendant owed a duty of care to the plaintiff because the harm was a foreseeable consequence of the defendant's actions.   She observes that the final step in a duty inquiry is the determination of “whether the defendant's responsibility should extend to the particular consequences or particular plaintiff in the case.”   The plaintiff outlines four factors a Connecticut court considers in determining whether a legal duty exists as a matter of public policy:  (1) the normal expectations of the parties engaged in the activity under scrutiny;  (2) the public policy of encouraging participation in the activity while evaluating the participants' safety;  (3) avoiding increased litigation;  and (4) other jurisdictions' decisions.   On March 4, 2013, the defendant filed a supplemental reply memorandum to the plaintiff's opposition, attaching an exhibit in support.   Under Connecticut law, the defendant argues, it owes no legal duty to the plaintiff because the plaintiff's evidence does not support the contention that, in 1970, it was foreseeable to this defendant that the work of the plaintiff's father, George Bishop, would have increased the plaintiff's risk of developing mesothelioma because she might be exposed to asbestos “that would travel home with [George] Bishop on his clothes.”

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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

As indicated previously, the defendant attached an exhibit in support of its March 4, 2013 reply memorandum to the plaintiff's opposition memorandum.   This exhibit consists of a series of George Bishop's weekly time slips.   The defendant argues that this evidence reveals that Bishop worked at Millstone for the defendant for only twenty-five days during the year 1970.   The defendant emphasizes that the plaintiff offers no evidence that Bishop, during his long career, was otherwise exposed to asbestos while working for this defendant.   It concludes that “the existence of any duty owed by New England Insulation to [the][p]laintiff must be considered in light of the foreseeability, in April and May of 1970, of harm to the [p]laintiff, based upon George Bishop's alleged workplace exposure.   Because no such harm was even remotely foreseeable, there is no duty.”

The plaintiff submitted evidence that her father worked at Millstone Powerhouse during the 1970s, and the defendant's invoices from this period reveal that it sold asbestos fabric, asbestos cloth, as well as various cements, to Millstone Powerhouse.   She contends that George Bishop brought his “asbestos-laden” work clothes home from his job at the Millstone Powerhouse, where he had been exposed to the defendant's asbestos-containing products.   The deposition of the plaintiff's brother, George F. Bishop, reveals that their father brought his work clothes home to be laundered and he left them “smack next to the dinner table.   So the fact that [the plaintiff] has exposure is through this great proximity there with no exaggeration.   Other than my father, she was the one closest to the clothes.”   The plaintiff further maintains that issues involving workers carrying hazardous substances home and contaminating their families has been documented in scientific and medical literature for decades.   For example, an expert designated by the defendant, Victor Roggli, M.D., testified that “[s]egregation of work clothing contaminated with industrial dusts and chemicals from the home environment was recommended by the government and industry because it had been known since the 1930s that introducing such substances into the home put the worker's family at risk for contracting disease.”

Although duty may be decided on a motion for summary judgment as a matter of law;  Ryan Transportation, Inc. v. M & C Associates, 266 Conn. 520, 522, 832 A.2d 1180 (2003);  it is not properly rendered when the “question of duty involves elements of both fact and law.”  Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).  “The issue of what the defendant knew or should have known is a material question of fact which should be left for the trier to determine.”   Ortiz v. Sacred Heart Roman Catholic Church, judicial district of Fairfield, Docket No. CV 03 0482149, (June 21, 2007, Skolnick, J.T.R.) Here, the court finds that the defendant has not met its burden on its summary judgment motion and that it seeks to shift that burden to the plaintiff.   The defendant claims that the plaintiff has failed to produce evidence with respect to the plaintiff's exposure to an asbestos-containing product of the defendant.   It is the moving defendant's burden, however, to demonstrate the absence of any issue of material fact.  “The courts hold the movant to a strict standard.   To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

In the present case, the defendant's evidence fails to dispel all genuine issues of material fact concerning the alleged exposure of the plaintiff to the defendant's alleged asbestos-containing products.   The court is mindful that “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).   For the reasons discussed above, the court finds that the defendant has not met its burden and denies the defendant's motion for summary judgment.

BELLIS, J.

Bellis, Barbara N., J.