Joseph Abate, Jr., Administrator for the Estate of Sharon Abate et al. v. AAF (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 369.00)

FACTS

The plaintiff, Joseph Abate, Jr., surviving spouse and administrator of the estate of his decedent/spouse, Sharon Abate, brings this action against various defendants, including the moving defendant, Aliens Plumbing Supply.   The fifth amended complaint, filed on August 17, 2011, alleges that the “[t]he plaintiff was exposed to various asbestos containing products through direct and second hand exposure while the spouse of the plaintiff's decedent was working in Connecticut as a professional auto mechanic from 1962–1990.   Decedent was also exposed to asbestos containing products while working alongside her husband at his garage.   Such exposure in Connecticut contributed in part or totally to the plaintiff's decedent's contracting of asbestos-related [m]esothelioma and other asbestos-related pathologies.”

Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two alleges a wrongful death claim under General Statutes § 52–555.   The third count alleges 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 decedent and to all humans who were exposed to such products.   Count four asserts a claim for a loss of consortium.

DISCUSSION

On April 8, 2013, the defendant filed its summary judgment motion on the ground that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.   In its accompanying memorandum of law, the defendant argues that the plaintiff has not produced any evidence to support the plaintiff's allegations that the decedent was exposed to asbestos-containing products for which the defendant was responsible.   The plaintiff responds that the defendant has failed to establish the nonexistence of all genuine issues of material fact because the plaintiff's undisputed evidence provides that the decedent was exposed to the defendant's products.

“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, 33 A.3d 205 (2012).

The defendant argues that the plaintiff fails to provide any evidence to support its assertions that the decedent was exposed to the defendant's asbestos-containing products.   It cites to excerpts of the plaintiff's deposition in which the plaintiff attested that he was unable to recall the specific products he purchased from this defendant and, when the plaintiff required products for his business or personal use, he purchased such products from a co-defendant, Ralph Mann & Sons, Inc. Finally, the defendant claims that the plaintiff has failed to produce any invoices or receipts that would evidence purchases made by the plaintiff from the defendant.

The plaintiff, also citing to excerpts from his own deposition testimony, counters that the decedent not only worked in the front part of the garage, performing administrative duties, but that she also worked in the rear section of the garage.   The plaintiff testified that he and his staff worked on asbestos-containing sheets, exhaust gaskets, head gaskets and brakes in the rear portion of the garage and that he purchased asbestos sheets from the defendant that were used to pop-rivet to the floors of his customers' vehicles.   The plaintiff concludes that, based upon the plaintiff's evidence, a reasonable jury could infer that the decedent was exposed to the asbestos-containing products of the defendant.

The court finds that the defendant seeks to shift its burden on summary judgment to the plaintiff.   In addition, the defendant has not demonstrated the absence of all genuine issues of material fact concerning whether the decedent was exposed to asbestos from one of the defendant's alleged asbestos-containing products.   Accordingly, the court denies the defendant's motion for summary judgment.

BELLIS, J.

Bellis, Barbara N., J.