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Gough v. Rogers Corp.

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

February 6, 2017

C. RAYMOND GOUGH, ETSA
v.
ROGERS CORP., ET AL

          ORDER (#232)

          BELLIS J., Judge

         The defendant, Rogers Corporation, moves for summary judgment on the grounds that (1) the defendant did not owe a duty of care to the plaintiff's decedent, C. Raymond Gough; (2) the plaintiff, Andrea Gough, executrix of the estate of C. Raymond Gough, failed to establish that the defendant's shipping, receiving, handling, storing, and use of asbestos was abnormally dangerous or ultra hazardous such that strict liability should attach; (3) the plaintiff failed to put forth any evidence to establish that the defendant interfered with a public right; and (4) the plaintiff failed to put forth any evidence to establish that the defendant interfered with the use and enjoyment of the land of the plaintiffs decedent.

         On a motion for summary judgment, the movant has the burden to submit evidence to demonstrate the absence of all genuine issues of material fact and that it is entitled to judgment as a matter of law. To satisfy this burden, the moving party must demonstrate " 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).

         As to the defendant's first ground, the evidence submitted fails to establish the absence of a genuine issue of material fact as to whether the defendant owed a duty of care to the plaintiff's decedent. Specifically, the defendant has not submitted evidence demonstrating the absence of a genuine issue of material fact as to whether the alleged harm was not foreseeable. Additionally, the defendant has failed to provide evidence in support of its claim that it did not owe a duty of care to residents living in the vicinity of the plant because the residents are " an unworkable, amorphous, and unidentifiable group of people." Moreover, this court has previously concluded that allegations similar to those alleged by the plaintiff in the present case were sufficient to satisfy the duty element of a negligence claim such that a defendant company owed a duty of care to a plaintiff resident not to pollute the surrounding community in which he lived with asbestos, which the defendant company knew or should have known was hazardous to human health. See Kristiansen v. Reynolds Aluminum Development Co., Superior Court, judicial district of Fairfield, Docket No. CV-15-6052732-S (May 2, 2016, Bellis, J.); see also B & D Molded Products, Inc. v. Vitek Research Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-97-060362-S (April 21, 1999, Corradino, J.) (24 Conn. L. Rptr. 396) (recognizing state and federal environmental laws create duty not to pollute). The defendant has not provided any authority in support of its argument that such a duty would not exist. Accordingly, the defendant has failed to meet its burden of demonstrating an absence of a genuine issue of material fact as to this element.

         In regards to the defendant's second, third, and fourth grounds, the defendant has not met its burden as the party moving for summary judgment to establish the absence of a genuine issue of material fact; rather, it has improperly attempted to shift the burden of proof to the plaintiff. Moreover, the defendant's fourth ground is now inapplicable because the plaintiff has since withdrawn her private nuisance claim against the defendant with the filing of her sixth-amended complaint. [1] Accordingly, the defendant's motion for summary judgment is denied.

         [Signature] BELLIS J.

---------

Notes:

[1]The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting part of the  history of the case, can furnish no basis for a judgment...." Connecticut Bank of Commercev. Giordano,67 Conn.App. 79, 81, 787 A.2d 9 (2001), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). Additionally, Practice Book ยง 10-61 provides that " [w]hen any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." The plaintiff filed her sixth-amended complaint after the defendant filed the present summary judgment motion, which the defendant did not amend. The plaintiff s sixth-amended complaint consists of seven counts, three of ...


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