DocketNumber: No. 346231
Citation Numbers: 1990 Conn. Super. Ct. 1334
Judges: PURTILL, J.
Filed Date: 8/6/1990
Status: Non-Precedential
Modified Date: 7/5/2016
The original complaint contained an allegation that the writ and complaint were issued pursuant to Conn. Gen. Stat.
The pleadings having been closed, defendants have moved for summary judgment. By their motions, both defendants claim that CT Page 1335 plaintiff cannot recover because of the provisions of Conn. Gen. Stat.
All parties have briefed their respective positions and submitted affidavits and counter affidavits as required by the rules.
On motions for summary judgment, the rules require that judgment be rendered forthwith if the pleadings, affidavits and 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. Conn. Practice Book 384.
Where there is no dispute as to the applicable statute of limitations, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action commenced. Shuster v. Buckley,
The affidavits and other matters before the court, considered in the light most favorable to plaintiff indicate that on, or about, March 2, 1988 plaintiff's prior attorney sent a writ and summons to deputy sheriff James Noonan for service in connection with the institution of this action.
The two year period within which the action could be brought expired on April 1, 1988.
On or about May 17, 1988 the attorney contacted the sheriff and inquired about the writ. The sheriff informed the attorney that he had not received the papers in the mail. On learning this the attorney caused a new writ and complaint to be prepared. This instrument dated May 17, 1988 with a return date of June 21, 1988 was served on the defendants on May 20, 1988. CT Page 1336
The complaint contained the following paragraph:
"On March 2, 1988 the foregoing complaint was delivered to Sheriff James Noonan for service of process upon these defendants. This present writ and complaint is issued pursuant to section
52-592 of the Connecticut General Statutes."
Section
"Sec.
52-592 . Accidental failure of suit; allowance of new action. (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whim it was committed . . . may commence a new action. . . ."
There is no question of fact but that the present action was not brought within the two year period limited by
The plain language of
Since the original action was not commenced within the time limited by law, plaintiff could not utilize
There is no material question of fact and defendants are entitled to judgment as a matter of law on the counts indicated.
Section
"Sec.
31-114 . Responsibility for unlawful acts. No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court for the unlawful acts of individual officers, members or agents, except upon proof of actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof."
There does not appear to be any question but that at the time of plaintiff's claimed injuries a labor dispute was in progress. This being the case, plaintiff's substantive rights against the defendant labor organizations are determined by
Section
At the outset it should be noted that the requirement that CT Page 1338 liability be proven by clear evidence is not an issue here. This involves the burden of proof. The issue now before the court is not whether plaintiff can sustain his burden of proof and demonstrate the material facts supporting liability to the satisfaction of the jury but whether or not material facts exist.
In support of their motions, defendants have presented affidavits and other proof.
A portion of plaintiff's deposition which demonstrates that at the time of the injury he was struck by a rock thrown by an hispanic male was submitted. Another portion of his deposition states that he recognized at least one union officer but that he did not recall any union official encouraging or attempting to stop what was going on. He states that he did not observe union officers directing or supervising what was going on or approving or disapproving of Resto's actions.
The excerpts from deposition of Jose A. Resto was also submitted. This document indicates that he was at the rally. He had been a union member while employed at Roytype until he was laid off in 1985. At the time of the rally, he was not a union member or Colt union representative. He states that he saw no one from the union encouraging people to throw rocks or objects at police officers. He further states that he did not know anyone there and that he went on his own after talking to a friend.
The affidavit of Roberr Madore, who at the time of the incident was secretary-treasurer of the local, states that his records show that Resto ceased to be a union member after January 1986 and that Resto was not a member on April 1, 1986. Madore further states that he was present at the strike on that date and was personally familiar with the events that transpired that day. He states that he did not authorize the throwing of rocks, asphalt or other projectiles by any person nor did he participate in such activity or subsequently endorse or assent to any such activity. Upon his informed belief, no officer of the local engaged in any such activity.
Richard Cardinal's affidavit states that he was assistant director of the region. Although he does not state he was present at the strike on April 1, 1986 his affidavit contains the same exculpatory information for the region as Madare's affidavit does for the local.
The proof submitted by defendants, standing on its own, shows no actual participation in or authorization of acts which resulted in plaintiff's injuries or ratification of such acts after actual knowledge thereof or that the acts flowed from any such authorization. CT Page 1339
Under the rules, it is incumbent on plaintiff, when presented with proof such as submitted by defendants, to file counter affidavits in support of his position. In reviewing the proof submitted, it is not the function of the court to decide issues of fact which may be raised by the documents submitted but to determine whether a material question of fact exists. Telesco v. Telesco,
In support of his position on the
From the information contained in the deposition submitted by plaintiff and all other matters properly before the court, resolving all ambiguities in favor of plaintiff and considering such proof in the light most favorable to plaintiff, it could not be found that there is any evidence which would support the conclusions necessary to impose liability on these defendants.
From the facts before the court, proof of actual participation in or actual authorization of the tortious acts or ratification of such acts after actual knowledge, could be based only upon speculation. A conclusion that Resto's act flowed from any such authorization would also have to be based on speculation. There is nothing which would support a conclusion that any persons of authority in either of defendants' labor organizations participated in or authorized the act by inaction.
Plaintiff appears to recognize the infirmity in his position but seeks to remedy it by statement in his memoranda of law to the effect that he intends to prove at trial certain facts which would allow a jury to find liability. This, however, is not enough. Mere assertions of fact, whether contained in a complaint or a brief are insufficient to establish the existence of a material fact and therefore cannot refute evidence properly presented to the court under, Conn. Prac. Bk. 380. Bartha v. Waterbury House Wrecking Co.,
From the pleadings, affidavits and other proof submitted, it is found that no genuine issue as to any material fact exists and both defendants are entitled to judgment as a matter of law under the provisions of Conn. Prac. Bk. 384.
Accordingly, the motions for summary judgment are granted.
PURTILL, J.
Bartha v. Waterbury House Wrecking Co. , 190 Conn. 8 ( 1983 )
Hartford Division, Emhart Industries, Inc. v. Amalgamated ... , 190 Conn. 371 ( 1983 )
Telesco v. Telesco , 187 Conn. 715 ( 1982 )
Valley Cable Vision, Inc. v. Public Utilities Commission , 175 Conn. 30 ( 1978 )
Benoit v. Amalgamated Local 299 , 150 Conn. 266 ( 1963 )
United Brotherhood of Carpenters & Joiners of America v. ... , 330 U.S. 395 ( 1947 )