13 Conn. App. 321 | Conn. App. Ct. | 1988
The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary judgment. The plaintiff claims that the trial court erred in granting the motion (1) because she was an intended beneficiary of the “contract” between her employer and the defendant, (2) because it denied her constitutional right to a jury trial, (3) because there existed a genuine issue of fact, and (4) because her complaint sounded in contract, not malpractice.
The plaintiffs principal claim, and the claim which is dispositive of this appeal, is that she was a third party beneficiary of the agreement between the defendant and her employer for her psychological evaluation. The plaintiff claims, therefore, that by failing to carry out the evaluation in a competent manner, the defendant breached a contractual obligation owed to her.
The plaintiffs complaint, however, sounds in malpractice. “Malpractice is commonly defined as ‘the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .’Webster, Third New Inter- . national Dictionary; Black’s Law Dictionary (5th Ed.
“ ‘ “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).” . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.’ (Citations omitted.) Bums v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). ‘ “When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.” ’ Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57
Here, the plaintiffs affidavits and supporting documents were limited to her claim that she was a third party beneficiary, yet her complaint sounds exclusively in malpractice. The court, therefore, did not err in granting the defendant’s motion, as the plaintiff failed to establish a genuine issue of material fact on the cause of action pleaded.
We have considered the plaintiff’s other claims and find that they lack merit.
There is no error.
In this opinion the other judges concurred.
In the twelfth, fourteenth, fifteenth, sixteenth and seventeenth paragraphs of her complaint, the plaintiff alleges that the defendant failed to perform “competently” the psychological evaluation.