Burke v. Dayton Hudson Co.

837 F. Supp. 228, 1993 U.S. Dist. LEXIS 16304, 1993 WL 471510
CourtDistrict Court, E.D. Michigan
DecidedNovember 12, 1993
DocketNo. 92-73611
StatusPublished
Cited by2 cases

This text of 837 F. Supp. 228 (Burke v. Dayton Hudson Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke v. Dayton Hudson Co., 837 F. Supp. 228, 1993 U.S. Dist. LEXIS 16304, 1993 WL 471510 (E.D. Mich. 1993).

Opinion

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

PAUL V. GADOLA, District Judge.

Discovery closed in this case July 1, 1993. Defendant filed the instant motion for summary judgment July 28, 1993. Plaintiff responded August 23, 1993. Defendant filed a reply September 7, 1993. Oral argument was heard October 27, 1993.

I. Facts

Plaintiff is an 83-year old woman with osteoporosis. On September 17, 1991, plaintiff slipped and fell as she entered Hudson’s Department store at the Eastland Mall. There were at least three witnesses to plaintiff’s fall: Cheryl Klook, a Hudson’s employee who was standing at a sales counter immediately adjacent to the aisleway where plaintiff fell; John Anderson, a security guard for Hudson’s; and Herman Hunt, a store customer. These witnesses gave tape-recorded statements soon after the plaintiff’s accident wherein each stated that plaintiff was hunched over, shuffling along when she slipped and fell. As they were helping plaintiff subsequent to her fall, the witnesses discovered that there was Italian salad dressing on the floor where plaintiff fell.

II. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.” “A fact is ‘material’ and precludes grant of summary judgment if proof of that fact [230]*230would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principled] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citation omitted). The Court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant’s favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. ALlen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that theré is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986),

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmovant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

(Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477. U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant’s own pleadings and affidavits. Id.

III. Analysis

Fed.R.Civ.P. 56(e) provides that

[w]hen a motion for summary judgment is made ... an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.1

In support of her response, plaintiff submits unidentified portions of the unsworn statements of the three witnesses to her fall;2 and she submits the affidavit of plaintiffs counsel attesting to his knowledge that witness John Anderson still works for defendant and his belief that Anderson, if called to testify, would do so in accordance with the statement Anderson gave to defendant’s insurance adjustor. The unsworn witness [231]*231statements and the affidavit of plaintiffs counsel do not comply with the requirement of rule 56(e) that

[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Fed.R.Civ.P. 56(e).

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Cite This Page — Counsel Stack

Bluebook (online)
837 F. Supp. 228, 1993 U.S. Dist. LEXIS 16304, 1993 WL 471510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-dayton-hudson-co-mied-1993.