by Kirsten E. Small
Earlier this month, the South Carolina held that the Court of Appeals improperly applied a jury-focused standard in reviewing a grant of summary judgment by the circuit court. Hoard v. Roper Hospital, Inc. (S.C. May 3, 2010).
Neonatologist Marshall Goldstein directed the placement of an umbilical vein catheter (UVC) as part of his treatment of newborn Jamia Hoard for respiratory distress. One risk of a UVC is that it will be improperly placed, piercing the right atrium. Radiologist Robert Smith reviewed an x-ray and noted in his report that the catheter had pierced Jamia's atrium. Aware of this information, Dr. Goldstein decided not to reposition the catheter. As a result of the improper placement of the UVC, Jamia suffered a cardiac arrest that resulted in significant brain damage.
All defendants except Dr. Smith settled. The circuit court granted summary judgment to Dr. Smith, concluding that even if Dr. Smith was negligent, Dr. Goldstein's decision not to adjust the UVC was an intervening and independent proximate cause of the injury. This conclusion was based in large part upon Dr. Goldstein's deposition testimony regarding his decision not to adjust the UVC, which was uncontradicted by any other record evidence.
The Court of Appeals reversed on the basis of the established rule that a jury is not required to accept even uncontroverted testimony. The Supreme Court reversed the Court of Appeals, noting that while a jury may reject uncontroverted testimony at trial, this rule does not apply on summary judgment, where the burden rests on the plaintiff to "affirmatively demonstrat[e] the presence of a genuine issue of material fact." It was therefore irrelevant, and counter to the very purpose of summary judgment, to consider how a jury might view the evidence.
Showing posts with label Summary Judgment. Show all posts
Showing posts with label Summary Judgment. Show all posts
Tuesday, May 25, 2010
Tuesday, May 4, 2010
Deposition Testimony From Another Case Can be Used in Summary Judgment Filings in N.C.
by Gary Beaver
On 4/6/10, in First Gaston Bank of North Carolina v. City of Hickory, et. al., a bank sued Hickory and others when a storm drain collapsed on property owned by the bank. The bank appealed after the trial court granted the city summary judgment on the bank’s claim for negligence and inverse condemnation. The NC Court of Appeals affirmed holding:
(1) deposition testimony from another case, if it meets the requirement of an affidavit, may be used in summary judgment proceedings even if the party against whom it is used was not present or represented at the deposition;
(2) plaintiff’s inverse condemnation claim against the city failed because of lack of evidence of a taking; and
(3) plaintiff’s negligence claim against city failed because city did not owe a duty to the bank to inspect, maintain, and repair a collapsed storm drain or to warn the bank of the condition of the pipe which ran across property that the bank purchased.
The holding on the use of the deposition testimony makes eminent good sense as, in summary judgment proceedings, parties cannot stop the use of affidavits from witnesses to which the opposing party had no access. The lack of access to the deponents in the prior case is logically no different. The court reviewed leading commentators and federal court opinions interpreting and applying Rule 32(a) of the Federal Rules of Civil Procedure, which rule is similar to North Carolina’s Rule 32(a), and agreed with them in allowing the use of the deposition testimony.
On 4/6/10, in First Gaston Bank of North Carolina v. City of Hickory, et. al., a bank sued Hickory and others when a storm drain collapsed on property owned by the bank. The bank appealed after the trial court granted the city summary judgment on the bank’s claim for negligence and inverse condemnation. The NC Court of Appeals affirmed holding:
(1) deposition testimony from another case, if it meets the requirement of an affidavit, may be used in summary judgment proceedings even if the party against whom it is used was not present or represented at the deposition;
(2) plaintiff’s inverse condemnation claim against the city failed because of lack of evidence of a taking; and
(3) plaintiff’s negligence claim against city failed because city did not owe a duty to the bank to inspect, maintain, and repair a collapsed storm drain or to warn the bank of the condition of the pipe which ran across property that the bank purchased.
The holding on the use of the deposition testimony makes eminent good sense as, in summary judgment proceedings, parties cannot stop the use of affidavits from witnesses to which the opposing party had no access. The lack of access to the deponents in the prior case is logically no different. The court reviewed leading commentators and federal court opinions interpreting and applying Rule 32(a) of the Federal Rules of Civil Procedure, which rule is similar to North Carolina’s Rule 32(a), and agreed with them in allowing the use of the deposition testimony.
Monday, March 22, 2010
A Tale of Two Airports
by Kirsten E. Small
Over a strong dissent by Judge Davis, the Fourth Circuit recently ruled that a total ban on newspaper racks by the Raleigh-Durham International Airport violates the First Amendment. News & Observer Publishing Co. v. Raleigh Durham Airport Authority, No. 09-1010 (Mar. 12, 2010).
The Publisher has its newspapers for sale in airport shops, which are required to be open before the first flight leaves in the morning and until after the last flight arrives. Nevertheless, some 30-odd flights arrive each evening after the shops have closed, depriving arriving passengers of the ability to purchase that day's paper. The majority also noted that papers were sometimes unavailable when the shops opened, or sold out before the end of the day.
The Airport does not allow any newspaper racks in the terminals, citing four concerns: aesthetics; preserving revenue for airport shops (particularly, revenue from incidental purchases made by those buying papers); preventing congestion (studies show that a newrack in a corridor reduces traffic flow by 42 people per minute when closed, and by 110 people per minute when open); and security (including the need to screen delivery persons and the possibility that a newsrack could be used as a hiding place for an explosive). Relying on Multimedia Publishing Co. v. Greenville-Spartanburg Airport, 991 F.2d 154 (4th Cir. 1993), the majority affirmed the district court's grant of summary judgment to the newspaper, concluding that the Airport's interests did not outweigh the "significant" restriction on the Publisher's protected expression.
Judge Davis' dissent challenged the majority's conclusion that there was no issue of fact for the jury to resolve, chastising the majority for "answer[ing] the wrong inquiry"--i.e., whether the Airport's interests outweighed the Publisher's rights, rather than whethere there was a material question of fact for trial. Judge Davis noted the strange procedural posture of the case: The district court first denied summary judgment, then sua sponte reversed itself a year later, without any intervening briefing by the parties.
Judge Davis then identified numerous facts tending to contradict the majority's conclusions regarding the significance of the restriction on the Publisher's rights; the similarity of this case to the prior litigation involving the Greenville-Spartanburg Airport; and the strength of the Aiport's interests in restricting newspaper sales to shops.
As is often the case with dissenting opinions, the pictures painted by the majority and the dissent are in sharp contrast. More than pointing out factual differences, however, Judge Davis challenges the majority's juridical approach to review of summary judgment, asserting that the majority decided the case on the merits rather than simply determining whether there was a genuine issue of material fact.
Over a strong dissent by Judge Davis, the Fourth Circuit recently ruled that a total ban on newspaper racks by the Raleigh-Durham International Airport violates the First Amendment. News & Observer Publishing Co. v. Raleigh Durham Airport Authority, No. 09-1010 (Mar. 12, 2010).
The Publisher has its newspapers for sale in airport shops, which are required to be open before the first flight leaves in the morning and until after the last flight arrives. Nevertheless, some 30-odd flights arrive each evening after the shops have closed, depriving arriving passengers of the ability to purchase that day's paper. The majority also noted that papers were sometimes unavailable when the shops opened, or sold out before the end of the day.
The Airport does not allow any newspaper racks in the terminals, citing four concerns: aesthetics; preserving revenue for airport shops (particularly, revenue from incidental purchases made by those buying papers); preventing congestion (studies show that a newrack in a corridor reduces traffic flow by 42 people per minute when closed, and by 110 people per minute when open); and security (including the need to screen delivery persons and the possibility that a newsrack could be used as a hiding place for an explosive). Relying on Multimedia Publishing Co. v. Greenville-Spartanburg Airport, 991 F.2d 154 (4th Cir. 1993), the majority affirmed the district court's grant of summary judgment to the newspaper, concluding that the Airport's interests did not outweigh the "significant" restriction on the Publisher's protected expression.
Judge Davis' dissent challenged the majority's conclusion that there was no issue of fact for the jury to resolve, chastising the majority for "answer[ing] the wrong inquiry"--i.e., whether the Airport's interests outweighed the Publisher's rights, rather than whethere there was a material question of fact for trial. Judge Davis noted the strange procedural posture of the case: The district court first denied summary judgment, then sua sponte reversed itself a year later, without any intervening briefing by the parties.
Judge Davis then identified numerous facts tending to contradict the majority's conclusions regarding the significance of the restriction on the Publisher's rights; the similarity of this case to the prior litigation involving the Greenville-Spartanburg Airport; and the strength of the Aiport's interests in restricting newspaper sales to shops.
As is often the case with dissenting opinions, the pictures painted by the majority and the dissent are in sharp contrast. More than pointing out factual differences, however, Judge Davis challenges the majority's juridical approach to review of summary judgment, asserting that the majority decided the case on the merits rather than simply determining whether there was a genuine issue of material fact.
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