McKean v. Hammond

NESBETT, Chief Justice

(dissenting).

I dissent.

The question raised by appellees’ motion for summary judgment was whether there existed any issue of material fact. Appellant’s duty under Civil Rule 56 was to advise the court in a statement of genuine issues, specifically what issues of material fact existed for determination. Appellant failed to do this. The statement which was filed by appellant in opposition to the motion for summary judgment listed as genuine issues of material fact the following:

(1) What duty of care was owed to appellant, and

(2) Were appellant’s injuries the approximate result of a breach of duty caused by appellees.

Neither is an issue of fact. Furthermore, a careful examination of the record reveals that there was no material fact at issue. The granting of summary judgment was therefore appropriate.

Appellant alleged in her complaint that the ramp from which she fell collapsed or slipped because it was negligently constructed or maintained. In her deposition appellant testified that she ascended the ramp without incident. When she commenced to descend she testified that she stepped on the left plank with her left foot and “woke up down here,” indicating the ground. She said nothing detracted her attention and when asked if she knew what happened replied, “No, sir.” After noticing the absence of any evidence as to the cause of the accident, the majority opinion states:

Viewing the evidence in the light most favorable to appellant, we cannot conclude with any certainty that the fall which resulted in her injuries was not occasioned by some dangerous condition inherent in the planks, or their arrangement which was not ascertainable by one in the position of appellant.

What the majority opinion does not say, and what it should say in the interest of clarity is that a new rule has been promulgated. It is no longer required that the plaintiff alleging negligence support the allegation with a statement of genuine issue of material fact when called upon to do so by a motion for summary judgment. What the defendant-movant must now do in support of his motion for summary judgment is to make it appear to the court with some certainty that there coulti not possibly have been any negligence. The burden which until today rested upon the plaintiff alleging negligence has been transferred to the defendant.

I would affirm the grant of summary judgment by the trial court.