Chaney v. Dow Chemical

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-20950
Summary Calendar
TOMMY J. CHANEY,
Plaintiff-Appellant,
versus
DOW CHEMICAL COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court for the
for the Southern District of Texas
(CA-H-93-3482)
________________________________________________
October 8, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
GARWOOD, Circuit Judge:
In this Texas law diversity case, plaintiff-Appellant Tommy J.
Chaney (Chaney) appeals the district court’s grant of summary
judgment in favor of Defendant-Appellee Dow Chemical Company (Dow)
on his premises liability claim. We affirm.
Facts and Proceedings Below
On September 26, 1991, Chaney was allegedly injured while
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
riding in the back of a truck on the premises of a Dow facility.
At the time, Chaney was employed by Breazeale Contractors
(Breazeale), an independent contractor hired by Dow, and the truck
was operated by Breazeale. Chaney alleges that he was injured when
the truck in which he was riding crossed a set of railroad tracks
on the Dow property which was either under construction or poorly
maintained resulting in his being jolted about and thrown from the
truck bed.
Chaney originally filed this suit in the Texas state courts on
September 24, 1993, although the case was later removed by Dow to
the United States District Court for the Southern District of
Texas, Houston Division on the basis of diversity. The parties
consented to proceed before a magistrate judge pursuant to 28
U.S.C. § 636(c). Dow moved for summary judgment, and a hearing was
held before the magistrate judge on June 15, 1994.
At the conclusion of the hearing, the magistrate judge
instructed the parties to submit any additional materials that they
wished to have considered no later than June 22. Chaney elected
not to submit any supplemental materials, while Dow requested a
one-day extension which was granted and submitted a supplemental
memorandum and affidavit to the court on June 23. By order entered
July 21, 1995, the magistrate judge granted summary judgment in
favor of Dow on the grounds that Chaney had failed to produce any
evidence of the existence of an unreasonably dangerous condition on
Dow’s premises. Chaney, represented by counsel below but acting
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pro se in this Court, now brings this appeal.
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Discussion
I. Procedural Issues
Chaney raises several points of error with respect to the
summary judgment procedure employed below. We address these
arguments seriatim.
First, Chaney notes that Federal Rule of Civil Procedure 56(c)
requires that judgment be rendered “forthwith 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 argues that therefore the
district court erred in allowing extra time for the parties to
supplement their submissions following the summary judgment hearing
before ruling on the motion. In other words, Chaney argues that
Rule 56(c) requires that the movant be entitled to summary judgment
at the time of the hearing, and that no additional time to
supplement the record may be granted prior to ruling on the motion.
Chaney cites no authority for this novel and overly literal reading
of the requirements imposed by Rule 56(c) which we hereby reject.
Chaney next argues that the district court erred in basing its
summary judgment on Dow’s supplemental submissions which Chaney was
not permitted to oppose because of the magistrate judge’s June 22
deadline for tendering additional materials to the court, thereby
violating Rule 56(c)’s requirement that “[t]he motion shall be
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served at least 10 days before the time fixed for the hearing.”
This argument is flawed in several respects. First, the arguments
presented in the supplemental memorandum were previously presented
in Dow’s Reply to Plaintiff’s Response to Dow’s Motion for Summary
Judgment and Motion to Strike which was filed on December 1, 1994,
thereby providing Chaney with more than adequate notice and
opportunity to counter Dow’s motion for summary judgment.
Furthermore, the magistrate judge did not enter her order granting
summary judgment until July 21, 1995. The record reflects that
Chaney made no request for an opportunity to respond to Dow’s
supplemental memorandum during the intervening period between the
filing of the memorandum on June 23, 1995 and the entry of the
court’s order on July 21, 1995. The intervening period between the
filing of Dow’s supplemental memorandum and the entry of the
court’s order provided Chaney with the notice required by Rule
56(c) and the opportunity to respond had he chosen to do so. See,
Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1293 & n.11 (5th
Cir.)(supplemental memorandum filed two months before entry of
summary judgment satisfied notice requirement of Rule 56(c)), cert.
denied, 115 S. Ct. 312 (1994).1
1
Chaney additionally complains that Dow did not serve him
with notice of its request for an extension of time to file its
supplemental materials with the court, and that the district court
erred in granting such an extension without allowing Chaney the
opportunity to oppose the request. Contrary to Chaney’s
representations, the record reflects that a certificate of service
was filed along with Dow’s request for an extension of time. Nor
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Chaney next argues that the district court erred in relying
upon the affidavit of Dave Turner, Supervisor of the Roads and
Bridges Department for Dow’s Texas operations, which was submitted
along with Dow’s supplemental memorandum. In particular, Chaney
argues that Turner’s affidavit is not competent summary judgment
evidence because it makes reference to an investigation not
attached to the affidavit as required by Rule 56(e) which provides,
“[s]worn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served
therewith.” Despite the magistrate judge’s statement in her order
that she had reviewed “Defendant’s supplement and all exhibits,”
Turner’s affidavit was in no way essential to the magistrate
judge’s grant of summary judgment in favor of Dow which was based
upon the absence of any evidence to support the existence of an
unreasonably dangerous condition on Dow’s premises. Dow was not
required to come forward with direct evidence regarding the
condition of the crossing so as to negate Chaney’s allegations.
Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996).
II. Summary Judgment Claim
did the district court err in granting Dow’s request as Federal
Rule of Civil Procedure 6(b) expressly provides: “When by these
rules or by a notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1)
with or without motion or notice order the period enlarged if
request therefor is made before the expiration of the period
originally prescribed....” (Emphasis added).
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We review the grant of a motion for summary judgment de novo,
applying the same standard employed by the district court. Baker
v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996). In reviewing the
evidence, the facts and inferences to be drawn from them must be
viewed in the light most favorable to the nonmovant. Id. at 198.
“We do not affirm a summary judgment unless we conclude, after an
independent review of the record, that ‘there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Thornton, Summers, Biechlin, Dunham
& Brown, Inc. v. Cook Paint & Varnish, 82 F.3d 114, 116 (quoting
Fed. R. Civ. P. 56(c)).
The initial burden lies with the movant to establish the
absence of any genuine issue of material fact “by informing the
court of the basis for its motion, and by identifying portions of
the record which highlight the absence of genuine factual issues.”
Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 762
(5th Cir. 1996)(quoting Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992), cert. denied, 113 S. Ct. 82 (1992)). In order to
meet this burden, the movant need not negate the elements of claims
on which the nonmovant would bear the burden of proof at trial, but
need only point out with respect to such elements the absence of
evidence supporting the nonmovant’s claims. Stults, 76 F.3d at
656. If the movant meets this initial burden, the burden then
shifts to the nonmovant to produce evidence or designate specific
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facts in the record demonstrating the existence of a genuine issue
for trial. Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334,
1338 (5th Cir. 1996); Rizzo, 84 F.3d at 762. “[C]onclusory
allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant’s burden.” Douglass v. United
Serv. Automobile Assn., 79 F.3d 1415, 1429 (5th Cir. 1996)(en
banc); see also, Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047
(5th Cir. 1996).
Under Texas law, the elements of a premises liability claim
are:
“(1) Actual or constructive knowledge of some
condition on the premises by the
owner/operator;
(2) That the condition posed an unreasonable risk
of harm;
(3) That the owner/operator did not exercise
reasonable care to reduce or eliminate the
risk;
(4) That the owner/operator’s failure to use such
care proximately caused the plaintiff’s
injuries. Keetch v. Kroger, 845 S.W.2d 262,
264 (Tex. 1992).
As discussed previously, the magistrate judge based her decision to
grant summary judgment in favor of Dow on Chaney’s failure to
produce any evidence of the existence of an unreasonably dangerous
condition on Dow’s premises. We agree with the magistrate judge’s
analysis of this question.
In its Reply to Plaintiff’s Response to Dow’s Motion for
Summary Judgment and Motion to Strike and in its supplemental
memorandum, Dow points out the complete absence of any evidence to
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substantiate Chaney’s claim that an unreasonably dangerous
condition existed on Dow’s premises, other than Chaney’s own
speculation that the truck would not have jolted so severely had
there not been a defect in the crossing. Having pointed to the
lack of evidence to support this necessary element of Chaney’s
claim, the burden shifted to Chaney to produce evidence sufficient
to raise a genuine issue for trial. See Stults, supra. The
magistrate judge properly concluded that Chaney failed to carry his
burden on this element.
The record reflects that Chaney could neither identify the
particular crossing in question nor produce any other witness who
could do so. In addition, Chaney acknowledged that he had not
examined the crossing following the accident to determine if in
fact any defect existed.2 Again, Chaney was similarly unable to
produce any other witness who could identify any defect in the
crossing. Chaney stated at the summary judgment hearing that Dow
2
Chaney offered the following at the summary judgment
hearing:
“THE COURT: After you were thrown
from the truck, did you
get out and go back up
the little rise and look
at the railroad tracks?
MR. CHANEY: No.
THE COURT: You did not.
Mr. CHANEY: Huh-uh.
THE COURT: So you just generally saw
the tracks on the
property that day.
MR. CHANEY: Yeah.”
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had been performing construction on railroad crossings in other
parts of the facility, although he admitted that he did not know
whether construction was being performed on the particular crossing
at issue. Chaney surmised that there must have been construction
at this particular crossing to account for the lurching of the
truck which resulted in his injury.3 This was the sum total of the
3
Chaney’s statements in this regard at the summary judgment
hearing were as follows:
“THE COURT: And you say there is a
dip between the rails
because you felt it when
you were ——
MR. CHANEY: Yeah.
THE COURT: ——bouncing over——
MR. CHANEY: Yeah, the truck——
THE COURT: ——the track?
MR. CHANEY: ——bucked like a horse when
it went over those tracks
like that.
THE COURT: Okay. Now —— Then you
indicated in your
deposition that you
didn’t see any indication
that anyone was working
on those tracks, right?
On that day.
MR. CHANEY: I didn’t see——There wasn’t
nobody standing out
there.
THE COURT: Right.
MR. CHANEY: But they usually have
reflectors or something
coming from one direction
but not from the back
side that we came from.
THE COURT: Right. There was nothing
indicating that anyone
was working on that
particular track that
y’all crossed over that
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evidence produced by Chaney below. In essence, Chaney’s entire
claim rests solely on his speculative assertion that his being
thrown from the truck could have been caused only by a defect in
the railroad crossing, although neither he nor any other witness
could testify to having seen any such defect. Such speculative and
wholly conclusory allegations are insufficient to carry Chaney’s
burden of coming forward with evidence or specific facts to resist
Dow’s motion for summary judgment. See, Douglass, 79 F.3d at 1429.
Chaney raises several other points of error, all of which we
find to be without merit. First, Chaney claims that genuine issues
day.
MR. CHANEY: No, I——Well, from what
I’ve seen when we were
working in there, they
were working at different
spots on the railroad
tracks, so all——ll through
Dow.
THE COURT: But they weren’t working
on this particular track
that you saw.
MR. CHANEY: I don’t know.
THE COURT: You don’t know. You
didn’t see it.
MR. CHANEY: I didn’t see if they had
the rocks out of there or
not, no.
THE COURT: All right. So you don’t
know if there were rocks
between the tracks or
not.
MR. CHANEY: No. Not that particular
tracks [sic].
THE COURT: Not that particular
track.”
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of material fact exist with respect to: (a) where the crossing at
issue is located; (b) the surroundings and nature of the crossing;
and (c) the type of fill material used in the crossing. All of
these points are simply different ways of stating that Chaney has
been unable to identify the crossing at issue. Rather than being
“material,” this question is simply irrelevant as Chaney has been
unable to produce any testimony or other evidence indicating that
his injury was in fact caused by a defect in Dow’s premises.
Chaney also raises a point of error with respect to whether
the evidence indicates that the Breazeale employee driving the
truck was driving too fast. Again, this issue is simply
irrelevant. The basis on which the summary judgment was granted
was the absence of any evidence to support Chaney’s allegation that
an unreasonably dangerous condition existed on Dow’s premises.
Chaney next argues that the magistrate judge’s order suggests
that she failed to draw all favorable inferences in favor of Chaney
as the nonmovant in ruling on the motion. In particular, the
magistrate judge observed in her order:
“Plaintiff has provided no competent summary judgment
evidence to raise a genuine issue of material fact as to
the existence of a premises defect on Defendant’s
property. It is undisputed that the driver of the truck
was driving too fast at the time of the incident, that
the truck proceeded over the railroad tracks, and that
Chaney was riding in the back of the pickup. It is just
as likely that there was no premises defect, and that the
cause of the accident was the manner in which the truck
was being driven.”
Based on the record before us, it is a misstatement to say that it
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is “just as likely” that the cause of Chaney’s injury was the
manner in which the truck was driven as the only evidence before us
suggests that this was the only cause. As the magistrate judge
properly concluded, there was simply no evidence of the existence
of any premises defect. We are persuaded that by the magistrate
judge’s statement in this regard she simply meant to illustrate
that the only evidence of record indicated that Chaney’s injury was
caused by the manner in which the truck was driven rather than by
a premises defect as claimed by Chaney.
Finally, Chaney argues that the magistrate judge failed to
properly apply Texas law regarding whether the same standard of
care is owed by the owner of a private road which traverses a
railroad crossing as has been applied to public roads, and whether
the lack of “fill” between the rails of a crossing can constitute
a premises defect. Again, these questions are simply irrelevant as
they were in no way relied upon by the court below in reaching the
conclusion that Chaney had simply failed to produce any evidence of
the existence of a premises defect on Dow’s premises at the
crossing in question.
Accordingly, we conclude that the magistrate judge properly
granted summary judgment in favor of Dow on Chaney’s premises
liability claim.
For the foregoing reasons, the judgment of the district court
is hereby
AFFIRMED.
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