United States District Court, D. Nevada
Quatrela Pate, individually and as Guardian ad Litem to De'Jior Payne, a minor, Plaintiff,
Wal-Mart Stores, Inc., dba Wal-Mart Supercenter #2592, et al., Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DOC. 21
JENNIFER A. DORSEY, District Judge.
Plaintiff Quatrela Pate claims several boxes fell on her and her son while they were shopping at a Wal-Mart store in North Las Vegas, Nevada. She sues Wal-Mart for negligence both directly and on a vicarious-liability theory on behalf of herself and her son. Wal-Mart now moves for summary judgment, arguing that Pate cannot prove breach of duty or causation and that Pate cannot substitute those elements with a res ipsa loquitor theory. Although Wal-Mart has failed to supply enough evidence to support judgment in its favor, its moving papers demonstrate that Pate's negligence claim may not be premised on the burdenshifting framework of a res ipsa loquitor theory. The Court thus grants Wal-Mart's motion as to Pate's res ipsa loquitor theory but denies it in all other respects.
A. Summary Judgment Standards
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering the propriety of a summary judgment motion, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. If reasonable minds could differ on the material facts at issue, summary judgment is not appropriate because the purpose of summary judgment is to avoid unnecessary trials when the facts are undisputed. The Court need only consider properly authenticated, admissible evidence.
Once the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial." "[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e)(2) states that "[i]f a party fails to properly... address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion."
B. State of the Evidence
1. The majority of Wal-Mart's evidence is unauthenticated and cannot be considered.
To support its motion, Wal-Mart attaches: (1) pages from the transcript of Pate's December 6, 2012, deposition, Doc. 21-2 (Exhibit A); (2) a printout from the Wal-Mart website, stating "Corporate & Financial Facts" about the company, Doc. 21-3 (Exhibit B); (3) the Affidavit of Steve Sotelo, an Assistant Manager at the Wal-Mart store in question, Doc. 21-4 (Exhibit C); and (4) Pate's November 2, 2012, answers to Wal-Mart's Interrogatories and Requests for Production of Documents, Docs. 21-5, 21-6 (Exhibits D, E). Wal-Mart attaches the unsworn declaration of Siria L. Gutierrez, one of Wal-Mart's defense attorneys, in an attempt to authenticate these exhibits. Doc. 21-1 (Exhibit A).
Under Rule 56(c)(4), "[a]n affidavit or declaration used to support a motion must be made on personal knowledge...." More generally, Federal Rule of Evidence 901 states that to properly authenticate a document, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."
Pate's deposition excerpts are not properly authenticated. Wal-Mart attempts to authenticate them through Gutierrez's declaration that these pages are "true and correct" copies "of salient portions of" Pate's deposition transcript, Doc. 21-1 at 1, but this attorney lacks the personal knowledge required to authenticate these excerpts. Under similar circumstances in Orr v. Bank of America, the Ninth Circuit held that an attorney's attestation that a deposition transcript is "true and correct" is not sufficient to authenticate it on summary judgment. A party seeking to introduce a deposition transcript excerpt on summary judgment must attach the court reporter's certification that the deposition is a true and correct copy of the deponent's testimony because only the court reporter who transcribed the testimony has the requisite personal knowledge of the transcript's accuracy. Without this certificate, Pate's deposition transcript is inadmissible for purposes of summary judgment and will not be considered.
Although Gutierrez may be correct that it is "public knowledge" that Wal-Mart invites the public into its stores to shop for its everyday needs, the "Corporate & Financial Facts" statement attached at Exhibit B does not specifically state that this is the case. See Doc. 21-3 at 2. Instead, the document contains general information about Wal-Mart's leadership, U.S. and international operation, and its online presence, and it is inadmissible hearsay. See id. The "Corporate & Financial Facts" document cannot be considered for purposes of this motion.
The Affidavit of Wal-Mart Assistant Manager Steve Sotelo (Exhibit C) satisfies Rule 56(c)(3) because Sotelo affirms that he has "personal knowledge of the facts set forth in [his] Affidavit, " as well as his ability to "testify to them if called upon to do so." Doc. 21-4 at 2. Pate's discovery responses at Exhibits D and E are also sufficiently authenticated. Her interrogatory responses are signed by Pate's attorney, verified by Pate, and Gutierrez's declaration states that they are true and correct copies-a fact that Gutierrez would have personal knowledge of. See Docs. 21-1 at 3; 21-5 at 7-8. Pate's responses to Wal-Mart's requests for production of documents are also signed by her attorney and properly confirmed as true and correct in Gutierrez's declaration. See Docs. 21-1 at 3; 21-6 at 5.
Wal-Mart also submits two documents along with its reply to the motion. Even assuming arguendo that the Court was inclined to set aside its typical policy against considering new evidence on reply,  these documents yield no new admissible evidence. Wal-Mart's first exhibit consists of more unauthenticated excerpts from Pate's deposition, Doc. 25-1, and the second exhibit is a re-attached affidavit from ...