Gerbich v. Numed Inc., 970327

• Decision Date: 16 April 1999
• Docket Number: No. 970327,970327
• Citation: 977 P.2d 1205
• Parties: 367 Utah Adv. Rep. 23, 1999 UT 37 De Ette GERBICH, Plaintiff and Appellant, v. NUMED INC., Edward Menkemeller, General Electric Company, John Doe I, John Doe II, and III, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1205

977 P.2d 1205

367 Utah Adv. Rep. 23, 1999 UT 37

De Ette GERBICH, Plaintiff and Appellant, v. NUMED INC., Edward Menkemeller, General Electric Company, John Doe I, John Doe II, and III, Defendants and Appellees.

No. 970327.

Supreme Court of Utah.

April 16, 1999.

Wesley F. Sine, Salt Lake City, for plaintiff.

Robert R. Wallace, Lisa Watts Baskin, Robert C. Keller, H. James Clegg, Julianne P. Blanch, Salt Lake City, for defendants.

ZIMMERMAN, Justice.

¶1 This case involves several claims made by De Ette Gerbich ("Gerbich") against defendants Numed, Inc., and Edward Menkemeller, president of Numed, ¹ (collectively "Numed") and General Electric ("G.E."). Gerbich has made several claims against Numed and G.E. arising out of an incident in which she fell from the steps of a trailer containing a CT scanner leased by G.E. to Numed and, in turn, by Numed to Jordan Valley Holy Cross Hospital ("the hospital"). Her claims against G.E. were dismissed with prejudice when G.E. was granted summary judgment. Gerbich's claims against Numed went to a jury which found in Numed's favor. Gerbich raises several issues on appeal. We address the following: (i) whether the trial court erred in granting summary judgment to G.E., and (ii) whether the trial court erred in disallowing her general safety expert to testify. We affirm.

¶2 During October of 1990, the hospital leased a trailer containing a CT scanner from Numed. Numed had rented the scanner and the trailer from G.E. under a "Maxiservice Agreement." MDG Trailer had assembled the trailer for G.E. Gerbich was employed by the hospital as a nuclear technician. In this capacity, Gerbich took CT scans and X-rays of patients in the trailer. She had been in and out of the trailer at least a dozen times during the week prior to her fall. On a rainy day, Gerbich was entering the trailer and lost her grip on the door handle, falling back and injuring her knee and shoulder.

¶3 Gerbich filed her first complaint in March of 1993, naming Numed and its president, Menkemeller, as defendants. The complaint alleged that Numed had manufactured and designed the steps in a defective and dangerous manner. Gerbich amended her complaint in April of 1993, adding G.E. as a defendant and alleging that G.E. negligently designed and manufactured the trailer and steps and then leased the trailer and steps to Numed. The amended complaint alleged that the steps were "of an inherently dangerous design and that the Defendants were negligent in building, manufacturing and designing the entrance to the door in this manner."

¶4 Numed moved to dismiss the amended complaint on the grounds that it sounded in products liability, and Utah's two-year products liability statute of limitations had run before Gerbich filed her initial complaint. The court granted this motion to dismiss without prejudice, finding that the original complaint was filed more than two years after the accident. The court granted Gerbich leave to amend her complaint, suggesting that she "try to state any causes of action in negligence or recklessness."

¶5 Gerbich filed a second amended complaint in October of 1993. G.E. moved to dismiss this complaint because it too sounded in products liability and the original complaint was filed after Utah's two-year products liability statute of limitations had run. The court granted this second motion to dismiss without prejudice finding that Gerbich's "Second Amended Complaint still sounds in product liability."

¶6 Gerbich filed a third amended complaint in March of 1994 alleging negligence, and for the first time, breach of warranty. Discovery had been ongoing throughout this process. After discovery was concluded, G.E. moved for summary judgment, asserting that G.E. did not owe Gerbich a duty of care. Gerbich admitted to not having any admissible evidence proving that G.E. had constructed the trailer or attached the stairs to the trailer. The trial court granted G.E.'s motion for summary judgment.

¶7 Gerbich's claims against Numed proceeded to trial in May of 1997. Before trial, many interrogatories were exchanged. In June of 1994, Numed sent its first set of interrogatories to Gerbich requesting the names of all experts and a summary of their opinions. In response, Gerbich stated that the list had yet to be determined but that it "will be furnished when it is available."

¶8 In August of 1996, the trial court ordered that exhibit and witness lists be exchanged by December 10, 1996. A month after that cut-off date, Gerbich filed a witness list with the court which included "[a]n inspector from the city of South Jordan, Utah unnamed at this time." Gerbich never furnished an expert witness list.

¶9 At the beginning of the second day of trial, Gerbich called the inspector whom she had listed on her witness list. She attempted to call him as a general safety expert, rather than as a fact witness. Gerbich's attorney admitted that the inspector had not been designated as an expert and that he had not complied with the requirements for the witness to testify as an expert. Nevertheless, he asked the court to permit the witness to be qualified as an expert at that time. Numed's counsel was prepared to cross-examine the inspector regarding the city's permitting process, because he had been designated as an investigator and Gerbich's complaint alleged that the trailer did not meet the city's codes. However, Numed was not prepared to cross-examine the witness regarding his qualifications as an expert or on the industry's safety standards. Numed objected to the use of the inspector as an expert, and on the second day of trial, the court excluded the witness "due to the lateness of the designation of the witness, the lack of identification and the lack of compliance with the statute, the inopportunity of Mr. Wallace to have any rebuttal evidence". The jury found for Numed and Gerbich brought this appeal.

¶10 Gerbich asserts the trial court erred in: (i) granting G.E. summary judgment; and (ii) excluding her general safety expert. We first consider the summary judgment. Summary judgment is appropriate only where there are no disputed material facts and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). A grant of summary judgment is reviewed for correctness. Oxendine v. Overturf, 361 Utah Adv. Rep. 23, p 7, 973 P.2d 417 (1999).

¶11 The trial court granted summary judgment to G.E. after finding that there were no disputed material facts and that, on the facts, G.E. did not owe a duty to Gerbich. Gerbich first asserts that there were disputed factual issues as to G.E.'s responsibility for and knowledge of the defective steps. She argues that the trial court had to take as true all allegations in the third amended complaint because G.E. responded to it not by submitting an answer, but by filing a motion for summary judgment which was not supported by affidavits. It is true that G.E. did not file an answer or submit affidavits in support of its motion for summary judgment. However, G.E.'s motion was made after the close of discovery and incorporated many of the discovery materials, including answers to interrogatories, admissions, the plaintiff's second complaint, the contract between G.E. and Numed, and the Maxiservice Agreement. The rules of civil procedure do not require an answer or affidavits before the allegations of the complaint are deemed controverted. Rather, rule 56(c) clearly states "[t]he judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(c) (emphasis added). The rule further states that where a motion for summary judgment "is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Utah R. Civ. P. 56(e).

¶12 While the moving party bears the burden of proof on its summary judgment motion, viz. that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law, see ...