Kirksey v. Schindler Elevator Corp., CIVIL ACTION 15-0115-WS-N

• Decision Date: 07 June 2016
• Docket Number: CIVIL ACTION 15-0115-WS-N
• Parties: TYRA KIRKSEY, Plaintiff, v. SCHINDLER ELEVATOR CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

TYRA KIRKSEY, Plaintiff, v. SCHINDLER ELEVATOR CORPORATION, et al., Defendants.

CIVIL ACTION 15-0115-WS-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

June 7, 2016

ORDER

This matter comes before the Court on defendant Sears Roebuck & Co.'s Motion for Summary Judgment (doc. 56), defendant Schindler Elevator Corporation's Motion for Summary Judgment (doc. 59), defendants' Motion to Strike Portions of Plaintiff's Evidentiary Submission (doc. 74), and Plaintiff's Motion for Limited Discovery under Rule 56(d) (doc. 80). All of these Motions are ripe for disposition.¹

I. Nature of the Case.

This case arises from a tragic accident at a Sears retail store in Mobile, Alabama. An 11-year old boy named Jakobe Kirksey fell to his death from the moving handrail of an escalator on the second floor of the store. His mother, next friend, and legal heir, Tyra Kirksey, brought awrongful death suit against Sears Roebuck & Co. and Schindler Elevator Corporation.² The Complaint also generically listed as defendants "Fictitious Parties 1-10," identified only as "individuals or entities who are or may be liable for the acts and/or omissions alleged in this Complaint, but whose identities are not presently known to Plaintiff." (Doc. 1-1, ¶¶ 22-24.) Kirksey never sought to amend her pleadings to name any additional defendants and the allotted time for doing so has long since expired.³

The well-pleaded allegations of the Complaint reflect Kirksey's theory that both Sears Roebuck & Co. (which owned and operated the escalator, and made it available for public use) and Schindler Elevator Corporation (which manufactured the escalator and was responsible for maintaining it) were under a duty "to provide an escalator that was non-defective, safe, and suitable for all foreseeable public use." (Complaint, ¶¶ 7-9.) The Complaint further alleges that defendants were subject to "an even heightened duty of care" because "an escalator is a common carrier." (Id., ¶ 10.) Plaintiff's pleading posits that defendants knowingly "allowed an unreasonably dangerous and defective condition to exist with the Escalator," and that they failed to implement available, reasonable safety measures to prevent accidents involving that escalator. (Id., ¶¶ 11, 15-16.) Kirksey's position is that these purportedly negligent acts or omissions proximately caused Jakobe's death.

Both defendants now move for summary judgment, contending that there are no genuine issues of material fact and that they are entitled to entry of judgment in their favor as a matter of law.

II. Defendants' Motion to Strike.

Before reaching the Motions for Summary Judgment, the Court must address defendants' multipronged (and extensively briefed) Motion to Strike because that Motion challenges whether specific facts presented in the record by Kirksey are properly considered on summary judgment. In the Motion to Strike, defendants seek exclusion from the record of the following materials: (i) paragraphs 3 through 12 of the Affidavit of Tyra Kirksey; (ii) a "Safe Ride Video" created by the Elevator Escalator Safety Foundation; (iii) ASME meeting notes from August 26, 1997; (iv) articles and reports supporting plaintiff's experts' opinions; and (v) certain "other falls" evidence. Each of these categories of evidence will be addressed in turn.⁴

A. The Kirksey Affidavit.

First, in opposition to the summary judgment motions, plaintiff offered the Affidavit of Tyra Kirksey (doc. 70, Exh. M). Defendants object that paragraphs 3 through 5 of this Affidavit contradict Kirksey's prior deposition testimony. The so-called "sham affidavit" rule provides that, "[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Croom v. Balkwill, 645 F.3d 1240, 1253 n.18 (11^th Cir. 2011). The sham affidavit rule "is applied sparingly because of the harsh effect it may have on a party's case," and applies only where there is an "inherent inconsistency between an affidavit and a deposition." Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11^th Cir. 2010) (citations omitted). No such "inherentinconsistency" exists here; rather, the objected-to portions of the Kirksey Affidavit merely refer to other portions of her deposition to provide context to the excerpt on which defendants rely, and refute defendants' interpretation of unclear verbiage in the deposition.⁵ These are permissible uses for a summary judgment affidavit; therefore, the sham affidavit rule has no application here, and defendants' objection is overruled.

Defendants' next objection to the Kirksey Affidavit relates to paragraphs 6 through 12, wherein she repeatedly employs the formulation, "Until Jakobe's death and discovery in this lawsuit, I did not know ..." certain enumerated facts. (Kirksey Aff., ¶¶ 6-12.) Defendants object to each of these paragraphs because the "facts" following the introductory clause in each are "not based on her personal knowledge." (Doc. 75, at 6.) It is correct, of course, that summary judgment affidavits must be based on personal knowledge. See Rule 56(c)(4), Fed.R.Civ.P. ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge ....") (emphasis added). But defendants' objection misses the point. Paragraphs 6 through 12 of the Kirksey Affidavit are offered not to prove the veracity of the identified "facts,"but rather to establish Kirksey's lack of knowledge of any of them at the time of Jakobe's accident. Obviously, a summary judgment affiant satisfies the "personal knowledge" requirement by averring that she did not know certain things at relevant times. In other words, Kirksey's representations about the state and limitations of her personal knowledge as of June 14, 2014 are themselves facts within her personal knowledge. This objection is unfounded.

Finally, defendants take issue with paragraph 13 of the Kirksey Affidavit, wherein she avers as follows: "The knowledge of Sears and Schindler of the risk and reality of children and other users falling from escalators was far superior to mine. I knew nothing of it, while they knew everything." (Kirksey Aff., ¶ 13.) This paragraph is improper. It cannot reasonably be suggested that Kirksey has personal knowledge of what defendants knew or did not know at a particular point in time; therefore, paragraph 13 is stricken as violative of the personal knowledge requirement prescribed by Rule 56(c)(4).

B. The Safe Ride Video.

Second, defendants object to plaintiff's "Safe Ride Video" as extraneous. Included amidst plaintiff's 40 summary judgment exhibits is a DVD labeled "A Safe Ride Video, Elevator Escalator Safety Foundation, Provided on DVD." (Doc. 70, Exh. T.) The undersigned has scoured plaintiff's summary judgment brief in vain for references to this exhibit. Courts have frowned on the unfortunate, all-too-prevalent litigation practice of stuffing a court record with unreferenced exhibits, providing no inkling of how such exhibits purportedly advance a litigant's position, and leaving it to the court to sift through a mass of uncited materials and to hypothesize why the litigant might have chosen to include them. See, e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11^th Cir. 1995) ("There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it."); LaBauve v. Olin Corp., 231 F.R.D. 632, 642 (S.D. Ala. 2005) ("the parties may not, by the simple expedient of dumping an undifferentiated mass of evidentiary material into the record, shift to the Court the burden of identifying evidence supporting their respective positions"). Moreover, the Federal Rules of Civil Procedure provide that "[t]he court need consider only the cited materials, but itmay consider other materials in the record." Rule 56(c)(3), Fed.R.Civ.P. The Court exercises its discretion not to consider plaintiff's uncited Exhibit T.⁶

C. The ASME Meeting Notes.

Third, defendants object to plaintiff's Exhibit W, which purports to be "A17/B44 Escalator & Moving Walk Committee Minutes" from a meeting that occurred on August 26 and 27, 1997. The significance of these meeting minutes is, apparently, that the Committee recommended a "Proposed Rule" that a guardrail of not less than 42 inches in height be installed at every escalator adjacent to an open wellway. Defendants' objection is that plaintiff has not authenticated Exhibit W and that "it is unclear that she can present [Exhibit W] in an admissible form at trial." (Doc. 75, at 9.)

"It is well settled that exhibits are properly considered for summary judgment purposes as long as they may be reduced to admissible form at trial." Johnson v. Mobile Infirmary Medical Center, 2015 WL 1538774, *1 (S.D. Ala. Apr. 7, 2015); see also Rule 56(c)(2), Fed.R.Civ.P. ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). The trouble with defendants' objection to Exhibit W is that they offer no reason to believe this exhibit cannot be reduced to admissible form at trial. To be sure, defendants complain that Exhibit W has not been authenticated, but they do not assert that Kirksey will be unable to do so at trial, instead suggesting only that it is "unclear" whether she can do so without offering facts to justify their doubts. As defendants recognize, in ordinary circumstances a litigant would authenticate meeting minutes via testimony from the custodian or other qualified witness. All appearances are that Kirksey is capable of doing just that here; indeed, plaintiff identifies expert Joseph Stabler, who is a member of the ASME Escalator & Moving Walk Committee, as the witness through which she intends to authenticatethe...