Lidge v. Sears, Roebuck & Co.

• Decision Date: 18 May 2004
• Docket Number: No. 03-0024-CV-W-REL.,03-0024-CV-W-REL.
• Citation: Lidge v. Sears, Roebuck & Co., 318 F.Supp.2d 830 (W.D. Mo. 2004)
• Parties: Lola LIDGE, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.
• Court: U.S. District Court — Western District of Missouri

318 F.Supp.2d 830

Lola LIDGE, Plaintiff, v.SEARS, ROEBUCK & CO., Defendant.

No. 03-0024-CV-W-REL.

United States District Court, W.D. Missouri, Western Division.

May 18, 2004.

George A. Wheeler, Kansas City, MO, for plaintiff.

Shawn M. Rogers, Baker, Sterchi, Cowden & Rice, Kansas City, MO, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

LARSEN, United States Magistrate Judge.

Before the court is defendant's motion for summary judgment on the ground that plaintiff has failed to establish a prima facie case in that she has not provided sufficient evidence supporting a causal relationship between the alleged fall and her alleged damages.I find that (1)plaintiff is required to prove that the defendant's negligence caused the injuries for which she was treated and for which she seeks to recover, (2)plaintiff's injury does not fall within the sudden onset doctrine, and therefore she is required to prove through expert testimony that her injuries were caused by the defendant's negligence, (3)plaintiff has not designated any expert witnesses and has cited no evidence in the record which sufficiently puts into question the expert testimony offered by defendant on the issue of causation, and (4)defendant's expert has unequivocally found that the slip and fall could not have caused the injuries for which plaintiff was treated.Therefore, defendant's motion for summary judgment will be granted.

I.BACKGROUND

On August 23, 2002, plaintiff filed an action in Jackson County Circuit Court which was later removed to federal court.Plaintiff's complaint alleges that on August 31, 1998, she was a business invitee at the Sears store in Bannister Mall.As plaintiff walked through the children's clothing section, she stepped in a puddle of water and soda on the floor and fell.She alleges that she suffered severe disabling injuries as a result of her fall.

On March 8, 2004, defendant filed a motion for summary judgment arguing that plaintiff had not established a prima facie case.On April 5, 2004, plaintiff filed a response in opposition.Plaintiff's argument on the summary judgment issue states in its entirety as follows:

Plaintiff also alleged in her Petition and it was also [s]upported by discovery in this case that she suffered a slip and fall injury at Defendant, Sears, Roebuck and Company's store at Bannister Mall in Kansas City, Jackson County, Missouri on August 31, 1998.That as a result of Defendant's negligence, Plaintiff suffered numerous surgeries and medical expenses of more that [sic] $139,000.00.See Plaintiff's Affidavit attached hereto by reference, incorporated herein and made a part hereof.

Plaintiff has shown through discovery that even though a casual [sic] connection need not be shown, she has shown that her numerous knee surgeries were necessary due to the negligence of Defendant."Plaintiff's evidence need not exclude all causes for which Defendant would not be liable in order to recover, as it is sufficient if there is substantial evidence from which the jury may find that negligence was the proximate cause, anything beyond that being a matter of defense."Swanson v. Godwin,327 S.W.2d 903, 910(5)(Mo.1959).In some cases, expert testimony was obviously not necessary on the issue of causation.Fellows v. Farmer,379 S.W.2d 842(Mo.App. S.D.1964).

Plaintiff attached to her response her own affidavit stating that her insurance company has paid over $139,000 for medical services rendered after August 31, 1998.There are no other exhibits in support of plaintiff's response.

On April 29, 2004, defendant filed a reply arguing that plaintiff incorrectly stated that causation need not be shown.

II.STANDARD FOR SUMMARY JUDGMENT

Rule 56(c),Federal Rules of Civil Procedure, permits summary judgment "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 that the moving party is entitled to judgment as a matter of law."

The key to determining whether summary judgment is proper is ascertaining whether there exists a genuine issue of material fact.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.American Academy of Family Physicians v. United States,75 A.F.T.R.2d 95-1709(W.D.Mo.1995), aff'd91 F.3d 1155(8th Cir.1996).The party moving for summary judgment has the burden of proving that these requirements for summary judgment have been met.Adickes v. S.H. Kress & Co.,398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142(1970).

In a summary judgment analysis, a court must first consider whether there are any issues of fact.If the only issues are issues of law, then summary judgment is appropriate.Disesa v. St. Louis Community College,79 F.3d 92, 94(8th Cir.1996).If issues of fact are raised, a court must consider whether these issues are material to the outcome of the case.Materiality is identified by the substantive law that is to be applied.Anderson v. Liberty Lobby, Inc.,477 U.S. at 248, 106 S.Ct. 2505.Factual disputes that are collateral to the substantive law will not preclude summary judgment.Id.

In addition to the requirement that a dispute of fact be material, the dispute must also be genuine.A dispute of fact is considered genuine if the non-moving party has produced sufficient evidence such that a reasonable jury could return a verdict for that party.Id. at 249, 106 S.Ct. 2505.When considering a motion for summary judgment, the court must believe the evidence of the non-movant, and all justifiable inferences are to be drawn in that party's favor.Id. at 255, 106 S.Ct. 2505.If the evidence submitted by the non-moving party is merely colorable or is not significantly probative, then summary judgment may be granted.Id. at 249-250, 106 S.Ct. 2505.

Where the party moving for summary judgment does not bear the burden of proof at trial, that party must show "that there is an absence of evidence to support the non-moving party's case."Celotex Corp. v. Catrett,477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).This burden is met when the moving party identifies portions of the record demonstrating an absence of a genuine issue of material fact.Id. at 323, 106 S.Ct. 2548.If the moving party meets the requirement, the burden shifts to the non-moving party who must set forth specific facts showing that there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc.,474 U.S. at 248, 106 S.Ct. 610.The trial judge then determines whether a trial is needed — "whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Id. at 250, 106 S.Ct. 610.

III.UNCONTROVERTED FACTS

Below, typed in bold, are the facts I find to be uncontroverted by the record before me.Several paragraphs offered by defendant as uncontroverted are not included here as they were offered in support of defendant's motion to strike which has already been ruled.

1.On or about August 23, 2002, plaintiffLola Lidge filed her petition for damages against Sears.

Plaintiff admitted this paragraph.

2.In her petition, plaintiff brings a premises liability action alleging she sustained injuries when she allegedly fell at the Sears Bannister Mall location in Kansas City, Missouri.

Plaintiff admitted this paragraph.

3.Plaintiff alleges she slipped and fell, and consequently sustained injury to her right knee on August 31, 1998 when she was purportedly attempting to shop for clothing for her grandchildren.Significantly, plaintiff had several arthroscopic surgeries on her right knee between 1994 and August 30, 1998, prior to this alleged incident.

Plaintiff denies this paragraph; however, she fails to point to any evidence contradicting this fact.Defendant cites plaintiff's deposition testimony establishing that she had three arthroscopic surgeries on her right knee between 1994 and August 30, 1998.

Federal Rule of Civil Procedure 56(e) states that "[w]hen 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 the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."Defendant cited plaintiff's sworn testimony to establish this fact.Plaintiff's mere denial without any support in the record is insufficient to find that this fact is controverted.

16.On February 20, 2004, Sears filed its Rule 26(a)(2) disclosures.

Plaintiff admits this paragraph.

17.As part of its Rule 26(a)(2) disclosure, Sears disclosed board certified orthopedic surgeon Dr. Robert Murphy's expert report.Dr. Murphy reviewed the medical reports, x-rays, and depositions and opined that plaintiff's disability and surgical procedures were not and could not have been caused by the alleged fall in August of 1998 but were the consequence of significant degenerative joint disease primarily in the medial compartment of the right knee, "clearly the result of long-standing and repetitive trauma."

Plaintiff denies this paragraph; however, she fails to point to any evidence contradicting this fact.Defendant cites the expert report of Dr. Robert Murphy which states that the alleged fall could not have been responsible for the degenerative change in plaintiff's knee and the subsequent need for a total knee arthroplasty.

Rule 56(e) states that when a motion for summary judgment is supported as provided in this rule, an adverse party may not rest upon the mere...