Lynch v. Athey Products Corp.

• Decision Date: 10 October 1985
• Citation: 505 A.2d 42
• Court: Delaware Superior Court
• Parties: Francis S. LYNCH, Plaintiff, v. ATHEY PRODUCTS CORPORATION, a foreign corporation, and Elliott & Frantz, Inc., a foreign corporation, Defendants. . Submitted:

Page 42

505 A.2d 42

Francis S. LYNCH, Plaintiff, v. ATHEY PRODUCTS CORPORATION, a foreign corporation, and Elliott & Frantz, Inc., a foreign corporation, Defendants.

Superior Court of Delaware,

New Castle County.

Submitted: Oct. 10, 1985.

Decided: Dec. 30, 1985.

Upon defendant's motion for summary judgment. Denied.

Arthur Inden, and David C. McBride of Young, Conaway, Stargatt & Taylor, Wilmington, for plaintiff.

Howard M. Berg, Wilmington, for defendants.

GEBELEIN, Judge.

This case involves an accident involving use of a Kolman conveyor. Athey Products Corporation ("Defendant"), manufacturer of the conveyor, has moved for summary judgment in an action brought by Francis S. Lynch ("Plaintiff") alleging that Athey was negligent in the manufacture and design of the conveyor and that as a direct result of such negligence, a guard door fell on the plaintiff, pushing him into the gear assembly of the conveyor and causing severe injuries to his hands.

In general, summary judgment is appropriate when the moving party has shown that no material issues of fact are present and that he is entitled to a judgment as a matter of law. Moore v. Sizemore, Del.Supr., 405 A.2d 679 (1979). On considering motions for summary judgment, the Court must weigh the facts in the light most favorable to the non-moving party. Sweetman v. Strescon Indus., Inc., Del.Super., 389 A.2d 1319 (1978). In weighing a motion for summary judgment under this rule, the Court must examine the record, including pleadings, depositions, admissions, affidavits, and answers to interrogatories. Oliver B. Cannon & Sons v. Dorr-Oliver, Inc., Del.Super., 312 A.2d 322 (1973). When a motion is supported by a showing that there are no material issues of fact, the burden shifts to the non-moving party to demonstrate that there exist genuine issues of material fact. Moore, supra.

While, in general, issues of negligence are ordinarily not susceptible of summary adjudication either for or against a claimant, and should be resolved by trial, summary judgment has been rendered for the defendant when the record clearly established that there was no genuine issue of material fact, as, for example, where lack of negligence is established by the defendant's sufficient and uncontroverted affidavits or depositions. 6 Moore's Federal Practice § 56.17 at 56-948-9. Where, however, there is a real issue as to credibility, or the moving party does not satisfy his burden of clearly establishing that there is no genuine issue of material fact, then under basic principles of summary judgment law, the motion should be denied. Id., at 56-952-3.

The essence of the plaintiff's claims of negligence, breach of express and implied warranties, and strict liability consists of the following allegations contained in the complaint:

(1) the defendant failed to provide an adequate door latch on the conveyor;

(2) the defendant failed to design the door so as to avoid such accidents;

(3) the defendant failed to provide adequate safety guards for the gear assembly of the conveyor; and

(4) the defendant failed to design said conveyor in a manner which would have eliminated the danger of injuries, as suffered by the plaintiff.

In support of its motion for summary judgment, the defendant argues that post-manufacturing alterations by plaintiff's employer rendered the conveyor defective and were the actual and proximate cause of plaintiff's injuries. Further, defendant contends that the plaintiff has failed to establish that there was a defect in the original design of the conveyor. Likewise, defendant contends that the warnings on the conveyor were adequate to prevent the type of injury involved in this case, and that the plaintiff has failed to establish that other warnings would or could have prevented this accident.

The defendant also attacks the affidavit of plaintiff's expert witness as insufficient under Rule 56(e) in that it lacks a factual foundation and is not based on personal knowledge. Finally, the defendant argues that, in any event, the affidavit of the plaintiff's expert is contradicted by the affidavits of the defendant's witnesses and experts and does not give rise to a genuine issue of material fact.

In opposition to the defendant's motion for summary judgment, the plaintiff makes several arguments. First, plaintiff asserts that alterations of the conveyor either did not contribute to the accident or had, in fact, been made by the defendant. Second, plaintiff argues that the warning sign on the conveyor did not adequately warn of the existing danger which caused the accident (that of the latch slipping and the door falling) and that this danger was not open or obvious to a reasonably cautious person. Third, plaintiff states that the defendant has offered no evidence in support of its contention that the alterations, even if made by the plaintiff, caused or contributed to the accident, and that, in any event, evidence of a supervening cause does not, of necessity, preclude recovery. Fourth, plaintiff contends that an assumption of the risk defense is not applicable in this case in that the plaintiff cannot be held to have been aware of the risk that the latch might slip and, therefore, cannot be said to have voluntarily assumed the risk. Further, plaintiff could not be barred from recovery by assumption of risk where he had no alternative but to subject himself to the risk in order to perform his job. Finally, plaintiff contends that the testimony of his engineering expert establishes that the design of the conveyor was defective, and that the defendants have not refuted this affidavit.

I.

Before addressing the issue of whether defendant has sustained its burden under Rule 56, the Court must consider the defendant's allegation that the affidavit of the plaintiff's expert witness does not conform to the requirements of Rule 56(e). In Lowe v. Philadelphia Newspapers, Inc., 594 F.Supp. 123 (E.D.Pa.1984), the Court summarized the requirements of Rule 56(e) relating to the sufficiency of affidavits:

Rule 56(e) mandates that affidavits submitted in opposition to a motion for summary judgment must state that they are based upon "personal knowledge" of the affiant. Affidavits prefaced upon "belief" or "information and belief" must be stricken. (Cites omitted.) Id. at 126.

The defendant contends that the affidavit of Robert W. Nolan fails to aver that the statements contained therein are based upon his "personal knowledge" and that, therefore, the affidavit is inadequate and inadmissible for failure to satisfy the form and content requirements of Delaware Superior Court Civil Rule 56(e). A review of the federal case law ¹ as well as treatises on federal practice and rules of evidence reveals that, on a motion for summary judgment, opinion testimony that would be admissible if testified to at trial may be properly set forth in an affidavit. See, Moore's, supra, at 56-1312 and Lowe, supra at 127, citing Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.1975).

Rule 703 of the Delaware Rules of Evidence, governing the opinion testimony of expert witnesses, provides an exception to the requirement that a witness' testimony must be based on personal knowledge. The facts or data upon which an expert bases his opinion may include non-admissible data if an expert in his field would reasonably rely upon such data in reaching conclusions. 3 Weinstein's Evidence at 703-9.

On a motion for summary judgment, however, the federal courts have enforced the requirement of Rule 56(e) mandating that an affidavit be based on personal knowledge in spite of the exception provided under the rules of evidence. See, Lowe, supra at 127 and Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979).

Generally, such a formal defect may be waived absent a motion to strike or other objection. Scharf, supra at 1243. In addition, even in the event of a timely objection, the federal courts are apt to accept a statement in an amended affidavit to the effect that the facts stated in the affidavit are based on personal knowledge from observing or evaluating the relevant evidence in fulfillment of the personal knowledge requirement. Lowe, supra at 127. In this case, the statement in Nolan's affidavit that his opinion was "based upon a description of the accident furnished to me by the plaintiff, and my own investigations and measurements" might suffice as a statement asserting personal knowledge, particularly given the more lenient standard afforded the affidavits of a party opposing a summary judgment motion. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed. 142 (1970), Moore's, supra at 56-1333. However, the affidavit under consideration in this case fails to satisfy an additional requirement under Rule 56(e) that an affidavit must be based upon "specific facts."

Rule 56(e) imposes an affirmative duty on each party to show that the material he presents in support of or in opposition to the motion would be admissible at trial. Wright & Miller, 10A Federal Practice and Procedure § 2738 at 484. Under both the rules of evidence and the requirements of Rule 56(e), an affidavit must set forth specific supporting facts. See D.R.E. 703-705, Superior Court Civil Rule 56(e). While an expert may base his opinion on inadmissible evidence when testifying at trial, in Delaware, before testifying, the expert must "first identify the facts and data upon which he bases his opinion and his reasons for the opinion, unless the court requires otherwise." D.R.E. 705. Because an affidavit is an ex parte statement by a witness whose demeanor cannot be observed and who is not subject to cross-examination, affidavits are considered the least satisfactory form of evidentiary material upon which to base a motion for summary judgment. Wright § 2738, supra at 467, Moore's, supra at 56-514. For that reason, and in accord with the rule in most jurisdictions that the expert witness must at least be able...