Available outside my office.
Section A:
Mean: 24.42
Median: 30
High: 37
Section B:
Mean: 27.5
Median: 27
High: 40
The court should grant Defendants’ Motion for Summary Judgment.
Summary Judgment Standard
A court must grant summary judgment when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRCP 56(a). A material fact is an outcome-determinative fact, one whose resolution dictates which party prevails in a case. A genuine dispute exists when the evidence in the record allows any reasonable jury to resolve a fact in favor of either party. Scott. To show a genuine dispute, the party “must do more than simply show that there is some metaphysical doubt as to the materials facts;” the record as a whole must allow a rational trier of fact to find for the nonmovant. Scott. A movant is entitled to judgment as a matter of law when no reasonable jury could find in favor of the non-movant on one or more elements of a claim or defense, in light of the requirements of substantive law. Celotex.
The court considers the record as a whole. It must view all evidence in the light most favorable to the non-movant, identifying and drawing all reasonable inferences from the evidence in the non-movant’s favor, based on direct and circumstantial evidence. The court is not to make credibility determinations, weigh evidence, or decide what evidence she believes proper. The court must presume that the fact-finder will believe the non-movant’s evidence and witnesses and will be swayed by the non-movant’s version of events. Scott.
Where the movant does not bear the burden of persuasion or initial burden of production at trial (that is, the non-movant bears both burdens at trial), it must show the absence of a genuine dispute. It may do so with supporting evidence consisting of discovery materials, along with affidavits or declarations obtained for purposes of the motion. FRCP 56(c)(1)(A); Celotex. Or it may show that the non-movant’s evidence fails to establish a genuine dispute or that it cannot produce admissible evidence to support a fact. FRCP 56(c)(1)(B). The non-movant must produce affirmative evidence to show the presence of a genuine dispute as to that fact. Celotex.
Evidence need not be admissible in evidence on summary judgment, but it must be capable of presentation in admissible form. FRCP 56(c)(2); Celotex. Declarations supporting or opposing a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify to the matters stated. FRCP 56(c)(4).
Defendants move for summary judgment on the plaintiffs’ claims of Intentional Infliction of Emotional Distress (Jane Doe) and Loss of Consortium (John Doe). Each plaintiff bears the burden of persuasion and initial burden of production on their respective claims. Defendants support their motion under FRCP 56(c)(1)(B), by pointing to the absence of admissible evidence to support one element—that Defendants engaged in the tortious conduct. Plaintiffs must respond with affirmative evidence that could be presented in admissible form.
Plaintiff Jane Doe (“Jane”) fails to offer competent evidence to show that defendants committed the tortious act of contaminating the water bottle. Brazeal.
The sole evidence going to this element comes from paragraph 14 of Jane’s and John’s declarations, asserting each’s “understanding” that “the Ritz-labeled water bottles delivered to our room were only accessible to Ritz-Carlton employees.” (Jane Decl. ¶ 14; John Decl. ¶ 14).
Neither statement satisfies FRCP 56(c)(4). Neither sets out a matter within the declarant’s personal knowledge, only their “understanding”—their beliefs or speculation about some fact. Nor does either declarant explain how they know about access to the hotel’s water bottles. Even if the declarations were clearer, neither sets out facts that would be admissible in evidence. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. FRE 602. Neither Jane nor John has personal knowledge about access to the hotel’s water bottles and neither could testify to that fact at trial.
The court thus should disregard ¶ 14 of each declaration. Jane offers no other
evidence showing defendants committed the alleged tortious acts.
Alternatively, Jane relies on res ipsa loquitur, which requires a plaintiff to offer substantial evidence proving: 1) the injury was the kind which ordinarily does not occur absent someone’s negligence; 2) the injury was caused by an instrumentality in the sole and exclusive control of the defendant (or defendant’s employees), with which no actor other than defendant interacted; and 3) the injury was not due to any voluntary action or contribution on the part of the plaintiff. Elcome.
Jane satisfies the third prong. Jane and John declare that the water bottles were not accessible to them. (Jane Dec. ¶ 15; John Dec. ¶ 15). But they fail to offer evidence showing the bottles were in defendants’ “sole and exclusive control” or that “no other actor” interacted with the bottles. No evidence excludes actors other than defendants’ employees as the source of the saliva. Jane recognized the need for this information during discovery. An interrogatory requested information about any supplier, bottler, handler, or distributor of the water bottles, (Interr. # 5), producing an answer identifying the bottler. (Answer to Interr # 5). But Jane never converted this into competent evidence that defendants—and no one else—exercised exclusive control over the bottles.
Loss of Consortium
A loss of consortium claim is derivative of a spouse’s tort claim. An (Cal. 1966). The elements of the spouse’s tort claim function as elements of the loss of consortium claim. If the spouse fails to establish the defendant’s tort liability because one or more elements fails, the loss-of-consortium plaintiff necessarily fails to establish the defendant’s liability for loss of consortium. An.
John failed to offer sufficient evidence that defendants engaged in the conduct causing Jane’s injury (for the reasons described above). He therefore failed to offer sufficient evidence on an element of his loss of consortium claim.
