Opinion
ACTION NO. 4:99-CV-709-Y, (Consolidated w/ 4:00-CV-1020-Y)
June 9, 2003
ORDER DENYING MOTION FOR SUMMARY JUDGMENT ON INTERVENTION
Pending before the Court is the Motion for Summary Judgment on Intervention of Auto-Owners Insurance Company ("Auto-Owners"), which was filed in this cause on November 26, 2002, by Kay Notch, as Independent Executrix of the Estate of James Stephen Notch. Auto-Owners filed a response in opposition to the motion on December 17, and Kay Notch filed a reply to the response on January 2. After consideration of the foregoing documents and the applicable law, the Court concludes that the motion should be denied.
I. Facts
On December 10, 1997, James Stephen Notch piloted an aircraft that departed from Roanoke, Virginia, en route to Arlington, Texas. Shortly after take-off, the airplane crashed into the home of Jack and Eleanor Lewis, killing Notch and destroying the Lewises' home. Notch's wife, Kay, filed this lawsuit seeking to recover damages against various entities allegedly responsible for designing, manufacturing, selling, or maintaining the aircraft and its engine. Auto-Owners subsequently intervened, contending that it is the insurer of the Lewises' home, that it paid them the sum of $112,010.06 for their loss, and that it therefore is subrogated to the Lewises' rights to pursue third parties who might be responsible for the destruction of the home. One of Auto-Owners's claims is for negligence against Kay Notch, in her capacity as executrix of James Notch's estate, contending that James Notch was negligent in piloting the aircraft that crashed into the Lewises' home. Kay Notch currently seeks summary judgment regarding this claim.
II. Summary Judgment Standard
Summary judgment is appropriate when the record establishes "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." FED. R. Civ. P. 56(c). The party moving for summary judgment has the initial burden of demonstrating he is entitled to the relief he seeks. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party need not produce evidence showing the absence of an issue of fact with respect to an issue on which the nonmovant bears the burden of proof, however. Rather, the moving party need only point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmovant's claim. See id. at 323-25.
When the moving party has carried its summary judgment burden, the nonmovant must go beyond the pleadings and by its own affidavits or by the depositions, answers to interrogatories, or admissions on file set forth specific facts showing that there is a genuine issue for trial. FED. R. Civ. P. 56(c). This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby,. Inc., 477 U.S. 242, 249-50 (1986).
III. Analysis
Kay Notch contends that summary judgment is appropriate because Auto-Owners cannot prove that her husband negligently piloted the aircraft during the crash. Notch urges that none of the expert witnesses designated by Auto-Owners have opined that her husband's piloting was negligent.
In response, Auto-Owners submits the report of another party's expert witness, Jack Eggspuehler. Eggspuehler's report indicates that he believes "James Notch failed to adhere to Federal Aviation Regulations and good piloting practices preceding his accident on December 10, 1997." Unfortunately for Auto-Owners, however, this unsworn report is not admissible evidence in this summary-judgment proceeding. See FED. R. Civ. P. 56(c) (e); see also Payne v. Collins, 986 F. Supp. 1036, 1054 n. 41 (E.D. Tex. 1997) ("[S]ua sponte evidentiary rulings fulfill the court' s duty to `assess the evidence presented upon the motion for summary judgment to determine its admissibility.'") (quoting Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965)).
Notch objects to the use of Eggspuehler's report solely on the grounds that he is not one of Auto-Owners's expert witnesses but instead was retained by another party to this lawsuit. Notch does not explain this objection, however, nor does she cite any authority in support of it. To the extent Notch intends to object to Auto-Owners's failure to designate Eggspuehler, the Court presumes that he was properly designated by another party to this suit, such that Notch has had ample notice of his proposed testimony and an opportunity to rebut it. Thus, the Court questions whether refusing to allow Auto-Owners to rely on Eggspuehler's opinions solely because it had failed to timely designate him would be proper. See Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990) (noting that "potential prejudice in allowing the testimony" is one factor to consider in determining whether to strike an expert witness's testimony based upon an untimely designation). In any event, because Auto-Owners did not present Eggspuehler's opinions in admissible form, the Court need not resolve this issue.
Auto-Owners also invokes the doctrine of res ipsa loquitur. Auto-Owners fails, however, to set forth any argument or authorities in its brief regarding the applicability of this evidentiary doctrine. Nevertheless, after review of the law regarding res ipsa loquitur, the Court concludes that Auto-Owners has sufficiently demonstrated the doctrine's applicability at this juncture of these proceedings.
There apparently is some question regarding whether Texas or Virginia law is applicable to this case. In her motion, Notch indicates that the laws of both states are similar regarding the doctrine of res ipsa loquitur. Auto-Owners fails to address the issue in its response. As a result, the Court has applied Texas law, presuming that it is similar to Virginia law regarding this issue.
"In certain limited cases, the very circumstances surrounding an accident provide sufficient circumstantial evidence of the defendant's negligence to support a fact finding of negligence. In such cases, the mere occurrence of the accident supports reasonable inferences that there was negligence, and it was the defendant who was negligent." Oliver v. Hutson, 596 S.W.2d 628, 630 (Tex.Civ.App.-Amarillo 1980, writ ref'd n.r.e.); see also Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250 (Tex. 1974). Thus, the purpose of the res-ipsa-loquitur doctrine "is to relieve the plaintiff of the burden of proving a specific act of negligence by the defendant when it is impossible for the plaintiff to determine the sequence of events, or when the defendant has superior knowledge or means of information to determine the cause of the accident." Turbines, Inc. v. Dardis, 1 S.W.3d 726, 740 (Tex.App. — Amarillo 1999, pet. denied).
The res-ipsa-loquitur doctrine applies only when: "(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant." Mobil, 517 S.W.2d at 251. These two elements are referred to "as the `type of accident' element and the `control' element." Oliver, 596 S.W.2d at 630. Regarding the first element, "the plaintiff may be able to rely upon general knowledge that an accident of the type in question simply does not occur without negligence." Id. To prove the second element, a plaintiff must demonstrate that the defendant's degree of control over the instrumentality causing the injury is such that it reduces the likelihood of other possible causes of the injury:
The `control' element is satisfied by evidence that the instrumentality causing the injury was under the management and control of the defendant at the time the negligence inferable from the type of accident probably occurred. The nature and degree of control must be such that `the reasonable probabilities point to the defendant and support a reasonable inference that he was the negligent party. . . . The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door."Id. (quoting Mobil, 517 S.W.2d at 251.).
If a plaintiff presents probative evidence of these two elements, "the plaintiff has presented some evidence of the defendant's negligence. . . . and has created a fact issue on negligence." Id. Thus, "under the res ipsa loquitur doctrine the plaintiff creates a fact issue as to the defendant's negligence if the plaintiff (1) presents probative evidence, or establishes by general knowledge, that the accident in question would not ordinarily occur without negligence and (2) presents probative evidence that the defendant had management and control of the instrumentality causing the injury at the time the negligence inferable from the type of accident probably occurred." Id. at 630-31; see also Conaway v. Roberts, 725 S.W.2d 377, 379-80 (Tex.App. — Corpus Christi 1987, writ denied).
As for the first factor, Kay Notch contends that" [t]his is clearlynot a situation where it may be said that the accident would ordinarily not have occurred absent the negligence of [James] Notch." (Pl.'s Reply at 4.) It appears to the Court, however, that Notch's statement collapses the second prong of the test into the first. Rather, regarding the first prong, the question is merely whether the accident is unlikely to have occurred absent someone's negligence, without regard to whose negligence it might have been. See Turbines, 1 S.W.3d at 741 (noting that "[t]he first factor is necessary to support the inference of negligence and the second to support the inference that the defendant was the negligent party.").
In analyzing the first factor, the focus is "on the nature of the accident or injury." Id. It is undisputed that shortly after take-off, the plane crashed. "General knowledge of aviation has progressed sufficiently that the average person can form an opinion as to whether it is unlikely that aircraft would crash in the absence of negligence." Id.; see also Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 429-30 (5th Cir.), cert, denied, 434 U.S. 830 (1977). As a result, the Court concludes that the first factor is satisfied.
As for the second factor, Auto-Owners has submitted the report of the National Transportation Safety Board regarding the crash in question. The report indicates that Notch owned and was piloting the aircraft at the time of the crash. Consequently, the Court concludes that Auto-Owners has presented sufficient evidence that James Notch was controlling the aircraft at the time of the crash, thus satisfying the second prong of the test.
The Court questions whether this report is in admissible form as well, given that it is not authenticated, nor does it appear to be self-authenticating, inasmuch as the report is not certified as correct by the document's custodian and there is no accompanying certificate of acknowledgment or written declaration by the custodian of records. See FED. R. EVID. 902(4), (8), and (11). Kay Notch has not lodged any objection to the Court's consideration of this report, however, and it appears to be undisputed that James Notch owned and was piloting the aircraft at the time of the accident.
Notch contends that the doctrine is not applicable because three of Auto-Owners's expert witnesses have identified a different cause of the accident, and another of Auto-Owners's expert witnesses opined that James Notch acted appropriately. In support of these allegations, Notch has submitted the reports of those expert witnesses. These reports suffer from the same flaw as Eggspuehler's report — they are not in the form of admissible summary-judgment evidence. See FED. R. Civ. P. 56(c) (e). Inasmuch as there is no admissible evidence tending to demonstrate that there were other possible causes of the accident in question, the Court concludes that Auto-Owners has presented sufficient evidence, at this juncture of these proceedings, to survive summary judgment under the doctrine of res ipsa loquitur.
Auto-Owners should not take much solace in this ruling, however. Merely because it has sufficiently invoked the doctrine of res ipsa loquitur to survive summary judgment does not mean that it will successfully invoke the doctrine at trial. Indeed, if, at trial, all of Auto-Owners's expert witnesses point to causes of the accident other than James Notch's negligence, Auto-Owners likely will have failed to "`so reduce' the likelihood of other causes that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at [James Notch's] door." Turbines, 1 S.W.3d at 741 (quoting Mobil, 517 S.W.2d at 251).
IV. Conclusion
For the foregoing reasons, the Court concludes that Notch's Motion for Summary Judgment [document number 208] is hereby DENIED.