Opinion
Civil Action No. 3:97CV-282-S
December 21, 1999.
MEMORANDUM OPINION
This matter is before the Court on motions for summary judgment by both the defendant, Otis Elevator Company ("Otis") and the third-party defendant, Sunshine Makers, Inc. ("Sunshine"). For the reasons set forth below, both summary judgment motions will be granted.
FACTS
The plaintiff, Sarah Barnes ("Barnes"), brings this action against Otis to recover for injuries allegedly sustained from exposure to a noxious odor at her workplace, Hardin Memorial Hospital ("Hospital"). Barnes claims that Otis negligently allowed fumes to leave the elevator shaft while providing independent contract work for the maintenance and repair of the Hospital's elevators. Because Otis' employees maintain that the only cleaner used on the elevator that day was Simple Green, Otis has filed a Third Party Complaint naming Sunshine, the manufacturer of Simple Green, as the third party defendant.
In two depositions, Barnes testified that she smelled the odor in the morning hours of April 8, 1996. She described the odor as a chemical smell, like that of paint thinner. Barnes testified that she and her co-workers determined that the smell was coming from the closed doors of a particular elevator.
Barnes stated that she first got sick to her stomach and vomited between 9:30 a.m. and 10:30 a.m. that day. She began having difficulty breathing between 10:00 a.m. and 10:30 a.m. She eventually collapsed and was taken to the Hospital's emergency room.
The uncontradicted testimony of Otis' employees is that they did not begin working on the elevator in question until after 1:00 p.m. The Otis employees could not begin work until that time because that elevator was used to transport patients' lunches throughout the lunch hour.
STANDARD OF REVIEW
Summary judgment is appropriate 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." Fed.R.Civ.P. 56(c). A party's failure to establish an element of proof essential to his case and upon which he will bear the burden of proof at trial constitutes a failure to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
Otis argues that because its employees did not begin their work on the elevator shaft until approximately two hours after the latest time that Barnes testified she smelled, and became ill from, the offensive odor, the work done by Otis' employees could not possibly have been the source of the odor in question. In Barnes' response to Otis and Sunshine's motions for summary judgment, she submitted an affidavit stating that she could have been mistaken as to her previous testimony. She stated that it was possible that the events about which she previously testified took place around lunchtime or 1:00 p.m., instead of the morning. This affidavit does not now create a genuine issue of material fact. In Biechele v. Cedar Point, Inc., 747 F.2d 209 (6th Cir. 1984), the plaintiffs submitted affidavits after the defendants moved for summary judgment which attempted to contradict their previous deposition testimony to create a genuine issue of material fact. The district court disregarded the affidavits and granted summary judgment in favor of the defendants. The Sixth Circuit agreed and stated:
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.Id. at 215 (quoting Perma Research Dev. Co. v. The Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). See also Farrell v. Automobile Club of Mich., 870 F.2d 1129, 1131-32 (6th Cir. 1989) (district court was correct in disregarding the plaintiffs' affidavits which contradicted prior deposition testimony as self-serving attempts to create a sham issue of fact).
Further, the affidavit of Barnes is insufficient on its face to create an issue of fact. In the affidavit, Barnes states, "it is possible that the events took place in a short period of time, beginning after lunch around 1:00." This affidavit does not clearly contradict the plaintiff's prior testimony. Barnes speaks in terms of possibilities regarding the time she smelled the odor. The plaintiff cannot rely on mere speculation to overcome a properly supported summary judgment motion. Calhoun v. Honda Motor Co., Ltd., 738 F.2d 126, 130 (6th Cir. 1984).
The plaintiff also submits the affidavit of her co-worker, Sherry Donnelly ("Donnelly"), in an effort to create an issue of material fact. After consideration of this affidavit, this Court finds that Donnelly's statements regarding the events that day are not inconsistent with the previous deposition testimony of Otis' employees and of the plaintiff. Barnes testified that she smelled a paint-thinner type of odor and became ill in the morning hours. Otis' employees testified that they began maintenance on the elevator sometime after 1:00 p.m. The Otis employees further testified that Simple Green was the only cleaner they used that day. Barnes admits that Simple Green was not the cause of her injuries. Donnelly stated that she noticed a smell in the afternoon, after her lunch break. This smell that Donnelly noticed could well have been the Simple Green used by the Otis employees in the afternoon to clean the elevator cables. Donnelly's affidavit does not create a genuine issue of material fact. Furthermore, because the plaintiff readily admits that Simple Green was not the cause of her injuries, Sunshine is entitled to judgment as a matter of law.
Barnes also argues that the doctrine of res ipsa loquitur applies to this case and precludes the entry of summary judgment. In order for the plaintiff to shift the burden of proof by way of res ipsa loquitur, she must produce evidence of three elements: (1) the instrumentality causing the harm must be under the control or management of Otis; (2) the circumstances, according to common knowledge and experience, create a clear inference that the accident would not have happened if Otis had not been negligent; and (3) the plaintiff's injury resulted from the accident. Helton v. Forrest Park Baptist Church, 589 S.W.2d 217, 219 (Ky.Ct.App. 1979).
Otis argues that none of the above elements have been established by Barnes in this case. We agree. The undisputed testimony of the Otis workers is that Simple Green was the only cleaner that they used to clean the elevator cables that day. Barnes has conceded that Simple Green did not cause her injury. Because the actual cause of the offensive odor remains unknown, the plaintiff has not established that Otis was in control of the instrumentality that caused her injury. Furthermore, Barnes has produced no evidence which shows negligence of any kind on the part of Otis.
Viewing all the facts in a light most favorable to Barnes, this Court finds that Otis and Sunshine are both entitled to judgment as a matter of law. A separate order will be entered herein this date in accordance with this opinion.
ORDER
Motions having been made by the defendant, Otis Elevator Company, and the third-party defendant, Sunshine Makers, Inc., for summary judgment, and for the reasons set forth in the memorandum opinion entered herein this date, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that:
1. The motion for summary judgment by Otis Elevator Company is GRANTED.
2. The motion for summary judgment by Sunshine Makers, Inc. is GRANTED.
IT IS SO ORDERED.