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FUREY v. JIM'S AERIALS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


October 27, 1998

THOMAS J. FUREY, et al.
v.
JIM'S AERIALS v. STRUCTURAL MAINTENANCE SYSTEMS, INC.

The opinion of the court was delivered by: POLLAK

MEMORANDUM/ORDER

 This personal injury action was brought by plaintiffs Thomas and Jean Furey to recover for injuries Thomas Furey sustained during the operation of an aerial lift leased to Structural Maintenance Systems, Inc. by the defendants Jim's Aerials, Inc. and J & J Contracting. *fn1" In their complaint, the Fureys assert causes of action for negligence and strict liability. After this court bifurcated the action into two phases -- the first addressing negligence, the second strict liability -- a jury trial in the first phase (negligence) commenced on April 29, 1998. At the conclusion of trial, the jury returned a verdict for Jim's Aerials and J & J Contractors and against the Fureys and judgment was entered on the claim of negligence.

 Presently before the court is a motion filed on June 15, 1998 by defendants Jim's Aerials and J & J Contractors, Inc. for summary judgment on the remaining strict liability claim brought by plaintiffs Thomas and Jean Furey. On June 26, 1998, plaintiffs responded to the motion for summary judgment. Defendants Jim's Aerials and J & J Contractors, Inc. filed supplemental memoranda in support of their motion on July 17 and July 30, 1998. On August 6, 1998, plaintiffs' counsel sent a letter to this court informing it that plaintiffs had entered into an agreement with defendants under which the plaintiffs agreed to withdraw their opposition to the motion for summary judgment. *fn2"

 Fed. R. Civ. Pro. ["Rule"] 56(c) requires a court to grant a motion for summary judgment "forthwith 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 a judgment as a matter of law." Though that paragraph of the Rule makes no mention of the necessity of granting a motion where the non-movant does not respond, Rule 56(e) states that:

 

When 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 . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 In Celotex Corp. v. Catrett, the Supreme Court held that "Rule 56(c) mandates the entry of summary judgement . . . against a party who fails to make a showing sufficient to establish the existence" of every element essential to that party's claim. 477 U.S. 317, 322 (1986). While "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of . . . [the record] which it believes demonstrate the absence of a genuine issue of material fact," the moving party need not "negate the opponent's claim." Id. at 323. Thus Rule 56(e) "requires the nonmoving party to . . . designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted).

 Defendants Jim's Aerials and J & J Contractors, Inc. have satisfied their burden of informing this court of the basis of their motion through three detailed supporting memoranda. In those memoranda, defendants inform this court that, inter alia, plaintiffs present insufficient facts to satisfy Pennsylvania's strict liability standard as set forth in Azzarello v. Black Brothers Construction Co., 480 Pa. 547, 391 A.2d 1020 (1978). See, e.g., Defendants' Motion for Summary Judgment at 8-22. By withdrawing their opposition to defendants' Motion for Summary Judgment in the letter of August 6, 1998, plaintiffs have chosen not to "designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. In such a circumstance, Rule 56 and Celotex Corp. require granting the motion.

 Defendants' Motion for Summary Judgment is therefore GRANTED and this civil action is DISMISSED with prejudice, without costs.

 October 27, 1998

 Louis H. Pollak, J.


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