The opinion of the court was delivered by: Magistrate Judge Smyser
We are addressing the motion of the defendants for summary judgment.
The case was removed to this court from the court of Common Pleas of Cumberland County on June 13, 2005. A complaint had been filed in that court on May 9, 2005. The jurisdiction of the court is based upon 28 U.S.C. § 1332.
The plaintiffs are Benjamin Kalesa and Kathy Kalesa, who reside in Gloversville, New York. The defendants are Bridgestone/Firestone Americas Holding, Inc., Bridgestone/Firestone, Inc., Firestone North American Tire, LLC, Bridgestone Industrial Products America, Inc. and Bridgestone (U.S.A.), Inc. The complaint relates that on or about March 21, 2003, plaintiff Benjamin Kalesa opened the back door of the sealed trailer which he was transporting and that a tire fell out and upon him causing injuries to him. Counts I, III, V, VII and IX plead claims of negligence on behalf of Benjamin Kalesa and Counts II, IV, VI, VIII and X plead loss of consortium claims on behalf of Kathy Kalesa. It is alleged that the trailer that plaintiff Benjamin Kalesa was hauling contained products (tires) owned by the defendants and that the defendants had loaded the trailer through their employees, agents or representatives. They allege that the defendants were responsible for making certain that the load of tires was properly secured, that the defendants caused or permitted an inadequately secured tire to remain as it was although the defendants knew or should have known that the inadequately secured tire could be a hazard to the person operating the trailer, that the defendants failed to make a reasonable inspection of the trailer, that they failed to ensure that the cargo area of the trailer was maintained in a safe condition, failed to warn of an unsafe condition in the trailer and that they failed to remove or to remedy an inadequately secured tire.
The defendants filed an answer to the complaint on June 17, 2005. A case management order, after a conference, established a March 31, 2006 discovery deadline. The defendants filed a motion for summary judgment on February 7, 2006 with a LR 56.1 statement of undisputed material facts, a supporting brief and a body of exhibits. The plaintiff filed a brief in opposition and a LR 56.1 statement of facts on February 24, 2006. A reply brief was filed on February 27, 2006.
The parties have consented pursuant to 28 U.S.C. § 636(c) to have the case go to final disposition with a magistrate judge.
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). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge that burden by "'showing'--- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case."
Id. at 325. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A material factual dispute is a dispute as to a factual issue that will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, 477 U.S. at 322. "Under such circumstances, 'there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Anderson v. CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002)(quoting Celotex, supra, 477 U.S. at 323).
Local Rule 56.1, Rules of Court, M.D. Pa., provides:
A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the ...