Affidavit Tailored for Summary Judgment Motion Won’t Overcome Prior Testimony

In Scafe v. Schindler Elevator Corp., elevator doors quickly slammed shut and trapped plaintiff’s hand.  Schindler, the exclusive elevator maintenance contractor moved for summary judgment arguing that it did not have notice of a specific defect with doors slamming.  However, Schindler’s documents contained numerous references to recurring problems, some of which may have inferred prior problems with the doors.  To get around the records, Schindler submitted an employee affidavit in which he claimed he had personal knowledge of inspecting the elevator on the date of the accident, and presumably found no defects.  However, given that the affidavit was improperly tailored to overcome prior deposition testimony, it could not establish defendant’s prima facie entitlement to summary judgment.

The lesson here is that witnesses must be prepared to testify as to specific inspections performed at/around the time of the plaintiff’s accident.  If the appropriate testimony is not elicited during opposing counsel’s deposition, it may be necessary to question your own witness at the conclusion of your opponent’s questioning.

For more information about this case contact cfuchs@wcmlaw.com