Appellate Law

Alabama Court of Civil Appeals Discusses Review of Deposition Excerpts

In Hale v. Kroger Limited Partnership I, the Alabama Court of Civil Appeals provided a good deal of discussion regarding its review of deposition excerpts.  

Hale sued Kroger, alleging that he was injured when he fell on a jar of baby food which had spilled onto the floor of the grocery store.  Store officials affirmatively denied knowledge or notice of the spill, but in Hale's deposition, he testified that the baby food had been there for several minutes before he slipped.    

On appeal from the grant of summary judgment in Kroger's favor, Hale argued that his deposition testimony and the circumstantial evidence established a genuine issue of material fact regarding whether the baby food spill had existed for a sufficient length of time to impart knowledge of it to Kroger.  Specifically, Hale pointed to his testimony that the spill had been there for several minutes.  The court disagreed, however, noting that even viewing that evidence in the light most favorable to Hale, there was no genuine issue of fact.  

The court stated;

Although at one point in his deposition Hale testified that the spill had been there for several minutes, he later clarified that he did not actually know when the spill had occurred.  When reviewing an excerpt of deposition testifmony to determine whether it creates a genuine isse of material fact, this court does not consider it abstractly, independently, and separately from the balance of the deposition testimony.  Rather, this court must consider the context of the testimony as well as the remainder of the deposition testimony in order to determine if the testimony as a whole creates a reasonable inference to support the proponent's position.

Moreover, the deposition testimony as a whole must satisfy the 'substantial evidence' standard by carrying 'such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved.' A nonmovant cannot rely on deposition testimony that is interally inconsistent and contradictory to create a genuine issue of material fact. Deposition testimony may be disregarded at the summary-judgment stage if it is so inconsistent that it could not be believed by any reasonable person.  Although this rule ordinarily applies when a party submits an affidavit that is inconsistent with prior deposition testimony, it may also be applied to testimony from the same deposition. 

(internal citations omitted)

Viewing the entirety of Hale's deposition in which he testified that the spill had been on the floor for a few minutes, the court concluded that it was apparent that any statement Hale made as to the actual length of time the spill existed was mere conjecture or surmise, which does not constitute substantial evidence in order to defeat a motion for summary jusgment.   

Full post as published by Alabama Appellate Watch on July 14, 2009 (boomark / email).