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Davison v. Cole Sewell Corp.

July 28, 2006

BARBARA DAVISON, ET. AL., PLAINTIFFS,
v.
COLE SEWELL CORP., ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Graham

OPINION AND ORDER

Barbara Davison, as administratix of the estate of decedent Norman Davison, brings this action for negligence and wrongful death against Defendants Pella Corporation and Cole Sewell Corporation. Plaintiff alleges that Mr. Davison was at a Home Depot store in Reynoldsburg, Ohio on April 5, 2000 looking at an in-store display constructed and maintained by Defendants. Plaintiff claims that Mr. Davison suffered a head injury when a metal bracket fell from the display and struck him. Plaintiff further claims that the injury proximately caused Mr. Davison to develop depression and to later commit suicide on March 11, 2003.

This matter is before the Court on Defendants' motion for summary judgment. Defendants argue that the negligence claim fails because Plaintiff has no evidence from which a juror could reasonably find that Defendants were negligent or find that Defendants' alleged negligence proximately caused Mr. Davison's injury. Plaintiff's expert, engineer Richard H. Silverman, submitted a report identifying sixteen possible causes for why the store display failed. Defendants argue that the expert report must be excluded from consideration because Mr. Silverman could not specify the probable cause of Mr. Davison's alleged injury.

With respect to the wrongful death claim, Defendants argue that Mr. Davison's suicide was not a foreseeable result of the alleged negligence. Defendants contend that the deposition testimony of Plaintiff's neuropsychologist, Dr. Delphi M. Toth, fails to establish by a sufficient degree of probability that the alleged accident caused Mr. Davison to commit suicide. Defendants further contend that Dr. Toth is not competent to testify about the medical aspects of the alleged injury because she is not a medical doctor.

I. Background

The record before the Court is scarce on facts. The only evidentiary materials on the record are the deposition and report of engineer Richard H. Silverman and the deposition of neuropsychologist Dr. Delphi M. Toth. To the extent that any documents were discovered, any affidavits given, or any depositions taken of the decedent, Barbara Davison, eyewitnesses to the incident, Home Depot employees, representatives of Defendants, or treating physicians, none of those materials have been submitted.

The only description of record of the alleged incident is found in the complaint, which states that on "April 5, 2000, Decedent Norman Davison was a business invitee on the premises of a Home Depot retail store when he was injured upon being struck in the head and neck by a metal bracket that was part of a display" constructed and maintained by Defendants. Compl., ¶¶6-7.

Plaintiff has not offered any direct evidence regarding Mr. Davison's alleged injury. Plaintiff has not submitted any diagnosis from a treating physician or any other medical records. Aside from the testimony of Plaintiff's non-treating neuropsychologist, there is no evidence about the nature, type, extent, or seriousness of the injury.

The complaint describes Barbara Davison as the "life partner" of Norman Davison.*fn1 She was appointed the administratix of Mr. Davison's estate. She brought suit in the Court of Common Pleas of Franklin County, Ohio. The complaint alleges that the store display was defective and created an unreasonably safe condition, of which Defendants failed to warn business invitees. The complaint further alleges that Defendants failed to exercise reasonable care in the construction and maintenance of the display. "As a direct and proximate result, Decedent Norman Davison suffered great physical and emotional pain and anguish, incurred medical bills for physician's care, and lost wages from the date of his injury until his death." Compl., ¶12. The complaint also alleges that as "a direct and proximate result" of his injuries, Mr. Davison committed suicide on March 11, 2003. Id., ¶27.

Defendants removed the action to federal court on grounds of diversity of citizenship. The Davisons were Ohio residents, while Defendants were Iowa corporations with their principal places of business in Iowa.

This matter is now before the Court on Defendants' motion for summary judgment, which is granted for the reasons stated below.

II. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper "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." See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction & Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992)(per curium). The party that moves for summary judgment has the burden of showing that there are no genuine issues of material fact in the case at issue, LaPointe, 8 F.3d at 378, which may be accomplished by pointing out to the court that the nonmoving party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis added); see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989).

In reviewing a motion for summary judgment, "this Court must determine whether 'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993)(quoting Anderson, 477 U.S. at 251-53). The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. See also ...


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