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September 8, 1997


The opinion of the court was delivered by: JONES


 This matter comes before the Court on defendant's motion for summary judgment. Plaintiff has filed an opposition to defendant's motion for summary judgment. Defendant the United States of America has filed a reply.

 Plaintiff, Joshua Schuyler, filed this action against the United States under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1246(b), 2671 et seq. During an early morning (approximately 2:30 a.m.) brawl among several young people returning from Tijuana on or about July 7, 1994, at the San Ysidro Port of Entry, plaintiff was thrown over the guardrail of a three-story pedestrian ramp. The parties differ as to whether plaintiff was the initial aggressor, a point which is not relevant to this case. Nonetheless, plaintiff and his "drinking buddies" scuffled with another group of young people returning from Tijuana and plaintiff was thrown over the guardrail, falling 30 feet to the ground below. At his deposition, plaintiff testified that he went over the guardrail two to three feet from the ramp's west wall. See Exhibit 3 of Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment at deposition pages 88-89 and attached photograph.

 Plaintiff contends his fall was caused by defendant's negligence in designing, constructing, and maintaining the pedestrian ramp from which he was thrown and has thus filed suit under the FTCA. Plaintiff seeks to hold defendant liable for his injuries on the theory that defendant negligently omitted to perform two acts: (1) raise the guardrail four inches when it raised the surface of the ramp's deck by that amount (plaintiff's "guardrail height" claim); and (2) enclose the ramp with a fence (plaintiff's "fencing-in" claim).

 The ramp from which plaintiff was thrown is connected to the west end of a pedestrian overpass spanning Interstate 5. The ramp and overpass were built in 1972. The State of California is responsible for maintaining and repairing the ramp, as well as providing security. Pursuant to a contract with the state, defendant maintains the lighting and drainage on the overpass and ramp, and removes trash and graffiti.

 The east end of the pedestrian overpass runs through a federal facility. U.S. Customs, Immigration, and Agriculture officers work in the area beneath the overpass. As part of a 1992 project to upgrade the federal building at the San Ysidro Port of Entry, defendant decided to fence-in the overpass. According to defendant, an independent contractor, International Consulting Engineers (ICE), designed the project. Defendant maintains that the purpose of the fence was to protect those below from thrown debris and that it chose not to fence in the west ramp because the risk of harm from thrown debris was lower in that area.

 During the design process, defendant decided to alter the ramp to make it wheelchair accessible in compliance with the ADA. Defendant hired a construction management firm, Holmes and Narver, to manage and supervise the construction. Soltek of San Diego was retained as the building contractor on the project.

 As a result of the wheelchair accessibility construction, the height of the guardrail running along the ramp was lowered in certain areas. Apparently, the construction created a number of horizontal landings between the pedestrian ramp's wall and the inclined wheelchair lane, so that wheelchair users would have flat "landings" on which to rest while moving along the ramp. The guardrail along the landing areas remained at the forty-two inch height, while the guardrail along the inclined wheelchair ramp decreased to a height of thirty-eight inches. This was because, in order to create the inclined wheelchair ramp the construction company hired by defendant had to lay down more cement, which effectively raised the ground surface level of the ramp, bringing it higher up along the guardrail.

 Thus, when all was said and done, the guardrail rose only thirty-eight inches above the inclined areas, rather than the forty-two inches it had previously risen. Landings were placed only in certain locations along the ramp. Thus, in the landing areas, the guardrail height remained forty-two inches, but in those areas containing the newly built incline ramp, the guardrail only rose thirty-eight inches.

 Plaintiff contends that, had defendant raised the guardrail level after the ADA compliance work, or enclosed the entire ramp with a fence, plaintiff's assailant would not have been able to hoist him those extra four inches, or at least would have had more trouble in tossing him over. Plaintiff contends that, under the 1988 and 1991 versions of the Uniform Building Code, defendant had a duty to maintain a minimum height standard of forty-two inches for guardrails.

 Defendant's summary judgment motion is based on three grounds. First, defendant maintains that even if it did have a duty to maintain the guardrail at a height of forty-two inches, its failure to meet that standard at some points along the guardrail could not possibly have contributed to plaintiff's injuries, as plaintiff's deposition testimony indicates that the guardrail was forty-two inches high at the area from which plaintiff was thrown. Next, defendant contends that it is immune from liability to plaintiff under the discretionary function exception to the FTCA. Finally, defendants allege that because the designers and builders of the fence and wheelchair lane were independent contractors, defendant cannot be held liable for their negligence, if any.


 In his opposition to defendant's summary judgment motion, plaintiff improperly attempts to add two new ways in which he believes the United States acted negligently: by failing to "provide adequate lighting in a known dangerous area"; and by failing to "provide adequate security in a known dangerous area." See Plaintiff's Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment at 2. Plaintiff's opposition contains numerous assertions and exhibits referring to the security and lighting on the pedestrian walkway. The Court will not consider any reference to security or lighting, as these claims were not properly raised in plaintiff's complaint, and he may not raise them without moving to file an amended complaint.



 The principal purpose of summary judgment is to provide a "just, speedy and inexpensive" alternative to trial where there is "no genuine issue as to any material fact." FED.R.CIV.P. 1, 56(c). *fn1" Upon a showing that there is no genuine issue of material fact as to particular claims, the Court may grant summary judgment in the party's favor "upon all or any part thereof." FED.R.CIV.P. 56(a),(b). A "material issue of fact" is a question which both: (1) must be answered to determine the rights of the parties under the substantive law; *fn2" and (2) must be answered by the jury. *fn3" A dispute is "genuine" only if "a jury applying [the substantive law's] evidentiary standard could reasonably find for either the plaintiff or the defendant." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Id. at 255. Accordingly, in deciding a motion for summary judgment, the Court will draw all "justifiable inferences" from the evidence in favor of the nonmovant. Id.

 The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If the nonmovant will bear the burden of persuasion at trial, the movant does not discharged its initial burden simply by making a "conclusory assertion that the nonmoving party has no evidence," but must rather demonstrate the absence of a genuine issue by either (1) submitting proof that would negate an essential element of the nonmovant's claim or defense; or (2) showing the nonmovant's inability to produce sufficient admissible evidence at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 332, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting); id. at 328 (White, J., concurring) ("It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion.").

 Proof submitted in support of or in opposition to a motion for summary judgment must be clearly reducible to admissible form at trial. Edward Brunet, SUMMARY JUDGMENT MATERIALS, 147 EF.R.D.F 647, 653-58 (1993); 10A Charles Alan Wright et al., FEDERAL PRACTICE & PROCEDURE § 2721 at 40 (2d ed. 1983) ("The court may consider any material that would be admissible or usable at trial."). Unless foundational or other evidentiary objections are timely made, however, even inadmissible evidence may be considered by the court and will support a judgment. Faulkner v. Federation of Preschool and Community Educ. Centers, Inc., 564 F.2d 327, 328 (9th Cir. 1977) (per curiam). The Court has no duty to consider proof not specifically directed to its attention. Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir. 1991).


 The parties' papers disagree as to the point on the pedestrian ramp from which plaintiff was thrown. The guardrail's height varies depending on the location along the ramp. If plaintiff was thrown from a "landing" area, the guardrail was forty-two inches high in the spot from which he was thrown. If plaintiff was thrown from an inclined spot, however, the guardrail would only have been thirty-eight inches high. Plaintiff maintains that defendant had a duty, under the Uniform Building Code, to maintain the height of any guardrail at forty-two inches. Assuming, arguendo, that defendant did have such a duty, the failure to meet the height requirement was not the cause of plaintiff's injuries if the place from which plaintiff was thrown was one of the flat landing areas, since those areas comply with the forty-two inch height requirement.

 Here, although plaintiff's opposition attempts to transform the location of his fall into a genuine issue of material fact, the location from which he was thrown is actually not such an issue for purposes of summary judgment. In his sworn deposition testimony, plaintiff admitted that he was thrown from the ramp at a flat part, indicating a landing area on a photograph of the scene. See Exhibit 3 of Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 87-89 and photograph attached thereto. In his opposition to defendant's motion, plaintiff has attempted to back peddle by contradicting his own testimony. He attaches a number of declarations from himself and his friends suggesting that plaintiff landed at a certain spot on the pavement beneath the ramp, seemingly to suggest that plaintiff was thrown from a different spot. However, none of the declarations of plaintiff's friends state that plaintiff was thrown from any particular spot. See Declaration of Plaintiff Josh Schuyler, Declaration of Eli Howe, Declaration of Pyong So, and Declaration of Steven Ashton. Plaintiff's own declaration states that he has a "firm belief" that he was "pushed" over the railing at a spot different from that which he noted in his deposition testimony. See Declaration of Plaintiff Joshua Schuyler. As defendant's reply notes, however, a party opposing summary judgment cannot create a genuine issue of fact by contradicting or repudiating his own sworn deposition testimony. See Lopez v. General Motors Corp, 697 F.2d 1328, 1333 (9th Cir. 1983); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975).

 In Radobenko, the court refused to permit appellant to create his own issue of fact by an affidavit contradicting his prior deposition testimony. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir. 1985) (citing Radobenko, 520 F.2d at 544). In support of its decision, the court cited a Second Circuit case in which that court noted:

If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.

 Radobenko, 520 F.2d at 544 (citing Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).

 Plaintiff testified several times at his deposition that he was thrown from the "corner" of the ramp, at the "flat part." See Exhibit 3 to Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment. Plaintiff corroborated his testimony by marking on a photograph the spot where he was thrown from the ramp. The photograph is filed with defendant's motion papers as page 7 of Exhibit 3. Plaintiff attempts to contradict this deposition testimony through a declaration attached to his opposition. Unfortunately, however, plaintiff cannot create a genuine issue of material fact where none exists. Thus, plaintiff's declaration contradicting his prior deposition testimony does not raise a genuine issue of fact.

 Likewise, the declarations of plaintiff's friends, attached to plaintiff's opposition, fail to create a genuine issue of material fact as to the location from which plaintiff was thrown. Just as a party who opposes a summary judgment motion may not contradict his sworn statements with his own declaration, he may not use somebody else's declaration for ...

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