United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion for Summary Judgment.
Doc. 25. Plaintiff has not responded. For the reasons that
follow, Defendant's Motion is GRANTED.
Pam Cordes, who was injured on February 14, 2014, when she
tripped and fell while exiting an elevator, has brought suit
against Defendant Otis Elevator Company under theories of
negligence and product liability. Ms. Cordes was stepping out
of an elevator at Mercy Hospital in Oklahoma City when she
failed to notice that the elevator had stopped approximately
six inches short-resulting in an elevator floor that was six
inches lower than the floor of the building. Plaintiff then
tripped and fell, sustaining serious injuries. She alleges
that the elevator malfunction was caused either by a defect
or by Otis's failure to properly maintain and service the
elevator under its contract with Mercy Hospital.
Standard of Review
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A fact is material if it affects the disposition of a
substantive claim. Anderson v. Liberty Lobby, Inc.,
477 U.S. 247, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The
party seeking summary judgment bears the initial burden of
demonstrating the basis for its motion and of identifying
those portions of “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, ” that demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986) (internal quotations omitted). These specific
facts may be shown “by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves.” Id. When considering a motion for
summary judgment, a court must view the evidence and draw all
reasonable inferences in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). When a party fails to respond to a
motion for summary judgment, summary judgment is not
automatically proper. See Reed v. Bennett, 312 F.3d
1190, 1194 (10th Cir. 2002). “If the evidence produced
in support of the summary judgment motion does not meet this
burden [of producing supporting evidence], ‘summary
judgment must be denied even if no opposing evidentiary
matter is presented.'”Reed v.
Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002) (emphasis
in original) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 160 (1970)). In other words, “a
party's failure to file a response to a summary judgment
motion is not, by itself, a sufficient basis on which to
enter judgment against the party. The district court must
make the additional determination that judgment for the
moving party is ‘appropriate' under Rule 56.
Summary judgment is appropriate only if the moving party
demonstrates that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of
law.” Reed, 312 F.3d at 1195.
The Product Liability Claim
Cordes first seeks to hold Otis liable on a theory of product
liability, arguing that Otis designed, manufactured, sold, or
distributed the defective elevator. Under Oklahoma law, a
plaintiff must prove three elements to recover on a theory of
product liability: (1) the product was the cause of the
injury; (2) a defect existed in the product at the time it
left the defendant manufacturer's or defendant
retailer's possession and control; and (3) the defect
made the product unreasonably dangerous to the plaintiff.
Kirkland v. General Motors Corp., 521 P.2d 1353,
1363 (Okla. 1974). The problem with Ms. Cordes's claim is
that Otis did not manufacture or install the elevator; a
different company- Montgomery Elevator Company-did. Doc. 25,
Ex. 2, at 2. Her product liability claim thus fails as a
matter of law.
The Negligence Claim
Cordes's second theory of liability is that Otis was
negligent in failing to properly maintain the elevator.
Starting in 2006, Mercy Hospital contracted with Otis to
maintain and service the elevator. Doc. 25, Ex. 2, at 3.
Under Oklahoma law, Otis therefore had a duty to exercise
ordinary care and inspect, repair, and maintain the elevator
in safe operating condition. Seay v. Gen. Elevator
Co., 522 P.2d 1022, 1028 (Okla. 1974).
negligence claim fails because, simply put, she has provided
no evidence that Otis was in any way negligent in its
maintaining the elevator or that Otis was the cause of the
accident. For one, the elevator was old. It was manufactured
in 1973; and its relay system was outdated as early as 1981.
Given the elevator's age, Otis recommended several times
to Mercy that it upgrade or modernize the elevator and even
offered a written proposal in January 2013 to do just that.
In fact, Otis was adamant that modernizing the elevator in
the next year should be a top priority for Mercy. Doc. 25,
Ex. 2. Otis's records indicated, however, that the
elevator had very good reliability based on the age,
environment, and duty cycle. Doc. 25, Ex. 2, at 2.
nevertheless continued to regularly perform routine
maintenance on the elevator-maintenance that Otis offers
evidence that met the company's requirements under the
contract with Mercy and the custom and practice of the
industry. Doc. 25, Ex. 2, at 3. In fact, Otis serviced the
elevator on February 3, 2014, and February 6, 2014, less than
two weeks before Ms. Cordes's accident.
though the elevator did have some history of
“leveling” issues, none of these issues were
related to the failure of the specific relay-the
Potter-Brumsfield style relay- that allegedly failed and
caused the leveling issue on the day of the accident.
Otis's expert has testified that elevators, especially
older ones, can have failures with proper maintenance. Doc.
25, Ex. 2, at 3. As for the argument that Otis should have
replaced the faulty relay before it failed, Otis offered
evidence that it is not standard practice to replace a relay
unless it fails. Doc. 25, Ex. 1, at 124. Ms. Cordes has
offered no evidence to rebut this point or any other of
Otis's evidence. Though Plaintiff has failed to respond,
the Court still finds that summary judgment is appropriate