I’m a sucker for a good summary-judgment opinion, and the Fourth Circuit delivered last week with Sedar v. Reston Town Center Property, LLC. Sedar transparently applies the summary-judgment to a straightforward slip-and-fall fact pattern, offering real guidance to the bench and bar.
First, the facts: Sedar was walking out of a parking garage with two colleagues when she fell down a flight of stairs. She was knocked unconscious and broke her elbow. Sedar does not remember the fall, and neither of her friends saw exactly what happened–though they could describe Sedar’s general path of travel. Though their testimony differed, both colleagues placed her over loose bricks at the top of the stairs. Other friends soon arrived and took photographs and video. When Sedar came to, she noticed a scuff mark on the top of her shoe. She later hired a structural engineer. He determined that evidence showed unstable bricks and caulk, which constituted a hazard and violated the building and maintenance codes. The engineer concluded that this most likely caused Sedar to fall.
Sedar sued. After discovery, the defendants moved for summary judgment. They also asked the district court to exclude Sedar’s expert.
The district court granted summary judgment, holding that Sedar had produced no evidence that the defendants had actual or constructive notice of the defect. It also noted that Virginia law does not impose liability to fix sidewalk irregularities that are less than an inch or two in size. Finally, the district court concluded that even if Sedar had presented enough evidence of negligence, she’d produced no evidence that the defects caused her fall.
As it turned out, the district court was wrong on each point.
Sedar appealed and the Fourth Circuit reversed. It first noted that because the district court never ruled on the defendants’ motion to exclude Sedar’s expert, it would treat his testimony and report as part of the record. As we’ll see, this would have a major impact on its analysis. (Joe Tip: Get the court to rule on your motions.)
The Fourth Circuit then oh-so-very-carefully explained the summary judgment standard. All stuff we’ve heard before, right–more than a scintilla? Almost boilerplate by now?
But the court dropped a footnote about the need to “engage” standards, not merely recite them:
Standards are easy to recite, but harder to apply. Part of that difficulty, at least for summary judgment standards, lies with confusing terminology like “a scintilla of
evidence.” After all, what in the world is a “scintilla?” Given federal courts, as noted above, require more than a scintilla of evidence to avoid summary judgment, understanding what a scintilla is seems necessary to understand if a party has exceeded it. But dating back to the nineteenth century, courts have struggled with the “distinction between what is a scintilla” and what is not. Boing v. Raleigh & G.R. Co., 87 N.C. 360 (N.C. 1882) (remarking that the distinction “is so narrow that it is often very difficult for a court to decide upon which side of the line” evidence falls). Recognizing this difficulty, current South Carolina Supreme Court Justice John C. Few once remarked, in jest, that “scintilla is Latin for ‘whatever a judge wants it to mean.’” In fact, the word does have Latin origins—“Scintilla was the name of a reveler in the debauches described by Petronius in The Satyricon.” William Powers, Jr., Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L. Rev. 515, 521 n.15 (1991). Nonetheless, a review of caselaw suggests Justice Few may have a point. Compare Kurtz v. Fels, 389 P.2d 659, 663 (Wash. 1964) (holding that proof beyond a mere scintilla requires “facts to be assessed by the senses” and something “tactile” rather than calculations), with Gibson v. Epting, 827 S.E.2d 178, 181 (S.C. Ct. App. 2019) (describing scintilla as “a perceptible amount” and “not something conjured up by the shadows”), and Davies v. McDowell Nat. Bank, 180 A.2d 21, 30 (Pa. 1962) (dissent) (“‘Scintilla’ means spark.”). To overcome the vagaries inherent in the term “scintilla,” courts should not only recite our well-settled standards in considering Rule 56 motions, but also actively engage with the requirements to provide “specific, material facts” about “genuine issues” and to avoid “conclusory allegations and denials” in analyzing the arguments of the parties.*
That’s exactly right. And it’s exactly what the Sedar court did.
Sedar first pointed out that the evidence raised a question of fact about the existence of a dangerous condition. She offered photographs from the day of her fall showing uneven bricks and sagging caulk. She also offered video that showed the bricks moving when stepped on. On top of that, she had the testimony of her colleagues, both of whom noticed the loose bricks. Finally, she offered her expert’s report and testimony. The defendants countered that the loose bricks and sagging caulk were not dangerous enough to constitute a hazard, relying on a line of cases about sidewalk irregularities. The Fourth Circuit distinguished those cases. It noted that while the defendants could argue their point to a jury, Sedar had produced enough evidence to survive summary judgment.
Next, Sedar protested that the record contained enough evidence of notice. She first tried to show actual notice, using the testimony of a defendant employee, but the court concluded that she was taking his comments out of context. That said, her photographs and expert testimony would let a reasonable jury conclude that the loose bricks and sagging caulk had existed long enough to establish constructive notice.
Finally, Sedar tackled causation. After all, it was her burden to show “why and how the incident happened.” The defendants correctly observed that Sedar had no direct evidence of causation. True, but she could prove causation through circumstantial evidence. And her circumstantial evidence of causation included (1) her friends’ testimony about her path of travel over the loose bricks, (2) her colleague’s testimony that she immediately noticed the condition, (3) the photographs, (4) the scuff mark on Sedar’s shoe, (5) that Sedar fell headfirst, which was more consistent with tripping than missing a step, and (6) the expert’s causation opinion.
The court noted that the defendants “vigorously dispute[d]” this evidence:
The record contains evidence that support [the defendants’] arguments. And a jury could find them persuasive and reject Sedar’s evidence. Or it could do the opposite. We make no comment on which parties’ evidence is more persuasive. We only ask whether Sedar has provided “evidence beyond speculation that provides a sufficient basis for a reasonable inference of causation.” Penley v. McDowell Cty. Bd. of Educ., 876 F.3d 646, 655 (4th Cir. 2017). We conclude that she has. Under Rule 56, when “causal facts are in dispute, . . . summary judgment is not appropriate.” Id. at 654–55.
This is great stuff. It’s how summary judgment is supposed to work.
*The Satyricon also gave us Trimalchio, named in Fitzgerald’s worst draft titles for The Great Gatsby–Trimalchio in West Egg. So we’re kind of continuing a theme here. And bonus points to the clerk for finding a case called “Boing.”