United States District Court, D. Oregon, Medford Division
MARK D. CLARKE, Magistrate Judge.
Plaintiff Eric Conrad ("Plaintiff') brings this negligence action against Jackson County (the "County") and the Jackson County Master Gardener Association (the "Association") (collectively, the "Defendants") for injuries he sustained after falling at an event hosted by the Association on County property. The parties executed written consent to entry of judgment by a United States Magistrate Judge (#13).
Currently before the Court is the Association's motion for summary judgment (#46) as to Plaintiff's claims against both Defendants. For the reasons stated below, the Association's motion (#46) is GRANTED.
On September 30, 2014, Plaintiff's counsel filed a memorandum (#51) in opposition to Defendants' motion for summary judgment along with a declaration (#52) of Plaintiff. The declaration was unsigned. Plaintiffs counsel stated (#50) he would update the record with a signed version by October 3. On October 3, Plaintiffs counsel filed a single page (#54) with the Court. his entirely illegible. The Court contacted Plaintiff's counsel by e-mail and phone to request a full, signed, and legible copy of the declaration. Plaintiffs counsel responded that he would request a legible copy from his client. The Court has not yet received one.
FED. R. Ctv. P. 56(c)(4) requires a declaration submitted in opposition to a motion for summary judgment to be made on personal knowledge, set forth facts that would be admissible in evidence, and show the declarant is competent to testify on the matters addressed therein. Additionally, 28 U.S.C. § 1746 requires a declarant to swear, under penalty of perjury, that the declaration's contents are "true and correct." A declaration is considered properly sworn when it is signed and dated. Id . Plaintiffs declaration is defective and invalid under these requirements. Without any legible signature, date, or certification, the declaration lacks the necessary indicia of truthfulness. Accordingly, its contents are inadmissible and cannot be considered in opposition to Defendants' motion for summary judgment. See FED. R. Civ. P. 56(c)(4); Orr v. Bank of America. NT & SA. 285 F.3d 764 , 773 (9th Cir. 2002) (evidence presented in opposition to a motion for summary judgment must be admissible); Elder-Keep v. Askamit , 460 F.3d 979, 984 (8th Cir. 2006) (trial court was authorized to exclude unsigned affidavits from its consideration of a summary judgment motion).
Moreover, even if the declaration was admissible, the sham affidavit rule prevents the Court from considering multiple assertions contained therein. Plaintiff's declaration conflicts with excerpts of his deposition proffered by Defendants. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Tech. , 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co. , 952 F.2d 262, 266 (9th Cir. 1991)). This so-called sham affidavit rule upholds the integrity of FED. R. Civ. P. 56 and prevents a party from evading summary judgment through false factual disputes. Kennedy , 952 F.2d at 266 (internal quotation marks omitted); see also Van Asdale , 577 F.3d at 998 (stating that some form of the sham affidavit rule is necessary to maintain the principle that summary judgment is an integral part of the federal rules). The Ninth Circuit has warned the rule should be applied with caution "because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment." Yeager v. Bowlin , 693 F.3d 1076, 1080 (9th Cir. 2012), cert. denied, 133 S.Ct. 2026 (2013), reh'g denied, 134 S.Ct. 33 (2013). Thus, in order to invoke the rule and strike an inconsistent affidavit, a trial court must make the factual determination that that the contradiction is, indeed, a sham. Id . Any inconsistency in the party's testimony must be clear and unambiguous. Id.
Statements in Plaintiffs declaration flatly contradict his earlier testimony. Specifically, in his declaration, Plaintiff states an unnamed Association member "told [Plaintiff] that [he] had tripped over a length of pipe that was embedded in the ground a few feet from where [Plaintiff] was then sitting." Conrad Decl. ¶ 2. lie further describes two men "lifting that pipe out of the ground, " removing it from the walkway, and telling Plaintiff he had tripped on it. Conrad Decl. ¶ 2. In his prior deposition, Plaintiff testified he was not sure where precisely the pipe was located or how it was situated when the bystanders picked it up. Mahady Decl. Ex. 1, at 17 (Conrad Dep. 132:19-25). No one told him the pipe was buried; rather, he assumed it was because there was dirt on one end. Mahady Decl. Ex. 1, at 18 (Conrad Dep. 133:16-23). Plaintiff further testified that no member of the Association talked to him about how or why he fell. Mahady Decl. Ex. 1, at 24 (Conrad Dep. 148:16-21).
Both sets of statements cannot simultaneously be true. Bystanders either told Plaintiff the pipe was buried in the path or they did not. Plaintiff either knows where the pipe was located before bystanders picked it up or he does not. Plaintiff's declaration serves to contradict - not explain or clarify - his prior testimony. There is nothing to indicate that his declaration is based on some newly discovered evidence. Rather, like the deposition, the declaration recounts Plaintiff's existing memory of the incident. The Court could not consider these sham issues of fact even if the declaration was otherwise admissible.
Given the inadmissibility of Plaintiff's declaration, the following facts are not in dispute.
In May 2011, Plaintiff was a vendor at the Jackson County Master Gardeners' Show. Compl. ¶ 12. The Association organized and managed the event, which was held at the County's fairgrounds. Compl. ¶ 1; Mahady Decl. Ex. 1, at 8 (Conrad Dep. 43:18-20). At dusk on May 7th, the first day of the show, Plaintiff exited a fairground building arid walked up a cement ramp toward his car. Mahady Decl. Ex. 1, at 7, 13 (Conrad Dep. 42:13-21, 127:9-10). The next thing he knew, he was laying on the ground. Mahady Decl. Ex. 1, at 7 (Conrad Dep. 42:19-21). Plaintiff does not remember how, why, or where exactly he fell - whether he was still on the uphill ramp or whether he had begun to walk on the flat dirt path at the top of the ramp. Mahady Decl. Ex. 1, at 7-9, 14-15 (Conrad Dep. 42:22-43:6, 50:18-20, 128:16-129:2). He does not remember if he was watching where he was walking. Mahady Decl. Ex. 1, at 15 (Conrad Dep. 129:3-5). He does not remember whether the relatively hard wind or the waning sunlight made it difficult to walk. Mahady Decl. Ex. 1, at 16 (Conrad Dep. 130:4-13). No witnesses to Plaintiffs fall have come forward with any details. Mahady Decl. Ex. 1, at 21-22 (Conrad Dep. 140:12-141:8).
Bystanders came to Plaintiffs assistance and pointed out a pipe on the ground somewhere in the vicinity. Mahady Decl. Ex. 1, at 17 (Conrad Dep. 132:8-18). The pipe was about six to eight feet long and had dirt on the bottom. Mahady Decl. Ex. 1, at 18 (Conrad Dep. 133:9-25). The first time Plaintiff saw the pipe, bystanders were holding it. Mahady Decl. Ex. 1, at 18 (Conrad Dep. 133:5-13). Plaintiff is unsure where precisely the pipe was located or how it was situated when the bystanders picked it up. Mahady Decl. Ex. 1, at 17 (Conrad Dep. 132:19-25). He does not know how long it had been there, who it belonged to, or who put it there. Mahady Decl Ex. 1, at 19-20 (Conrad Dep. 137:24-138:15).
A County groundskeeper arrived at the scene and saw the pipe. Mahady Decl. Ex. 2, at 3 (Smith Decl. ¶¶ 6, 9). The groundskeeper had previously walked the path at least two times that day and had not noticed the pipe or any tripping hazards. Mahady Decl Ex. 2, at 2-3 (Smith Decl. ¶¶ 4-6). An Association volunteer had walked through the scene of the accident that morning and on the two preceding days and had not noticed any hazards. Mahady Decl. Ex. 3, at 1 (Riding Decl. ¶ 3). No one had alerted the County or the Association to any hazards or pipes in the areawhere Plaintiff fell. Mahady Decl. Ex. 2, at 3 (Smith Decl. ¶ 10); Mahady Decl. Ex. 3, at 3 (Riding Decl. ¶ 4). Plaintiff had walked along the same path that morning to get from his parked car ...