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French v. Hawaii Pizza Hut9/30/2004
limited must be resolved on a case-by-case basis. Leicht, 77 F. Supp. 2d at 1148. Thus, a determination of whether the lifting restriction in this case is substantial requires an individualized inquiry that is inappropriate for summary judgment.
V.
Pizza Hut further argues that even under an individualized case analysis, Appellant did not meet her burden of establishing that she was disabled in the major life activity of lifting, because she failed to provide the court with admissible evidence that the average person could lift more than twenty-five pounds. This argument, however, does not account for the burdens allocated in summary judgment proceedings. In GECC Fin. Corp. v. Jaffarian, 80 Hawaii 118, 118, 905 P.2d 624, 624 (1995), this court affirmed the following part of the opinion of the Intermediate Court of Appeals (ICA) vacating the circuit court's order granting summary judgment:
The burden is on the party moving for summary judgment (moving party) to show the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a matter of law. This burden has two components.
First, the moving party has the burden of producing support for its claim that: (1) no genuine issue of material fact exists with respect to the essential elements of the claim or defense which the motion seeks to establish or which the motion questions; and (2) based on the undisputed facts, it is entitled to summary judgment as a matter of law. Only when the moving party satisfies its initial burden of production does the burden shift to the non-moving party to respond to the motion for summary judgment and demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of persuasion. This burden always remains with the moving party and requires the moving party to convince the court that no genuine issue of material fact exists and that the moving part is entitled to summary judgment as a matter of law. GECC Fin. Corp. v. Jaffarian, 79 Hawaii 516, 521, 904 P.2d 530, 535 (App. 1995) (emphasis added) (citations omitted). As the moving party, Pizza Hut had the burden to demonstrate the absence of any genuine issue of material fact. Thus, it was Pizza Hut's burden, as the moving party, to produce admissible evidence that the average person in the general population cannot lift more than twenty-five pounds. This it failed to do.
In addition, a genuine issue of material fact existed as to whether Appellant's impairment was chronic and long term, as Appellant argued, or temporary, as Pizza Hut asserted. Appellant's physician documented her inability to lift more than twenty-five pounds through February 1996. According to Appellant, her pain continued through the year 2000 whenever she attempted to lift items that weighed more than twenty pounds. The court must construe the evidence in the light most favorable to the non-moving party. Wong-Leong v. Haw'n Indep. Refinery, Inc., 76 Hawaii 433, 439, 879 P.2d 538, 544 (1994). Thus, for the purposes of summary judgment, the court was obligated to accept Appellant's representations regarding her lifting limitations.
Because the court determined that Appellant's condition did not constitute a substantial limitation of a major life activity, it did not reach points (3) and (4) concerning whether Pizza Hut regarded Appellant as having a disability and whether Appellant's transfer to the Stadium Mall Pizza Hut was a reasonable accommodation. In light of our disposition, these points on the disability issue are remanded for further procee
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