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French v. Hawaii Pizza Hut9/30/2004
dings.
VI.
The dissent asserts that because "Appellant's lifting restriction is not substantially limiting on its face, she retains the burden of producing comparative evidence that her impairment renders her either unable to perform, or else significantly restricts the condition, manner, or duration of her ability to perform, a major life activity in comparison to the 'average person in the general population.'" Dissent at 6. Although we agree that Appellant may have such a burden at trial, Appellant does not bear such a burden on the summary judgment motion brought by Pizza Hut. See supra pages 16-17. On the contrary, the burden is on Pizza Hut to "show the absence of any genuine issues as to all material facts[,]" GECC Fin. Corp., 79 Hawaii at 521, 904 P.2d at 535 (emphases added), including showing the "absence of any genuine issues" of "material facts" surrounding whether Appellant's twenty-five-pound lifting limitation constitutes a substantial limitation of a "major life activity" as compared to the average person, id.; see also HRS § 378-1; HAR § 12-46-182. Inasmuch as the parties disagree as to whether Appellant's lifting limitation constitutes a "substantial limitation" of a "major life activity," Pizza Hut has failed to establish the "absence of any genuine issues as to all material facts." GECC Fin. Corp., 79 Hawaii at 521, 904 P.2d at 535.
Moreover, Celotex Corp. v. Catrett, 477 U.S. 317 (1986), upon which the dissent relies, is distinguishable from the present case. The movant in Celotex specifically argued that summary judgment was proper because the claimant had "failed to produce evidence" that the movant's product "was the proximate cause of the injuries" and specifically noted that the claimant failed to identify, in responding to interrogatories, any witnesses who could testify in this regard. Id. at 320. The movant in Celotex maintained "that the plaintiff had failed to identify, in answering interrogatories specifically requesting such information, any witnesses whose testimony could establish an essential element of her claim." Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1369 (S.D. Ga. 1993) (citing Celotex, 477 U.S. at 320) (emphasis in original).
In this light, the dissent blurs the distinction between the burden of proof at trial and the burdens of production at summary judgment in the present case. See id. at 1368. The defendant in Anderson, in support of a motion for summary judgment, set forth the elements of the claim at issue, and stated generally that the plaintiff failed to produce evidence to support those elements. Id. Similar to the dissent's position in the present case, the defendant in Anderson relied on Celotex, and asserted that it had met its burden by pointing out an absence of evidence on the record to support at least one essential element of the plaintiffs' claim. Id.
However, the Anderson court explained that, " lthough Celotex stands for the proposition that under certain circumstances a summary judgment movant may carry its burden without presenting evidence negating an element of the other party's claim, merely asserting that the non-moving party has not come forward with evidence to support its claims is not enough." Id. (emphasis in original and emphasis added). As the court pointed out, "To repeat: the movant must first demonstrate that the non-moving party cannot carry its burden of proof at trial." Id. (emphasis in original and emphasis added) (citation omitted). "The distinction between not placing proof in the record and not being able to offer proof at trial is crucial." Id. As emphasized by Justice White in Celotex,
plaintiff need not initiate any discovery or reveal his wi
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