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Sarti v. Unico Properties2/18/2003
s it should, else the light ray device would not have been installed. Therefore, the presence of a light ray device verifies that the detector could not be (or was not) maintained to function as intended.'
Keller also stated that the absence of a functional light ray device 'set the stage' for the accident because the electronic detectors were not functioning properly.
DISCUSSION
A trial court can grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994). All facts submitted and inferences from those facts must be viewed in the light most favorable to the nonmoving party.
Weyerhaeuser, 123 Wn.2d at 897. When a defendant moves for summary judgment and shows an absence of an issue of material fact, the plaintiff, who bears the burden of proof at trial, must show that there is sufficient evidence to sustain the essential elements of her case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). On review, this court engages in the same inquiry as the trial court. Adams v. W. Host, Inc., 55 Wn. App. 601, 605, 779 P.2d 281 (1989).
'To rebut a properly supported summary judgment motion, the nonmoving party must set forth specific facts showing a genuine issue for trial.' Adams, 55 Wn. App. at 607. In Adams, this court affirmed summary judgment when the defendant elevator maintenance company showed that the accident in question could occur without negligence and the injured plaintiff presented only 'a theoretical likelihood as to the most likely cause' of the accident, without any specific facts showing that the defendant was negligent. Adams, 55 Wn. App. at 607.
Sarti contends that the trial court should not have granted summary judgment because the testimony of her expert witness on elevator maintenance, Vernon P. Keller, created an issue of material fact as to whether the elevator that injured Sarti was defectively operated and maintained. According to Otis, however, Keller's testimony is inadmissible because it lacks foundation and is speculative and conclusory.
Sarti relies on Brown v. Crescent Stores, Inc., 54 Wn. App. 861, 863-64, 776 P.2d 705 (1989), where the plaintiff was injured when she was struck by a closing elevator door. In Brown, the court reversed summary judgment entered in favor of the elevator owner after concluding that there may have been a heightened duty to provide a manually operated elevator to elderly women who were business invitees to the property. Brown, 54 Wn. App. at 868. The Brown court sustained summary judgment, however, for the elevator maintenance company because the plaintiff and her expert failed to provide any evidence of negligent conduct on the part of the elevator maintenance company.
Sarti claims that her case is distinguishable from Brown because one of the door retractor devices was deliberately turned off and this fact strongly suggests negligence. But there is no evidence here that the light ray detector was necessary for the proper operation of the elevator doors.
Hays opined that the light ray device is not necessary to meet code, and Keller stated that 'whether or not the light ray device is working is of no consequence.' The only significance Keller attributes to the light ray device is that it was installed to cover up a defective electronic proximity detector. Keller fails to provide any facts specific to this elevator or this case to prove this theory, however. In other words, Keller's theory lacks foundation.
Instead of relying upon specific facts reg
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