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Sarti v. Unico Properties2/18/2003
arding Otis's negligence, Keller's affidavit sets forth broad conclusions and speculation that do not meet the requirements of CR 56(e). CR 56)(e) provides: 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would admissible in evidence{.}' We agree with Otis and Unico that the plaintiff's expert failed to raise a genuine factual issue as to whether the elevator maintenance company was negligent and could be liable for Sarti's injuries.
'The opinion of an expert must be based on facts. An opinion of an expert which is simply a conclusion or is based on an assumption is not evidence which will take a case to the jury.' Theonnes v. Hazen, 37 Wn. App. 644, 648, 681 P.2d 1284 (1984).
The parties do not argue that Otis could be liable under a res ipsa loquitur theory. Instead, Sarti contends that installation of the light ray device is affirmative evidence that the electronic detector was not functioning properly. Sarti's expert fails to identify the source of this conclusion, however, and fails to provide any specific facts or personal knowledge supporting his theory that Otis remedied the malfunctioning electronic detector by installing the light ray device. Furthermore, he does not discuss whether the environmental conditions that cause proximity detectors to malfunction existed here, nor does he provide any evidence that Otis desensitized the proximity detectors in response to those conditions. Keller finds no fault with the mechanic's methods of bi-weekly maintenance and trouble-shooting the elevator after the accident.
In addition, Keller states that Otis is liable for Sarti's injuries because it breached the service agreement but this opinion is simply not connected to any specific facts in this case regarding the door's alleged malfunction. Keller did not examine the elevator in question, and he does not explain why the elevator reportedly functioned properly after Sarti's accident. Keller's only evidence of malfunction is the fact of injury and the assumption that the light ray device was installed to cure a malfunctioning door. But under Brown, these assumptions are too speculative to support an inference that Otis was negligent.
Sarti's negligence claim also relies heavily upon her description of the accident during which the elevators 'closed violently' and there was 'substantial physical contact.' Without some evidence of negligence, however, the mere fact that an accident and resulting injuries occurred does not give rise to liability. Brown, 54 Wn. App. 863-64. In Brown, the court cited the following passage from Keller v. Seattle, 200 Wash. 573, 94 P.2d 184 (1939), in support of its holding that on summary judgment, a plaintiff bears the burden of showing specific physical facts to show an occurrence of unusual or extraordinary character to warrant a trial.
'{S}tatements that a street car 'started violently,' 'started with a violent jerk,' 'started with a sudden, unusual, extraordinary jerk', 'stopped with a jerk,' 'came to a hard stop,' 'started up all of a sudden, with an awful jerk, and stopped all of a sudden,' and the like, are not of themselves sufficient to show negligent operation of the car, but that there must be evidence inherently establishing that the occurrence was of an unusual and extraordinary character, or evidence of its effect on other passengers sufficient to show this.' Brown, 54 Wn. App. at 864 (quoting Wilcoxen v. Seattle, 32 Wn.2d 734, 738, 203 P.2d 658 (1949)). Thus, standing alone, Sarti's description of the accident cannot sustain a negligence claim.
Keller also asserts that the electronic detectors are designed to retract the doors without impacting pa
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