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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
frey Kidd (Kidd), a witness called by SDS in defense of the Petitioner's workers' compensation claim. Kidd was employed by Super Fresh as the grocery warehouse manager. Excerpts from the deposition of Walter L. Swift (Swift), who was described in Respondents' motion papers as the maintenance supervisor at SDS, form the third item of evidence. The fourth consists of excerpts from the deposition of Gary Farmer (Farmer), the director of warehousing for SDS. Petitioner's principal evidence is the report of the MOSHA inspectors. The first issues before us are raised by Petitioner's contentions that Kidd's testimony and Williams's statement should not be considered. Petitioner makes no objection to the deposition testimony of Swift or Farmer, or to any part thereof.
A.
Petitioner argues that the circuit court ought not to have considered the statement of Williams because, on summary judgment, the court could only consider evidence that would be admissible at trial and the statement, sworn or unsworn, could not be admissible at trial. Respondents advance four reasons, none of them availing, why the statement was properly considered. First, Respondents say that the matters of fact contained in the statement would be admissible in evidence at trial and, thus, may be considered on summary judgment. But the facts contained in the statement would not be admissible at trial if presented in the form of the statement; ordinarily Williams would have to testify in person or, under certain circumstances, by deposition, for his evidence to be admitted at trial. At the summary judgment stage the court, under the circumstances here, could not consider the statement absent an affidavit from Williams in which he asserted, inter alia, his personal knowledge of the facts contained in the statement or in which he otherwise demonstrated the admissibility through him at trial of testimony as to those facts.
Use on summary judgment of an unsworn statement of a party opponent was attempted in Diffendal v. Kash & Karry Service Corp., 74 Md. App. 170, 536 A.2d 1175 (1988). In that case the court rejected an unsworn statement of the plaintiff who, while looking at items displayed in a supermarket, had fallen over an "L-bed" cart that had been left in the aisle. Asserting that the plaintiff had been contributorily negligent, the defendant moved for summary judgment and supported the motion with a paper, purporting to be a verbatim transcript of a recorded conversation between the plaintiff and, apparently, an adjuster for the defendant's insurer. In that "transcript" the plaintiff admitted that, before she fell, she had seen the L-bed cart near her in the supermarket aisle. The store argued that this statement constituted an admission that the trial court properly had considered in granting the store's motion. Rejecting this argument, the Court of Special Appeals concluded:
"Mrs. Diffendal's comment that she had seen the L-cart prior to her fall was not in response to a formal admission of fact under Rule 2-424. ... The transcript does not represent on its face that the conversation was under oath, and appellee has not made that claim. Additionally, no affidavit has been made ... part of the record, claiming, under oath, that engaged in a conversation ... or that the recorded statement is an accurate transcription of such a conversation." Id. at 181, 536 A.2d at 1181.
The court then quoted P.V. Niemeyer & L.M. Richards, Maryland Rules Commentary 252 (1984). In the more recent edition of that work the authors continue to make plain that
" document can be made part of the motion [for summary judgment] only through affidavit, deposition, or answers to interrogatories
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