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Savoy v. Tse3/3/2000
Tom Savoy appeals from a summary judgment dismissal of his claims for personal injury against Dr. Dany Tse, a dentist. We affirm.
FACTS
On March 22, 1994, Dr. Tse surgically treated Savoy for periodontal disease. Savoy returned on March 24, 1994, for a post-operative exam and received a prescription from Dr. Tse for Peridex mouth rinse to prevent post-operative infection. Savoy indicated to Dr. Tse that he did not have time to fill a prescription because he had out-of-town business. Dr. Tse gave Savoy an opened half-full brown, opaque plastic bottle of Peridex to take with him.
On April 4, 1994, Savoy called Dr. Tse's office and stated that he had used the Peridex the day before and felt something plastic in his mouth. He spit the Peridex and the object out--later identified as an irrigator tip--and threw up. Savoy indicated that the object did not cut or puncture him. During a dental examination on April 5, 1994, Dr. Tse confirmed that there was not any 'puncture, laceration, cut or trauma from the irrigator tip.' Clerk's Papers at 13, 31. A medical examination on April 29, 1994, indicated that Savoy did not suffer 'any ill effects since this has occurred.' Clerk's Papers at 49. 'He denies any recent illnesses of nausea, vomiting, diarrhea.' Clerk's Papers at 49. Savoy tested negative for HIV and hepatitis.
On September 20, 1994, Savoy filed a lawsuit against Dr. Tse. Savoy claims that upon discovering the object in his mouth and thereafter, he has suffered 'extreme emotional distress, pain, suffering, loss of enjoyment of life, and incurred medical expenses.' Clerk's Papers at 5. During deposition and in his pleadings, Savoy alleged he suffered from headaches, high blood pressure, stomach aches, anxiety, nervousness and fear of exposure to HIV.
On October 20, 1998, Dr. Tse moved for summary judgment, arguing that Savoy failed 'to state a cause of action and there is no genuine issue of material fact.' Clerk's Papers at 11, 14. Dr. Tse argued that Savoy failed to produce any evidence that his emotional injuries are reasonable or corroborated by medical evidence and that a casual connection exists between the alleged breach and his claimed injuries. The trial court granted summary judgment because Savoy failed to provide objective evidence of his injuries and emotional distress. Savoy appeals.
ANALYSIS
Standard of Review
In reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c); Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997).
In order to defeat a motion for summary judgment, the nonmoving party may not 'rest upon the mere allegations or denials' in its pleadings but must demonstrate the existence of facts supporting a jury finding in its favor. CR 56(e). Summary judgment should therefore be entered against a party that fails to produce evidence concerning an element on which it will bear the burden at trial. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). The court must make all inferences and resolve all ambiguities in favor of the nonmoving party. Degel, 129 Wn.2d at 48. The motion should
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