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Sanders v. Leavitt8/31/2001
s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
In support of its motion for summary judgment, DCFS presented specific facts that Breanna's death arose from assault or battery. Specifically, DCFS presented testimony from Dr. Robert Kirschner that Breanna suffered physical injuries that caused the pneumonia from which she ultimately died. The trial court concluded, as a matter of law, that plaintiff did not offer sufficient evidence to place at issue the evidence offered by DCFS that Breanna's death arose out of physical abuse.
DCFS's witness, Dr. Kirschner reviewed Breanna's autopsy records, medical records, and various documents relating to the investigation of her death. Dr. Kirschner concluded that Breanna was physically abused, that she suffered multiple blunt trauma injuries inflicted over a period of time, and that Breanna's physical injuries in fact caused the pneumonia from which she ultimately died. In an attempt to counter Dr. Kirschner's conclusion in its opposition to DCFS's motion for summary judgment, plaintiff offered testimony from Dr. Leis and an affidavit from Dr. Nygaard. Dr. Leis performed the autopsy on Breanna and, having also considered her medical records, concluded that Breanna died from pneumonia. However, Dr. Leis further testified that it was his opinion that physical trauma contributed to the pneumonia and death.
Indeed, he stated that while it was possible that Breanna could have died of pneumonia absent physical abuse, he did not believe that was the case. Dr. Nygaard addressed the injuries present when Breanna died and described in Breanna's autopsy report, but he did not address prior abuse, the abuse that purportedly contributed to the pneumonia or myocarditis. Dr. Nygaard's affidavit concludes that "it is medical opinion that it is more likely than not that Breanna would have died of pneumonia or myocarditis even if she did not have the blunt force trauma injuries that were described in Breanna's autopsy report."
He states that Breanna's death was caused by pneumonia, not the physical injuries described in the autopsy report. He reasons that pneumonia is caused by a viral or bacterial infection, and not by blunt force trauma, and therefore the pneumonia was not caused by the specific blunt force and skeletal injuries noted in the autopsy report. However, while he states that Breanna likely would have died of pneumonia even if she was not abused, he does not address whether abuse did or did not contribute to the pneumonia. He never discusses whether the pneumonia could have been caused or aggravated by physical abuse.
Plaintiff argues that the jury could have found that Breanna's death was simply the result of pneumonia or myocarditis and did not arise out of an assault or battery and therefore summary judgment was improper. However, plaintiff failed to proffer evidence to contest the evidence offered by DCFS that Breanna's contraction of pneumonia, the cause of her death, was the result of physical abuse. As a result, summary judgment in favor of DCFS was proper.
C. Damages for Frivolous Appeal
Finally, the attorney defendants contend that plaintiff's appeal of the district court's decision to dismiss them from the lawsuit has no support in the law or basis in the facts alleged and is therefore frivolous. We agree.
Rule 33 of the Utah Rules of Appellate Procedure reads, in relevant part:
(a) Damages for delay or frivolous appeal. Except in a first appeal of right in a cr
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