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Judy Seal v. Carlsbad Independent School District9/7/1993
hose who enter as invitees. Prosser, supra, § 71, at 510-11. Seal submitted the deposition testimony of an expert who stated that she believed that the pool lacked security and the deposition of an expert who stated that the lifelines required by the E.I.B. regulations should have been installed by the school district for the safety of the disabled scouts. Deposition testimony was also submitted evincing that the school district employee on duty had actual knowledge that no Scout staff member was on the deck or in the lifeguard chair at the time Kevin drowned, and that the employee knew that a lifeguard should be on deck. The court apparently did not consider the deposition evidence in support of Seal's response to the motion for summary judgment.
This case is similar to . There, the wife of an independent subcontractor was helping her husband roof a house when she fell through a hole in the roof that her husband had covered with felt. She argued that, by ordinance, the general contractor had a duty either to cover the hole with wood or install railings. The trial court granted summary judgment to the general contractor apparently on the theory of no liability for the independent subcontractor's negligence even though there was a question of actual knowledge of the dangerous condition and one of whether the ordinance imposed a duty upon the general contractor, subjecting it to direct liability. For the reasons we reversed the summary judgment and remanded Srader for trial on the merits, we do so here.
Admission of deposition testimony. The trial court erred in refusing to admit deposition evidence from a separate case in response to the motion for summary judgment. The form of summary judgment evidence itself does not have to meet the requirements of admissibility for trial evidence, but the substance of the evidence must be of a type that can be admitted at trial. The requirement is that the opposing party must put forth specific facts admissible into evidence to establish a disputed material fact. See . For example, hearsay is not generally admissible at trial, so affidavits or depositions containing hearsay are not sufficient evidence of a fact. See (court eliminated hearsay statements from the affidavit). However, a deposition that may not be admissible at trial for one reason or another is still a sworn statement that may contain sufficient specific facts admissible into evidence to raise a genuine issue of material fact if it is based on personal knowledge (or, if an opinion, is based on a proper foundation, see ) (affidavit opinion did not explain how opinion was arrived at and was therefore not competent), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977)).
Conclusion. Because we hold that the operation of a swimming pool is not an
inherently dangerous activity, we reverse the summary judgment based on that rationale. Further, we believe that when the trial court said that the Boy Scouts were either an independent contractor or an agent of the school district, the court may have been diverted from considering any genuine issue of material fact of primary negligence.
While we do not preclude the trial court from again granting summary judgment if raised by appropriate motion on remand, we cannot assume, on this record, that the court properly has considered issues of primary negligence.
The grant of summary judgment is reversed except for that portion of the judgment in favor of the school district employees in their individual capacities, and the cause is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
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