Alabama Appellate Watch

The Alabama Supreme Court reviews motion for summary judgment de novo; however, when the Court considers whether evidence offered in support of or in opposition to a summary judgment motion will be admissible at trial so that the court may consider it at the summary judgment stage, the Alabama Supreme Court applies the abuse of discretion standard to these evidentiary rulings. Van Voorst v. Federal Express Corp., No. 105077 (Ala. October 3, 2008).

Federal Express moved for summary judgment on the plaintiff’s negligence claim.  The plaintiff alleged that the driver of the car in which she was riding could not see oncoming traffic at an intersection because a parked Federal Express delivery truck jutted into the street, blocking the driver’s view.  During discovery, the plaintiff initially testified that the truck was not parked in the street.  After a break during her deposition, the plaintiff re-visited the issue and testified that part of the truck was in the street.  In opposition to Federal Express’s summary judgment, the plaintiff offered an affidavit in which she stated that she was certain that the left front wheel of the truck was in the street. 

The trial court granted Federal Express’s motion to strike the affidavit because statements in the affidavit conflicted with the plaintiff’s deposition testimony.  The Alabama Supreme Court applied the abuse of discretion standard to its review of the trial court’s decision to exclude the affidavit and affirmed the trial court’s decision.  The Court explained that a party may not create an issue of fact at the summary judgment stage by offering an affidavit that contradicts prior clear sworn testimony.  The Court noted that the affidavit was inadmissible not only because it contradicted previous deposition testimony but also because it contained legal conclusions.  Under Rule 56(e), to be admissible, an affidavit must present evidence that will be admissible at trial; legal conclusions, hearsay, unauthenticated documents and other inadmissible evidence is improper.