ATTORNEY FOR APPELLANT
Donald M. Snemis
ATTORNEYS FOR APPELLEE
William L. OConnor
Eric D. Johnson
SUPREME COURT OF INDIANA
LENHARDT TOOL & DIE )
COMPANY, INC., )
Appellant (Defendant Below ), )
v. ) Indiana Court of Appeals
) Cause No. 49A05-9706-CV-216
DUANE LUMPE, )
Appellee (Plaintiff Below ). )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cynthia J. Ayers, Judge
Cause No. 49D04-9408-CT-1187
DISSENT FROM DENIAL OF PETITION TO TRANSFER
January 31, 2000
BOEHM, Justice, dissenting from the denial of transfer.
I believe we should grant transfer to clarify the standard for summary judgment
in Indiana under Trial Rule 56.
On August 22, 1992, an explosion occurred at the Olin Brass factory in
Indianapolis injuring Duane Lumpe, who worked for Olin as a Amelter.@ Olin
manufactures brass bars using molds made by Lenhardt, among other firms. Lumpe
sued Lenhardt and Lenhardt filed a motion for summary judgment, contending that, after
adequate discovery, it was uncontroverted that Lumpe could prove neither that Lenhardt manufactured
the mold in question nor that the mold was defective. The trial
court first granted Lenhardt=s motion, then reversed itself and denied summary judgment in
an order that was certified for interlocutory appeal. The Court of Appeals
affirmed the trial court, holding that summary judgment was improper because Lenhardt had
not established that the mold was not from Lenhardt.
I believe this holding reflects a widespread misunderstanding of how the summary judgment
standard is to work under Trial Rule 56. Specifically, I believe that
this Courts ruling in
Jarboe v. Landmark Community Newspapers, Inc., 644 N.E.2d 118
(Ind. 1994), has been understood by some, including the Court of Appeals in
this case, to require Lenhardt to establish a negative proposition, i.e., that the
mold did not come from Lenhardt. In my view, this is an
incorrect reading of Trial Rule 56, and of Jarboe, and leads to unnecessary
expense to litigants and unwarranted demands on judicial resources. Rather than require
that Lenhardt prove that the mold came from someone else, I believe it
was sufficient for summary judgment that Lenhardt establish (i.e., show that there is
no genuine issue of material fact bearing on the issue) that Lumpe could
not carry his burden of proof at trial that the mold was from
I. Jarboe and Celotex
In Jarboe, this Court held that Indiana summary judgment law requires the movant
to establish the absence of any genuine issue of fact as to a
determinative issue. Jarboe v. Landmark Community Newspapers, Inc., 644 N.E.2d 118, 123
(Ind. 1994). This requirement was explicitly stated to be different from the
federal standard as enunciated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
See Jarboe, 644 N.E.2d at 123.
Jarboe was this Court=s response to a concern that the Celotex federal summary
judgment standard had been broadly interpreted by some courts as shifting the burden
of production on summary judgment to the party having the burden of proof
at trial. Jarboe rejected that view under Indiana Trial Rule 56.
See id. (AMerely alleging that the [non-movant] has failed to produce evidence
on each element of [the claim or defense] is insufficient to entitle the
[movant] to summary judgment under Indiana law.@). It is now clear that
the better-reasoned opinions under Federal Rule of Civil Procedure 56 also reject this
interpretation. See, e.g., Logan v. Commercial Union Ins. Co., 96 F.3d 971,
978-79 (7th Cir. 1996) (explaining some misapplications of the Celotex standard to shift
the burden in summary judgment proceedings to the non-movant). Indeed, Justice White,
who provided the essential fifth vote for the Celotex majority, was careful to
avoid such a broad reading: A[T]he movant must discharge the burden the Rules
place upon him: It is not enough to move for summary judgment
without supporting the motion in any way or with a conclusory assertion that
the plaintiff has no evidence to prove his case.@ Celotex, 477 U.S.
at 328 (White, J., concurring).
To be sure, many cases under Federal Rule 56 and its state counterparts
Celotex and then leap to a discussion of the non-movant=s failure to
carry a burden it will have at trial without first dealing with the
movant=s initial obligation B sometimes called a burden of production B under
See, e.g., Baulos v. Roadway Express, Inc., 139 F.3d
1147, 1150-51 (7th Cir. 1998); Phillips v. Marist Soc=y, 80 F.3d 274, 275-76
(8th Cir. 1996); Short v. Little Rock Dodge, Inc., 759 S.W.2d 553, 554
(Ark. 1988) (placing burden of proof on non-movant); Garzee v. Barkley, 828 P.2d
334, 337 (Idaho Ct. App. 1992) (summary judgment is proper if the plaintiff
cannot offer proof of a material element of the claim); Tucher v. Brothers
Auto Salvage Yard, Inc., 564 N.E.2d 560, 562 (Ind. Ct. App. 1991) (reciting
the correct standard, but addressing only the non-movant=s burden); Poplaski v. Lamphere, 565
A.2d 1326, 1329 (Vt. 1989). Many of these cases are correctly decided
on their facts, but do not explicitly articulate each step in reaching the
This occurs where, as is often the case, the undisputed
facts establish as a matter of law either the case for the movant
or the case for the non-movant. Not all cases fall into this
either/or category. Where the facts are not in dispute as to an
element of a claim or defense, there may be at least three potential
circumstances: (1) the undisputed facts support the movant=s claim; (2) the undisputed facts
support the non-movants claim; or (3) the undisputed facts establish that we cannot
determine whose version is correct.
The issue presented here, and in
Celotex, is the requirement for summary judgment
to be rendered against the party who has the burden of proof at
trial in the third circumstance. Under a correct reading of Celotex, the
non-moving party is required to point to evidence supporting its claim or defense
only after the moving party has either (1) established the non-movant=s inability to
prevail as a matter of law or (2) offered evidence that supports the
movant=s argument that the non-movant cannot carry its burden of proof at trial.
See 11 James Wm. Moore & Jeffrey W. Stempel, Moore=s Federal Practice
' 56.13 (3d ed. 1999); 10A Charles Alan Wright et al., Federal Practice
and Procedure ' 2727 (3d ed. 1998).
Although under Indiana Trial Rule 56
Jarboe clearly rejected the view that a
party seeking summary judgment could simply point to the opponent=s burden of proof
at trial and prevail unless the non-movant produced evidence supporting its claim or
defense, Jarboe did not disable summary judgment as a tool to resolve matters
as to which there is no genuine issue of material fact. Rather,
as explained below, in my view under Indiana Trial Rule 56, as under
federal practice, it is sufficient for summary judgment to establish on undisputed facts
either that: (1) the non-movant will be unsuccessful as a matter of
law or (2) the non-movant will be unable at trial to establish an
essential fact on which the non-movant carries the burden of proof.
II. Indiana Trial Rule 56
Trial Rule 56(C) provides that a summary judgment movant must show Athat 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.@ This
requires the movant to designate sufficient proof to foreclose the non-movant=s reasonable inferences
and eliminate any genuine factual issues. However, as some decisions have recognized,
summary judgment under Indiana Trial Rule 56 should not require that the movant
prove a negative. See Town of Montezuma v. Downs, 685 N.E.2d 108,
116 n.9 (Ind. Ct. App. 1997) (ATo require the Downs to affirmatively prove
that the pipeline was not inspected would require them to prove a negative,
something which we refuse to do.@). I believe it is sufficient if
the movant either disproves an element of the non-movant=s claim or demonstrates that
the non-moving party cannot carry its burden of proof at trial.
This flows from the basic structure of Indiana Trial Rule 56. In
my view, once the movant has put forward evidence to (1) establish the
elements of its claim or defense, or (2) negate an essential element of
=s claim or defense, or (3) prove that the non-moving party will
be unable to present evidence to prove an essential element of its claim
or defense, the burden shifts to the non-movant to make a showing sufficient
to establish the existence of a genuine issue for trial on each challenged
element. See Mullin v. Municipal City of South Bend, 639 N.E.2d 278,
281 (Ind. 1994); see also Ind. Trial Rule 56(E); Shell Oil Co. v.
Lovold Co., 705 N.E.2d 981, 984 (Ind. 1998). This does not mean
that there is a shift of the burden of persuasion on any element
of a claim or defense or that the non-movant must establish its entire
case to defeat a motion for summary judgment. It does mean, as
Trial Rule 56 provides, that, once the movant meets its burden, the non-movant
must articulate specific facts that show an issue of material fact requiring a
trial. See Clark v. Estate of Slavens, 687 N.E.2d 246, 248 (Ind.
Ct. App. 1997), abrogated on other grounds by Indiana Farmers Mut. Ins. Co.
v. Richie, 707 N.E.2d 992, 995 (Ind. 1999).
This view of Indiana Trial Rule 56 derives from the plain language of
the rule, and is also consistent with the purpose of the rule.
Cf. Hess v. Bob Phillips West Side Ford, Inc., 159 Ind. App. 46,
50, 304 N.E.2d 814, 816 (1973) (using literal and commonsense reading of the
rule to interpret the meaning of Indiana Trial Rule 50).
determined that the revisions to Indiana Trial Rule 56 in 1991 were intended
A[t]o promote the expeditious resolution of lawsuits and conserve judicial resources.@ Rosi
v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). Also, Indiana
Trial Rule 1 requires the rules, including Trial Rule 56, to Abe construed
to secure the just, speedy and inexpensive determination of every action.@ Summary
judgment furthers these goals where it can be established that the non-movant will
be unable to produce evidence to support its claim or defense. This
view of Trial Rule 56 is also fully consistent with the important value
that a party=s right to a fair determination of a genuine issue is
not jeopardized. Rogers v. Gruden, 589 N.E.2d 248, 253 (Ind. Ct. App.
1992). Finally, this interpretation of Indiana Trial Rule 56 not only avoids
unnecessary litigation, but as a byproduct, it also prevents the unnecessary escalation of
the settlement value of a clearly flawed claim or defense based simply on
the prospect of protracted, if ultimately unsuccessful, litigation.
In simple terms, I believe there is no reason to go to trial
or prolong a proceeding if undisputed evidence establishes that an essential claim or
defense is doomed to failure. Therefore, summary judgment is proper if, after
sufficient opportunity for discovery, the movant can establish that the non-movant will not
be able to prove an element of its claim or defense on which
the non-moving party bears the burden of proof. Accordingly, transfer should be
granted to dispel what I believe is a widely-held misconception as to the
summary judgment standard to be used in Indiana courts, irrespective of the effect
of this doctrine on the disposition of this case.
SHEPARD, C.J., concurs.
Stated another way, AThe Celotex Court decided only that where the movant
demonstrates that the nonmovant will be unable to produce any evidence at trial
supporting an essential element of a claim for which the nonmovant bears the
burden of proof, summary judgment is appropriate even though the movant cannot adduce
any affirmative evidence disproving the essential claim.@ Logan, 96 F.3d at 979.
The Seventh Circuit described this as Aan unfortunately common error.@ Logan,
96 F.3d at 978.
For example, in Baulos, two truck drivers had been dismissed for sleep
disorders that caused them to be unable to take Asleeper duty,@ where two
drivers ride together and take turns sleeping and driving. See 139 F.3d
at 1149-50. The plaintiffs claimed that their sleep disorders were disabilities under
the Americans with Disabilities Act and therefore, could not be a lawful basis
for discharge. The Seventh Circuit=s opinion focused on the plaintiffs= inability to
prove that they were disabled as defined by the Act. Although it
is not explicitly mentioned in the opinion, it is clear that the defendant
(the movant for summary judgment) first satisfied its burden of production under Federal
Rule 56 by pointing out that the Aplaintiffs were unable to perform one
particular job for them, driving sleeper trucks, and that this is insufficient to
establish a disability under the ADA.@ Id. at 1151.
The view that summary judgment is appropriate if the movant shows that
the non-movant can never produce evidence to support its claim on a material
issue on which it bears the burden of proof at trial is supported
by the federal courts that have properly construed Celotex as well as courts
in many other states. See Jones v. City of Columbus, 120 F.3d
248, 253-54 (11th Cir. 1997); Logan v. Commercial Union Ins. Co., 96 F.3d
971, 978-79 (7th Cir. 1996); Clark v. Coats & Clark, Inc., 929 F.2d
604, 606-09 (11th Cir. 1991); Muslim v. Frame, 854 F. Supp. 1215, 1222
(E.D. Pa. 1994); Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1367-69
(S.D. Ga. 1993); Campbell v. Southern Roof Deck Applicators, Inc., 406 So. 2d
910, 913 (Ala. 1981); Orme Sch. v. Reeves, 802 P.2d 1000, 1009 (Ariz.
1990); Hydroculture, Inc. v. Coopers & Lybrand, 848 P.2d 856, 862 (Ariz. Ct.
App. 1992); Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo.
1987) (en banc) (movant without burden of proof at trial can meet its
initial burden by demonstrating the absence of evidence in the record to support
non-movant=s case); Waldrep v. Goodwin, 195 S.E.2d 432, 433-34 (Ga. 1973) (movant must
show that one essential element of non-movant=s claim Ais lacking and incapable of
proof@); Sanders v. Kuna Joint Sch. Dist., 876 P.2d 154, 156 (Idaho Ct.
App. 1994); Briggs v. Finley, 631 N.E.2d 959, 963 (Ind. Ct. App. 1994);
Heinsohn v. Motley, 761 P.2d 796, 797-98 (Kan. Ct. App. 1988); Crooks ex
rel. Williams v. Greene, 736 P.2d 78, 80 (Kan. Ct. App. 1987); Steelvest,
Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Stahl
v. Saint Elizabeth Med. Ctr., 948 S.W.2d 419, 421 (Ky. Ct. App. 1997);
Stofer v. First Nat=l Bank, 571 N.E.2d 157, 159, 167 (Ill. Ct. App.
1991); Kourouvacilis v. General Motors Corp., 575 N.E.2d 734, 738 (Mass. 1991); In
re Estate of Nicholson, 320 N.W.2d 739, 743-44 (Neb. 1982); Maine v. Stewart,
857 P.2d 755, 758-59 (Nev. 1993); Best v. Perry, 254 S.E.2d 281, 283-84
(N.C. Ct. App. 1979);
Dent v. Ford Motor Co., 614 N.E.2d 1074, 1076
(Ohio Ct. App. 1992); Ack v. Carroll Township Auth., 661 A.2d 514, 516-17
(Pa. Commw. Ct. 1995); Caledonia Leasing & Equip. Co. v. Armstrong, Allen, Braden,
Goodman, McBride & Prewitt, 865 S.W.2d 10, 13 (Tenn. Ct. App. 1992); Costilow
v. Elkay Mining Co., 488 S.E.2d 406, 410 (W. Va. 1997); Leske v.
Leske, 539 N.W.2d 719, 721 (Wis. Ct. App. 1995); see also Tex. R.
Civ. P. 166(a)(i) No-Evidence Motion; Moore & Stempel, supra ' 56.11[b] (ABecause the
civil litigation burden of persuasion . . . rests with the claimant, the
claimant must have at least some sufficiently probative evidence supporting each element of
a claim . . . in order to prevail on the claim.
If proof is absent or insufficient regarding any necessary element of a
claim, the claimant can not win at trial and trial is therefore unnecessary.@).
The language of Indiana Trial Rule 56 states that:
[t]he judgment sought shall be rendered forthwith if the designated evidentiary matter shows
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
. . . . When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits
or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial.
This language clearly places the burden on the movant to establish its right
to summary judgment, requires a summary judgment motion to be supported by evidence,
and if this is done, shifts the burden of controverting some essential fact
to the non-moving party.