holding that non-moving party cannot create a genuine issue of material fact so as to defeat a motion for summary judgment by submitting, after motion for summary judgment is made, an affidavit that contradicts prior deposition testimony
How later courts described this case
- holding that non-moving party cannot create a genuine issue of material fact so as to defeat a motion for summary judgment by submitting, after motion for summary judgment is made, an affidavit that contradicts prior deposition testimony
- striking plaintiffs affidavit statement that the Sears representative told her the “main reasons” Sears discharged its employees were falsification of time cards, excessive tardiness or absences, and theft, because in her deposition, plaintiff only remembered the Sears representative telling her that she could be fired for punching someone else’s time card
- affirming trial court's refusal to find an issue of fact on an employee's affidavit asserting that defendant's agent made oral promises at initial interview when "[e]ven in response to a leading question in her deposition [she] replied that no promise was made at the interview"
- stating that “[a] party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony”
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring in part and dissenting in part.
I concur in the court’s interpretation and application of the Toussaint rule. I am *463 troubled, however, by the short shrift given to Ms. Batchelor’s claim that, due to her poor reading ability, she could not comprehend the disclaimer and merely signed the job application form in a routine manner without realizing its contractual nature. Batchelor presented evidence of her limited education and reading level, and also presented an expert's analysis of the level of reading difficulty of the Sears “contract.” The district court rejected her argument summarily, relying on a passage from a 1929 decision that states the genial rule of “signer beware.” Sponseller v. Kimball, 246 Mich. 255, 260 , 224 N.W. 359 (1929); see ante at pp. 461-62.
The general rule is not always applicable, however. See generally 1 S. Williston, A Treatise on the Law of Contracts, § 95A, at pp. 350-53 (Jaeger ed. 1957 & 1985 Supp.); J. Murray, Murray on Contracts, §§ 351-54, at pp. 739, 752, 756 (1974). When a person signs a document unaware of its contractual nature, courts do not always require or presume the caution and scrutiny ordinarily associated with signing a contract. See S. Williston, supra, at pp. 351-52 & n. 13. Although it is established under Michigan law that these employment contracts are not adhesion contracts in which parties are compelled by unequal bargaining power to accept unreasonable terms, it is a different question, I believe, as to whether a valid contract exists when the signer does not comprehend that placing his signature on a form constitutes assent to specific contractual terms. See, e.g., S. Williston, supra, at 351-52; J. Murray, supra, at p. 756.
Moreover, the Sponseller decision was founded on facts materially different from those before us. Sponseller involved a sale of real estate. A man and his wife executed four instruments — a mortgage, a deed, a contract and a settlement — which included conveyances of property belonging to the wife. When she later asserted that she signed these instruments without realizing her property was included, the court rejected her claim. She had participated in deeds and mortgages before, and all the documents were read to her. The court’s statement about her responsibility to acquaint herself with the meaning of the document was based in large part on the fact that she “executed not merely one but four instruments, all of which were read to her and whose purpose she understood.” 246 Mich, at 261 , 224 N.W. 359 . In contrast, there is no undisputed factual allegation in Ms. Batchelor’s case that the paper was obviously a legal instrument whose purpose she understood, obligating her to ascertain carefully its contents. Consequently, it is doubtful whether the Sponseller rule applies.
All of the Michigan cases citing Sponseller involve situations in which the signers clearly understood that the documents to be signed were legal instruments, and they were therefore negligent in failing to determine precisely the meaning of the contents. Pakulski v. Ludwiczewski, 291 Mich. 502, 510 , 289 N.W. 231 (1939) (persons signed lease and promissory notes knowing what the documents were, but later claimed to have misunderstood the precise rights and obligations involved); Richeson v. Wagar, 287 Mich. 79, 85 , 282 N.W. 909 (1938) (persons signed documents that were brought to their home by an attorney, later claiming they did not realize what the documents had stated); Horn v. Cooke, 118 Mich.App. 740, 747 , 325 N.W.2d 558 (1982) (semi-literate woman who signed consent form prior to surgery argued that she did not understand arbitration clause contents; however, she had lengthy period for study and two opportunities to have the document read to her). I believe a distinction may be made under Michigan law between comprehending which rights were signed away and comprehending that rights were being signed away at all. This is especially so in the context of employment applications when marginally educated persons in desperate search of economic survival are in the job market coping with skillfully drafted and carefully considered application documents.
I would remand on this issue for further consideration. I therefore respectfully dissent from the portion of the opinion dispos *464 ing of Batchelor’s argument that, because she was unable to comprehend the language, she did not knowingly assent to a contract term regarding at will employment.