holding that to be admissible, the evidence on summary judgment need not be in a form that would be admissible at trial, so long as the actual substance of the evidence would be admissible
How later courts described this case
- holding that to be admissible, the evidence on summary judgment need not be in a form that would be admissible at trial, so long as the actual substance of the evidence would be admissible
- finding cases interpreting the federal rules of civil procedure persuasive in interpreting the Indiana trial rules
- “Review of a summary judgment motion is limited to those materials designated to the trial court.''
- “[A]n affidavit that would be inadmissible at trial may be considered at the summary judgment stage of the proceedings if the substance of the affidavit would be admissible in another form at trial.”
Written by the judges who cited it.
The opinion
*1244 SHEPARD, Chief Justice,
dissenting.
My colleagues have outlined their positions on the issues that divide us, can a party prevail in a summary judgment proceeding by submitting an affidavit from someone who is dead, and I line up with Justice Boehm on the answer to that question.
I write briefly here to say that I think the rule embraced by the majority must inevitably lead to multiple injustices.
To begin with, the rule announced today must surely be available to both sides in a summary judgment proceeding. - Trial Rule 56 treats all affidavits in the same way: "Supporting and opposing affidavits shall be made on personal knowledge", and so forth. Even if Rule 56 did not so read, it would be a matter of simple equity that both those who move for summary judgment and those who resist it be treated alike.
Under the facts of the present case, of course, the majority's decision means that the parties and the court will proceed to the trial of a case in which so far as is known now the claimant does not have admissible evidence in support of the elements of the claim. While it seems easy to surmise that the plaintiffs will ultimately be able to find a medical witness that will make this possible, it is the very office of Rule 56 to provide early resolution of whether this is so or not. That is why Rule 56 says that a responding party is not entitled simply to stand on the pleadings.
One can readily identify cases of a different posture in which the application of the majority's rule will not seem as humane as the outcome in this case. Sooner or later, a party whose only witness has died will obtain summary judgment even though it is clear that the responding party would have prevailed at trial had he been afforded a trial. Say, the injured plaintiff in an auto crash case who cannot say whether the light was red or green will lose the chanee to go to trial against the estate of the other driver because the other driver gave an affidavit saying she had the green light and then died before the matter could go to trial. Or, the seller of goods will prevail against the buyer even though the deliveryman who is the only person who can testify about whether the goods were put on the dock has died since his affidavit. The seller will win on summary judgment even though he would have lost at trial.
There are doubtless other permutations that have not yet come to mind. Suffice it to say that I think it would be simpler, and in the long run more just to more people, simply to say that one cannot seek or resist summary judgment based on the affidavit of someone who has died.