Opposition Brief — Jamell ex rel. Jamell v. City of Chesapeake

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No OCT 21 1996

In The

Supreme Court of the United States

October Term, 1996

SJ

MARK JAMELL, an infant who sues by his mother

and next friend CAROL A. JAMELL, and

CAROL A. JAMELL, individually,

Petitioners,

v.

CITY OF CHESAPEAKE, a municipal corporation,

Respondent.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

SI

RESPONDENT'S BRIEF IN OPPOSITION

¢

T. Jerrrey Savas, Counsel of Record

DARLENE P. BRADBERRY

BrEEDEN, MACMILLAN & Green, P.L.C.

1700 First Virginia Tower

555 Main Street

Norfolk, Virginia 23510-2230

(757) 622-1111

Counsel for Respondent

TABLE OF CONTENTS

Page

po OR Be Bet os: Oo Se er Err rrr et re i

prs F gee Nips. 8 ys |. ge ee en ea ii

CITATIONS OF OPINION BELOW................. 1

STATEMENT OF FACTS AND OF THE CASE...... 1

REASONS FOR DENYING THE WRIT............. 7

I. This Case Does Not Present Matters of Inter-

est to the Supreme Court. .................. 7

II. The District Court Properly Granted Defen-

dant’s Motion for Summary Judgment....... 8

A. No Further Discovery Was Necessary.... 9

B. The Plaintiffs Failed to Show Specific.

Facts to Present a Genuine Issue of Gross

POI aecntrvaoestcacenssseseent 11

III. The Court of Appeals did not abuse its Discre-

tion in not Considering the Plaintiffs’

SPUEE FAEEUUNUNUDS Vaca dsudatbowecssccegden 15

Soe | RST Pee Te Tee TT UTR ETEE LETT 16

ii

TABLE OF AUTHORITIES

Cases CItTep:

Atkinson v. Bass, 579 F.2d 865 (4th Cir.), cert.

Genied, 113 S$. Ct. 1415 €399aK . ccsascewuncveces

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....

Catawba Indian Tribe v. State of South Carolina, 978

F.2d 1334 (4th Cir. 1992), cert. denied, 113 S. Ct.

2415 (IDIS) i iieis Siew EVO Renee eee eaaen

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......

Doerr v. Barnes, Adm’r, 198 Va. 306, 94 S.E.2d 271

(ASGE) 5s 5 5k cnes ck cu eees been ane ces

First Chicago International v. United Exchange Co.,

Ltd., et al., 836 F.2d 1375 (D.C. Cir. 1988) ......

First National Bank of Arizona v. Cities Service Co.,

392 U.S. 253, 86 S.Ct 1575. GIGS) io ici vies ess:

Hershman v. Payne, 196 Va. 241, 83 S.E.2d 418

CPR) 0 bas en i backecuctin hele

Lujan v. National Wildlife Fed., 497 U.S. 871 (1990) ....

Meagher v. Johnson, 239 Va. 380, 389 S.E.2d 310

(A9BG) os a wcc vicina chic cvevcndvbksce ts akeumene

RDPED . once avineesveutssdodbu a aemea Paes Mees eee

Sutera v. Schering Corp., 73 F.3d 13 (2d Cir. 1995)....

Trebor Sportswear Co. v. The Limited Stores, Inc., 865

Re S06 (2a Cie TOG «ices cemavcsech euaaneens

iii

TABLE OF AUTHORITIES - Continued

Page

Statutes Crrep:

Federal Rule of Civil Procedure 12................... g

Federal Rule of Civil Procedure 12(b)(6)...4, 6, 8, 9, 11

Federal Rule of Civil Procedure 56.... 5, 6, 8, 9, 11, 13

Federal Rule of Civil Procedure 56(b)................ 5

Federal Rule of Civil Procedure 56(e)............. 9, 12

Federal Rule of Civil Procedure 56(f)................ 10

Spam, remem Cure Bele 10 ow. cess ccsnesccsess 7

eo Re er ar Serer 4

CE TEM sy ewes se Nbdeevicdeenevase bes 13

OrHer AuTHorities Crrep:

6 James Wm. Moore et al., Moore's Federal Practice,

{ 56.22[1],[2] (2d ed. 1988 & Supp. 1992-93) ...... 12

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent respectfully requests that the Court

deny the Plaintiffs’ Petition seeking review of an Opinion

of the United States Court of Appeals for the Fourth

Circuit.

oo.

of

CITATIONS OF OPINION BELOW

The Petitioners correctly list two of the opinions and

judgments by the courts below but omitted the following:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

MARK JAMELL, et als,

Plaintiff,

v. CIVIL ACTION NO. 2:95cv249

CITY OF CHESAPEAKE,

Defendant.

Opinion and Order

Issued August 4, 1995.

+

STATEMENT OF FACTS AND OF THE CASE

The Defendant notes certain inaccuracies and omis-

sions from the Plaintiffs’ statement of the case and facts,

and so offers the following summary.

The incident referred to in the Complaint allegedly

occurred on or about March 24, 1991. The infant Plaintiff,

Mark Jamell, was playing in a municipally owned and

operated recreational facility known as the Great Bridge

Locke Park in the City of Chesapeake, Virginia. The Com-

plaint alleges that Mark Jamell was injured while playing

on a piece of playground equipment located in the park.

The present action is a successor to two consolidated

lawsuits previously filed in the Circuit Court for the City

of Chesapeake, Virginia bearing the styles: Mark Jamell, an

infant who sues by his mother, Carol A. Jamell, as next friend

v. City of Chesapeake, Docket No. L-26337-M, and Carol

Jamell, Individually v. City of Chesapeake, Docket No.

L-26340-M. Those cases were nonsuited (voluntarily dis-

missed without prejudice) on January 13, 1995 shortly

before trial, but after discovery had been completed. The

cases were refiled in the United States District Court on

March 13, 1995, based upon diversity jurisdiction. Coun-

sel agreed the discovery taken in the prior state court

proceeding could be used in the federal action. Several of

the depositions taken in the state cases were filed by the

Defendant and made a part of the record in the district

court.

The Defendant’s Motion to Dismiss in the present

action was filed on May 26, 1995, and the depositions of

Carol Jamell and Mark Jamell, an infant, were attached.

That of Carol Jamell, mother of Mark Jamell, establishes

that on the date in question, Mrs. Jamell took her 4-year

old son to the park to play. She was accompanied by a

friend whose current address and whereabouts were

unknown. C. Jamell Tr. p. 7. Mark was permitted to play

On the equipment while Mrs. Jamell and her friend read

the newspaper on a park bench. C. Jamell Tr. p. 9.

Approximately one-half hour later, a man carried Mark

over to her. Mark was crying and screaming, had a

bloody nose, and said his knee hurt. She took Mark

straight to her car to seek medical attention. C. Jamell Tr.

pp. 10-11. Mrs. Jamell did not see Mark fall, does not

have any personal knowledge about where he was

located immediately prior to his injury, and has no direct

personal information regarding the mechanics of the fall.

While there may have been eyewitnesses to the incident,

Mrs. Jamell was unable to identify by name or address

any witness other than her son. To the best of her knowl-

edge, information and belief, the only person who knows

where and how Mark was injured is Mark himself. C.

Jamell Tr. pp. 11-12. Through interrogatories, Mark

marked a copy of a photograph of the location where he

was injured. An X indicated the area where he claims to

have been injured, and this exhibit is attached to the

Mark Jamell deposition transcript, part of the record in

the district court.

Mark’s deposition was taken on June 8, 1994. On that

date, he was seven years old. He testified that he was

injured after squeezing through the bars to the outside of

a “bridge” in the playground equipment. He went up

toward the slide, returned, and couldn’t squeeze back

through, so jumped down. M. Jamell Tr., p. 7, pp. 11-19.

There was no evidence that anything made him trip, (M.

Jamell Tr., p. 22); nor was there any suggestion that any

part of the playground equipment was broken. The pho-

tographs produced by the Plaintiffs in response to

requests for production of documents and used at the

deposition show that the area in which the equipment

was located was surfaced with sand, and that the plat-

forms or “bridges” referred to by Mark were equipped

with railings.

This action is governed by § 15.1-291 of the Code of

Virginia of 1950, as amended, which limits the liability of

cities and towns in the operation of recreational facilities

to damages resulting from the gross or wanton negli-

gence of any of its officers or agents in the maintenance

or operation of any such recreational facility. The Com-

plaint filed in the U.S. District Court for the Eastern

District of Virginia sought damages from the City

allegedly as the result of its gross negligence in the

design, maintenance and operation of this city park.

The City’s motion strove to dismiss all claims upon

grounds that the Complaint failed to state a cause of

action against it for gross negligence as required under

§ 15.1-291 of the Code of Virginia of 1950, as amended, as

a matter of law, and to dismiss all claims for punitive

damages also under Rule 12(b)(6). Attached to the motion

and supporting memorandum were the following: 1.

Deposition transcript of Carol A. Jamell; 2. Deposition

transcript of Mark Jamell, an infant, with exhibits; 3.

Affidavit of Barbara O. Olfers, crew supervisor for the

Chesapeake Department of Parks, Recreation and Mainte-

nance, with exhibits attached; 4. Affidavit of J. Pat

Kallaher, Superintendent of Buildings and Grounds for

the City of Chesapeake, with exhibit attached; 5. Affidavit

of Patricia L. Mellon, Chesapeake’s Liability Claims Spe-

cialist. To supplement this material, on or about July 14,

1995, two additional affidavits were submitted of J. Pat

Kallaher and Sharon Kline, Fiscal Administrator for the

Chesapeake Department of Parks, Recreation and Build-

ing Maintenance. These further authenticated certain

records which had been attached as exhibits to the previ-

ously filed affidavits.

In response to these documents, Plaintiffs filed var-

ious motions but no affidavits, deposition transcripts or

other exhibits. By way of response, the City advised the

Court and Plaintiffs that it wished the affidavits and

other submissions to be considered pursuant to Federal

Rule of Civil Procedure 56, as the City did not believe

there existed a genuine issue of material fact.

At the Initial Pre-Trial Conference on June 22, 1995, a

hearing was scheduled on the City’s motions. This hear-

ing was set by agreement for July 17, 1995. At the hear-

ing, counsel for Plaintiffs sought additional time to

respond to the Motion to Dismiss. No objection was

raised by Defendant, and Plaintiffs were granted leave to

file additional responses on or before July 7, 1995.

On or about July 6, 1995, Plaintiffs filed a “Supple-

mental Answer to Motion to Dismiss.” No affidavits,

deposition transcripts or other exhibits were attached or

referenced. Realizing that Plaintiffs apparently intended

to rely upon their pleadings alone, the Defendant filed a

“Reply” and specified that the City sought to have its

Motion to Dismiss treated as a motion for summary judg-

ment under Rule 56; candidly cutlining the ramifications

of its motion, the exhibits, and affidavits.

At the July 17, 1995 hearing, counsel for the Plaintiffs

sought additional time to submit affidavits and other

documentation. The Court, in the exercise of its discre-

tion, granted the Plaintiffs this additional time. By mutual

agreement, the hearing was re-set for July 20, 1995.

No affidavits, depositions or other documentation

were filed by the plaintiffs prior to the second hearing.

The hearing took place before the Honorable Richard

Kellam, Judge, as scheduled. The judge took the matter

under advisement.

On July 28, 1995, the district court granted the Defen-

dant’s Motions to Dismiss and for Summary Judgment

pursuant to Rules 12(b)(6) and 56 of the Federal Rules of

Civil Procedure.

In their Petition, the Plaintiffs erroneously state that

they submitted two affidavits at the second hearing. Peti-

tion pp. 2-3. Instead, counsel for the Plaintiffs proffered

an unsigned statement of the qualifications of Dan Griffin

with some supporting documents. The court held these to

be inadmissible, and specifically stated that it never

received any affidavits prior to rendering its decision. See

App. at 4. The court also received a letter with attached

pages from the deposition of Mark and some photos. The

court stated that even if these documents had been timely

filed, they would not have affected the outcome of the

motion for summary judgment. Id. at 17.

The Plaintiffs did submit affidavits after the hearing

and decision, and these were received by the district

court on August 2, 1995. See App. at 24. However, these

referred to materials which were not attached and were

never provided to the court for its consideration. Id. at

24-6. The district court ruled that these affidavits were

untimely and, even if considered, would not change the

result because they established “little or nothing.” Id. at

26.

On appeal, the fourth circuit affirmed the lower

court. In footnote 2 of the opinion, it noted that it agreed

that the affidavits submitted after the summary judgment

had been awarded were untimely. It therefore did not

consider them. The opinion does not state whether the

court considered the two materials received prior to the

July 28 decision. See Petitioners’ App. at 4 n. 2.

The Defendant notes that the various documents

retyped by the Plaintiffs and included in the appendix to

their brief contain numerous typographical errors and

omissions. Along with other errors, one entire page of the

district court’s opinion of July 28, 1995, was inadvertently

omitted, and the Defendant has therefore provided a

complete copy of the order in its Appendix. Also

included is the district court order of August 4, 1995.

¢

REASONS FOR DENYING THE WRIT

I. THIS CASE DOES NOT PRESENT MATTERS OF

INTEREST TO THE SUPREME COURT.

Compelling reasons do not exist for the Court to

grant review on certiorari in this case. The Plaintiffs do

not allege that this case involves a conflict between the

circuits, decides a federal question, or departs from the

usual course of judicial proceedings. See U.S. Sup. Ct. R.

10. At the root of this case are questions involving the

interpretation of state law - i.e. whether the facts as

alleged constitute gross negligence and rise to the level of

punitive damages. In essence, the Plaintiffs ask that this

Court: 1. Reweigh the evidence considered by the court of

appeals and the district court to determine if those courts

erred in granting summary judgment for the Defendant;

and 2. Reconsider evidence that those courts determined

was untimely and that the district judge held would not

have assisted the Plaintiffs in any event. This case was

properly considered by the lower courts and does not

present issues of a nature to compel the attention of the

highest court of the United States.

Il. THE DISTRICT COURT PROPERLY GRANTED

DEFENDANT’S MOTION FOR SUMMARY JUDG-

MENT

The Defendant moved to dismiss the Plaintiffs’ com-

plaint for failure to state a claim upon which relief can be

granted pursuant to Rule 12(b)(6). Under that rule, if the

Defendant attaches supporting affidavits and other docu-

ments, the motion is converted into one for summary

judgment to be disposed of pursuant to Rule 56. The

motion must be served at least 10 days before the hear-

ing, and the adverse party must serve any opposing

affidavits prior to the day of the hearing. Judgment is to

be rendered for the moving party if the supporting docu-

ments show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Any affidavits are to be

based con personal knowledge, set forth such facts as

would be admissible in evidence, and should show that

the affiant is competent to testify to the matters stated in

the affidavit. All papers referred to in the affidavit should

be attached. When a motion for summary judgment is

made and supported under Rule 56(e), the adverse party

may not rest upon the mere allegations or denials of their

pleading, but must set forth specific facts by affidavits or

otherwise, showing that there is a genuine issue for trial.

F.R.C.P. 56.

A. NO FURTHER DISCOVERY WAS NECESSARY

The Plaintiffs allege that the district court did not

give them sufficient time to conduct discovery before

ruling on the Motion to Dismiss. Rule 12 provides that a

12(b)(6) motion may be heard before trial, upon the

request of any party. Timing is also addressed in Rule 56,

stating that a defending party may move for summary

judgment at any time. Rule 56(b). By the time the Defen-

dant filed. its motion in the present case, the parties had

already fully participated with discovery in the state

court proceeding and this was made applicable to the

federal court action by agreement of counsel. The parties

had propounded and responded to interrogatories,

requests for production of documents, and requests for

admissions. The Plaintiffs had even been granted permis-

sion to file more than the allowed number of interrogato-

ries. Numerous individuals had been deposed, including

Mark and Carol Jamell, City of Chesapeake personnel,

and the Plaintiff's expert, Dan E. Griffin.

At the two hearings on the defendant’s Motion to

Dismiss, the Plaintiffs never even hinted that further

discovery was necessary. Although the case had been

pending for some time in federal court, they had not

propounded any discovery of any nature. For the first

time, they now suggest that the district court somehow

10

acted improperly by granting summary judgment early in

the proceedings, before the time for conducting discovery

pursuant to the pretrial order had run. However, they do

not scate what further discovery they would have con-

ducted or why it was necessary, nor did they move for

discovery under Rule 56(f) or allege that they have been

prejudiced by the lack of it. The Defendant respectfully

suggests that this new objection that the district court

somehow denied them discovery is untimely arid

unfounded.

The cases cited in support of Plaintiffs’ contentions

are not helpful to them. For example, in First Chicago

International v. United Exchange Co., Ltd., et al., the court of

appeals held that the district court erred in granting

summary judgment before discovery was complete

because 1. the district court erroneously assumed the

plaintiff had waived further discovery; 2. very little dis-

covery had been completed; and 3. the plaintiff's discov-

ery requests to defendants were outstanding. 836 F.2d

1375, 1379-80 (D.C. Cir. 1988). See also Sutera v. Schering

Corp., 73 F.3d 13 (2d Cir. 1995) (plaintiff had not con-

ducted any discovery in ADEA case prior to judge grant-

ing summary judgment, causing court of appeals to

reverse). In the present case, full discovery had been

completed in the state court and the plaintiffs had not

shown any interest in conducting further discovery in

federal court.

In Trebor Sportswear Co. v. The Limited Stores, Inc., 865

F.2d 506 (2d Cir. 1989), the court recognized that a trial

court “may properly deny further discovery if the non-

moving party has had a fully adequate opportunity for

discovery.” Trebor, at 511. Because the plaintiffs in that

11

case had plenty of time to conduct discovery and offered

no persuasive proof that discovery would lead to the

necessary admissible evidence, the court held that sum-

mary judgment was properly granted. Id. at 512. In the

present case, the Plaintiffs had a fully adequate oppor-

tunity to conduct discovery in the state court proceeding

and never suggested that they desired the opportunity

for further discovery in federal court.

B. THE PLAINTIFFS FAILED TO SHOW SPECI-

FIC FACTS TO PRESENT A GENUINE ISSUE

OF GROSS NEGLIGENCE

The Defendant filed its Motion to Dismiss and

attached affidavits, exhibits and depositions in support,

converting it into a motion for summary judgment. The

Plaintiffs were given more than the requisite ten days

notice of the hearing on the motion and were repeatedly

warned of the conversion to a motion for summary judg-

ment. In the initial pretrial order entered June 22, 1995,

the district court noted pending motions to quash and to

dismiss, ordered that Plaintiffs reply to the motions by

July 7, 1995, and set a hearing on the motions for July 17,

1995. On July 10, counsel for the Defendant sent a notice

to opposing counsel reminding him of the date for the

hearing and specifying that the motion was brought pur-

suant to Federal Rules of Civil Procedure 12(b)(6) and 56.

By the time of the hearing, the Plaintiffs had not submit-

ted any supporting affidavits. They moved for a continu-

ance and asserted they would file such affidavits as

necessary. The court agreed to this, and the hearing was

rescheduled by agreement for July 20th. By the second

hearing, the court and clerk had still not received the

12

affidavits. See App. at 4. Some time after the judge had

entered summary judgment in favor of the Defendant, the

Plaintiffs then submitted further documentation. The dis-

trict court decided this was incomplete, untimely, and

unhelpful. App. at 24-6. On appeal, the circuit court

simply agreed the materials were untimely and did not

consider them. Petitioners’ App. at 4 n. 2.

In the present case, the Plaintiffs simply failed to

establish that a material issue of fact existed, despite

being given ample opportunity to do so. Once a motion

for summary judgment is properly made and supported,

the non-moving party must produce specific facts show-

ing there exists a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the moving

party produces an affidavit stating “sufficient facts to

sustain a motion for summary judgment in his favor, the

burden [shifts to the opposing party] to establish that

there is a ‘material issue of fact.’ ” Catawba Indian Tribe v.

State of South Carolina, 978 F.2d 1334, 1341 (4th Cir. 1992),

cert. denied, 113 S. Ct. 1415 (1993); 6 James Wm. Moore et al.,

Moore’s Federal Practice, { 56.22[1],[2] (2d ed. 1988 & Supp.

1992-93). A party “must demonstrate that a triable issue

of fact exists. They may not rest upon mere allegations or

denials.” Anderson, 477 U.S. at 255. See First National Bank

of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S. Ct.

1575, 1592-93 (1968). As the court pointed out in Atkinson

v. Bass, 579 F.2d 865, 866 (4th Cir.), cert. denied, 113 S. Ct.

1415 (1993), when a defendant filed a motion for sum-

mary judgment, “positive action was demanded of plain-

tiff. F.R. Civ. P. 56(e) explicitly admonishes that he could

not then simply ‘rest’ on his complaint — that he ‘must’

affirmatively respond.” The Supreme Court has held that

SS

13

the moving party is entitled to summary judgment under

Rule 56 “against a party who fails to make a showing

sufficient to establish the existence of an element essen-

tial to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

In the present case, the Plaintiffs failed to demon-

strate that a triable issue of fact existed. First, the Plain-

tiffs failed to allege facts, which, if proven, would rise to

the gross negligence necessary for recovery against the

City. Gross negligence is that degree of negligence which

shows indifference to others as constitutes utter disregard

of prudence amounting to the complete neglect of the

safety of another. Meagher v. Johnson, 239 Va. 380, 386

S.E.2d 310 (1990). The Plaintiffs’ allegation that the park

was negligently designed was refuted by the City’s evi-

dence that it did not design the equipment; their allega-

tion that the park was negligently maintained was

refuted by the City’s evidence of its regular maintenance;

and their allegation of negligent operation was not sup-

ported by any applicable standards. They did nothing to

back up their allegations of gross negligence with evi-

dence and so the motion for summary judgment was

properly granted.

The Jamells seek to support their allegation that an

issue of fact exists by alleging that the Chesapeake Cir-

cuit Court decided their case presented a jury question.

See Petition p. 5. This is misleading. Under Virginia law, a

court cannot consider matters outside of the pleadings in

a hearing on a Demurrer, and specifically cannot consider

depositions even in a motion for summary judgment. See

Va. Code § 8.01-420. Therefore, the state court did not

14

have the benefit of the affidavits, deposition transcripts,

and other records which were before district court.

At pages 6-7 in the Petition, the Plaintiffs misstate the

law regarding gross negligence. In citing cases hailing

from Texas, the Plaintiffs impart the impression that gross

negligence can be found by aggregating single acts of

negligence. The Virginia Supreme Court has specifically

addressed this issue. In Mitchell v. Wilkerson, the court

stated that “where the subject is fully discussed, we will

see that something more than a mere breach of two or

more statutory duties imposed upon a [defendant] is

required in order to sustain a finding that he has been

guilty of gross negligence.” 193 Va. 121, 67 S.E.2d 912

(1951). “In the final analysis and weighing of the evi-

dence, the question is not what or how many statutory

violations can be said to have been established or how

many acts of negligence have been proved. One act of

simple negligence may violate several statutes. The deci-

sive legal question is: Did [the defendant's] conduct, his

acts of commission and omission, show such utter disre-

gard of prudence as to constitute total indifference and

complete disregard of the safety of his guest?” Hershman

v. Payne, 196 Va. 241, 83 S.E.2d 418 (1954), followed in

Doerr v. Barnes, Adm’r, 198 Va. 306, 94 S.E.2d 271 (1956).

Thus, even if the Plaintiff had successfully presented an

issue of fact as to several acts of simple negligence, what

is important is the nature of the alleged negligence. In the

present case, the facts simply do not support the degree

of indifference necessary for a finding of gross negli-

gence.

15

III. THE COURT OF APPEALS DID NOT ABUSE ITS

DISCRETION IN NOT CONSIDERING THE

PLAINTIFFS’ UNTIMELY AFFIDAVITS

In the district court, the Plaintiffs failed to file timely

evidence supporting the allegations in their Complaint.

Because the Plaintiffs failed to file their responding infor-

mation before the date of the second hearing on Defen-

dant’s motion, the district court held that the evidence

the Plaintiffs submitted in the interim between the hear-

ing and the date of its decision was not in accord: with

Rule 56, the initial pretrial order, or the extension of time

granted to Plaintiffs. The district court held that the mate-

rials were untimely and, even if the Plaintiffs’ exhibits

had been timely filed, they would not have affected the

outcome of the summary judgment motion. App. at 17.

This was not an abuse of discretion. See Lujan v. National

Wildlife Fed., 497 U.S. 871, 894 (1990). Plaintiffs later sub-

mitted further affidavits, but these referred to other docu-

mentation which was not attached. The district court, in

considering these, held that nothing in the affidavits

assisted the Plaintiffs, they were not timely submitted,

and that they were not to be part of the record. App. at

26.

On appeal, the only mention of the exhibits is in

footnote 2 of the unpublished per curiam opinion. There,

the court of appeals states “On appeal the Jamells relied

in part on certain affidavits submitted to the district court

after the summary judgment had been awarded to the

City. By order dated August 4, 1995, the district court

declined to consider these affidavits because they had not

been timely filed. We find no error in this ruling, and

consequently we, too have not considered the untimely

16

affidavits.” The court does not stipulate whether it con-

sidered the materials filed before the award of summary

judgment. In any event, the fact that the court did not

consider untimely exhibits which the lower court had

held were not a part of the record and would not have

changed the outcome in any case, cannot be erroneous.

See RGI v. Unified Industries, Inc., 963 F.2d 658 (4th Cir.

1992) (district court did not commit error in refusing to

consider supplemental affidavit submitted after court had

granted summary judgment).

¢

CONCLUSION

This case does not present matters of compelling

interest to the Supreme Court of the United States.

Instead, it is a simple tort case which rests on issues of

state law. In order to recover, the Plaintiffs must suc-

cessfully prove gross negligence, but after substantial

discovery, they failed to support their allegations with

any facts. Therefore, upon the Defendant's fully sup-

ported motion for summary judgment, both the United

States District Court and the United States Court of

Appeals for the Fourth Circuit properly dismissed all

claims.

17

The Defendant requests the Court to deny a Writ of

Certiorari and to grant its taxable court costs.

Respectfully submitted,

T. JerrreY SALB

Dar.eNE P. BRADBERRY

Counsel for Respondents

BREEUVEN, MACMILLAN &

Green, P.L.C.

1700 First Virginia Tower

555 Main Street

Norfolk, Virginia 23510-2230

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

MARK JAMELL, an infant who

sues by his mother as next

friend CAROL A. JAMELL, and

CAROL A. JAMELL,

individually,

Plaintiffs, CIVIL ACTION

NO. 2:95¢v249

v.

CITY OF CHESAPEAKE,

A Municipal Corporation,

Defendant.

OPINION AND ORDER

I.

On March 13, 1995, plaintiff Mark Jamell (Mark), an

infant, by his mother and next friend, Carol A. Jamell,

and Carol A. Jamell (Carol) instituted this action to

recover damages for injuries received by Mark, and funds

expended in medical expenses by Carol for Mark, against

City of Chesapeake (City), a municipal corporation in

Virginia. The complaint alleges that on March 24, 1991,

City had before and on said date owned and operated

Locke Park in City; that the park contained playground

and sliding board/jungle gym equipment; that the city

was grossly negligent in failing to provide a slide board

unit with proper safety features, including a protective

guardrail to prevent a child from falling through or get-

ting off the slide; that defendant failed to warn plaintiff

and others upon entrance, of the height, weight and age

App. 2

limit for use by the child and proper soft material surface

in and about the slide area; that defendant failed to

provide the requisite surface mandated by industry stan-

dards; that “Mark Jamell, a child of four years of age,

states that the defendant failed to provide the necessary

and proper care and attention to the sliding board unit

and therefore was grossly negligent” (Par. 6 of com-

plaint); that on or about March 24, 1991, defendant failed

to have anyone in charge of the park and defendant failed

to correct the defects in the equipment; that Mark got on

the slide operated by City, and was unaware of the condi-

tion of the sliding board; that the gross negligence of

defendant set out in the complaint caused Mark to fall

and injure himself; and that Carol has incurred medical

expenses on behalf of Mark. Plaintiffs seek compensatory

and punitive damages from the City.

City filed its answer and defenses on May 26, 1995,

admitting it owned and operated the recreational park

known as Locke Park which was for use of children and

adults. It denied each allegation of any negligence or lack

of due care or failure to properly inspect and maintain

the park. Further, it denied it was guilty of any gross or

wanton negligence and denied that the complaint set

forth a cause of action against it. At the same time, City

filed a Rule 12(b)(6) motion to dismiss for failure to state

a cause of action. Particularly, City asserts that the com-

plaint fails to allege facts sufficient to meet the test of

“gross negligence” which it must meet to comply with

the provisions of the Virginia Statute, Virginia Code Sec-

tion 15.1-291. Secondly, defendant asserts that plaintiffs

may not recover punitive damages; and that the City is

immune from liability except as provided for in the above

App. 3

mentioned statute. Plaintiffs filed a motion to quash the

motion to dismiss to which defendant responded.

Prior to filing this action, plaintiffs had filed an

action against City in the Circuit Court of the City of

Chesapeake in which considerable discovery was taken.

Plaintiffs thereafter non-suited that action and instituted

this suit.

Defendant filed affidavits, exhibits and depositions

in support of its motion to dismiss and converted it into a

motion for summary judgment. An initial pretrial confer-

ence was held June 22, 1995, fixing cut-off of time for

discovery, dates for attorney's and final pretrial confer-

ences, date of trial and for completion of de bene esse

depositions. In that initial pretrial order, the Court noted

pending motions to quash and to dismiss. The order set

forth that plaintiffs’ reply to the motions should be

received on or before July 7, 1995, and a hearing on the

motions was set for July 17, 1995. On July 10, 1995,

counsel for defendant sent a notice to counsel for plain-

tiffs reminding counsel that the hearing on defendant's

motion to dismiss pursuant to Rule 12(b)(6) and Rule 56!

was scheduled for July 17th, 1995 at 2:00 p.m. As had

been provided by the initial pretrial conference order, all

counsel duly appeared on July 17th. Counsel for plaintiffs

sought a few day [sic] continuance and asserted he would

! Pursuant to Rule 12(c), when matters outside the

pleadings are presented to and not excluded by the Court, the

motion is to be treated as a motion for summary judgment. The

Court permitted the affidavits and other matters to be fled [sic]

and since they are being considered, the motion is treated as one

for summary judgment.

App. 4

file such affidavits as he felt necessary. The Court agreed

to grant the request and counsel agreed the motion would

be continued and heard on July 20, 1995 at 2:00 p.m.

o'clock.

At the hearing on July 20th, counsel for plaintiffs

sought to file what appears to be a statement of the

qualifications of Dan Griffin with photo copies of pages

from some type of handbook for playground safety regu-

lations. Defendant objected to it being filed. It was

marked for identification as Plaintiffs’ Exhibit 1, but not

admitted. The Court advised it would later decide

whether it could be filed. While counsel for plaintiffs

stated during oral argument on July 20th that he had sent

the Clerk’s Office affidavits to be fled [sic] in opposition

to the motion for summary judgment, no such affidavits

have been received by the Clerk or the Court as of this

date.

Il.

A.

Carol’s deposition sets out that on the day of the

accident, at about 3 o’clock, Carol and a friend had gone

with Mark to Locke Park. After refreshments, Mark went

to play on the gymnasium or the playground area. The

playground area was full of children. Carol and her

friend were seated in the picnic area at a picnic table

reading the newspaper. She could see the playground

area from where she sat. Mark had played for about a

half an hour while she read a newspaper. While she was

reading the newspaper, a man brought Mark over to her.

Mark had a bloody nose, had sand on his face and was

crying., The man said that Mark had fallen and that his

App. 5

knee hurts. She took Mark to her car and noted a large

knot on his thigh. She then took him to Patients First and

had an X-ray and learned his leg was broken. She did not

know the man who brought Mark to her and did not get

his name. At Mark’s direction, she marked on a photo-

graph with an “X” the point where Mark told her he fell

from and with an “0” where he said he landed on the

ground. She agreed that the only person who knows

where Mark fell from and landed is Mark. She said Mark

told her he was on the slide and fell from it. Mark’s

testimony is hereafter set forth.

The affidavits filed by City in support of its motion

for summary judgment will be individually dealt with.

1. The affidavit of Patricia L. Mellon, Liability

Claims Specialist for City for the past 10'/2 years, asserts

that she assists in the coordination, investigation and

resolution of claims against City; that as a result of her

investigation, she was unable to find any suggestion that

any lawsuit had ever been filed as a result of any injury at

the playground equipment in Locke Park and particularly

for the period of five years prior to the alleged date of

Mark’s accident. Nor could she find any notice from any

individual with regard to allegedly hazardous conditions

on the sliding board or play equipment; and she has no

personal knowledge of any lawsuit or claim having been

presented on behalf of any person as a result of injuries at

the park.

2. The affidavit of J. Pat Kallaher, Superintendent of

Buildings and Grounds, including grounds in the parks,

App. 6

for City for the past 14 years, asserts that the playground

equipment at Locke Park was purchased and installed by

the Manufacturer’s Representative of Miracle Recre-

ational Equipment Company (Miracle) in 1987; that it is a

well-known manufacturer of said equipment; that City

neither designed, built or installed said equipment and

has not modified it since it was originally installed; that it

had been maintained by City since its installation; that

there is a standard procedure for inspection of the park

and equipment monthly and such was being done in 1990

and 1991; and that to the best of his knowledge no claim

has been presented for injury or damage as a result of the

condition of the equipment or the sand base material

since the installation of the equipment in 1987. Attached

to his affidavit are copies of the purchase order, et seq.

3. Affidavit of Barbara O. Olfers, a Crew Supervisor

of Parks, who has worked for the City some 17 years,

asserts that she makes inspections of parks and play-

grounds; that for four months prior to Mark’s injuries of

March 24, 1991, she inspected the equipment in Locke

Park in December 1990, January 1991, February 1991 and

March 12 or 13, 1991. Copies of her inspections are

attached which show that she personally checked the

playground equipment and the sand base. It is also

shown that from time to time since the original installa-

tion, sand has been added to the base and it had been

roto-tilled in December 1990. Further affiant says she did

not know of a complaint ever being made regarding

depth of the sand.

a een

App. 7

Il.

Defendant has moved the Court to strike plaintiffs’

motion for an award of punitive damages grounded in

the assertion that except where permitted by statute,

punitive damages may not be awarded against a munici-

pality in Virginia. Counsel have not brought to the atten-

tion of the Court any such statute and there is no such

statute. Nor have counsel called to the attention of the

Court any decision of the Supreme Court of Virginia

holding that punitive damages have been or may be

awarded against a Virginia municipality. However, there

are two decisions of circuit courts of Virginia, one written

by Judge Bernard G. Barrow, then of the Circuit Court of

Virginia Beach, in the case of McDonnell v. Hampton Roads

Sanitation District, 5 Va. Cir. 149 (1984), and the other by

Judge John F. Daffron, Jr. of the Circuit Court of Chester-

field County in the case of Wilson v. Commonwealth of

Virginia, 17 Va. Cir. 144 (1989), each holding punitive

damages are not recoverable against a municipal corpora-

tion. In City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

259-260, 101 S. Ct. 2748, 2756 (1981), the court dealt with

the question of whether punitive damages might be

awarded against a municipal corporation. In holding

punitive damages were not recoverable against a munici-

pal corporation, it pointed out that at the time Congress

enacted §1983 “the immunity of a municipal corporation

from punitive damages at common law was not open to

serious question” and while a municipality, like a private

corporation, was to be treated as a natural person and

subject to suit for a wide range of tortious activity, but

such understanding “did not extend to the award of

punitive or exemplary damages.” The opinion further

App. 8

pointed out that the “courts that had considered the

issue. . . . were virtually unanimous in denying such

damages against municipal corporations,” (citations

omitted) [and] “has persisted to the present day in the

vast majority of jurisdictions.”

In the opinion, the court cited numerous cases from

the state courts holding that punitive damages should not

be awarded against municipal corporations - as they

viewed them as contrary to public policy and such an

award would burden the very taxpayers and citizens for

whose benefit the wrongdoer was being chastised. In

footnote 21, 453 U.S. at 260, 101 S. Ct. at 2756, the court

points out that the “general rule today is that no punitive

damages are allowed unless expressly authorized by stat-

ute.” Finally, the court concluded, “[I]n sum, we find that

considerations of history and policy do not support

exposing a municipality to punitive damages for the bad-

faith actions of its officials.” 453 U.S. at 271, 101 S. Ct. at

2762. See also Kentucky v. Graham, 473 U.S. 159, 167, 105 S.

Ct. 3099, 3106, n.13 (1985); Angell v. Leslie, 832 F.2d 817

(4th Cir. 1981); Heritage Homes of Attleboro v. Seekonk Water

District, 670 F.2d 1 (ist Cir. 1982), cert. denied, 102 S. Ct.

2934; Haynesworth v. Miller, 820 F.2d 1205 (D.C. Cir. 1987);

Wolf v. City of Wichita, 833 F.2d 842 (10th Cir. 1989);

Gregory v. Chehi, 843 F.2d 111 (3rd Cir. 1988); Wilson v. City

of Wheeling, 19 W. Va. 323, 350 (1882); Fairbanks v. City of

Bradenton Beach, 733 F.Supp. 1447 (M.D. Fla. 1989); Jones v.

City of Chicago, 639 F.Supp. 140 (N.D. Ill. 1986); 57

Am.Jur.2d p 635, subject Municipal County, School and

State Tort Liability, par. 694. However, even if the City

was not immune from punitive damages, the evidence in

this case would not justify an award of punitive damages.

server emernnwsialle Mpaetee

App. 9

IV.

Jurisdiction of this Court is grounded in the allega-

tions of diversity. Since this action arose in Virginia and

this suit was filed in Virginia, Virginia law applies. Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 243, 102 S. Ct. 252, 259

(1981); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4,

96 S. Ct. 167, 168 (1975); In re Natahala Village, Inc., 976

F.2d 876, 880 (4th Cir. 1992); Thornton v. Cesna Aircraft Co.,

886 F.2d 85, 87 (4th Cir. 1989).

In order for plaintiffs to recover in this action, they

must establish that City was guilty of gross or wanton

negligence.

The legislature of Virginia has given immunity to

cities, counties and towns in the operation of recreational

facilities for negligence unless the negligence be gross or

wanton. The Code of Virginia Section 15.1-291 provides:

§ 15.1-291. Liability of counties, cities, and

towns in the operation of recreational facilities.

- No city or town which shall operate any

bathing beach, swimming pool, park, play-

ground, skateboard facility, or other recreational

facility shall be liable in any civil action or pro-

ceeding for damages resulting from any injury

to the person or property of any person caused

by any act or omission constituting simple or

ordinary negligence on the part of any officer or

agent of such city or town in the maintenance or

operation of any such recreational facility. Every

such city or town shall, however, be liable in

damages for the gross or wanton negligence of

any of its officers or agents in the maintenance

or operation of any such recreational facility.

App. 10

The immunity created by this section is

hereby conferred upon counties in addition to,

and not limiting on, other immunity existing at

common law or by statute. (Code 1950, § 15-714;

1962, c. 623; 1979, c. 277; 1990, c. 18.)

In Virginia “the law recognizes three degrees of neg-

ligence, (1) ordinary or simple negligence, (2) gross, and

(3) willful, wanton and reckless.” Griffin v. Shiveley, 227

Va. 317, 315 S.E.2d 210, 212 (1984).

The distinction between simple or ordinary negli-

gence, gross negligence and wanton negligence is one of

degree. We need not here be concerned with wanton

negligence as that is of a higher degree than gross negli-

gence. Negligence in its broad term is the lack of reason-

able or ordinary care, the doing of an act an ordinarily

prudent person would not have done under the circum-

stances or the failure to do what an ordinarily prudent

person would have done under the circumstances. To

establish negligence there must be violation of a legal

duty to use reasonable care, the violation of which prox-

imately causing injury to another or the failure to exercise

that degree of care which a reasonably prudent person

would have exercised under the circumstances. In Gossett

v. Jackson, ___ Va. ___, 457 S.E.2d 97, 100 (1995), the court

defined simple negligence “as the failure to exercise ‘that

degree of care which an ordinarily prudent person would

exercise under the same or similar circumstances to avoid

injury to another.’ ” citing Griffin v. Shiveley, 227 Va. 317,

321, 315 S.E.2d 210, 212-13 (1984).

To “constitute actionable negligence, a legal duty

must exist, and there must be a violation of that duty

with resulting damage.” Burdette v. Marks, 244 Va. 309,

a eae

SETS Leva

Se ee eee

App. 11

421 S.E.2d 419, 420 (1992), Negligence “constitutes an

actionable tort only when it is shown to be the proximate

cause of an injury.” Farren v. Gilbert, 224 Va. 407, 297

S.E.2d 668, 671 (1982).

The mere happening of an accident is not proof of

negligence. Edlow v. Arnold, 243 Va. 345, 415 S.E.2d 436

(1992). Nor may negligence be presumed from the mere

occurrence of damages. Parham v. Albert, 244 Va. 73, 418

S.E.2d 866 (1992). The evidence must prove more than a

probability of negligence. Page v. Arnold, 227 Va. 74, 314

S.E.2d 57, 61 (1984). The burden of proof of negligence

rests solely on the plaintiff and does not shift. Rogers v.

Marrow, 243 Va. 162, 413 S.E.2d 344 (1992). A defendant

has no duty to prove he was not negligent, because

plaintiff has the affirmative burden of proving negligence

on the part of the defendant. Davoudlarian v. Krombein,

244 Va. 88, 418 S.E.2d 868 (1992).

Before a party “is entitled to an instruction on negli-

gence or contributing negligence . . . there must be more

than a scintilla of evidence introduced on the subject.

Yeary v. Holbrook, 178 Va. 266, 267-68, 198 S.E. 441, 451

(1938).” Ring v. Poelman, 240 Va. 323, 397 $.E.2d 824, 827

(1990). See also Charleston Area Medical Center, Incorporated

v. Blue Cross and Blue Shield Mutual of Ohio, Incorporated, 6

F.3d 243, 248 (4th Cir. 1993); Lust v. Clark Equipment Co.,

792 F.2d 436, 437 (4th Cir. 1990).

To recover “against the owner of premises, an injured

invitee must first establish the existence of an unsafe

condition on the premises.” Kendrick v. Vaz, Inc., 244 Va.

380, 421 S.E.2d 447, 450 (1992).

App. 12

Gross negligence is the “absence of slight diligence or

want of even scant care.” Colby v. Boyden, 241 Va. 125, 400

S.E.2d 184, 189 (1991). In Meagher v. Johnson, 239 Va. 380,

389 S.E.2d 310, 311, the court held that Meagher’s acts

“do not rise to that degree of egregious conduct which

can be classified as a heedless, palpable violation of

rights showing an utter disregard of prudence... . [W]e

hold as a matter of law, that Meagher’s acts did not

constitute gross negligence. .. . ” “Gross negligence . . .

requires proof of something more than the lack of ordi-

nary care. Reed v. Spencer, 187 Va. 530, 535, 47 S.E.2d 359,

361 (1948).” Community Motor Bus Company, Inc. v. Wind-

ley, 224 Va. 687, 299 S.E.2d 367, 369 (1985). In Windley, the

court defined gross negligence by citing its definition

found in Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d

648, 653 (1971). “Gross negligence is that degree of negli-

gence which shows indifference to others as constituting

an utter disregard of prudence amounting to a complete

neglect of the safety of the guest. It must be such a degree

of negligence as would shock fair minded persons

although something less than willful recklessness.” Wind-

ley, 367 S.E.2d at 369.

While issues of causation are to be decided by the

jury, “whether the evidence is sufficient to create a jury

issue is solely a question of law to be determined by the

court.” Charleston Area Medical Center, 6 F.3d at 247 (4th

Cir. 1993); Miller, 608 F.2d at 981, n.8. In diversity cases

where the “sufficiency of the evidence to create a jury

question is presented, this court resolves the issue based

on federal rule.” Charleston Area Medical, 6 F.3d at 247;

Watchford v. S. J. Groves & Sons Co., 405 F.2d 1061, 1065-66

(4th Cir. 1969). See also Brendles Siores, Incorporated, 978

ee

App. 13

F.2d. 150, 157 (4th Cir. 1992). “That rule presents the

question whether there is evidence on which a jury prop-

erly can base a verdict.” Id.

V.

On a motion for summary judgment, the Court is

required to view the facts and draw reasonable inferences

in a light most favorable to the non-moving party.

Nebraska v. Wyoming, __ U.S. __, 113 S. Ct. 1689, 1694

(1993); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,

106 S. Ct. 2505, 2516 (1986); Shaw v. Stroud, 13 F.3d 791,

798 (4th Cir.), cert. denied, 115 S. Ct. 67, and cert. denied,

115 S. Ct. 68 (1994). The plaintiffs are entitled to have the

credibility of all of their evidence presumed. Even so, the

opposing parties “must demonstrate that a triable issue

of fact exists, they may not rest upon mere allegations or

denials.” Anderson, 477 U.S. at 248, 106 S., Ct. at 2510;

Shaw, 13 F.3d at 798. A mere scintilla of evidence support-

ing the case is insufficient. Id.; Charleston Area Medical

Center, 6 F.3d at 248. Rule 56(e) makes clear “that a party

cannot rest on the allegations contained in his complaint

in opposition to a properly supported summary judgment

motion made against him.” First Nat. Bank of Ariz. v. Cities

Service Co., 391 U.S. 253, 289. 88 S. Ct. 1575, 1592-1593

(1968). The non-mover’s contention the facts are in dis-

pute will not suffice. White v. Boyle, 538 F.2d 1077 (4th Cir.

1976). Once the moving party states “in an affidavit suffi-

cient facts to sustain a motion for summary judgment in

his favor, the burden [shifts to the opposing party] to

establish that there is a ‘material issue of fact.’ ” Catawba

Indian Tribe v. State of South Carolina, 978 F.2d 1334, 1341

(1992), cert. denied, 113 S. Ct. 1415 (1993). As pointed out

App. 14

in Atkinson v. Bass, 579 F.2d 865, 966 (4th Cir.), cert. denied,

439 U.S. 1003 (1978), when defendant files a motion for

summary judgment “positive action was demanded of

plaintiff, F.R.Civ.P. 56(e) explicitly admonishes that he

could not then simply ‘rest’ on his complaint - that he

must affirmatively respond.” Continuing, the court

pointed out that plaintiff did nothing and was subject to

the discipline of the rule which provides “[I]f he [plain-

tiff] does not so respond, summary judgment, if appropri-

ate, shall be entered against him [plaintiff].” (Citations

omitted). The failure of a litigant to file counter-affidavits

or depositions may be treated as a conscious waiver, and

a “failure to conduct any discovery or submit any oppo-

sing affidavits .. . can only be viewed as a waiver of such

rights.” Morrissey v. William Morrow & Co., Inc., 739 F.2d

962, 966 (4th Cir. 1984), cert. denied, 469 U.S. 1216 (1985).

See also Cray Communications, Inc. v. Novatel Computer

Systems, Inc., 33 F.3d 390 (4th Cir. 1994), cert. denied, 115 S.

Ct. 1254 (1995). In Cray, the court pointed out that under

Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548

(1986), the moving party is entitled to summary judgment

under Rule 56 against a party who fails to make a show-

ing sufficient to establish the existence of an element

essential to that party’s case and on which party will bear

the burden of proof at trial.

The Supreme Court of Virginia dealt with the above

quoted statute and what constituted gross negligence in

Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688, 690

(1987) holding that the General Assembly by the statute

“intends to limit the civil liability of municipalities in the

maintenance and operation of any recreational facilities

App. 15

to cases of gross negligence.” There, the court summa-

rized the evidence which shows the injured party was 13

years of age. He was attending a convention at Chrysler

Hall and performing with a church choir by playing the

drums. He was seated at the drums in the rear of the

orchestra pit which was in front of the stage. It was a

platform which could be positioned level with or below

the stage. At time of the accident, the pit had been

lowered so that there was a gap between the rear of the

pit and the front of the stage. There was no barrier or

railings in place on the rear perimeter of the pit platform.

In trying to retrieve a drum stick which plaintiff had

dropped, he leaned back on his stool, lost his balance and

went over and was injured when he fell through the gap

18 feet into the basement of the building. Testimony

showed the city was in violation of its own building code

because railings were not in place on the pit platform,

and that the city possessed barriers specifically designed

to provide protection against falls through the gap. Plain-

tiff also presented evidence that 2 years prior to this

accident a 6 year old child fell from the pit into the

basement when pit barriers were in place. The trial court

directed a verdict for defendant which the Supreme

Court affirmed, holding “that plaintiff failed to establish

a prima facie casé of gross negligence,” saying “failure to

install protective devices or to post warnings for children

at a platform edge . . . amounts, at the most, to ordinary

negligence and a failure to exercise reasonable care.” 362

S.E.2d at 691. There, the court defined gross negligence as

“that degree of negligence which shows an utter disre-

gard of prudence amounting to complete neglect of the

safety of another. It is a heedless and palpable violation

App. 16

of legal duty respecting the rights of others. . . . Gross

negligence amounts to the absence of slight diligence, or

the want of even scant care.” (Citations omitted) 362

S.E.2d at 691.

VI.

The item marked at the July 20th hearing as “Plain-

tiffs’ Exhibit 1” for identification was not timely pre-

sented, or in accord with Rule 56 or the initial pretrial

order, or the extension of time granted plaintiffs on July

17th within which to file affidavits or other evidence in

opposition to defendant’s motion for summary judgment.

See Lujan v. National Wildlife Fed., 497 U.S. 871, 110 S. Ct.

3177, 3192 (1990); Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.

1993). In addition, the statement of qualifications is not

signed by anyone and the attachments thereto carry no

signatures or authentications. In their present form, they

would not be admissible in evidence at a trial. Nor would

the pamphlets or treatises attached would not [sic] be

admissible as an exhibit. See Rules of Evidence, Rule

803(18). The same is true of a letter dated July 24, 1995,

marked received July 24, 1995, and “marked for identi-

fication as P.-2” to which is attached pages from a deposi-

tion of Mark taken June 8, 1994, along with what appears

to be two xerox copies of two photographs of the slide

unit. However, the copies of said photos do not show the

“0” (circle) and “X” (cross) which marked the place Mark

jumped from and where he landed. A copy of the full

deposition of Mark is also attached. However, a full copy

of said deposition had already been filed by defendant as

part of its motion for summary judgment. Hence, that full

deposition is already before the Court. Otherwise, since

App. 17

this copy of the deposition was not timely filed, it would

not be considered. But, the deposition having already

been filed, it will be given full consideration. Lujan made

it clear the court “did not abuse its discretion in declining

to admit” affidavits not timely filed. 497 U.S. at 894, 110

S. Ct. at 3192. Too, in keeping with Lujan, the Fourth

Circuit in Orsi affirmed the action of the trial court in

refusing to consider documents offered on the day of the

hearing “on the motion for summary judgment purposes

because it found them to be untimely and unauthenti-

cated.” 999 F.2d at 91. But even if the two documents had

been timely filed, it would not have affected the outcome

of the motion for summary judgment.

VI.

Plaintiffs’ complaint alleges defendant was guilty of

gross negligence in that it (1) failed to provide a sliding

board unit with proper safety features, including a pro-

tective guardrail to prevent children from falling; (2)

failed to warn of the height, weight and age limitations

for use of the proper soft material surface in and about

the slide area in the event of a fall; (3) failed to provide

the requisite surface mandated by industry standards;

and (4) failed to have any person in charge of the park

and failed to correct defects in the equipment.

Most of the allegations are not allegations of facts,

but conclusions. Even so, none of the allegations of any

facts in the complaint reach the test of gross negligence.

Even if the allegations reached the test for gross negli-

gence, they are not supported by any evidence.

App. 18

It is undisputed that the mother and friend who

accompanied Mark to the park did not see Mark fall or

jump at the time of his injury, nor do they know of their

own knowledge what caused his injury. The only evi-

dence of how and what caused Mark’s injury is his own

testimony.

As set out above, the first allegation of negligence

alleged against the City is an alleged failure to provide a

sliding board unit with proper safety features, including

a protective guardrail to prevent a child from falling

through and getting hurt. The day of or the day after the

accident, one of Mark’s grandparents went to the park

and took pictures of the slide. They were attached to

Mark’s or his mother’s deposition. Except for the pic-

tures, there is little description of the slide unit. There is

no testimony or other evidence that the sliding board unit

was defective or failed to meet any known safety stan-

dard. Neither Mark nor his mother complained of or

testified there was any defect in the unit. The allegation

of a failure to provide a unit with a protective guardrail

to prevent a child from falling through is of no conse-

quence, for Mark did not fall through any guardrail or

from the slide unit. Nor is there evidence that the guard-

rail was defective. Mark crawled through the railing and

jumped.

The evidence establishes that the piece of equipment

in question was purchased in 1987 by City from Larry

Hasley and Associates (Hasley), manufacturer’s represen-

tatives for Miracle Recreational Equipment Company

(Miracle). Miracle was known to the City as a well known

manufacturer of playground equipment. The equipment

was furnished and installed by Miracle and Hasley. The

App. 19

City conducted a monthly inspection of all of said equip-

ment, records filed with affidavits of those who con-

ducted such inspections show an inspection of this piece

of equipment in December 1990, and January, February

and March of 1991, and the finding of no defects in it.

City never designed, manufactured or installed said

equipment, nor did it make any modifications to the

equipment from date of purchase up to the date of the

accident in issue, except to replenish some sand.

Here, there is no evidence of any improper or faulty

design, manufacture or installation of the equipment or

that it does not meet industry standards. Nor is there any

evidence that it was in anyway dangerous for use by

children.

Secondly, the allegation is that City failed to warn of

the height, weight and age limitations for the use of the

proper soft material surface in and around the slide. But,

plaintiffs fail to show what the warning should be or

what the height or age limit should be. The unit was a

two slide unit for sliding, not for jumping. Mark’s mother

testified she did not go over to the slides with Mark on

the day of the accident. Mark was four years old.

Whether he could have read and understood any warning

which might have been posted is a guess. But, his mother

had observed the slide unit on prior occasions when she

and Mark went to the park. She said Mark had been to

the park several times before and played on the same

slides. Her idea of what a warning sign should have been

was “play at your own risk, park is not responsible for

upkeep of equipment.” (Dep. of Carol, February 2, 1994,

p. 20). Further, she said there should be a sign saying

children under a certain height or a certain age shouldn't

App. 20

be allowed to play on equipment that is too tall for them.

But no one has ever told her the equipment at the park

was too high for Mark’s age. Continuing, she testified “[I]

had no reason to believe that it was too high. It was

supposedly completely enclosed so that the portion that

was seven feet from the ground, could not, you could not

fall from it because it was enclosed.” (Dep. of Carol

February 2, 1994, p. 21). Carol marked on a photo of the

unit the point where Mark told her he fell or jumped from

with an “0” and where he landed with an “X”.

Since there is no evidence of any danger to a four

year old or that the unit was not suitable, there was no

reason to post any warning.

Without challenge, the evidence establishes the City

had never had a report of an injury by a child or any

person falling or jumping off of the slide unit, or of any

kind of injury or any complaint that the slide was too

high, or of any failure to properly maintain or care for the

slide. Such was not limited to this particular unit, but it

applies to all other similar units in the parks operated by

the City. No evidence has been presented to even suggest

that said unit bears any defect or fails to meet safety

standards applicable to such equipment for use in City

parks.

In his deposition of June 8, 1994, Mark testified he

had never been to Locke Park before the date of the

accident, March 24, 1991.2 He was 7 years old at the time

of his deposition and 4 years old at the time of his

2 His mother testified he had been there several times

before.

App. 21

accident. He testified his mother told him to play on the

equipment he was playing on. He marked on one of the

photographs with an “0” the point he fell or jumped from

and an “X” where he landed. He pointed to the “0” and

said he jumped off there. When asked how he got to the

place where he jumped from, he said:

A. There was a little hole there with - with a

piece right here and partway from it and one

little thing here. When I squeezed through I got

to get on the other side of the bridge when I

went over this way, then I went back and all of a

sudden I couldn’t squeeze through there, so I

jumped down. (Mark’s Dep. June 8, 1994, p. 13)

He said he climbed through the horizontal bars where he

placed the circle, but later said they were the vertical bars

- the ones that go up and down. He described his actions,

saying:

A. I was climbing on the outside, but I was

trying to get in and I couldn’t, so I went back. I

was trying to get in, but then I couldn’t get

through that either.

Q. Okay. Then what did you do?

A. I jumped.

Neither Mark nor any other person ever mentioned there

was any foreign material on the slide or platform or any

defect, except some sand on the steps. Nor has anyone

suggested any defect on anything that had any part to

play in the reason for his jump. Nor did he mention any

part of the equipment was broken or defective, or that

there were any loose boards or any other defect in the

unit. Mark had been to Locke Park several times before

and played on the slides. Carol had observed the height

App. 22

of the slides before the date of the accident and saw

nothing wrong with the slides.

Thirdly, plaintiffs assert, without any evidence to

support the assertion, that City failed to provide a surface

mandated by industry standards. At this point, the only

evidence of what surface is mandated is that sand is the

proper surface. Sand was installed with the unit in 1987,

and has been replenished from time to time by the City.

There is no evidence of the depth of the sand on the date

of the accident, or what depth the industry requires or

recommends. Mark said when he jumped, he landed on

his stomach (Dep. of Mark June 8, 1994, p. 22-23).

Lastly, plaintiffs allege in paragraph 7 of the com-

plaint that defendant failed to have any person in charge

of the park and failed to correct the defects of the equip-

ment. Since plaintiff has not presented any evidence to

establish any defects in the equipment, these assertions

establish nothing. The affidavits and daily records of the

City establish that there were City employees in charge of

the park and its maintenance and that there were no

known defects. Even if the plaintiffs had presented evi-

dence to establish the alleged defects, such would only

establish simple negligence, but certainly not gross negli-

gence.

There is absolutely no evidence of negligence on the

part of City. It had periodic inspections made of the

equipment in the park. It had purchased the equipment

from a reputable manufacturer. The record is totally void

of any evidence that could be said to show “an absence of

slight diligence,” or “want of scant care,” or “an utter

App. 23

disregard of prudence,” or “an indifference to others” or

a “complete neglect of the safety of the guest.”

What the court said in Kendricks in affirming the

action of the trial court in setting aside the jury verdict

and entering judgment for defendant is particularly

applicable here, i.e., “to find that [an unsafe condition]

did exist would involve the rankest of speculation based

on the evidence.” 421 S.E.2d at 450. Continuing, it said

“neither the aggregate of Kendricks’ testimony, nor any

other evidence adduced at trial, provided the jury with a

basis for anything more than conjecture regarding

whether an unsafe condition existed in the ground sur-

face around and underneath the merry-go-round.” 421

S.E.2d at 450.

There being no dispute of any material fact necessary

to establish any right of plaintiffs to recover damages in

the case, the defendant’s motion for summary judgment

is GRANTED and this action is DISMISSED.

Copy of this Opinion and Order is forwarded to

counsel.

/s/ Richard B. Kellam

UNITED STATES

DISTRICT JUDGE

Norfolk, Virginia

July 28th, 1995

App. 24

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

MARK JAMELL, an infant who

sues by his mother as next

friend CAROL A. JAMELL, and

CAROL A. JAMELL,

individually,

Plaintiffs, CIVIL ACTION

NO. 2:95cv249

Vv.

CITY OF CHESAPEAKE,

A Municipal Corporation,

Defendant.

ORDER

On this August 2, 1995, the Court received a letter of

even date from counsel for plaintiff in the above styled

matter to which is attached an affidavit of O. S. Jamell

with a page titled “INDEX” with the word “WITNESS:”

under which appears the name “Dan E. Griffin” and the

word “EXHIBITS” followed by some number 10 listings

made a part thereof. Following that page are affidavits of

H. R. Schippell, Dan E Griffin (the 3 above listed affi-

davits are dated July 18, 1995), Curtis Ray Cayton and

Bettie Gray Culverhouse (these two affidavits are dated

August 1, 1995). Counsel requests the said papers be

made a part of the record in this case. The affidavit of

Jamell sets forth that he testified in discovery proceed-

ings as a witness “as set out in the transcript of the

evidence, a copy of which is attached”! and he “reiterates

1 No transcript was attached.

App. 25

and confirms all of the evidence in said transcript and

does testify that the allegations in the complaint attached

hereto? as an exhibit are true.” The affidavit of Schippell

sets forth certain qualifications and says he read the

testimony “heretofore given by architect Dan E. Griffin.

Moreover, that he has read the complaint filed in [this

court] . . . and is definitely of the opinion that the allega-

tions set forth in the complaint are applicable to the

situation as claimed in the said complaint.” Continuing,

the affidavit sets out “the Defendant was grossly negli-

gent in permitting the sliding board and the equipment to

be used because the openings wherein the child fell

should not have been as large under any of the circum-

stances as have been used by the Defendant. Addi-

tionally, the area should have been inspected more often

in connection with proper soft landing.”

The affidavit of Griffin, after setting forth certain

qualifications as an architect, sets forth that he viewed

“the premises and the playground equipment involved,

which is a subject matter of the litigation; that he testified

under oath . . . to the deficiencies in discovery proceed-

ings, a copy of the transcript is attached herewith.* That

he confirms and corroborates that the said testimony was

true and is true and correct.”

The affidavit of Cayton and Culverhouse merely deal

with their handling of the aforesaid affidavits.

2 No complaint is attached to the affidavit.

3 Griffin’s testimony is not a part of the record in this case.

* No transcript is attached nor is it a part of the record in

this case.

App. 26

While the request is that the Court make the

aforesaid documents attached to the letter of August 2nd

a part of the record in this case, these documents were

not timely offered. Argument on the motion for summary

judgment was had July 20, 1995 and the Court has

already ruled on that motion. Actually, the adding of

these documents would seem to make little or no differ-

ence because the transcripts and exhibits referred to are

not attached, nor have they previously been filed as a

part of the record in this case. Without the transcripts, the

affidavits establish little or nothing. If the transcripts had

been previously filed, there would seem to be no reason

for the affidavits. In any event, nothing in the affidavits

establishes any gross negligence which plaintiff was

required to establish in order to recover.

These affidavits and documents fall into the same

class as those referred to in the Court's order of July 28th.

They were not timely submitted and are not to be made a

part of the record in this case.

Copy of this Order is forwarded to counsel.

/s/ Richard B. Kellam

UNITED STATES

DISTRICT JUDGE

Norfolk, Virginia

August 4th, 1995