August 29, 2011
In
Reed v. City of Evansville, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 82A05-1012-PL-768, Evansville sought to have some of the evidence the Reeds submitted in opposition to the City's motion for summary judgment because it was "self-serving." Today, the Court of Appeals clearly stated that parties should not make this same objection in the future.
less..
The Reeds filed a claim against Evansville and Evansville moved for summary judgment, arguing that the notice was not timely under the Tort Claims Act. The trial court granted that motion and the Reeds appealed.
On appeal, the Court held that the trial court erred when granting summary judgment to the City, because there were genuine issues of material fact. The court then addressed the City's cross-appeal, which challenged the trial court's denial of the City's motion to strike some of the Reeds' evidence. The City moved to strike some of that evidence because it was "self-serving." The Court had none of it.
We first consider the City's challenge to the Reeds' assertion in their brief in opposition to summary judgment that only in April 2008 did they first become aware that the mold might have been caused by the sewer. The City characterizes this assertion as selfserving, but a brief in opposition should advocate the party's position, and accordingly can be "self-serving" so long as it is based on the designated evidence. In some sense, all evidence and legal argument is self-serving because it advances a party's position; without more, this is not a basis to exclude relevant evidence, and an especially improper basis to exclude portions of a brief in opposition to summary judgment. To the extent it relies on evidence that is "self-serving," "[t]he self-serving aspect of such evidence only affects its weight."
Am. United Life Ins. Co. v. Peffley, 158 Ind. App. 29, 37, 301 N.E.2d 651, 656 (1973),
rejected on other grounds by C.T.S. Corp. v. Schoulton, 270 Ind. 34, 38, 383 N.E.2d 293, 295 (1978).
Of additional interest is the Court's rejection of another objection, based on the argument that the affidavit of Reeds' expert lacked essential detail.
To the extent the City challenges Schweickart's affidavit as lacking essential detail, we note that a lack of detail might affect the weight and credibility of an opinion and not its admissibility.
See Jordan v. Deery, 609 N.E.2d 1104, 1111 (Ind. 1993). The trial court properly did not strike Schweickart's affidavit.
The lesson here? Don't bother objecting to evidence at the summary judgment stage if the objection only goes to the weight of the evidence, not its admissibility. Such an objection will get you nowhere.
Lessons:
- Evidence should not be excluded at summary judgment simply because it is self-serving.
- An affidavit should not be excluded at summary judgment simply because it lacks sufficient detail.
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