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Unsworn declaration created issue of fact to oppose summary judgment.

Where plaintiff filed a declaration in response to defendants’ motion for summary judgment that sought to amend her prior deposition testimony based on her nervousness during the deposition and her refreshed recollection of the incident in question, the Court of Appeals ruled that the declaration should have been considered and that there were thus genuine issues of material fact. Summary judgment for defendants was reversed.

In Lundell v. Hubbs, No. E2019-02168-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2020), plaintiff worked at an elementary school and regularly volunteered as a bus aide. On the day of her injury, plaintiff was “traversing the aisle of the bus” when she alleged that the bus driver “carelessly and recklessly drove over a speed bump at an unsafe rate of speed, causing her to fall and sustain injuries.”

Plaintiff filed this negligence suit against the driver and the owner/bus line, and defendants filed a motion for summary judgment. Plaintiff responded to the motion and attached to her memorandum a “Declaration of Barbara Lundell,” wherein she explained that she was nervous during her initial deposition and had incorrectly identified where the incident took place. The trial court granted summary judgment to defendants, ruling that plaintiff’s declaration should not be considered, that plaintiff had not shown a breach of duty, and that plaintiff was at least 50% at fault because she “was in the best position to protect herself from the common-sense danger of walking in the aisle of a moving school bus.” On appeal, summary judgment was reversed.

After addressing some evidentiary issues, including affirming the trial court’s refusal to deem certain requests for admission sent by plaintiff to defendants admitted, the Court of Appeals analyzed whether plaintiff’s declaration that was attached to her memorandum should have been considered by the trial court. The Court noted that the declaration explained that plaintiff was nervous in her deposition, that she incorrectly identified the location of the incident, that she remembered the correct location five days after her deposition and drove herself along the bus route to verify, and that she now asserted that the incident occurred at a specific speed bump at the bottom of a hill. The declaration included the statement “I declare under the penalty of perjury that the foregoing is true and correct,” as well as plaintiff’s signature.

While the trial court relied on Rule 56.06 to exclude the declaration because it was not presented as an affidavit or sworn, plaintiff argued that Tennessee Rule of Civil Procedure 72 allows for the use of declarations such as hers in opposition to summary judgment motions, and the Court of Appeals agreed. Rule 72 states that “[w]henever these rules require or permit an affidavit or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn declaration.” The Court explained:

Construed together with Rule 56.06, Rule 72 permits a party to file an unsworn declaration in support or in opposition to a motion for summary judgment because Rule 56.06 requires or permits an affidavit to be filed concomitantly therewith, demonstrating a genuine issue of material fact. Furthermore, our review of the Declaration demonstrates that it was made under the penalty of perjury, signed, dated, and inclusive of the required language. Our research reveals that parties not infrequently support and oppose motions for summary judgment with unsworn declarations.

(internal citations and quotation omitted).

The trial court also refused to consider the declaration due to the cancellation rule. “[T]he cancellation rule stands for the proposition that contradictory statements regarding a single fact will cancel each other out and applies when the inconsistency is unexplained and neither version of the testimony is corroborated.” The Court of Appeals explained, though, that the cancellation rule “is actually more narrow than it would appear to be,” and that it “may not be applied where the inconsistency is explained.” (internal citations omitted). The Court looked at other cases in which an apparent inconsistency was deemed sufficiently explained to avoid the cancellation rule and determined that plaintiff here had “provided a sufficient explanation for her later contradictory statements.” Plaintiff had explained that her nerves affected her first answers, and that after her deposition she refreshed her recollection by driving the bus route herself. Plaintiff had also attached photographs to her declaration showing the place where she asserted the incident occurred. Viewing this evidence in the light most favorable to plaintiff, the Court of Appeals ruled that plaintiff’s “statements regarding the location of the incident along the bus route is a fact question for a jury to consider in weighing the possible contradictions and credibility of the testimony of [plaintiff].” (internal citation omitted).

Because unsworn declarations were allowed and the cancellation rule did not apply, the Court held that plaintiff’s declaration should have been considered.

With the determination that the declaration should have come into play, the Court of Appeals also agreed with plaintiff that there were genuine issues of material fact precluding summary judgment. While the testimony regarding the driver’s speed over the first or second speed bump was somewhat confusing, plaintiff had stated that the driver “traversed the speed bump in a manner that caused the children to pop up out of their seats.” Further, plaintiff testified that other drivers slowed down for this particular speed bump but that defendant driver did not. The Court ruled that this evidence created an issue of fact and that summary judgment was not appropriate.

The Court also ruled that summary judgment should not have been granted based on plaintiff’s comparative fault. “Although comparative fault can under some circumstances be the basis for a grant of summary judgment, comparative fault is typically a question for the trier of fact.” (internal citation and quotation omitted). Here, the Court of Appeals ruled that there were genuine issues of material fact as to plaintiff’s fault in the incident and that summary judgment based on comparative fault should be reversed.

The Court of Appeals correctly reversed summary judgment here and did a good job of applying the Rules of Civil Procedure. Any litigant attempting to use an unsworn declaration in response to a summary judgment motion should be aware of this opinion.

NOTE: this opinion was released three months after oral argument.

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