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01/26/90 MARY THOMPSON v. SHOE WORLD

January 26, 1990

MARY THOMPSON, APPELLANT
v.
SHOE WORLD, INC., ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Tim C. Murphy and Hon. Shellie F. Bowers, Motions Judges.

Before Rogers, Chief Judge, and Belson and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: This is an appeal from a grant of summary judgment in favor of appellees KOWA American Corp. (KOWA), an importer of women's shoes, and Shoe World, Inc. (Shoe World), a retailer. The appellant, Mary Thompson, was injured when she fell while alighting from a government shuttle bus. *fn1 Ms. Thompson alleged that her fall was caused, at least partially, by a defective heel on a pair of shoes purchased from Shoe World and imported by KOWA. In their motions for summary judgment, Shoe World and KOWA agreed-for purposes of the motions-that the heel was defective but argued that the circumstantial evidence presented by Thompson was insufficient to allow a reasonable juror to conclude that the heel was the proximate cause of her injuries. The trial court agreed and granted summary judgment to appellees. On appeal, Thompson argues that the evidence, when examined in the light most favorable to her, was sufficient to create a jury question on the issue of causation and that summary judgment was therefore inappropriate. We agree and reverse.

I.

On April 20, 1981, Ms. Thompson was injured when she fell while attempting to get off a shuttle bus. On September 17, 1982, she brought suit against Shoe World on theories of negligence, breach of warranty, and strict liability. KOWA was named as a defendant in her amended complaint, filed on December 30, 1983. *fn2

In her deposition taken on April 22, 1983, Ms. Thompson stated that as she was stepping down from the bus with her left foot, she was thrown off balance when her right heel stuck in the matting on the bus. As a result, she landed harder than usual on the ball of her left foot and was unable to regain her balance. When she landed on the pavement, the heel of her left shoe was broken. Although she could not remember the heel breaking, she stated that since "the shoe was intact when I was on the step . . . it must have broken when I stepped down." This, she alleged, was at least a partial cause of her fall. The record also contains a report by Joseph Ciaio, a shoe expert, who examined Ms. Thompson's shoes after the fall. In that report, Mr. Ciaio concluded that the heel design and construction of the shoe were defective.

On April 12, 1984, KOWA moved for summary judgment on the ground that plaintiff had failed to present any evidence that the alleged defect was the proximate cause of her injuries. Judge Murphy granted this motion in an order dated May 16, 1984. Ms. Thompson's motion to reconsider this order was denied on June 28, 1984, the court stating that "plaintiff has raised no matters requiring reconsideration of its earlier ruling."

On February 9, 1985, a deposition was taken of Glenn C. Fields, the driver of the bus, and, based upon his testimony, Ms. Thompson sought reconsideration of the May 16, 1984 order granting summary judgment to KOWA. In that deposition, Fields testified than Ms. Thompson had landed on the heel of her left foot too close to the front of the step, and then fell forward because there was no place for the ball of her foot to land. When asked when the heel had come loose, his response was that "it would have to be, [her left heel breaking] that caused her to make the fall, it had to be that or her not putting her ball of her foot down on the steps." He did not see her right heel get stuck in the mat and did not see or hear the left heel break. He did, however, notice that the heel was broken after the fall. Judge Holmes denied the motion to reconsider on April 29, 1985, stating that it was not well grounded upon sufficient new facts, nor timely, nor warranted by law . . . ." Ms. Thompson appeals only from the May 16, 1984 order granting summary judgment.

On November 27, 1985, Shoe World filed a motion for summary judgment on essentially the same grounds cited by KOWA, i.e., that Ms. Thompson had failed to present sufficient evidence that the alleged defect was the proximate cause of the fall. Judge Bowers granted this motion on March 21, 1987, stating:

Plaintiff's failure to raise a genuine issue re: "proximate cause" is not aided by the deposition testimony of Glenn Fields, which merely calls upon the trier of fact to guess or speculate as to whether plaintiff's left shoe heel (even if defective) had anything at all to do with the happening of the accident.

Judge Bowers denied Ms. Thompson's motion to reconsider on July 27, 1987. She appeals from the March 21 order.

II.

A motion for summary judgment will be granted when the

pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving ...


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