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02/26/91 EUGENE BEARD v. GOODYEAR TIRE & RUBBER

February 26, 1991

EUGENE BEARD, ET AL., APPELLANTS
v.
GOODYEAR TIRE & RUBBER COMPANY, ET AL., APPELLEES. EUGENE BEARD, ET AL., APPELLANTS V. SAKS FIFTH AVENUE INC., APPELLEES. EUGENE BEARD, ET AL., APPELLANTS V. WOODWARD & LOTHROP INC., APPELLEE. EUGENE BEARD, APPELLANT V. MAY DEPARTMENT STORES INC., ET AL., APPELLEES. GOODYEAR TIRE & RUBBER COMPANY, APPELLANT V. EUGENE BEARD, ET AL., APPELLEES



Appeals from the Superior Court of the District of Columbia; Hon. Curtis E. Von Kann, Motions Judge; Hon. Joseph M. Hannon, Motions Judge; Hon. Nicholas Nunzio, Motions Judge

Rogers, Chief Judge, and Schwelb and Farrell,* Associate Judges.

The opinion of the court was delivered by: Schwelb

This case originated in 1983 as a debt collection action by May Department Stores (Hecht's) against Eugene Beard and Alberta Roberts to recover funds charged to a credit card in Beard's name. Beard counterclaimed against Hecht's, alleging in substance that the credit card had been fraudulently obtained in his name by Ms. Roberts, a former girlfriend, without his knowledge or consent. Beard claimed that. Hecht's had negligently issued the card without verifying the information on the application. He maintained that as a result of the disclosure of the purportedly due balances to CBI, a credit reporting company, his credit rating and creditworthiness had been substantially impaired. Beard joined as additional counter-defendants a number of other retail merchants which had likewise allegedly issued credit cards in his name, or jointly in his name and in his erstwhile inamorata's name, upon Ms. Roberts' unauthorized application. This case, now No. 87-464, came to be known as Beard I. *fn1

Beard and a second plaintiff, Bernice Elam, subsequently brought a separate suit against several of his adversaries in Beard I, alleging violations of the consumer protection laws. The gravamen of the new complaint was that these companies had failed to register as retail creditors, as required by the District of Columbia Consumer Retail Credit Regulations, 16 DCMR § 102.1 (1987). This case, now Nos. 86-1327 through 86-1331, came to be known as Beard II. *fn2 Beard I and Beard II have been consolidated for purposes of this appeal.

In the trial court, Judge von Kann granted summary judgment in favor of the merchants in Beard I, Judge Hannon did the same in Beard II, Judge von Kann denied the merchants' request for Rule 11 sanctions, and judge Nunzio imposed discovery sanctions against Beard for failure to respond in timely fashion to interrogatories propounded by Woodward & Lothrop, which was one of the merchant defendants. These decisions are now before us on appeal.

BEARD I-COUNT I

A. The Contentions of the Parties.

In the first count of his counterclaim in Beard I, Beard alleged that the various merchants had negligently accepted fraudulent credit applications from Ms. Roberts and had reported unfavorable credit information about Beard to CBI after the accounts began to show deficiencies. He maintains that the merchants were necessarily negligent because, if they had exercised due care, they would not have issued credit cards for which he did not apply, and would have averted the injury to his credit rating which followed the unauthorized charges on those cards by Ms. Roberts. More specifically, he contends that the merchants failed to verify the information on the applications, e.g. by checking with his employer. As a second string to his bow, Beard alleges that the merchants were negligent in that they did not adhere to their own review procedures, as described in affidavits and responses filed by the merchants in connection with this litigation.

Following substantial discovery, the various merchants filed motions for summary judgment. In support of their motions, they relied on affidavits and sworn answers to interrogatories describing the processing procedures which, according to the merchants, had been followed in regard to the applications in this case. These procedures varied in some measure from merchant to merchant, but none included an automatic inquiry with the applicant's employer to verify information on the application. Some affiants described their procedures as "quite thorough and . . . consistent with the credit application review procedures utilized throughout the retail industry" (Goodyear) or as "recognized and in accordance with the credit application and review procedures used by many members of the credit industry" (Woodward & Lothrop). *fn3 Claiming, among other things, that there was no evidence of negligence, the merchants prayed for judgment dismissing the counterclaim.

In response to the merchants' motions, Beard filed an affidavit in which he asserted that he had not authorized the credit card applications. He also submitted an affidavit by an investigator to the effect that, according to pertinent records, the merchants had not contacted his employer, Howard University, to verify information on the applications. Beard did not submit any affidavit from an expert, nor did he attempt in any other way to define the standard of care applicable to these merchants or to identify the respects in which the merchants had failed to adhere to that standard. Rather, he basically relied on the doctrine of res ipsa loquitur or some improvised variant thereof. *fn4

Judge von Kann granted the merchants' motions for summary judgment, holding that Beard had failed to present any evidence of negligence and that he was contributorily negligent as a matter of law. *fn5 We affirm the Judge's holding with respect to negligence on the ground that expert testimony was required to establish the applicable standard of care and any deviation therefrom. Since Beard presented no affidavit or other sworn statement from an expert, the record presents no triable issue of fact with regard to Beard's allegations of negligence. We do not reach the other issues addressed by the parties. *fn6

B. Summary Judgment Standards.

To prevail upon a motion for summary judgment, the moving party must clearly demonstrate that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983). The evidence is viewed in the light most favorable to the party opposing the motion, Truitt v. Miller, 407 A.2d 1073, 1077 (D.C. 1979), and that party is entitled to all favorable inferences which may reasonably be drawn from the evidentiary materials. Holland, supra, 456 A.2d at 815.

If a moving defendant has made an initial showing that the record presents no genuine issue of material fact, then the burden shifts to the plaintiff to show that such an issue exists. Landow v. Georgetown-Inland West Corp., 454 A.2d 310, 313 (D.C. 1982). The defendant's initial showing can be made by pointing out that there is a lack of evidence to support the plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conclusory allegations by the non-moving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment. Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 349 (D.C. 1987) (per curiam). Rather,

an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial.

Super. Ct. Civ. R. 56 (e). Moreover, affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Id.

To summarize, the test for deciding a motion for summary judgment is essentially the same as that for a motion for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-53, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).

C. The Practice in the Industry.

The affidavits and other materials submitted by the merchants represent that their review procedures conform to those generally used by members of their industry, or at least by many of them. Such evidence is undoubtedly relevant to the issue of negligence. Princemont Constr. Corp. v. Smith, 140 U.S. App. D.C. 111, 114, 433 F.2d 1217, 1220 (1970) (per curiam); see also Noble v. Worthy, 378 A.2d 674, 676-77 (D.C. 1977). "Industry custom and practice are commonly looked to for illumination of the appropriate standard of care in a negligence case." Erlich v. First Nat'l Bank of Princeton, 208 N.J. Super. 264, , 505 A.2d 220, 234 (1984). "Put more conceptually, proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to Judge of particular conduct under particular circumstances." Trimarco v. Klein, 56 N.Y.2d 98, 107, 436 N.E.2d 502, 505, 451 N.Y.S.2d 52, 55 (1982) (quoting R. Pound, Administrative Application of Legal Standards, 44 ABA Rep. 445, 456-57).

Nevertheless, evidence of conformity to industry practice is not conclusive, and cannot set the standard of conduct. Princemont, supra, 140 U.S. App. D.C. at 114, 433 F.2d at ...


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