Chapter 4: Motions for Summary Judgment

Nan L. Haynes

Learning Outcomes

  1. Understand;
    1. why and when to file a motion for summary judgment;
    2. the relevant procedural rules when making or opposing a motion for summary judgment; and
    3. the documents required when making or opposing a motion for summary judgmen
  2. Be able to:
    1. apply the relevant procedural rules when making or opposing a motion for summary judgment; and
    2. draft the documents required when making or opposing a motion for summary judgment.

 

Introduction

Motions for summary judgment are requests for a court to enter judgment against a party’s claim or defense without going to trial. Lawyers moving for summary judgment argue that, based on the undisputed admissible facts before the court, their client is entitled to win a claim or defense as a matter of law; there is no reason to proceed to a trial.

Any party can move for summary judgment on particular claims, defenses, counterclaims, or crossclaims. Sometimes, both parties will move for summary judgment (called cross-motions), but the court will separately consider each motion. Here are some examples of various bases for moving for summary judgment:

  1. The plaintiff moves for summary judgment on their own claim, e.g., that they were injured by the defendant’s negligent operation of a motor vehicle or failure to warn about a dangerous product, by arguing that, based on the undisputed facts, they are entitled to win the claim as a matter of law.
  2. The plaintiff moves for summary judgment on an affirmative defense of the defendant, e.g., that the statute of limitations had expired on the plaintiff’s claim for negligence, arguing that, based on the undisputed facts, the defense fails as a matter of law.
  3. The defendant moves for summary judgment on the plaintiff’s claim, e.g., arguing that, based on the undisputed facts, the defendant’s actions or omissions did not breach any duty, because defendant at all times obeyed the rules of the road or because they issued an adequate and conspicuous warning about the product; thus, they are entitled to judgment as a matter of law.
  4. The defendant moves for summary judgment on their defense, e.g., that the statute of limitations had expired on the plaintiff’s claim for negligence, by arguing that, based on the undisputed facts, the plaintiff failed to file suit within the required time; thus, the defendant is entitled to win the statute of limitations defense as a matter of law.

Summary judgment can be granted only if under the undisputed material facts the movant is entitled to judgment as a matter of law. Sometimes, the parties agree about the facts—both that they’re undisputed and what the material facts are—but disagree about how the law should apply to those facts. Other times, the parties disagree about the facts—what certain evidence means—and therefore about whether there are disputed facts precluding summary judgment. In that case, a party opposing summary judgment may argue that because there are disputed material facts, summary judgment is not appropriate, and the case must instead go to trial.

The purpose of a trial is for the parties to present evidence in order to prove their claim or defense to a trier of fact. So, when a claim or defense can be decided on a summary judgment motion based on undisputed facts—that is, as a matter of law—there is no need for a trier of fact (a jury or a judge) to evaluate the facts, and a court will grant the motion and issue judgment summarily. If the court denies the motion, then the claim or defense will proceed to trial where the non-moving party (the party that opposed the motion for summary judgment) has the opportunity to prove the claim or defense to a trier of fact. That’s why courts may not decide issues of fact when determining whether to grant summary judgment; rather, the court’s task is to examine the admissible record evidence and decide whether this evidence, if true, entitles the moving party to judgment as a matter of law.

Sometimes, parties may move for partial summary judgment, which is a ruling on one claim or defense or even just a part of a claim or defense. In that situation, the same standard applies, but the procedural effect of the ruling may be different. For example, if the court grants summary judgment as to one of two claims, then the other claim will proceed to trial.

 

Why Move for Summary Judgment

Early in the case, lawyers carefully analyze the claims and defenses before engaging in discovery to identify facts that are in reality not in dispute. These steps help to identify whether there are claims or defenses that can be resolved by the court, without a trial, as a matter of law, and can lead to filing a motion for summary judgment on some or all issues in a case.

If a summary judgment motion is successful, then the moving party can avoid trial on that claim or defense. If the motion is granted in part, then the issues will be limited accordingly at trial. (For example, the court may determine that a defendant breached a contract, leaving for trial only the matter of damages.)

Parties may move for summary judgment even suspecting that they probably will not succeed. This is a strategic move to force the other side to “lay bare their proof.” This strategy reflects the fact that the filing of a motion for summary judgment can speed settlement. Therefore, the summary judgment procedure allows lawyers to effectively and efficiently manage litigation.

Still, lawyers can misuse the procedure by filing the motion before conducting adequate discovery, leading to unnecessary or perhaps even frivolous motions to burden opponents with needless work. Be mindful of this, because if you misuse summary judgment, or any other motion, you will lose credibility with the court and with opposing counsel. Moreover, it is unethical to file a frivolous motion and is sanctionable under Federal Rule of Civil Procedure 11.

When to Move for Summary Judgment

Parties may move for summary judgment at any time until 30 days after the close of discovery. Fed. R. Civ. P. 56(b). Carefully check local rules and judicial orders for any additional timing-related requirements, since Rule 56(b) provides a default rule that can be modified. See id. (setting the 30-day rule “[u]nless a different time is set by local rule or the court orders otherwise”). For example, the court may impose a deadline for moving for summary judgment in its scheduling order. Courts may also set other requirements before filing for summary judgment, such as requiring the parties to first meet with each other and/or the court.

Procedural Rules

The basic procedure for moving for summary judgment in federal court is set forth in Federal Rule of Civil Procedure 56. See the appendix for links to each state’s rules.

The party moving for summary judgment has the burden of demonstrating there is “no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law . . . [and] properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

If the moving party will bear the burden of proof at trial as to particular claims or defenses, it must demonstrate its entitlement to relief based on the undisputed facts when moving for summary judgment. Id. at 255. If the non-moving party will bear the burden of proof at trial, then the moving party can point to the absence of evidence supporting the non-moving party’s claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In either circumstance, the opponent will file a response. If the moving party has satisfied its burden, then the non-movant must point to disputed material facts that preclude summary judgment and require resolution at trial. Id. at 324.

The court’s role in deciding a motion for summary judgment is not to resolve any disputed facts, but instead to assess whether there is a genuine dispute of material fact. Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not [themselves] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”). In making this determination, the court must draw any inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks and citation omitted).

Exercise 4-1

As with all motions, the court may or may not hold oral argument on a motion for summary judgment. Depending on local rules, a party may request the court hear oral argument on the motion.

Supporting Documents

  1. Moving party: the notice of motion

The moving party must submit a written notice of motion or motion setting forth the particular grounds for seeking summary judgment (that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law) and the relief sought (an order granting summary judgment). See Fed. R. Civ. P. 7(b) (setting forth general requirements for motions).

  1. Both parties: a statement of undisputed facts and/or affidavit or attorney affirmation with exhibits

Moving parties argue that they are entitled to judgment based on the admissible evidence before the court; thus, each party must submit their evidence to the court with the motion or response. The procedure for doing so varies by court; some courts require a statement of undisputed facts, while others might require attorney affidavits or affirmations (which are substantially the same, but an affidavit must be signed before a notary). Other jurisdictions or courts require that each party not submit separate statements of fact but instead incorporate that information into its brief. In any event, each party will submit the pertinent evidence along with their filing.

The statement, affidavit, or affirmation includes facts only. Do not include opinions, emotions, or conclusions. Facts are about the physical world. They can be seen or heard and can be verified through objective evidence. In contrast are conclusions and opinions that tell the reader what to think.

For example, here the writer tells the reader to think the defendant driver was reckless through use of conclusions (in bold):

“The defendant driver barreled down the road at breakneck speed without any thought to the blizzard-like conditions.”

In contrast, here the writer shows the reader that the driver was reckless through facts. (References to “Cite” indicate the writer would cite to evidence that supports that fact):

“The defendant was driving south on Route 16 during the early morning hours of December 26. The streetlights were fifty yards apart. Cite. The wind was blowing from the south at 45 mph, with gusts up to 65 mph, and it was snowing at a rate of 2 inches an hour. Cite. The posted speed limit was 45 mph, yet the defendant drove his truck at a rate of about fifty mph. Cite.”[1]

In addition to supporting a motion with an affidavit or affirmation from their attorney, a party might also submit their own affidavit, that of a fact witness, or that of an expert.

Parties may submit evidence to support their argument by citation to “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). As indicated by the ending reference to “other materials,” the particular forms of evidence mentioned in the rule are not the exclusive means of presenting evidence on a Rule 56 motion. The court may consider any material that would be admissible or usable at trial.

  1. Both parties: a brief in support of or in opposition to the motion

You learned how to write a brief in your legal writing class. For a review of how to organize and write a persuasive memorandum of law, see Nan Haynes, Legal Writing Handbook for Clinical Students (CALI eLangdell Press 2023).

  1. Moving party: reply brief

Depending on local rules, the moving party may file a memorandum in reply.

Always check local rules for page/word limits and other formatting requirements, courtesy copies, and other details. In addition to the example documents below, you can ask your supervisor or colleague for a sample filing in the same jurisdiction, to give you an idea what these materials should look like conforming to local standards.

Checklist

✓       Identify the jurisdiction whose procedural rules apply, which may be federal or state.

✓       Find the applicable procedural rules, including:

  1. Identify who has the burden of proof

  2. Identify what the party must prove to prevail

  3. Identify how the court will view the evidence before it

✓         If you are in federal court, determine whether state or federal substantive law applies.

✓       Identify the required supporting documents.

✓         Review the filing rules for your jurisdiction, your local court, and for the judge assigned to your case.

Sample Documents

To illustrate application of the rules and procedures described in this chapter, below you’ll find sample documents in two separate cases, both set in the Western District of New York. For each sample, you’ll find a notice of motion, a statement of undisputed facts in support of the motion (which for a real filing would include an attorney affirmation with exhibits attached), a brief in support of the motion, a responsive statement of undisputed facts (which for a real filing would also include an attorney affirmation with exhibits attached), and a brief in opposition to the motion. All are annotated with explanations.

First Sample

The first sample relates to the civil rights claim of George Chaplin, a diabetic former detainee housed in a county jail, against Joy Curvin, a nurse employed by the jail. Chaplin alleges that Curvin violated his civil rights when she failed to provide him with insulin during his detention. The substantive rule is that medical providers, such as Curvin, violate a pretrial detainee’s right to adequate medical treatment when they show “deliberate indifference” to the detainee’s serious medical needs. The defendant, Curvin, moves for summary judgment against the plaintiff, Chaplin, arguing that as a matter of law Curvin did not act with deliberate indifference to Chaplin’s serious medical needs.

 

Exercise 4-2

Answer the following questions by identifying the procedural rules that will apply to Curvin’s motion.

 

Once you know the procedural rules, you combine them with the substantive issue to form the issue before the court. Here’s an effective formula:

(insert the way the court will view the evidence) (insert party with burden of proof) (insert what that party must prove) (insert substantive issue)

For example, consider this hypothetical. Assume Dave sued Joe for negligence when he fell on a broken stair at Joe’s house. Joe moves for summary judgment, arguing that the undisputed material facts establish that he was not negligent as a matter of law. Applying the formula to state the issue before the court, the question will be: reviewing the evidence in the light most favorable to Dave as the non-moving party, did Joe sustain his burden to show that he was not negligent as a matter of law for failure to repair a broken stair?

 

Exercise 4-3

Sample Document 1

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GEORGE CHAPLIN,
                           Plaintiff 25-cv-1501
                   v.
JOY CURVIN,
                           Defendant

DEFENDANT’S NOTICE OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, defendant Joy Curvin, through her undersigned attorneys, respectfully moves for summary judgment on plaintiff George Chaplin’s claim that he received constitutionally inadequate medical care while in county jail. In support of this motion, Curvin submits the attached statement of undisputed facts, with exhibits, and accompanying memorandum of law. Because there is no genuine dispute as to any material fact and Curvin is entitled to judgment as a matter of law, Curvin respectfully requests that the Court grant her motion and dismiss this case.

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 2

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GEORGE CHAPLIN,
                           Plaintiff 25-cv-1501
                   v.
JOY CURVIN,
                           Defendant

DEFENDANT’S STATEMENT OF UNDISPUTED FACTS[2]

INTRODUCTION

Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56(a)(1), defendant Joy Curvin hereby submits this statement of undisputed facts. The record establishes that the defendant did not violate the plaintiff’s Fourteenth Amendment right to adequate medical care because she was not deliberately indifferent to the plaintiff’s medical needs. As fully explained in the accompanying memorandum of law, she is entitled to judgment as a matter of law based on the following undisputed material facts.

 

THE UNDISPUTED FACTS[3]

  1. The county jail’s medical department staff’s shift ended at 7:00 pm on Friday, April 14, 2023. Pertinent portions of the deposition testimony of defendant Joy Curvin, R.N. are attached as Exhibit A. Ex. A at 6:10-11.
  2. The plaintiff was arrested by a sheriff’s deputy at approximately 8:00 p.m. that day and was booked at the county jail at approximately 11:40 p.m. that night. Pertinent portions of the county jail records of George Chaplin are attached as Exhibit B. Ex. B at 1.
  3. During the booking interview, the plaintiff was identified as a diabetic who received shots for his medication. Id. at 20-21.
  4. The following morning, the plaintiff’s booking papers were brought to the medical department. Pertinent portions of the deposition testimony of Sally Shell, the medical department secretary at the time of the incident, are attached as Exhibit C. Ex. C at 4:8-10.
  5. When Nurse Curvin saw the plaintiff’s chart at approximately 2:00 p.m. on April 15, 2023, she requested that he be brought to the medical department. Ex. A at 15:15-18.
  6. Only fifteen minutes later, Nurse Curvin interviewed the plaintiff about his medical condition, obtained his medical history, and contacted the jail physician to obtain an order for insulin. She then administered the insulin as ordered and gave the plaintiff water to drink. Id. at 16:5-7.
  7. Nurse Curvin then put the plaintiff’s medical chart in the sick call box, so eight hours later he would be seen to check his insulin level. Id. at 16:17-19.
  8. At about 6:30 p.m. that day, a deputy transported the plaintiff to town court, where he arrived at approximately 6:49 p.m. He returned to the county jail at approximately 8:00 p.m. A copy of the transportation log is attached as Exhibit D. Ex. D at 3.
  9. By 10:30 p.m., just thirty minutes after he was scheduled for an insulin level check in the medical department, a nurse called a sergeant to ask why the plaintiff had not appeared for his medical check. The sergeant erroneously told her he was still in court. Pertinent portions of the deposition testimony of Selma Polvino, the nurse that made the call, are attached as Exhibit E. Ex. E at 3:2-12.
  10. At about 11:45 p.m., the plaintiff was assigned to housing unit Delta. Ex. B at 4.
  11. Approximately fifteen hours later, the plaintiff was observed to be in distress in his cell, and an emergency was called. The Delta Block notes are attached as Exhibit F. Ex. F at 6.
  12. Nurse Curvin responded to the emergency call, and the plaintiff was taken to the medical department in a wheelchair. Ex. A at 22:10-15.
  13. The jail physician on call was contacted; the plaintiff was administered insulin and taken by ambulance to the medical center. Ex. B at 15. The plaintiff was admitted to the hospital where he was treated. He returned to county jail three days later. Id. at 25.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Exercise 4-4

 

Sample Document 3

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

 

GEORGE CHAPLIN,
                           Plaintiff 25-cv-1501
                   v.
JOY CURVIN,
                           Defendant

 

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT[4]

Because the undisputed material facts establish that plaintiff George Chaplin received constitutionally adequate medical treatment from defendant Joy Curvin, the Court should grant summary judgment in favor of the defendant and dismiss this case.

STATEMENT OF FACTS

The facts material to this motion for summary judgment are fully set forth in the attached Statement of Undisputed Facts.

SUMMARY JUDGMENT STANDARD

Summary judgment will be granted if the moving party establishes, through affidavits and other evidence, that there is no genuine dispute of material fact and that they are, therefore, entitled to judgment as a matter of law.[5] Fed. R. Civ. P. 56(a). “Once the movant meets its burden, the non-movant may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial.” Music Royalty Consultants, Inc. v. Reservoir Media Mgmt., Inc, 598 F. Supp. 3d 158, 172 (S.D.N.Y. 2022) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “To survive summary judgment, the non-movant must present concrete evidence and rely on more than conclusory or speculative claims.” Id. (citing Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)).

ARGUMENT

AS A MATTER OF LAW, NURSE CURVIN DID NOT VIOLATE THE PLAINTIFF’S RIGHT TO ADEQUATE MEDICAL CARE BECAUSE ANY FAILURE TO PROVIDE HIM CARE WAS NOT SUFFICIENTLY SERIOUS AND NURSE CURVIN WAS NOT  INDIFFERENT TO THE PLAINTIFF’S MEDICAL NEEDS.[6]

The[7] plaintiff has failed to submit sufficient evidence to raise a question of fact about whether Curvin violated his right to adequate medical care. To establish a claim for failure to provide adequate medical care to medical needs under the Due Process Clause of the Fourteenth Amendment, a pretrial detainee plaintiff must satisfy two elements: first, that the plaintiff had a “serious medical need,” and second, that the defendant “acted with deliberate indifference to such needs.” Charles v. Orange County, 925 F.3d 73, 86 (2d Cir. 2019).[8]

The evidence before this Court fails to raise a question of fact about either element. Therefore, Nurse Curvin is entitled to summary judgment on the plaintiff’s claim.

A. The short-term interruption in the administration of the plaintiff’s insulin is not a “serious medical need.”

To satisfy the first element, the plaintiff must show that he “was actually deprived of adequate medical care” for a condition that “posed an unreasonable risk of serious damage to his health.” Dumel v. Westchester County, 656 F. Supp. 3d 454, 464 (S.D.N.Y. 2023) (citations omitted). The alleged inadequate care must be “sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks and citation omitted). That condition is absent unless the “failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation omitted).

Courts consider several factors when determining whether a plaintiff has established a serious medical need. Among them are “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Id. (citation omitted). In contrast, “an assertion of pain sensation alone, unaccompanied by any large medical complications, does not amount to a serious medical need . . . .” Evan v. Manos, 336 F. Supp. 2d 255, 260 (W.D.N.Y. 2004). “Courts have consistently rejected deliberate indifference claims . . . involving relatively brief delays or interruptions in treatment and a dearth of evidence that the plaintiff’s pain or medical condition worsened as a result.” Ridge v. Davis, No. 18-CV-8958, 2022 WL 357020, at *15 (S.D.N.Y. Feb. 7, 2022) (collecting cases).

In this case, even looking at the facts in the light most favorable to the plaintiff, the facts before this Court do not raise a question of fact that the plaintiff had a serious medical need. Rather, it shows merely a short delay in the administration of his insulin.

When the plaintiff first arrived at the county jail at about midnight, he was asked a number of questions related to his health. He calmly and coherently responded that his doctor prescribed medication to treat his pain and for diabetes. He also indicated that he wanted to be seen in the medical department. Ex. B at 4-5. Early the next afternoon, he was taken to the medical department where Nurse Curvin took the plaintiff’s blood pressure and pulse and interviewed him about his medical condition. In response, he identified his treating physician and the medications his physician prescribed. Id. at 6. Nurse Curvin then called the jail physician who ordered insulin, which she immediately administered. Ex. A at 51:19. Approximately twenty-five hours later, an emergency was called once the plaintiff was discovered to be in distress. Ex. B at 7. Such a short-term interruption in the administration of insulin is not a serious medical need.

B. The evidence before this court does not raise a question of fact about whether Nurse Curvin was deliberately indifferent to the plaintiff’s medical needs because she took reasonable steps to ensure he would be treated.

Neither do the facts before this Court raise a question of fact with respect to the second element. Prison officials, like Nurse Curvin, do not violate the Fourteenth Amendment unless they have evinced a “deliberate indifference” to serious medical needs of prisoners. Charles, 925 F.3d at 86. Deliberate indifference in the Fourteenth Amendment context is akin to recklessness. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). “Thus, a detainee asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.” Charles, 925 F.3d at 87. “[P]rison officials and medical officers have wide discretion in treating prisoners, and Section 1983 is not designed to permit federal courts to interfere in the ordinary medical practices of state prisons.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001).

The mere delay in providing medical treatment does not establish a defendant’s deliberate to a prisoner’s medical needs.[9] Peachey v. Zayaz, No. 23-06409, 2024 WL 4932527, at *4 (S.D.N.Y. Dec. 2, 2024). In Peachey, the court held that a pretrial detainee plaintiff failed to state a claim for failure to provide adequate medical care even though he did not see a physician until four days after his request. Id. at *1, 4. The plaintiff told a facility nurse he was in severe pain from his elbow, which was very swollen. Id. at *1. The nurse referred him to a facility physician, but he was not seen for four days. Id. In the interim, he asked to be taken to the emergency room. Id. When he was finally treated at an outside hospital for his elbow pain, he was prescribed antibiotics. Id. at *2. He alleged that the antibiotics were ineffective, and he later received surgery on his elbow. Id. In rejecting his deliberate indifference claim, the court emphasized that a “difference of opinion between a prisoner and prison officials regarding medical treatment does not, as a matter of law, constitute deliberate indifference.” Id. at *4 (citation omitted).

Even if the brief interruption in the administration of insulin was sufficient to raise a question of fact about whether the plaintiff had a serious medical need, the plaintiff’s claim fails because Nurse Curvin’s actions do not raise a question about whether she was deliberately indifferent[10] to this need. The undisputed facts establish that Nurse Curvin evaluated him in the medical department and administered insulin immediately after the jail physician ordered it. Moreover, she explicitly wrote in his chart for the next shift that he should be seen in sick call for a physical later that day, with a scheduled glucose check.

Nurse Curvin’s actions demonstrate that she took every reasonable step to ensure that the plaintiff would be seen only eight hours after she cared for him. Ex. A at 29:16-22; Ex. B at 6.  Nurse Curvin responded to the plaintiff’s needs when she evaluated him, when she contacted the physician on call, and when she administered insulin as ordered by the jail. She reasonably believed that if and when the plaintiff was returned to jail after his court appearance, medical staff would continue appropriate medical care. Ex. A at 50:22, 54:2.

When Nurse Curvin was at work the following day, she did not know that the plaintiff was not released on bail during his court appearance, so she did not know that he was back in the jail. Moreover, she had no reason to believe that he had not been seen in the medical department as she had ordered. When she was notified that the plaintiff was in distress, without delay she ordered that he be brought to the medical department. Upon his arrival, she took care of his immediate needs by testing his glucose level, calling the jail physician, administering insulin as the doctor ordered, and facilitating his transport to the hospital. She acted without delay. Ex. A at 88:16-23, 89:4-12. Since the Peachey plaintiff failed to demonstrate deliberate indifference even though he was not treated until four full days after his request, these undisputed facts demonstrate, as a matter of law, that Nurse Curvin was not deliberately indifferent to the plaintiff’s medical needs.

CONCLUSION

For these reasons, Curvin respectfully requests that her motion for summary judgment be granted in all respects.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Exercise 4-5

Exercise 4-6

 

Sample Document 4

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GEORGE CHAPLIN,
                           Plaintiff 25-cv-1501
                   v.
JOY CURVIN,
                           Defendant

PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS[11]

INTRODUCTION

Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56(a)(2), plaintiff George Chaplin respectfully submits this statement of undisputed facts. The plaintiff opposes summary judgment because he argues that the defendant violated his Fourteenth Amendment rights since she was “deliberately indifferent” to his medical needs. As fully explained in the accompanying memorandum of law, questions of fact about this issue preclude a grant of summary judgment.

RESPONSE TO DEFENDANT’S STATEMENT OF UNDISPUTED FACTS

  1. Agree
  2. Agree that the defendant so testified
  3. Agree
  4. Agree that Sally Shell so testified
  5. Agree that the defendant so testified
  6. Agree that the defendant so testified
  7. Agree that the defendant so testified
  8. Agree
  9. Agree that Selma Polvino so testified
  10. Agree
  11. Agree
  12. Agree that the defendant so testified

PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS[12]

  1. On April 14, 2023, Chaplin was detained at the county jail. Upon his admission at 11:40 PM, he identified himself to the booking officer as a diabetic who required insulin injections and requested medical care. See Chaplin Dep., attached as Exhibit A, at 88:19-23; Chaplin’s County Jail Records, attached as Exhibit B, at 4.
  2. While in the booking area, Chaplin stated that he was “in desperate need of insulin.” Ex. A at 88:5-10. He was told that the medical staff would see him. Id. at 88:16-27. That happened on April 15 at approximately 2:15 p.m., when he was seen by Nurse Curvin in the medical department. Ex. B at 13.
  3. Chaplin was detained in the county jail until approximately 3:00 PM on Sunday, April 16, when he was transported by ambulance from the county jail to the county hospital. Ex. B at 30.
  4. When admitted, Chaplin was diagnosed with a “diabetic coma.” Ex. B at 31.
  5. Chaplin does not recall receiving any medication at the county jail between the time of his initial booking on Friday, April 14 and his transfer to the hospital. Ex. A at 125:9-14.
  6. The county jail’s medical department operates under a Medical Policy and Procedures Manual (hereinafter “Manual”) to “ensure consistent and uniform methods of operation and to establish clear guidelines for the communication and implementation of the policies and goals of the county jail.” See Medical Policy and Procedures Manual, relevant portions attached as Exhibit C, at Policy and Procedure 01.00.00.
  7. The Manual identifies diabetes as a chronic disease. Ex. C, Policy and Procedure 16.06.00.
  8. When Curvin saw Chaplin in the medical department on April 15, he had last received insulin at about 1:00 PM on April 14, when he self-administered a dose while at work. Ex. A at 73:1-25, 74:1-10.
  9. He was about to administer another dose when he was arrested at 8:00 PM that evening. Id. at 78:18-80:10. He was thus unable to administer the dose. The arresting officer told him he would receive his insulin at the county jail. Id. at 84:13-18.
  10. Under county policy, which requires that diabetic inmates be escorted to the medical department when booked, if insulin is ordered, an insulin administration sheet must be started, a 2,200-calorie diabetic diet must be ordered, and daily blood sugar tests must be ordered for 8:00 AM and for 4:00 PM. Ex. C, Policy and Procedure 16.07.00.
  11. Curvin did not start an insulin administration sheet or order him a diabetic diet, nor did she order the twice daily tests specified in the policy. Curvin Dep., attached as Exhibit D, at 22:8-23.
  12. She did give him “a cup” of water. Id. at 20:11.
  13. Curvin was not trained in the diabetes policy. Id. at 22:21.
  14. When asked at her deposition whether she remembered ever reading the policy prior to her deposition, she stated that she did not. Id. at 23:12.
  15. She also testified that even if she had had the procedure in front of her when she saw Chaplin on April 15, she “would not have done anything different than the way I did it because I met his needs as they had arisen, and he was going to court.” Id. at 26:5-10.
  16. She made no provision for his care the next day. Id. at 27:12.
  17. Chaplin returned from town court to county jail at 6:30 PM on Saturday, April 15. Transport Log, attached as Exhibit E, at 3.
  18. Chaplin was put in either a booking cell or a court hold cell. Ex. B at 41. He was placed in a cell on Delta Block at approximately 11:45 PM that night. Delta Block Log, attached as Exhibit F, at 1.
  19. Chaplin told the deputy in charge of the cell block that he was “in desperate need of insulin” and that he was “getting sick” and “becoming dehydrated.” Ex. A at 91:22-23.
  20. Chaplin stated that the sink in his cell was inoperable and that he “was forced to cup [his] hands and drink out of the toilet.” Ex. A at 92:10-20.
  21. He testified that he was feeling “dizzy, delusional” and that he “feared for his life” because nobody from the medical staff saw him or talked to him. Id.
  22. He said that he tried to stay awake and on his feet because he was afraid that if he laid down, the cell would be his “final resting place.” Id. at 92:18-19.
  23. Curvin did not inquire about Chaplin when she got to work the next morning, April 16. Ex. D at 75:1-3.
  24. She testified that no one in the medical department was assigned to check on Chaplin that morning; that there was no follow-up system in place to make sure that Chaplin would be seen by the medical department that morning; and that no one in the medical department was assigned the responsibility to make sure Chaplin received insulin that morning. Id. at 76:5-15.
  25. Curvin went to Delta Block, where Chaplin was housed, at 10:05 AM that morning to distribute medication. Ex. D at 72:13-73:18.
  26. She returned to Alpha Block to pass medication again at 1:40 PM that afternoon. Id. at 79:4-12.
  27. On both occasions, she walked past the cells on the gallery. Id. at 80:9-13.
  28. Chaplin received no medical attention from Curvin when she was on Delta Block that day at either 10:05 AM or at 1:40 PM. Id. at 82:12-16.
  29. At approximately 2:30 PM that afternoon, Chaplin was found by a deputy unresponsive on the floor of his Delta Block cell. Ex. F at 2.
  30. Chaplin was already in diabetic ketoacidosis—a well-known and potentially fatal complication of Type I diabetes. Janice Wyatt Aff., attached as Exhibit G, at ¶ 15.
  31. Curvin returned to Delta Block, where she observed Chaplin slumping over. Ex. D at 83:22-84:1.
  32. She transported Chaplin to the medical department where she measured his blood sugar level and found that it was higher than the jail glucometer could read. Id. at 85:13.
  33. She then called the jail physician who ordered ten units subcutaneous insulin which Curvin administered to Chaplin. Id. at 85:20-23.
  34. According to plaintiff’s medical expert, a board-certified emergency medicine physician, this amount of insulin was “too little and too late.” Ex. G at ¶ 15.
  35. There is no indication in Chaplin’s county jail medical chart that he had received any medical attention since Curvin had seen him in the medical department the prior afternoon at 2:15. See Chaplin’s County Jail Medical Records, attached as Exhibit H.
  36. Chaplin was transported by ambulance to the county hospital. Chaplin arrived at in the emergency room at about 4:00 PM. Carol Pipen Dep., attached as Exhibit I, at 9:14-21.
  37. Shortly after he arrived at the emergency room, Chaplin’s blood glucose level was close to 800 mg/dl, and his acidotic reading was 6.94. Ex. I at 17:1-9.
  38. A sustained pH of 6.94 is not “compatible with life.” Ex. G ¶ 17.
  39. A reading of 6.94 is categorized as severe acidosis; if not corrected, it can lead to death. Ex. I at 18:10.
  40. Chaplin came under the care of a medical intern in the Intensive Care Unit, at about 7:30 PM that evening. Id. at 17:26-18:1.
  41. The intern found Chaplin to be unresponsive, dehydrated, and hypothermic with a body temperature of 94 degrees. Id. at 22:10-24.
  42. He diagnosed his condition as diabetic ketoacidosis, a condition that develops in diabetics who are not receiving insulin. Id. at 27:4-9.
  43. Chaplin’s diabetic ketoacidosis was a direct result of not receiving regular blood sugar checks and adequate insulin dosages at the county jail. Ex. G ¶ 6.
  44. The intern explained that when diabetics do not receive insulin, they cannot metabolize glucose, so the glucose accumulates in their blood and in their body. When glucose is unavailable, the body starts to use other substances, the biproduct of which is ketones, which are toxic substances. Ex. I at 27:14-22.
  45. The condition can be fatal if not treated. Id. at 28:4.
  46. The intern found that Chaplin was “severely acidotic and dehydrated” and that he could have died or suffered other consequences such as organ failure. Id. at 28:15-29:7.
  47. The treatment required for Chaplin’s ketoacidosis had a potential side effect of brain swelling. Id. at 35:12-20.
  48. The plaintiff’s corrections specialist opines that Curvin’s practices in April of 2023 fell “far below the standard of correctional care” because, although Chaplin exhibited signs of uncontrolled diabetes on April 15, Curvin did not order him a special diet, nor did she order 8:00 AM and 4:00 PM blood sugar tests as required by the county jail’s own policy. And, while she testified that she gave him a dose of insulin, there is no medication administration record supporting her testimony. See Susan Randall Aff., attached as Exhibit J.

 

Respectfully submitted,

Attorney Signature
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Sample Document 5

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GEORGE CHAPLIN,
                           Plaintiff 25-cv-1501
                   v.
JOY CURVIN,
                           Defendant

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

PRELIMINARY STATEMENT[13]

Plaintiff George Chaplin was booked into the county jail on the night of Friday, April 14, 2023. He immediately identified himself as an insulin-dependent diabetic who was “in desperate need of insulin.” By Sunday, April 16, he had lapsed into diabetic ketoacidosis, a life-threatening condition that develops in diabetics deprived of insulin. His injuries were the inevitable result of defendant Joy Curvin’s deliberate indifference to plaintiff’s serious medical needs.

In this memorandum of law, Chaplin establishes in detail Joy Curvin’s deliberate indifference to Plaintiff’s medical needs. Curvin, a nurse who saw the plaintiff in the medical department on Saturday, April 15, 2023, the day before he lapsed into diabetic ketoacidosis, knew that Chaplin had a continuing need for insulin, knew that he needed to be placed on a diabetic diet, and knew that he needed to be scheduled for follow-up treatment the next day. Still, she neither ordered him to have a diabetic diet nor ordered him to receive follow-up care the next day. While she testified that she did administer insulin to him on April 15, there is no medication administration record supporting her testimony.[14] Accordingly, the plaintiff is entitled to a trial to resolve his Fourteenth Amendment claim and receive a remedy for the injuries he has suffered.

 

STATEMENT OF FACTS

The plaintiff respectfully refers the Court to the Statement of Undisputed Facts submitted by the plaintiff pursuant to Local Rule 56(a)(2), and the exhibits to the statement of facts, for a complete recitation of the facts material to the present motion.

ARGUMENT

THE MATERIAL FACTS RAISED BY THE PLAINTIFF IN SUPPORT OF HIS CLAIM AGAINST THE DEFENDANT PRECLUDE SUMMARY JUDGMENT BECAUSE THEY RAISE QUESTIONS OF FACT ABOUT THE DEFENDANT’S DELIBERATE INDIFFERENCE TO THE PLAINTIFF’S SERIOUS MEDICAL NEEDS.

The rights of pretrial detainees to adequate medical care are protected by the Due Process Clause of the Fourteenth Amendment. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). Medical providers, such as Curvin, violate a pretrial detainee’s Fourteenth Amendment right to adequate medical treatment when they show “deliberate indifference” to the detainee’s serious medical needs.[15] Id. The Second Circuit has clarified that this standard is met when the provider “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 34 (2d Cir. 2017). “In other words, the ‘subjective prong’ . . . of a deliberate indifference claim is defined objectively.” Id. 

The state of the defendant’s knowledge is normally a question of fact to be determined at trial. See Weyant, 101 F.3d at 856-57 (reversing grant of summary judgment to prison officials sued by diabetic pre-trial detainee for failure to provide adequate medical care); Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir. 1984) (reversing grant of summary judgment where, though the prisoner-plaintiff eventually received medical attention, there was a question as to whether prison officials’ five-hour delay in securing that attention constituted deliberate indifference to the plaintiff’s needs and suffering); cf. Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“Whether a prison official had the requisite knowledge of a substantial risk to a convicted prisoner is a question of fact subject to demonstration in the usual ways . . . .”).

Looking at the evidence in the light most favorable to Chaplin, it raises questions of fact about whether Curvin acted with deliberate indifference to Chaplin’s serious medical needs. On the afternoon of Saturday, April 15, the medical department policy and procedure for treating diabetic prisoners required Curvin to put Chaplin on a diabetic diet, but she chose not to. Ex.C at Policy and Procedure 16.07.00; Ex. D at 22:8-23. The same procedure required her to start an insulin administration sheet, but she chose not to. Id. Lastly, the procedure required her to order the twice-daily tests specified in the policy, but she chose not to. Id. Under the holding center’s medical department procedures, she was required to order blood sugar tests for Chaplin the next day in the morning and again in the afternoon, but she chose not to. Id. And, while Curvin claims she gave Chaplin insulin that Friday afternoon as she was ordered to do, there is no medical administration record to support her claim.

When asked at her deposition whether she remembered ever reading the policy prior to her deposition, Curvin stated that she did not. Ex. D at 23:12. She went on to say that even if she had had the procedure in front of her when she saw Chaplin on April 15, she “would not have done anything different than the way I did it because I met his needs as they had arisen, and he was going to court.” Id. at 26:5-10. Remarkably, she made no provisions for him the next day, in the likely event he was returned to jail after he appeared in court. Id. at 27:12.

Although Chaplin had a blood sugar level in the highly dangerous range and complained of thirst—a sign of uncontrolled diabetes—Curvin gave him just one cup of water. Id. at 20:11. The next morning, she walked past Chaplin’s cell as he was lapsing into diabetic ketoacidosis. Id. at 72:13-73:18. Several hours later, she walked past his cell again. Id. at 72:4-12. Just forty-five minutes later, he was found there, unconscious and suffering from a nearly fatal episode of diabetic ketoacidosis. Id. at 74:2. Curvin’s practices fell “far below the standard of correctional care.” Ex. J ¶¶ 10-12. Curvin’s conduct was patently unreasonable and demonstrates deliberate indifference to Chaplin’s needs.

The defendant correctly states that Chaplin must also demonstrate that he had a “serious medical need.”[16] However, the implication that Chaplin’s diabetes was merely “an assertion of pain sensation alone, unaccompanied by any large medical complication” is absurd. There can be no doubt that diabetes is a serious medical need. Ex. G ¶ 8. The Second Circuit has ruled that even a dental cavity is a serious medical need because it will “degenerate with increasingly serious implications if neglected over sufficient time.” Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000). See also El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 258 (D. Conn. 2008) (“There can be no real dispute that Chrohn’s disease, which causes severe pain when left untreated, constitutes a serious medical condition.”).

Significantly, the serious medical need suffered by the Weyant plaintiff was diabetes. 101 F.3d at 848. The Second Circuit did not even discuss the question of whether diabetes was a serious condition. Indeed, on appeal, the Weyant defendants did not attempt to argue that it is not, because there can be no dispute that when diabetes is left untreated it degenerates into a fatal condition. The plaintiff’s own experience at the county jail establishes this beyond any doubt.

CONCLUSION

For all the reasons stated above, this Court should deny the defendant’s motion for summary judgment in its entirety. Chaplin has submitted sufficient proof to raise questions of fact about Curvin’s liability, and his claim should proceed to trial.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Exercise 4-7

Exercise 4-8

Second Sample

As explained above, any party can move for summary judgment on particular claims or defenses. The next sample is a plaintiff’s motion for summary judgment on the issue of liability. In this case, the plaintiff, Gino Baynes, broke his arm and fractured multiple ribs as a result of a motor vehicle accident that occurred when another driver entered the plaintiff’s lane of traffic. The plaintiff moves for summary judgment on the issue of liability because he argues that the sole cause of the accident is that the driver crossed into the plaintiff’s lane of traffic, in violation of the New York Vehicle and Traffic Law, and that the driver did not face a qualifying emergency, which would absolve the defendant of liability.

The defendant is the United States of America because the driver, Marine Sgt. Gil Hoffmann, was a United States Marine driving in the course of his employment. Under these circumstances, a plaintiff must sue under the Federal Torts Claim Act and must name as the defendant the United States of America. 28 U.S.C. §§ 2671-2680. As in diversity actions, the court will apply federal procedural law and state substantive law to this Federal Torts Claims Act action.

 

Exercise 4-9

Answer the following questions to identify the procedural rules that will apply to the plaintiff’s motion.

 

As a review, once you know the procedural rules, you combine them with the substantive issue to form the issue before the court. Here’s an effective formula:
(insert the way the court will view the evidence) (insert party with burden of proof) (insert what that party must prove) (insert substantive issue)

 

Exercise 4-10

Sample Document 6

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GINO BAYNES,
                           Plaintiff 25-cv-939
                   v.
THE UNITED STATE OF AMERICA,
                           Defendant

PLANTIFF’S NOTICE OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, plaintiff Gino Baynes, through his undersigned attorneys, respectfully moves for summary judgment on the issue of defendant’s liability. In support of this motion, Baynes submits the attached statement of undisputed facts, with exhibits, and accompanying memorandum of law. Because there is no genuine dispute as to any material fact and Baynes is entitled to judgment as a matter of law, Baynes respectfully requests that the Court grant this motion.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

Sample Document 7

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GINO BAYNES,
                           Plaintiff 25-cv-939
                   v.
THE UNITED STATE OF AMERICA,
                           Defendant

PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS[17]

 

INTRODUCTION

Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56(a)(1), plaintiff Gino Baynes hereby submits this statement of undisputed facts. This Federal Torts Claim Act action is based on a motor vehicle collision that occurred on December 26, 2023 on Route 16 in Erie County, New York. As a result of the collision, Baynes broke his left arm and fractured multiple ribs. As fully explained in the accompanying memorandum of law, Baynes is entitled to judgment on the issue of liability based on the following undisputed material facts.

THE UNDISPUTED FACTS[18]

  1. On[19] December 26, 2023, at approximately 4:35 pm, Baynes was driving his vehicle northbound along Route 16, about a mile from Wales, New York. Baynes Dep. 11:4, 8-9.
  2. It was dusk, but the road was well lit. Baynes Dep. 11:4, 10.
  3. It was snowing lightly. Baynes Dep. 11:6, 10.
  4. The winds were gusting up to 40 miles per hour. Baynes Dep. 11:6, 10.
  5. The speed limit in that area is forty-five miles per hour, but Baynes was driving at approximately thirty miles per hour because of the winter road conditions. Baynes Dep. 16:3.
  6. Other motorists were driving at approximately the same speed as Baynes. Baynes Dep. 16:12-14.
  7. Baynes’ headlights were on. Baynes Dep. 17:8.
  8. At the same time, Gil Hoffmann, a U.S. Marine driving in the course of his employment for defendant United States of America, was driving southbound on Route 16 in a minivan. Hoffmann Dep. 13:18-19.
  9. His headlights were not on, and he was traveling about forty-five miles per hour. Hoffmann Dep. 19:17, 22:1-2.
  10. As the plaintiff neared the Waffle House on Route 16, he noticed the defendant’s van veer sharply towards his lane of traffic. Baynes Dep. 22:16-20.
  11. To avoid the situation, the plaintiff applied the brake and moved onto the shoulder as “far as was possible.” Baynes Dep. 18:19-22, 52:8-11.
  12. Nevertheless, the defendant’s van careened across the double yellow line centerline toward the plaintiff and slammed into the plaintiff’s vehicle. Baynes Dep. 20:3-5.
  13. Hoffman testified that he veered into the plaintiff’s lane of traffic to avoid hitting a deer that ran into the road. Hoffmann Dep. 19:17, 26:1-2.
  14. The area on both sides of Route 20 in the vicinity of Wales is wooded and a popular place for hunters in deer season. Baynes Dep. 28:16-20.
  15. Hoffman knows that section of Route 20 “well.” Hoffmann Dep. 21:17, 26:1-2.

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Sample Document 8

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GINO BAYNES,
                           Plaintiff 25-cv-939
                   v.
THE UNITED STATE OF AMERICA,
                           Defendant

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

In this motor vehicle accident case, the record establishes that the defendant was negligent as a matter of law because driver Gil Hoffman crossed over into plaintiff Gino Baynes’ lane of traffic in violation of New York Vehicle and Traffic Law § 1126(a), which prohibits drivers from crossing over a double yellow line into opposing traffic. Hoffman did not face a qualifying emergency before doing crossing over the line, so the sudden emergency doctrine does not absolve the defendant of liability. Because the undisputed material facts establish that defendant is liable for negligence, the Court should grant summary judgment to Baynes on the issue of the defendant’s liability.

STATEMENT OF FACTS

The facts material to this motion for summary judgment are fully set forth in the attached Statement of Undisputed Facts.

SUMMARY JUDGMENT STANDARD

Summary judgment will be granted if the moving party establishes that there is no genuine dispute of material fact and that they are, therefore, entitled to judgment as a matter of law.[20] Fed. R. Civ. P. 56(a). “Once the movant meets its burden, the non-movant may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial.” Music Royalty Consultants, Inc. v. Reservoir Media Mgmt., Inc, 598 F. Supp. 3d 158, 172 (S.D.N.Y. 2022) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To survive summary judgment, the non-moving party must present concrete evidence and rely on more than conclusory or speculative claims. Id. (citing Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980)).

ARGUMENT

 

AS A MATTER OF LAW, THE DEFENDANT IS LIABLE FOR BAYNES’ INJURIES BECAUSE HOFFMAN CROSSED INTO BAYNES’ LANE OF TRAFFIC AND DID NOT FACE A QUALIFYING EMERGENCY.

Defendant United States of America is liable as a matter of law because Hoffman crossed over into Baynes’ lane of traffic in violation of New York Vehicle and Traffic Law § 1126(a), which prohibits drivers from crossing over a double yellow line into opposing traffic. Moreover, the defendant cannot be absolved of liability under the emergency doctrine despite the deer running into the road because Hoffman was familiar with the area he was driving in and driving too fast under the circumstances.

Violation of a statute governing traffic safety is negligence per se. Marks v. Rieckoff, 101 N.Y.S.3d 63, 65 (App. Div. 2019). Thus, “[c]rossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver’s own making.” Burgess v. Little Wolf Cabinet Shop, Inc., 210 N.Y.S.3d 206, 208 (App. Div. 2024). It is uncontested that Hoffman crossed a double yellow line into Baynes’ lane of traffic. Thus, Hoffman’s violation of section 1126(a) establishes negligence as a matter of law.

The only way a driver who crosses over to another driver’s lane of traffic can escape liability is when the crossover is justified by a “qualifying emergency,” which is one that is both “sudden and unforeseen” and “not of the actor’s own making.” Caristo v. Sanzone, 750 N.E.2d 36, 38 (N.Y. 2001). Moreover, according to the New York Appellate Division, “some emergencies must be anticipated, and the actor must be prepared to meet them when he engages in an activity in which they are likely to arise.” Shaw v. Mfg. Hanover Trust Co., 464 N.Y.S.2d 172, 174 (App. Div. 1983) (quoting Prosser, Law of Torts 170 (4th ed.)). Thus, the doctrine is inapplicable where “the defendant driver should reasonably have anticipated and been prepared to deal with the situation with which he was confronted.” Muye v. Liben, 723 N.Y.S.2d 510, 511 (App. Div. 2001) (citation modified).

For example, the New York Court of Appeals reversed a trial court that gave an emergency instruction to a driver who claimed the sun blinded him while he was driving in an area he was familiar with.[21] Lifson v. City of Syracuse, 958 N.E.2d 72, 75 (N.Y. 2011). The driver was about to turn to the west at a time of day that the sun would be setting. Id. The court reasoned that “it is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west.” Id. See also Shaw, 464 N.Y.S.2d at 174 (finding the possibility of a bank robbery is not unforeseeable).

Though a deer ran out in front of Hoffman’s car, the sudden emergency doctrine does not apply to these facts because the presence of the deer was not unforeseeable. That a deer might run onto the road on Route 16 near Wales, New York is foreseeable for anyone familiar with the area. The undisputed evidence is that Hoffman was familiar with the area where he claims he was faced with a qualifying emergency. Hoffman admitted in his deposition that he “know[s]” the area “well.” Hoffmann Dep. 21:17; 26:1-2. The area on both sides of the road in that area is wooded and a popular place for hunters in deer season. Baynes Dep. 28:16-20. Hoffman should have been prepared for the possibility that a deer might run into traffic when he was driving on this stretch of road.

Like the Lifson defendant who claimed he faced an emergency when he was blinded by the sun while turning to the west at a time and place he knew the sun would be setting, Hoffman claims he faced an emergency when a deer ran into his lane of traffic when he was driving through a wooded area he knows well that is known to be a popular place for deer hunters. The Lifson court found that where it is well known that a circumstance may take place, it cannot be considered sudden or unexpected, and so too should this Court.[22]

Even if the appearance of a deer in a wooded area were unforeseeable, the defendant is not entitled to the emergency defense because “a driver confronted with an emergency situation may still be found to be at fault for the resulting accident where the prior tortious conduct of the driver contributed to bringing about the emergency.” Kizis v. Nehring, 811 N.Y.S.2d 509, 511 (App. Div. 2006). The undisputed evidence before this Court establishes that Hoffman’s tortious conduct prior to the emergency contributed to bring about the emergency because he was driving unreasonably in light of the hazardous road conditions. It was snowing. Baynes Dep. 11:6, 10. Winds were gusting at up to forty miles per hour. Id. 11:6, 10. The speed limit in the area of the collision is forty-five miles per hour, and the plaintiff was driving at approximately thirty miles per hour, because of the winter road conditions. Id. 16:3. Other motorists were driving at the same speed as the plaintiff. Id. 16:12-14. And the plaintiff ‘s headlights were on. Id. 17:8. Nevertheless, Hoffman was traveling at a rate of forty-five miles per hour. Hoffmann Dep. 19:17. And while it was December 26 at about 4:30 p.m., his headlights were not on. Hoffmann Dep. 22:1-2. Therefore, Hoffman was driving unreasonably when he encountered the deer, which was a foreseeable situation.

CONCLUSION

For the reasons stated above, the defendant is liable for negligence as a matter of law. Thus, this Court should grant the plaintiff’s motion for summary judgment on the issue of defendant’s liability.

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Sample Document 9

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GINO BAYNES,
                           Plaintiff 25-cv-939
                   v.
THE UNITED STATE OF AMERICA,
                           Defendant

DEFENDANT’S STATEMENT OF UNDISPUTED FACTS[23]

 

INTRODUCTION

Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56(a)(2), the defendant respectfully submits this statement of undisputed facts. The defendant opposes summary judgment because there are questions of fact about whether the sudden emergency doctrine applies in this case. Thus, the defendant respectfully requests that this Court deny the plaintiff’s motion for summary judgment.

RESPONSE TO DEFENDANT’S STATEMENT OF UNDISPUTED FACTS

  1. Agree that the plaintiff so testified.

  2. Agree that the plaintiff so testified.
  3. Agree.
  4. Agree that the plaintiff so testified.
  5. Agree that the plaintiff so testified.
  6. Agree that the plaintiff so testified.
  7. Agree that the plaintiff so testified.
  8. Agree.
  9. Agree that the plaintiff so testified.
  10. Agree that the plaintiff so testified.
  11. Agree that the plaintiff so testified.
  12. Agree that the plaintiff so testified.
  13. Agree.
  14. Agree that the plaintiff so testified.
  15. Agree.

DEFENDANT’S STATEMENT OF UNDISPUTED FACTS[24]

  1. On the day of the accident in the late afternoon, the plaintiff was driving northbound on Route 16 near Wales, New York. Baynes Dep. 16:1-3, 16:16.
  2. At the same time, Marine Sgt. Gil Hoffmann was traveling south, returning to his base after distributing gifts to children for the United States Marines Toys for Tots program. Hoffmann Dep. 8:6-9.
  3. It was not yet dusk, and the road was well lit. Hoffmann Dep. 10:6-9.
  4. Hoffman was driving within the speed limit. Hoffmann Dep. 11:3-4.
  5. A deer ran “suddenly” into Hoffman’s lane of traffic. Hoffmann Dep. 13:-4.
  6. Hoffman testified that the deer appeared so suddenly that he had no time to think about his actions. He turned sharply to the left to avoid hitting the animal. Hoffmann Dep. 13:7-10.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

 

Sample Document 10

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

GINO BAYNES,
                           Plaintiff 25-cv-939
                   v.
THE UNITED STATE OF AMERICA,
                           Defendant

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

Because the evidence before this Court raises questions of fact about whether driver Gil Hoffman was faced with an emergency before crossing into the plaintiff’s lane of traffic, this Court should deny the plaintiff’s motion for summary judgment on liability and allow the case to proceed to trial.

STATEMENT OF FACTS

The facts material to this motion for summary judgment are fully set forth in the attached Statement of Undisputed Facts.

SUMMARY JUDGMENT STANDARD

Summary judgment will be denied unless the moving party meets the initial burden of demonstrating the absence of a genuine issue of material fact.[25] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When making this determination, a court must view all facts in the light most favorable to the non-moving party, Tolan v. Cotton, 572 U.S. 650, 657 (2014), and “resolve all ambiguities and draw all permissible factual inferences” in favor of the non-moving party, Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012).

ARGUMENT

QUESTIONS OF FACT ABOUT WHETHER HOFFMAN ACTED REASONABLY WHEN A DEER SUDDENLY RAN INTO HIS LANE OF TRAFFIC PRECLUDE THE ENTRY OF SUMMARY JUDGMENT.[26]

The plaintiff’s motion for summary judgment on liability should be denied because there are issues of fact about whether Hoffman was faced with an emergency situation that absolves the defendant of liability for the crossover into the plaintiff’s lane of traffic.

When “an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.”[27] Lifson v. City of Syracuse, 958 N.E.2d 72, 74 (N.Y. 2011) (citation omitted). “The doctrine recognizes that a person confronted with such an emergency situation “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision.” Id. (citation omitted). The existence of an emergency and the reasonableness of a party’s response to it will ordinarily present questions of fact. Blajszczak v. McGhee-Reynolds, 141 N.Y.S.3d 210, 212 (App. Div. 2021); Schwallie v. Farnan, 132 N.Y.S.3d 470, 471 (App. Div. 2020). Indeed, the Appellate Division has concluded that issues of fact precluded summary judgment in a case invoving a deer that darted into the road. Hill v. Cash, 985 N.Y.S.2d 345, 350 (App. Div. 2014).

Any party that presents “some” evidence of a qualifying emergency is entitled to have a jury instructed on the defense. Rivera v. N.Y. Transit Auth., 569 N.E.2d 432, 434 (N.Y. 1991) (finding reversible error when a trial court denied a defendant’s request for an emergency doctrine jury instruction where a subway train ran over a person on the tracks after failing to stop on time). “If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor’s own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed.” Id.

For example, the Court of Appeals affirmed the trial court’s jury instruction on the emergency doctrine in a case in which the driver was traveling below the speed limit but struck a child who ran into the street. Ferrer v. Harris, 434 N.E.2d 231, 234-35 (N.Y. 1982), amended, 436 N.E.2d 1342 (N.Y. 1982). The court held:

[I]t would be rational for the jury to have adopted a view of the evidence from which it concluded that traveling at 15 to 20 miles per hour was an adequate response to the prevailing circumstances and that the opportunity to learn of and react to the presence of [the child in the street] was too brief and too unexpected to allow time to think of blowing the horn or to make a calculated and intelligent choice as to the best way to avoid or minimize the impending collision, be it by braking, acceleration or otherwise.

Id. at 235.

A driver’s awareness of a road hazard does not preclude the emergency doctrine defense.[28] Kuci v. Manhattan Bronx Surface Transit Operating Author., 631 N.Y.S.2d 163, 163 (App. Div. 1995), aff’d, 669 N.E.2d 1100 (N.Y. 1996). In Kuci, the court reasoned that “the bus operator’s awareness that at the particular intersection, motorists often made sudden right turns from the left lane, creating a hazard with buses leaving the bus stop there, did not lessen the potential emergency quality of these circumstances.” Id. Therefore, the Appellate Division held that the trial court committed reversible error when it failed to instruct the jury on the emergency doctrine. Id. at 163-64.

Viewing the facts in the light most favorable to the defendant and drawing all permissible inferences in its favor, the evidence before this Court raises questions of fact about whether Hoffman’s reactions were reasonable under the circumstances when he was faced with an emergency. Immediately before a deer suddenly ran into Hoffman’s lane of traffic, he was  driving in a reasonable and prudent manner at approximately 45 miles per hour, Hoffmann Dep. 19:17, which is within the speed limit, Baynes Dep. 16:3. It was snowing only lightly. Baynes Dep. 11:6, 10. And while the plaintiff testified the wind gusted up to 40 miles per hour, there is no evidence of blowing or drifting snow.[29]

Like the Ferrer defendant who was driving within the speed limit when a child suddenly ran into the street, Hoffman was driving within the speed limit when a deer suddenly ran into his lane of traffic. Like the Ferrer plaintiff who argued that the defendant should have been driving more slowly because of the presence of children in the area, here the plaintiff argues that Hoffman should have been driving more slowly because of the weather conditions. Like the Ferrer court that held that a jury could reasonably conclude that the driver adequately responded to the circumstances presented, so too could a jury reach that conclusion here.

While Hoffman was familiar with the area in which he was driving, it did not lessen the possibility that a deer would run suddenly into the road.[30] The defendant freely admitted he knew the area where the deer ran into the road “well.” Hoffmann Dep. 21:17. 26:1-2. The area is wooded and a popular place for hunters in deer season. Baynes Dep. 28:16-20. But the Kuci defendant was also familiar with a particular intersection when an emergency arose, yet the Appellate Division reasoned that the defendant’s familiarity with the intersection did not diminish the emergency he faced. So too should this Court reason that simply being familiar with a stretch of road does not lessen the potential emergency situation of a deer suddenly running into a lane of traffic. Like the Appellate Division that let a jury decide whether the Kuci defendant was entitled to the emergency doctrine defense, so too should this Court let a jury decide if Hoffman was faced with an emergency at the time of the incident.[31]

CONCLUSION

For the reasons stated above, this Court should deny the plaintiff’s motion for summary judgment.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

Exercise 4-11

Coming Up Next

If the case ultimately proceeds to trial, there may be pre-trial motions filed. One kind, motions in limine, are the subject of the final chapter.

  1. Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 10 (CALI eLangdell Press 2023). ↵
  2. In compliance with Federal Rule of Civil Procedure 56 and the local rules for this district, the parties have submitted statements of undisputed facts along with memoranda of law. Also include affidavits/affirmations/declarations, which will include the supporting evidence as attachments, as appropriate. Remember to always check local rules for particular requirements, which vary by court. ↵
  3. Each of the paragraphs is limited to facts. Facts are about the physical world and can be verified through objective evidence. In contrast are opinions, conclusions, and emotions, which have no place in a statement of undisputed facts. ↵
  4. This memorandum of law is based on the defendant’s motion for summary judgment in Beatty v. Davison, et al., W.D.N.Y. 06-cv-0571. ↵
  5. As the attorney supporting summary judgment, the writer focuses on what satisfies the standard. Their purpose is to be persuasive by keeping the reader’s focus leaning the same way they will apply the standard. ↵
  6. A persuasive heading should include a legal conclusion or the action you're asking the court to take, plus the reason supporting this conclusion or requested action. For more on headings, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 7 (CALI eLangdell Press 2023). ↵
  7. These are umbrella paragraphs, which are introductory paragraphs that inform a reader of what follows. They are usually found under a point heading that is further divided into sub-points. For more on umbrella paragraphs, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 3 (CALI eLangdell Press 2023). ↵
  8. The writer grounds the rule in binding authority. You can read about grounding rules in binding authority in Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 1 (CALI eLangdell Press 2023). ↵
  9. As the party that argues the rule is not satisfied, the writer explains the rule persuasively by focusing on what does not satisfy it. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  10. The writer applies the rule to the facts of the case after they have explained the rule through key terms. They do this by applying the key terms of the rule as explained in the rule section. For more on applying rules, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 1 (CALI eLangdell Press 2023). ↵
  11. Here is plaintiff Chaplin’s statement of undisputed facts. Take a few minutes to compare it to the undisputed facts as told by defendant Curvin’s attorney. Each tells the story behind the claim from their own point of view. ↵
  12. Here the plaintiff tells their version of the story using the undisputed case file facts. Carefully check all applicable rules to see if the moving party is permitted or required to reply to these facts that the non-moving party considers undisputed. ↵
  13. It's a good idea to include a persuasive preliminary statement that sets the stage for your argument. Always check local rules and practices to see which sections of the brief are required or preferred. ↵
  14. Let the court know when there is a lack of evidence in the record to support an opposing party's assertions. ↵
  15. As the party that argues the opposing party violated this right, the writer focuses on what satisfies this legal rule. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  16. Here the writer rebuts the opposing party’s argument. Notice that the rebuttal follows the writer’s primary argument. For more on writing rebuttals, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵
  17. In compliance with Federal Rule of Civil Procedure 56 and the local rules for this district, the parties have submitted statements of undisputed facts along with the supporting evidence and memoranda of law. Remember to always check local rules for particular requirements, which vary by court. ↵
  18. Take a few minutes to compare the plaintiff’s statement of undisputed facts with the defendant’s below. Each tells the story behind the claim from their point of view. ↵
  19. Each paragraph is limited to facts. Facts are about the physical world and can be verified through objective evidence. In contrast are opinions, conclusions, and emotions, which tell the reader what to think. For more on using facts, rather than conclusions or opinions, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 10 (CALI eLangdell Press 2023). ↵
  20. As the attorney supporting summary judgment, the writer focuses on what satisfies the standard. Their purpose is to be persuasive by keeping the reader’s focus leaning the same way they will apply the standard. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  21. This sentence is an example of a hook, which is the first sentence of a rule illustration. A hook focuses on the key terms that the precedent illustrates. For more on writing effective hooks, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch.2 (CALI eLangdell Press 2023). ↵
  22. This paragraph is an analogy between the facts from the case before the court and the facts from a precedent case. For more on writing analogies, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 2 (CALI eLangdell Press 2023). ↵
  23. Here is the defendant’s statement of undisputed facts. Take a few minutes to compare it to the undisputed facts as told by the plaintiff’s attorney. Each tells the story behind the claim from their own point of view. ↵
  24. Here the defendant tells their version of the story using the undisputed case file facts. Carefully check all applicable rules to see if the moving party is permitted or required to reply to these facts that the non-moving party considers undisputed. ↵
  25. As the party that argues against summary judgment, the writer focuses on what does not satisfy the standard. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch.4 (CALI eLangdell 2023). ↵
  26. A persuasive heading should include a legal conclusion or the action you're asking the court to take, plus the reason supporting this conclusion or requested action. For more on headings, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 7 (CALI eLangdell Press 2023). ↵
  27. The rule explanation in this paragraph is written persuasively. It keeps the focus on what satisfies the rule because the defendant argues that the facts of the case satisfy the rule. ↵
  28. This is a hook, which is the first sentence of a rule illustration. It should tell the reader why you chose to include the rule illustration and how it supports your argument. For more on writing hooks, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch.2 (CALI eLangdell 2023). ↵
  29. Point out the absence of evidence when it supports your argument. ↵
  30. This is an assertive rebuttal to a negative fact. Rebuttal to negative facts should be assertive rather than defensive. For more on writing rebuttals, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵
  31. This paragraph is an analogy between the facts from the case before the court and the facts from a precedent case. For more on writing analogies, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 2 (CALI eLangdell Press 2023). ↵

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