Tony Childs v. Entergy Mississippi, Inc. , 411 F. App'x 699 ( 2011 )

Case: 10-60313 Document: 00511379571 Page: 1 Date Filed: 02/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2011
No. 10-60313
Summary Calendar Lyle W. Cayce
Clerk
AMECIA CHILDS, the Natural Lawful Wife, Widow, Spouse, Successor and/or
Representative of Plaintiff Tony Childs, Deceased,
Plaintiff-Appellant,
v.
ENTERGY MISSISSIPPI, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi, Delta Division
USDC No. 2:08-CV-00077-WAP-SAA
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM * :
Plaintiff Amecia Childs appeals from the district court’s order granting
summary judgment for defendant Entergy Mississippi, Inc. in a case arising
from an electrical accident involving Childs’s husband, Tony Childs.1 Tony was
injured while working for the masonry subcontractor on a construction site at an
elementary school. He fell eighteen feet off of scaffolding after sustaining an
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
1
After Tony Childs’s death, his wife, Amecia Childs, replaced Mr. Childs as plaintiff.
Case: 10-60313 Document: 00511379571 Page: 2 Date Filed: 02/11/2011
No. 10-60313
electrical shock from touching a high-voltage electrical wire. He brought claims
of both negligence and negligence per se against Entergy, the electric utility that
placed and operated the electrical wire. This appeal arises from the district
court’s summary judgment in favor of Entergy, which was itself based on the
district court’s order granting Entergy’s motion to exclude the testimony of the
plaintiff’s sole expert, Billy Seward. We AFFIRM.
We review the district court’s summary judgment de novo, applying the
same legal standards used by the district court. Moss v. BMC Software, Inc., 610
F.3d 917, 922 (5th Cir. 2010) (citation omitted). Summary judgment is proper
if there is “no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although the court views
all evidence in the light most favorable to the non-moving party, mere conclusory
allegations cannot defeat summary judgment. Moss, 610 F.3d at 922 (citations
omitted). No genuine issue of material fact exists when the non-moving party
fails to establish the existence of an element essential to that party’s case.
Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2008). “Rule 56
does not impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment.”
Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006). We review a
district court’s decision to exclude expert testimony for an abuse of discretion.
Nunez v. Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010).
The district court granted summary judgment on the basis that, “[a]bsent
[the expert’s] testimony, plaintiff has no admissible evidence of the applicable
standard of care or of Entergy Mississippi’s breach thereof.” As such, we address
first, whether the district court’s exclusion of Seward’s testimony was proper,2
and second, whether the district court properly granted summary judgment.
2
Although Childs does not argue on appeal that the district court erred in excluding
his expert, but rather that he did not need an expert witness at all, we address it nonetheless
as the basis of the district court’s summary judgment.
2
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No. 10-60313
First, as the district court noted in its thorough order, Seward is not qualified
to testify as an expert in high-voltage electrical systems, the pertinent factual
issue in this case. He is an electrician whose experience is limited to low-voltage
systems, and he admitted in his deposition that he has no knowledge of high-
voltage systems. He likewise admitted that he is not familiar with the National
Electrical Safety Code (NESC), the very statute that Childs advances as
supporting a claim of negligence per se. The district court did not abuse its
discretion in excluding Seward’s testimony.
Second, given that exclusion, Childs failed to present sufficient evidence
to preclude summary judgment. Entergy filed a motion for summary judgment
arguing that Childs failed to present any evidence of the standard of care or
Entergy’s breach. In response, Childs filed a perfunctory, two-page opposition
that completely failed to identify any genuine issue of material fact, despite the
fact that the district court had granted Childs’s motion for extension of time to
file his response. Instead, Childs vaguely referred to Seward’s deposition
testimony, the defendant’s responses to discovery requests, and “the pleadings
and the deposition testimony.” Conclusory allegations are far from sufficient to
raise a genuine issue of material fact for trial. See Adams, 465 F.3d at 164. The
district court properly granted summary judgment.
Now, on appeal, Childs argues that no expert testimony was required to
establish her claims because the applicable standard of care is established by the
NESC. Childs waived this argument by not presenting it to the district court.
See Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002). Moreover, even if this
argument had been made to the district court, the argument is meritless.
Assuming for the sake of argument that Childs did not need an expert witness
to establish the standard of care in a negligence per se case, she would still have
to produce evidence raising a genuine issue of material fact as to whether
Entergy failed to comply with the NESC; her response in opposition to summary
judgment failed to do so. See Adams, 465 F.3d at 164.
3
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Accordingly, the judgment of the district court is AFFIRMED.
4