Feature

Fragile

When Jillian Groh checked in to the downtown Westin Hotel one cold night almost seven years ago, everything felt certain. Then things changed forever.

October 2013

Three weeks before the Groh case was set to go to trial, and almost three and a half years after the accident, the Westin’s lawyers filed a motion for “summary judgment,” a tool designed to aid lawyers and judges in weeding cases with no legal standing out of the system. Summary judgment, also known as Rule 56, is written in a 149-page document called the Federal Rules of Civil Procedure, which governs the way the civil court system functions. The federal government adopted the rules in the 1930s, and similar versions have been co-opted by most states, including Colorado. 

Rule 56 reads: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Put another way, summary judgment allows a judge to determine a case purely on its legal merit. There is no jury. “Summary judgment,” says Scott Moss, an attorney and associate professor at the University of Colorado Law School who specializes in civil litigation, “in many cases is a trial on paper.”

Judges tended to stay away from the motion when the rules were first adopted, worrying it could be construed as stripping citizens of their right to a jury trial. In 1986, though, the U.S. Supreme Court issued three opinions viewed by some as a turning point, “signaling a greater emphasis on summary judgment as a necessary means to respond to claims and defenses that lack sufficient factual support,” according to the Federal Judicial Center, the education and research arm of the federal court system. 

In the decades since the 1986 rulings, summary judgment has drawn national attention from legal scholars, retired judges, and attorneys. In 2007, Suja Thomas, a law professor at the University of Illinois, began a paper published in the Virginia Law Review with this declarative sentence: “Summary judgment is unconstitutional.” Thomas argued the rule usurps citizens’ constitutional rights. Then there are those who say there is a culture of summary judgment entrenched in our legal system, and attorneys routinely file the motion whether or not it’s appropriate—anything to win a case without dealing with a jury. “Summary judgment is filed when it shouldn’t be,” says Diane King, a Denver lawyer at the firm King & Greisen. “There are hundreds of disputed facts, and it’s filed anyway.” 

But some say judges handle summary judgment just as carefully today as when the rule was first adopted. “It’s only used in those rare circumstances that nobody has an issue of fact,” says former Denver District Court Judge Christina Habas, who  reviewed countless Rule 56 motions in her nine years on the bench and now works for the Denver firm Keating Wagner Polidori Free. “It’s very rarely granted for that reason.” 

The Westin’s 41-page summary judgment motion argued the Grohs’ “claims must fail as any ‘negligence’ on the part of the Westin with respect to the eviction was not the proximate cause of the accident nor the injuries suffered therein.” In other words, the fact that Jill and her friends were kicked out of the hotel didn’t cause their accident. The Westin’s lawyer wrote, “It would be unconscionable to hold a hotel liable for such unforeseeable events.”

The motion didn’t surprise Shafner. But he was confident the Groh case wasn’t a fit for Rule 56. Shafner drafted a response, which he filed with the court two months later. “A jury could most certainly find that Defendant Westin’s breach of its duty was a proximate cause of Plaintiff’s injuries and damages.... Further, if Westin personnel decide that it is necessary to evict guests from the premises, then the Westin has policies and procedures in place to ensure that the eviction takes place so that its guests are not thrust into dangerous situations when they depart the premises.”

Three and a half months after Shafner filed his response, and weeks before the latest trial date, which had been pushed back, Denver District Court Judge R. Michael Mullins rendered his decision. The judge sided with the Westin. There would be no jury. No trial. 

Bill was sitting on the couch when the phone rang. When he heard the case wasn’t going to trial, he felt as if he had been punched in the jaw. The Grohs would file an appeal, but the odds were against the case being overturned. Janelle was dumbfounded. “I never knew there was such a thing [as summary judgment],” Janelle says. “I thought everybody would get their day in court—let the jury decide one way or another. Jill has to have her little voice heard.” 

 

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