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MARTIN YINUG, Associate Justice:
The court has received and considered the motion for summary judgment of defendants (collectively "Mobil"), plaintiff Bluemither William's response, and Mobil's reply. Mobil's motion is granted.
Mobil's January 21, 2002, and January 24, 2002, motions for enlargement of time are granted. All remaining pending motions are denied as moot.
The accident which is the subject of this litigation occurred more than ten years ago on November 5, 1991. There were no eye-witnesses other than the then four-year-old plaintiff Bluemither William ("William") herself. The account of events from depositions more than eight years after the event is that the family was at a feast, and William remained unattended at the family home. William was playing with matches and a fire resulted which burned William in the leg and thigh area. A neighbor heard her crying and came to her assistance. The neighbor testified in his deposition that he
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did not see a kerosene container anywhere near where he found William. On the other hand, William's grandfather testified that William in her burned state was lying by a kerosene container that had a capacity of five or six gallons, but had contained a sufficiently small quantity of kerosene that the then four-year-old child had been able to move the container from the cookhouse where it was kept to an area three or four meters away from the cookhouse where the fire occurred.
Rule 56 of the FSM Rules of Civil Procedure provides that
the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
On motion for summary judgment, facts and inferences therefrom should be viewed in a light most favorable to the opposing party. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995). Where facts lead to differing reasonable inferences, then summary judgment is not appropriate. Adams v. Etscheit, 6 FSM Intrm. 580, 583 (App. 1994). "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.'" Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986).
William contends that her burn injury resulted from the fact that the kerosene with which she was playing was contaminated. However, the record taken as a whole in this case "could not lead a rational trier of fact to find for the nonmoving party [William]," and thus there is no "`genuine issue for trial.'" Id. A child playing with matches is a tragedy in the making. In this case that peril was rendered even more dire because William was apparently also playing with a container that contained kerosene, possibly in imitation of her mother's practice of using kerosene to burn grass and trash around the family compound. While William alleges that it was contamination of the kerosene that is responsible for her injuries, it is also the case that kerosene in its uncontaminated state will burn, and that its very utility as a liquid fuel depends on this characteristic. Certainly a fire1 occurred in this case which resulted in William's injury. However, on the record before the court, William has not shown a causative link sufficient to withstand Mobil's motion for summary judgment between the alleged contamination and William's injury. As between contaminated and uncontaminated kerosene, a reasonable trier of fact could not exclude the latter so as to conclude that it was the former that caused William's injury.
In Gayle v. City of New York, 668 N.Y.S.2d 693 (N.Y. App. Div. 1998), the plaintiff Gayle claimed that he lost control of his car as it reached a large puddle in the road and collided with a parked
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trailer. Gayle sued the City of New York ("New York") alleging negligence in failing to maintain adequate drainage and obtained a jury verdict in his favor. Gayle had no memory of the accident, nor were there any eyewitnesses. New York appealed, and argued that Gayle's evidence as a matter of law was insufficient to establish that New York's negligence was the proximate cause of the accident. The appellate court reversed the jury verdict, finding that the jury could only have speculated that the water was cause of the accident and that "[t]here are many other just as plausible variables and factors which could have caused or contributed to the accident, and none of which were ruled out by the plaintiff." Id. at 696.
"Speculation, guess and surmise . . . may not be substituted for competent evidence, and where . . . there are several possible causes of [one] accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible."
Id. at 694-95 (quoting Agius v. State, 377 N.Y.S.2d 735, 738 (N.Y. App. Div. 1975)). While Gayle was in a post jury verdict posture, its point about the legal sufficiency of the evidence is apposite here in relation to the summary judgment standard as stated in Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552. In the case at bar, a reasonable trier of fact could not exclude William's playing with matches and uncontaminated) as opposed to contaminated ) kerosene as the cause of her injuries. As previously noted, it follows that "[t]he record taken as a whole could not lead a rational trier of fact to find for" William. Id.
Accordingly, Mobil's motion for summary judgment is granted on all claims. A judgment issues herewith.
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Footnote:1. From what the court has been able to glean from the record, virtually the only suggestion that the allegedly contaminated kerosene behaved in an out of the ordinary way is the following from the December 18, 1999, deposition of William's grandfather. At page 11 is the following:
Q. Okay, then let's move on to what Bluemither has told you. Can you tell us what Bluemither has told you about the accident?
A: That she was lighting [sic] and in the process the container exploded to [sic] her.
This is a translation into English of testimony in Pohnpeian about what a four-year-old child told her grandfather more than eight years before. A reasonable trier of fact could not rely on this single statement to conclude that the kerosene was contaminated.