Assume a defendant files a motion for summary judgment, arguing a case should be dismissed before trial because plaintiff has not proved an essential element of her case (call it Element A). Assume that plaintiff files a timely response to the summary judgment motion, properly creating a genuine issue of material fact on Element A. Can a trial judge grant summary judgment on the failure to plaintiff to introduce evidence on Element B, an issue not raised by defendant?
Not really. In Bakker v. Chattanooga-Hamilton County Hospital Authority D/B/A Erlanger Health System, No. E2022-00872-COA-R3-CV (Tenn. Ct. App. March 5, 2024) a trial judge did just that: granting summary judgment on the issue of notice in a premises liability case when the defendant did not move for summary judgment on that basis. (Indeed, defendant’s counsel stated at the hearing that the notice issue was one that would be in dispute in the event the case was tried.) The trial judge granted summary judgment on the issue of notice. The Court of Appeals reversed, saying
[t]his Court has previously held that a trial court cannot raise issues sua sponte when granting summary judgment except in ‘”are cases and with meticulous care.'” Rather, the nonmoving party “must be ‘given notice and a reasonable opportunity to respond to all issues considered by the court.'”
Id. at 11 (citations omitted).
The quoted language highlights the problem: if a court grants summary judgment on an issue not raised by the opposing party, the plaintiff is deprived of the opportunity to marshal and file evidence on the issue, thus depriving plaintiff of the opportunity to create a genuine issue of material fact.
Of course, a trial judge could raise a previously unraised issue at a hearing, or by way or a pre- or post-hearing order, and give the plaintiff a reasonable time to address the new issue. But the law is clear that a trial judge cannot simply dismiss a case on summary judgment on a ground not raised by the movant.