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520 N.E.2d 439

Burke v. Capello

Indiana Supreme Court

Decided March 25, 1988

Indiana Supreme Court · decided 1988-03-25

Key passage — most relied on by later courts

“may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”

quoted by 1 later decision, including Martin Rispens & Son v. Hall Farms, Inc.

Relies on Shideler v. Dwyer · 143 Ind. App. 370 - Pan American World Airways, Inc. v. Local Readers Service, Inc. · Whipple v. Dickey

Good law ✅— No negative treatment on recordhow we know

Decided 1988-03-25

How this case has been cited

Cited by 44 later decisions — most recently December 2015 · most notably Webb v. Jarvis (1991), Cowe Ex Rel. Cowe v. Forum Group, Inc. (1991)

44 state decisions

3201988199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

DICKSON, Justice,

¶1dissenting.

¶2Trial Rule 56(E) includes the following explicit requirement:

… When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. …

¶3A party opposing summary judgment is "obliged to disgorge sufficient evidence" to show the existence of a genuine triable issue. Shideler v. Dwyer (1981), 275 Ind. 270, 417 N.E.2d 281; Pon American World Airways, Inc. v. Local Readers Service, Inc. (1968), 143 Ind.App. 370, 240 N.E. 2d 552. The party opposing summary judgment must "come forth with specific facts showing that there is a genuine issue for trial." Criss v. Bitzegaio (1981), Ind., 420 N.E2d 1221; Whipple v. Dickey (1980), Ind.App., 401 N.E.2d 787.

¶4Pursuant to Ind.Code § 16-9.5-9-9, the expert opinion reached by the Medical Review Panel was presented in support of defendant's motion for summary judgment as proof that "[the evidence does not support the conclusion that defendant failed to meet the applicable standard of care as charged in the initial complaint." Record at 25. I am unable to agree with the majority that plaintiff's response adequately set forth specific facts to show a genuine issue for trial.

¶5I would affirm the trial court's entry of summary judgment.

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