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IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI PLAINTIFFS VS. CIVIL ACTION NO. DEFENDANT RESPONSE TO 'S MOTION FOR SUMMARY JUDGMENT The Estate of (the Plaintiffs) respond to Motion for Summary Judgment as follows. I. RESPONSE TO THE ALLEGATIONS IN ' MOTION. 1. In response to the affirmative allegations of undisputed fact offered by in its motion, the Plaintiffs offer the following responses: (a) Admitted. (b) Admitted. (c) Admitted. (d) Denied. This testimony is from a biased witness who has everything to gain and nothing to lose by this statement. It is unreliable, particularly since there are no witnesses to alleged statements. Moreover, the statement may be inadmissible hearsay. (e) Admitted. (f) Admitted. Approximately fifteen minutes after the fall, , while still in considerable pain, told his/her son that he/she had falle n while entering his/her trailer. also repeated these statements to his/her treating physician and others during his/her stays at the hospital. (g) Admitted. However, the jury is entitled to infer from the uncontradicted circumstantial evidence that the positioning of the steps proximately caused fall. (h) Admitted. (i) Admitted. 2. Admitted. At all times, was acting as the agent of in the delivery and installation of mobile home. 3. Admitted. The placement of the steps constituted a breach of the implied warranties of merchantability and fitness. 4. Denied. The jury is entitled to infer from circumstantial evidence the proximate cause of fall. It is inappropriate for this Court to make that determi nation for the jury. 5. Denied. There is ample evidence to support the Plaintiffs' breach of warranty claim. II. AFFIRMATIVE ALLEGATIONS OF THE PLAINTIFFS IN RESPONSE TO MOTION 1. purchase a mobile home from , which included delivery and installation of the steps. , acting as an agent of , delivered the mobile home and installed the steps. 2. The undisputed testimony from all parties is that steps were placed so that one ascended the steps parallel to house. Dep. of , at . The normal way to install ste ps is to place them so that one ascends the steps perpendicular to the mobile home. Dep. of , at . 3. fell from the top of the steps and suffered severe injuries. No eyewitnesses to the fall have been identified. 4. After the fall, drove to where his/her son was staying and reported the fall. According to , his/her father said that "he/she was attempting to enter the m obile home and fell from the steps. Dep. of , at 11. 5. was in a great deal of pain and having trouble breathing. Dep. of , at . The drive from where fell to where his/her son was staying took to minutes Dep. of , at . 6. During his/her hospital stays, told his/her treating physician he/she fell while attempting to enter his/her mobile home. Affidavit of , M.D. 7. Thus, ' statements about the circumstances of his/her fall are admissible as excited utterances or statements made in furtherance of medical treatment and diagnosis. 8. fell as a proximate result of the positioning of the steps by Complete, who was acting as agent. 9. Therefore, and are liable to the Plaintiffs for any and all damages sustained as a proximate result of their negligence and breach of warranty. 10. In support of the foregoing, the Plaintiffs offer the following, which are attached as exhibits hereto: (a) Excerpts from Dep. of . (b) Excerpts from Dep. of and exhibits. (c) Excerpts from Dep. of . (d) Affidavit of , M.D. (e) The pleadings in this action (not attached as an exhibit). WHEREFORE, the Plaintiffs pray that Motion for Summary Judgment he/she denied. Furthermore, pursuant to Miss. R. Civ. Pro. 56(h), the Plaintiffs pray that they be reimbursed for costs and attorney fees incurred in responding to motion. Respectfully submitted, __________________________________ OF COUNSEL:__________________________________ CERTIFICATE OF SERVICE I, , certify that I have this day caused the above to be placed in the Unit ed States mail, postage fully prepaid, addressed as follows: THIS, the day of , 20 . _________________________________