Why Record Development Wins (or Loses) Summary Judgment Motions

In a recent motion for summary judgment opposition I worked on, multiple defendants each argued—through layers of contracts—that responsibility lay somewhere else. One framed the issue as a lack of duty. Another claimed a lack of control. Another characterized the condition as “trivial” or “open and obvious.”

What ultimately mattered wasn’t clever briefing. It was record development.

Summary judgment motions in negligence cases are especially dangerous when multiple actors are involved and conditions evolve over time. On paper, these cases can be reduced to clean abstractions—duty or no duty, control or no control, trivial or not trivial. Real-world conditions rarely unfold that neatly.

The work began in discovery. Depositions, documents, and admissions were planned with the MSJ in mind from the outset. Permits, manuals, and contractual provisions revealed how obligations were shared and how control was retained—even where defendants insisted responsibility had been fully delegated downstream.

Courts decide summary judgment motions based on admissible facts, not argument alone. When the record supports more than one reasonable inference about what was happening and who retained responsibility, a triable issue exists, and the matter belongs with a jury.

Most MSJ oppositions are not lost because the law was wrong. They are lost because the record did not give the court a principled basis to let a jury decide.

Patience, discipline, and intentional record development often make the difference.