Dilly v. S.S. Kresge – Case Brief
Dilly v. S.S. Kresge, 606 F.2d 62 (4th Cir. 1979).
Facts: Eleanor Dilly (P) worked for S.S. Kresge Co. (D) at a store soda fountain. An assistant manager asked for a cup of hot chocolate. When P told him that there was none left, he grabbed and shook her and exclaimed “What the hell do you mean running out of hot chocolate?” The assistant manager claimed to have been joking but P stated that she thought the assistant manager was angry and serious. P sued D for injuries sustained to her neck. Both parties moved for summary judgment and the court awarded summary judgment in P’s favor regarding liability and set a hearing to determine damages. The court denied D’s motion to set aside the order pursuant to Rule 59. D appealed and argued that the appeal of the grant of summary judgment in favor of P and the denial of the motion to set aside the order pursuant to Rule 59 was an appeal of a final order.
Issue: Is an appeal of an order for summary judgment on the issue of liability an appeal from a final order when damages have not yet been ascertained?
Holding and Rule: No. Appeal of the court’s grant of summary judgment was not an appeal of a final order within the meaning of 28 U.S.C. § 1291 because the appeal was taken before the assessment of damages. The court of appeals dismissed the appeal on the grounds that it did not have jurisdiction. Citing Caitlin v. United States, the court held that “”A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” The grant of summary judgment did not end litigation on the merits because the amount of damages had not yet been determined.