NED B. CLARK, JR. AND EDNA MARIE CLARK APPELLANTS
CHARLES MCCORKLE APPELLEE
OF JUDGMENT: 05/04/2016
COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. JOSEPH H.
LOPER JR. JUDGE
ATTORNEY FOR APPELLANTS: GREGORY MALTA
ATTORNEYS FOR APPELLEE: JACOB MICHAEL JENKINS A. LEE ABRAHAM
On May 4, 2016, the Carroll County Circuit Court granted
Charles McCorkle's motion for summary judgment on Ned and
Edna Clark's (the Clarks) complaint for damages resulting
from a highway accident. In response to the grant of summary
judgment, the Clarks filed a motion for rehearing on the
matter, which the trial court denied. The Clarks now appeal.
Upon review of the record and applicable law, we find that
questions of material fact exist, thus precluding the grant
of summary judgment. As a result, we reverse and remand the
trial court's grant of summary judgment.
On the morning of Tuesday, October 16, 2012, at approximately
7:24 a.m., Ned was driving his 1991 Ford Ranger southbound on
Mississippi Highway 35 in Carroll County, Mississippi, when
he rear-ended McCorkle, who was driving a 1985 John Deere
farm tractor that was pulling a flatbed "cotton"
trailer. As a result of the accident, Ned suffered
five broken ribs, a punctured lung, and his left arm was
On November 21, 2014, the Clarks filed a complaint against
McCorkle asserting three causes of action: that McCorkle was
(1) negligent, (2) grossly negligent, and (3) negligent per
se because he was operating a tractor and trailer with
inadequate lighting in a low-visibility area.
After conducting discovery, McCorkle moved for summary
judgment. The trial court granted summary judgment after
finding that no genuine issues of material fact existed
concerning McCorkle's negligence. The trial court held
that "absent an emergency or unusual condition, it was
[Ned] who had the primary duty to avoid hitting
McCorkle's trailer." In addition, the trial court
concluded that the Clarks' expert witness's opinion
was "not based on sufficient evidence, and [could not]
establish a genuine issue of material fact."
On May 15, 2016, the Clarks moved for rehearing. The trial
court denied the motion for rehearing.
The Clarks now appeal, asserting the following assignments of
error: (1) the trial court erred in granting summary
judgment, (2) the trial court abused its discretion in
dismissing the opinion and testimony of Jason Walton, the
Clarks' expert witness, and (3) the trial court erred in
failing to grant the Clarks their constitutional right to a
trial by jury.
We review a trial court's grant of summary judgment de
novo, with the evidence viewed in the light most favorable to
the nonmoving party. Karpinsky v. Am. Nat'l
Ins., 109 So.3d 84, 88 (¶9) (Miss. 2013). Upon
review, this Court examines "all the evidentiary matters
before [it], including admissions in pleadings, answers to
interrogatories, depositions, and affidavits."
Albert v. Scott's Truck Plaza Inc., 978 So.2d
1264, 1266 (¶5) (Miss. 2008) (citations omitted).
"If no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law,
summary judgment should be entered in that party's
favor." Stringer v. Trapp, 30 So.3d 339, 341
(¶9) (Miss. 2010).
The Clarks argue that the trial court erred in granting
summary judgment in favor of McCorkle. The Clarks assert that
they presented sufficient evidence to prove McCorkle's
negligence and defeat summary judgment, including: (1)
Ned's sworn affidavit filed with his complaint, (2)
Ned's deposition, (3) McCorkle's deposition, and (4)
the deposition and report of expert witness Walton, an
accident-reconstruction specialist. The Clarks maintain that
the evidence submitted shows that McCorkle breached his duty
of care by negligently operating an oversized slow-moving
vehicle during foggy and low-light conditions without making
the flatbed trailer connected to his tractor properly visible
to other drivers on the highway. The Clarks also claim that
the trial court failed to provide them with an opportunity
for surrebuttal to refute McCorkle's mischaracterization
of their pleadings, specifically regarding whether a dispute
of a material fact existed on the issue of poor visibility
resulting from fog.
As stated, on appeal, we apply a de novo standard to our
review of a trial court's grant of summary judgment.
See Spann v. Shuqualak Lumber Co., 990 So.2d 186,
189-90 (¶¶6, 11-13) (Miss. 2008) (holding that
whether fog emitted from the lumber-drying plant was actually
present at the time of the collision and, if so, whether the
fog constituted an unreasonably dangerous condition or
cause-in-fact of the collision, constituted a question of
fact for the jury, thus precluding summary judgment).
In its order granting summary judgment in favor of McCorkle,
the trial court quoted White v. Miller, 513 So.2d
600, 602 n.3 (Miss. 1987), and recognized that "where
two cars are traveling in the same direction, the primary
duty of avoiding a collision rests with the following driver
and[, ] in the absence of an emergency or unusual condition[,
] he is negligent as a matter of law if he runs into the car
ahead." The trial court ruled that "absent an
emergency or unusual condition, it was [Ned] who had the
primary duty to avoid hitting McCorkle's trailer."
The trial court found that "no evidence establishes the
stretch of roadway was foggy at the time. . . . The only
claim that the area in question was under fog is from the
complaint" filed by the Clarks.
Regarding the deposition and evidence provided by Walton, the
Clarks' expert witness, the trial court found that Walton
admitted that in preparing his accident-reconstruction
report, "[Walton] did not review any deposition
transcripts, written discovery, or interview [Ned], and [he]
only visited the accident scene years after the accident took
place. . . . Walton's sole basis for determining that
foggy conditions existed was the complaint itself." The
trial court thus held that Walton's testimony "is
not based on sufficient evidence, and cannot establish a
genuine issue of material fact."
After reviewing the evidence submitted, the trial court also
opined that McCorkle did not commit negligence per se in
regard to the illumination of his tractor with reflective
gear or lights, explaining:
[N]o statute requires [McCorkle] to display an emblem or
tape, or have lights on his tractor. However, he still has a
general duty to act as a reasonable person would. [Ned]
alleges that McCorkle breached this duty by using a
reflective triangle that was worn and had lost its
reflectiveness. The only evidence to support this is
Walton's expert testimony. But Walton never observed the
triangle at the time of the accident. Instead, the first
Walton had seen of the triangle was in 2015, after the
triangle had been moved to [the] gate and sat in sunlight for
Regarding the Clarks' claim of gross negligence, the
trial court held: "Because this [c]ourt finds there to
be no evidence of negligence on the part of [McCorkle], his
actions cannot rise to the higher level of gross negligence.
Even were there evidence of negligence, the [c]ourt finds
[that the Clarks have] presented no evidence that
McCorkle's conduct evinced a reckless indifference to any
consequences of driving his trailer."
However, the Clarks submit that they provided sufficient
evidence to prove genuine issues of material facts existed in
order to defeat summary judgment. Contrary to the trial
court's determination, the Clarks assert that Ned's
deposition testimony reflects that an obstruction affected
his vision at the time of the accident:
Q: Now I notice, I remember you said a while ago you said
that there was this little-approximately how high off the-off
the regular road surface was this knoll?
A: Just a little incline, just a little incline. I don't
know what-what else to say. It was a small hill.
Q: So just a very slight ...