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Clark v. McCorkle

Court of Appeals of Mississippi

November 28, 2017

NED B. CLARK, JR. AND EDNA MARIE CLARK APPELLANTS
v.
CHARLES MCCORKLE APPELLEE

          DATE OF JUDGMENT: 05/04/2016

         CARROLL 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 JR.

         EN BANC

          CARLTON, J.

         ¶1. 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.

         ¶2. 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.

         FACTS

         ¶3. 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.[1] As a result of the accident, Ned suffered five broken ribs, a punctured lung, and his left arm was amputated.

         ¶4. 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.

         ¶5. 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."

         ¶6. On May 15, 2016, the Clarks moved for rehearing. The trial court denied the motion for rehearing.

         ¶7. 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.

         STANDARD OF REVIEW

         ¶8. 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).

         DISCUSSION

         ¶9. 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.

         ¶10. 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).

         ¶11. 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.

         ¶12. 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."

         ¶13. 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 two years.[2]

         ¶14. 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."

         ¶15. 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 ...

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