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Barnett v. Cleghorn

Court of Appeals of Arkansas, Divisions I, IV

November 29, 2017



          Robert R. Cortinez II and Robert S. Tschiemer, for appellant.

          Wright, Lindsey & Jennings LLP, by: Baxter D. Drennon and Michael A. Thompson, for appellees.


         Appellants appeal from the Grant County Circuit Court's order granting summary judgment to appellees on appellants' negligence suit. Appellants contend that material questions of fact remain on the issue of whether the alleged negligence of appellees was a proximate cause of the automobile accident. We reverse and remand.

         Appellants, Morgan Taylor Barnett and her parents, Alton Darren Barnett and Karen Barnett, filed suit against Damon Eric Cleghorn and his employer, Purcell Tire & Rubber Cite as 2017 Ark.App. 641 Company, for damages arising out of an automobile accident.[1] On August 17, 2011, Morgan Barnett was driving a Chevrolet Cruze east on Highway 270 and had stopped to wait on westbound traffic to pass in order to make a left turn onto Keg Mill Road. A Dodge Ram pickup truck driven by Cleghorn and owned by Purcell was traveling behind Barnett east on Highway 270 with large truck tires in the bed of the truck. Dustin Golden was driving a Chevrolet Silverado behind Cleghorn in the same direction. It is undisputed that Cleghorn maneuvered around Barnett on the right shoulder and did not collide with her vehicle. Golden, however, collided with the rear bumper of Barnett's car and also with the rear of Cleghorn's truck. Barnett's car was then pushed into oncoming traffic and was struck by another vehicle. Golden's truck struck a second vehicle traveling westbound.

         Appellants alleged in their complaint that Cleghorn was traveling at a high rate of speed and that he negligently failed to keep a proper lookout and notice that Barnett had slowed to make a turn. They claimed that his illegal attempt to pass Barnett on the right shoulder caused the chain reaction of collisions. Appellants claimed that Cleghorn's and Purcell's negligence was the proximate cause of their injuries and damages and that Purcell was liable under the doctrine of respondeat superior.

         Appellees filed a motion and an amended motion for summary judgment alleging that Cite as 2017 Ark.App. 641 Cleghorn's actions were not the proximate cause of appellants' damages. Appellees contended that Cleghorn did not strike Barnett's vehicle and that an accident reconstructionist had determined that Golden had sufficient notice to react to Cleghorn's slowing and passing Barnett. The affidavit of R. Torrey Roberts, the professional engineer retained by appellees to perform an accident-reconstruction analysis, stated that Golden was still traveling approximately 57 mph when he hit Barnett's vehicle and that Cleghorn was traveling approximately 20 mph when he was struck by Golden's vehicle. Roberts concluded that Golden would have had the opportunity to observe Cleghorn slowing to a stop and driving around Barnett for a minimum of 5.5 seconds before impacting Barnett and that this was sufficient time for an attentive driver to react and avoid the accident. Roberts's conclusions were based in part on Cleghorn's deposition testimony that Barnett had stopped abruptly in front of him; that he was not sure he had room to stop behind her so he steered to the right; that he came to a complete stop behind and to the right of Barnett; and that he then eased around her.

         Appellees' amended motion included a supplemental report from Roberts prepared after appellees' attorney had provided Roberts with evidence that Cleghorn may not have come to a stop before driving around Barnett. This evidence included a Purcell accident report in which Cleghorn wrote that he was not able to completely stop, so he slowed to Cite as 2017 Ark.App. 641 approximately 20 mph and moved to the shoulder.[2] Based on this information, Roberts opined that, instead of 5.5 seconds, Golden would have had the opportunity to observe Cleghorn slowing and driving around Barnett for a minimum of 3.2 to 3.8 seconds, which was still sufficient time for an alert driver to avoid the accident.

         Appellants responded that Cleghorn had lied under oath when he repeatedly testified in his deposition that he came to a complete stop before driving around Barnett. Given Cleghorn's contradictory accounts, appellants claimed that any observations to be drawn from his actions were genuine issues of material fact. Appellants also argued that the motion for summary judgment was premature because discovery was pending, and they would be retaining their own accident reconstructionist. Appellees replied that, due to Golden's lack of recollection of the accident, there was no admissible evidence that the likelihood of Golden hitting Barnett was increased or caused by any action of Cleghorn's.

         Appellants filed a sur-reply, attaching a letter of preliminary findings from Chuck Atkinson, an accident reconstructionist. Atkinson opined that Cleghorn's evasive maneuver to pass the stopped car without sufficient warning of his intention did not provide Golden sufficient time and distance to avoid the collision. Appellants also detailed ongoing discovery and claimed that their discovery requests had been ignored. Appellees filed a motion to strike the sur-reply, contending that it was too late to submit supplemental supporting materials without leave of the court. Following a hearing, the circuit court granted summary judgment in favor of appellees. Appellants filed a motion for reconsideration, which was deemed denied, and this appeal followed.

         The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Davis v. Schneider Nat'l, Inc., 2013 Ark.App. 737, 431 S.W.3d 321. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id.

         Appellants contend that factual issues remain as to whether Cleghorn proximately caused the accident by following too closely or by driving inattentively or too fast and thereby created the danger that caused Golden to strike Barnett. Pointing to their expert's report, appellants claim that a jury could find that Cleghorn's truck obliterated Golden's view of Barnett's car and that Cleghorn's last-minute evasive action left insufficient time for Golden to stop and avoid a collision. To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant's actions were a proximate cause of those damages. Davis, supra. "Proximate cause" is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Pollard v. Union Pac. R.R. Co., 75 Ark.App. 75, 54 S.W.3d 559 (2001). Proximate causation becomes a question of law only if reasonable minds could not differ. Id.

         Appellants argue that even if Golden was also negligent, this does not absolve Cleghorn of liability unless Golden's actions were an independent, ...

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