ALTON DARREN BARNETT AND KAREN BARNETT, HUSBAND AND WIFE, NEXT FRIEND AND NATURAL PARENTS OF MORGAN TAYLOR BARNETT, AND MORGAN TAYLOR BARNETT, INDIVIDUALLY APPELLANTS
DAMON ERIC CLEGHORN, PURCELL TIRE & RUBBER COMPANY, PURCELL TIRE AND SERVICE CENTER, PURCELL TIRE COMPANY OF ARKANSAS APPELLEES
FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CV-14-73]
HONORABLE CHRIS E WILLIAMS, JUDGE
R. Cortinez II and Robert S. Tschiemer, for appellant.
Wright, Lindsey & Jennings LLP, by: Baxter D. Drennon and
Michael A. Thompson, for appellees.
MARK KLAPPENBACH, JUDGE.
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.
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. 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
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.
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.
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. 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.
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
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.
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.
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.
argue that even if Golden was also negligent, this does not
absolve Cleghorn of liability unless Golden's actions
were an independent, ...