Wayne Snell v. Garry Foster

ca02-218

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

CA02-218

December 11, 2002

WAYNE SNELL

APPELLANT AN APPEAL FROM CRAIGHEAD COUNTY

CIRCUIT COURT

v. [NO. CIV2000-95]

HONORABLE DAVID LASER

GARRY FOSTER CIRCUIT JUDGE

APPELLEE

AFFIRMED

Appellant, a passenger in appellee's vehicle, was injured when appellee ran off the road to avoid hitting two deer. After appellant sued him for negligence, appellee moved for summary judgment, which was granted by the trial court. We affirm.

The basic facts are as follows. Appellee was driving thirty-five to forty miles per hour on a gravel road (County Road 304) when two deer ran in front of him. He swerved to avoid the deer, slammed on his brakes, and slid into a stump that was two or three feet off the roadway. At the time of the accident, it was drizzling rain, and the road was wet. The stump was eighteen to twenty-four inches high and was partially obscured by tall grass.

Appellant's complaint alleged that appellee was negligent in failing to keep the vehicle under proper control, failing to use ordinary care under the circumstances, and driving too fast for conditions. Yet in his deposition appellant testified:

Counsel: This 35 to 40 [mph], is that based on your estimate just having ridden in cars a bunch or did you specifically look at the speedometer?

Appellant: No. He don't ever drive fast either. So he ain't -

Counsel: You aren't critical of how fast he was going?

Appellant: No.

....

Counsel: Before we leave that night, do you have any criticisms of [appellee's] driving that night?

Appellant: No, sir.

Counsel: So as far as you know, he did everything he could do to avoid hitting those deer?

Appellant: Yes, sir, I think so.

Counsel: It was just one of those things?

Appellant: It was just one of them accidents that happen.

Counsel: If it was anybody's fault, it was the deer's fault?

Appellant: It was the deer's fault, yeah.

Appellee moved for summary judgment based on the above testimony. Appellant responded that, despite his testimony, a fact question remained as to appellee's negligence. The trial court disagreed with appellant and awarded summary judgment.

We no longer refer to summary judgment as a drastic remedy and now regard it as one of the tools in the trial court's efficiency arsenal. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). We review a grant of summary judgment by determining whether the evidence presented by the moving party left a material question of factunanswered. St. Paul Reinsurance, Inc. v. Irons, 345 Ark. 187, 45 S.W.3d 366 (2001). We view all proof in the light most favorable to the resisting party and resolve any doubts against the moving party. Id.

Negligence is the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do under the circumstances. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). There is no negligence in not guarding against a danger that there is no reason to anticipate. Id. Further, the fact that a collision or accident occurred is not of itself evidence of negligence on the part of anyone. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). See also AMI Civ. 4th 603 (1999).

Whether a party is negligent is usually a question of fact for the jury, but the issue may be decided by summary judgment in some instances. See, e.g., Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997); Scully v. Middleton, 295 Ark. 603, 751 S.W.2d 5 (1988). The case before us is one of those instances. Although appellant argues that appellee failed to use ordinary care and violated the rules of the road,1 the fact remains that appellant, by his own testimony, found no fault with appellee's speed, manner of driving, or his attempt to avoid the deer. When a plaintiff makes a pivotal admission that goes to the heart of his case and by his own words contradicts the basis of his claim, summary judgment in favor of the defendant is proper. See Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Sublett v. Hipps, supra. But see Vant v. Long, 70 Ark. App. 461, 20 S.W.3d 437(2000), a case in which the plaintiff's admissions did not rise to the level of those in this case.

Sublett is particularly on point here. Tammy Sublett alleged that Sharon Hipps moved in front of her and decelerated rapidly, causing a collision. However, in her deposition, Sublett testified that Hipps did not cut her off, that there was fifty feet between the cars when Hipps changed lanes, and that she was not aware of anything that Hipps did wrong. When Hipps filed a motion for summary judgment based on that testimony, Sublett responded that traffic was heavy, that the pavement was wet, and that Hipps might have violated a statute mandating that lane changes only be made when they can be done with safety. The supreme court held that Sublett's admissions, which appeared to concede a lack of fault on Hipps's part, merited summary judgment.

Based on the above reasons and the supreme court's holding in Sublett v. Hipps, we affirm the trial court's grant of summary judgment.

Affirmed.

Neal and Baker, JJ., agree.

1 He cites Ark. Code Ann. § 27-51-104(b)(3) (Supp. 2001), which prohibits driving in such a manner as to cause skidding or sliding of tires or sliding of the vehicle.