LINDA TAYLOR v. COASTAL COAL COMPANY, LLC, EARNEST COOK & SONS MINING, INC.; TERRY W. BAKER; AND GOLDEN OAK MINING COMPANY, L.P. and TERRY W. BAKER v. LINDA TAYLOR; COASTAL COAL COMPANY, LLC, EARNEST COOK & SONS MINING, INC.; GOLDEN OAK MINING COMPANY, L.P.
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RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001884-MR
LINDA TAYLOR
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NOS. 98-CI-00041,
99-CI-00150 & 99-CI-00151
COASTAL COAL COMPANY, LLC,
(FORMERLY KNOWN AS ANR COAL COMPANY, LLC);
EARNEST COOK & SONS MINING, INC.;
TERRY W. BAKER; AND
GOLDEN OAK MINING COMPANY, L.P.
AND:
NO. 2000-CA-001978-MR
TERRY W. BAKER
v.
APPELLEES
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 98-CI-00041
LINDA TAYLOR;
COASTAL COAL COMPANY, LLC,
(FORMERLY KNOWN AS ANR COAL COMPANY, LLC);
EARNEST COOK & SONS MINING, INC.;
GOLDEN OAK MINING COMPANY, L.P.;
APPELLEES
OPINION
REVERSING AND REMANDING
APPEAL NO. 2000-CA-001884-MR
AND APPEAL NO. 2000-CA-001978-MR
** ** ** ** **
BEFORE:
JOHNSON, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE:
These appeals arise from summary judgments
entered by the Letcher Circuit Court on July 12, 2000, and July
27, 2000.
We reverse and remand.
This litigation arises from an automobile accident.
On
April 22, 1997, at about 6:30 a.m., Linda Taylor was driving her
1994 Toyota pickup in a southwardly direction on Kentucky Highway
931 (a two-lane thoroughfare commonly known as Sand Lick Road)
toward Whitesburg, Kentucky.
Home Health.
She was going to work at Jenkins
She approached the intersection of Thompson Branch
Road, which entered Highway 931 from the west, being on her
right.
At that point in time, Terry W. Baker was driving his
1989 Jeep after leaving work at a mining operation on Thompson
Branch Road.
Baker intended to enter Highway 931 and turn to his
left to proceed in a northwardly direction toward Colson.
As he
crossed Taylor's lane, his Jeep was essentially broad-sided by
Taylor's Toyota.
The road surface was wet as it had been raining
on the morning of the accident.
Taylor contends she was unable
to stop because of mud and debris left on the road by trucks
entering Highway 931 from mining operations on Thompson Branch
Road.
Two mining operations on Thompson Branch Road are
involved.
Both of them operate under permits issued to Coastal
Coal Corporation, LLC (formerly ANR Coal Company, LLC) (Coastal).
-2-
One of the mining operations is, in fact, operated by Coastal.
Its coal is hauled by divers trucks, that travel Thompson Branch
Road to Highway 931 and turned southwardly toward Whitesburg.
The other mining operation is conducted by Golden Oak Mining
Company, L.P. (Golden Oak) under a royalty agreement with
Coastal.
It appears the coal from this operation is transported
exclusively by Earnest Cook & Sons Mining, Inc. (Cook & Sons).
These trucks enter Highway 931 from Thompson Branch Road, cross
the south bound lane of Highway 931, and turn left in a
northwardly direction toward Colson.
The circuit court was of the opinion that
identification of the depositor(s) of the mud and debris upon the
highway was too speculative as to implicate either Coastal or
Cook & Sons.
Perforce, the circuit court entered summary
judgments under the precepts of Ky R. Civ. P. (CR) 56 and
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476 (1991).
In her appeal, No. 2000-CA-001884-MR, Taylor makes two
contentions: (1) that the circuit court erred in granting summary
judgment to Cook & Sons; and (2) that the circuit court erred in
granting summary judgment to Coastal.
In his appeal, No. 2000-
CA-001978-MR, Baker makes but one contention, to wit: that the
circuit court erred in granting summary judgment in favor of Cook
& Sons.
Because all issues raised emanate from the allegation
that the road was rendered unduly slick because of mud tracked
thereon by the mining operations, we consider the arguments
collectively.
-3-
The simple fact of the case is that Taylor, a motorist,
is driving over a public highway and strikes Baker, a motorist,
entering from a side road.
The position of both is that the
accident was brought about, at least in part, by mud and debris
on the highway that rendered Taylor unable to stop.
Both Taylor
and Baker desire to attribute the condition of the road to mining
operations in the area.
We have examined the evidence in this case in light of
Steelvest and are of the opinion that the summary judgments
entered by the trial court must be reversed.
In Steelvest, it
was stated as follows:
Only when it appears impossible for the
nonmoving party to produce evidence at trial
warranting a judgment in his favor should the
motion for summary judgment be granted.
(Citations omitted.)
Steelvest at 482.
Under the precepts of Steelvest, we think
there is sufficient evidence to pass the summary judgment “milemarker.”
It is common knowledge that dirt and debris upon the
surface of a highway, when made wet by rainfall, renders vehicles
difficult to stop.
There is an abundance of evidence suggesting
that there was, in fact, mud upon the highway, at least in the
vicinity of the accident.
There is also evidence that the mud
was attributable to mining operations on Thompson Branch Road.
We think it, therefore, reasonable that Taylor and Baker may
offer evidence connecting Coastal and/or Cook & Sons with the mud
as a causative factor in the accident.
We realize that the circuit court relied upon the case
of Myers v. Walker, Ky., 322 S.W.2d 109 (1959).
-4-
That case
involved a directed verdict.
We, therefore, think it not
dispositive.
By remanding this case, we are not suggesting that
either Taylor and/or Baker will survive a motion for directed
verdict.
That remains to be seen.
We are simply saying that it
might be possible for Taylor and/or Baker to prove a submissible
case against Coastal and/or Cook & Sons.
There is not only the
question of who deposited the mud upon the roadway, but also
whether the mud, if so deposited, was a substantial factor in
causing the collision.
As to these matters, we think Taylor and
Baker are entitled to offer proof.
The circuit court may then
reconsider the case in light of Myers.
We hasten to point out that we did not address any
matters concerning agency.
That remains for the circuit court.
For the foregoing reasons, the judgments of the Letcher
Circuit Court are reversed, and this cause is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
-5-
BRIEFS FOR APPELLANT, LINDA
TAYLOR:
BRIEF FOR APPELLEE, TERRY W.
BAKER:
Darrell Hall
Whitesburg, Kentucky
Deborah R. Lewis
Hazard, Kentucky
BRIEF FOR APPELLANT, TERRY W.
BAKER:
BRIEF FOR APPELLEE, COASTAL
COAL COMPANY, LLC:
Deborah R. Lewis
Hazard, Kentucky
Calvin R. Tackett
Whitesburg, Kentucky
BRIEF FOR APPELLEE, EARNEST
COOK & SONS TRUCKING, INC.:
John V. Porter
Paintsville, Kentucky
-6-
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