JERRY SHEPPERD v. JOY HILL SHEPPERD
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RENDERED: August 1, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-000936-MR
JERRY SHEPPERD
APPELLANT
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE ROBERT W. McGINNIS, JUDGE
ACTION NO. 01-CI-00154
v.
JOY HILL SHEPPERD
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BAKER, GUIDUGLI AND KNOPF, JUDGES.
BAKER, JUDGE.
Jerry Shepperd appeals from an order of the
Harrison Circuit Court granting Joy Hill Shepperd summary
judgment on Jerry’s complaint for tort damages involving
injuries he received as a passenger in a single vehicle
accident.
Finding no error, we affirm.
On January 23, 2000, Jerry and Joy Hill Shepperd, his
wife, were visiting friends in Harrison County.
When they were
returning home on Oddville-Sunrise Road, a two-lane road, with
Joy driving her 1997 Chevrolet Cavalier and Jerry as the
passenger, it was dark and snowing lightly.
The roadway had
snow covering a thin layer of ice.
As they approached a rise in
the road, the vehicle started to fishtail to the right.
When
Joy attempted to straighten it, the rear of the vehicle slid to
the left, back to the right, and eventually left the pavement.
The vehicle then careened onto an embankment with the front
striking a wire fence.
Damage to the vehicle was relatively
minor, and the couple was able to continue on their trip home.
Jerry had some soreness that night but experienced
increased pain the next day.
He went to the hospital
complaining of pain in his middle and lower back.
Jerry ceased
working as a heavy construction equipment operator temporarily,
but he did return to work.
He has received conservative
treatment of physical therapy and medication for his back.
On November 6, 2000, Jerry filed a complaint seeking
tort damages for physical injuries he allegedly suffered in the
accident.
Jerry alleged that Joy “operated her vehicle in such
a careless and negligent manner so as to cause physical injury
to the Plaintiff, a passenger in her vehicle.”
2001, Joy took Jerry’s deposition.
On April 26,
Jerry stated that the couple
had replaced the tires and brakes on the Cavalier approximately
six months before the accident.
He said that just before the
incident, he did not notice Joy having any handling problems
with the vehicle despite the weather conditions.
In response to
questions from Joy’s attorney, Jerry stated as follows:
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Question:
Okay. As far as your — anything
that you may have noticed before
the car went out of control, if
that’s a fair characterization of
what happened, do you have any
criticisms about the manner in
which your wife was operating the
vehicle?
Answer:
No, sir.
Question:
As far as when the vehicle –
again if this is a fair
characterization, when the
vehicle began to lose control, do
you have any criticisms of the
manner in which your wife handled
the vehicle when the car began to
lose control?
Answer:
Besides – no, not really. She
done everything she could do I
guess because I did notice that
she did turn into the slide like
you’re supposed to and went the
other way. And she tried to
correct it, and went back the
other way. By that time we were
leaving the road.
Jerry also testified that he was awake and had a good view of
the events as a passenger in the front seat.
On August 10, 2001, Joy filed a motion for summary
judgment pursuant to Kentucky Rules of Civil Procedure (CR) 56
and an accompanying memorandum in support.
In the memorandum,
Joy argued she was entitled to summary judgment based on
judicial admissions by Jerry in his deposition.
The motion
included a notice that it would be brought at a hearing on
August 17, 2001.
On the noticed hearing date, only Joy’s
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attorney appeared.
On August 31, 2001, the circuit court
entered an order granting the motion for summary judgment
stating judicial admissions made by Jerry in his deposition
exonerated Joy of negligence in that he stated unequivocally
that Joy’s “driving conduct was not to be faulted for the
accident in question.”
On September 7, 2001, Jerry’s attorney filed a motion
to set aside the summary judgment based on lack of notice with
an accompanying affidavit stating that he had not received a
copy of the summary judgment until August 31, 2001.
Following a
hearing, the circuit court gave Jerry an opportunity to file a
memorandum opposing summary judgment.
In his memorandum, Jerry
claimed his deposition testimony was exhaustive and the
principle of res ipsa loquitur created a presumption of
negligence by a driver in a single-car accident.
On November
16, 2001, Jerry filed a motion for extension of time to file an
affidavit in support of his memorandum in opposition of summary
judgment.
On December 5, 2001, Jerry filed an affidavit stating
that prior to operating her vehicle on the night of the
accident, Joy was aware that it had been snowing and sleeting.
He said it was “my opinion that Joy Hill Shepperd failed to have
her automobile under reasonable control and failed to exercise
ordinary care to avoid collision [sic].”
On April 10, 2002, the
circuit court entered an order denying the motion to set aside
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the August 31, 2001, order granting summary judgment to Joy.
This appeal follows.
Jerry challenges the circuit court’s conclusion that
his deposition testimony concerning Joy’s actions constituted
judicial admissions.
He further contends that under the
doctrine of res ipsa loquitur, he is entitled to an inference or
presumption that his wife was negligent in operating her
vehicle.
Jerry asserts that genuine material factual issues
remain in dispute, which precludes summary judgment in Joy’s
favor.
The standard of review on appeal when a trial court
grants a motion for summary judgment is whether the trial court
correctly found there are no genuine issues of material fact and
that the moving party was entitled to judgment as a matter of
law.
Palmer v. International Ass’n of Machinists, Ky., 882
S.W.2d 117, 120 (1994); Stewart v. University of Louisville, Ky.
App., 65 S.W.3d 536, 540 (2001); Ky. R. Civ. P. 56.03.
The
movant bears the initial burden of convincing the court by
evidence of record that no genuine issue of fact is in dispute,
and then the burden shifts to the party opposing summary
judgment to present at least some affirmative evidence showing
that there is a genuine issue of material fact for trial.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 482 (1991).
See also City of Florence v. Chipman,
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Ky., 38 S.W.3d 387, 390 (2001); Lucchese v. Sparks-Malone, Ky.
App., 44 S.W.3d 816, 817 (2001).
The court must view the record
in a light most favorable to the nonmovant and resolve all
doubts in his favor.
Commonwealth v. Whitworth, Ky., 74 S.W.3d
695, 698 (2002); Lipsteuer v. CSX Transportation, Inc., Ky., 37
S.W.3d 732, 736 (2000).
An appellate court need not defer to
the trial court’s decision on summary judgment and will review
the issue de novo because only legal questions and no factual
findings are involved.
See Barnette v. Hospital of Louisa,
Inc., Ky. App., 64 S.W.3d 828, 829 (2002); Lewis v. B&R Corp.,
Ky. App., 56 S.W.3d 432, 436 (2001).
Establishing the propriety of the circuit court’s
grant of summary judgment in favor of Joy requires a multi-step
analysis.
First, we must determine as a matter of law that
Jerry’s deposition testimony included judicial admissions.
Second, if Jerry made judicial admissions, we look to whether
the circuit court properly decided that there were no genuine
material issues of fact in dispute and Joy was entitled to
judgment as a matter of law.
“A judicial admission is a formal act by a party in
the course of a judicial proceeding which has the effect of
waiving or dispensing with the necessity of producing evidence
by the opponent and bars a party from disputing a proposition in
question.”
Nolin Production Credit Ass’n v. Canner Deposit
6
Bank, Ky. App., 726 S.W.2d 693, 701 (1986)(citing Center v.
Stamper, Ky., 318 S.W.2d 853, 855 (1958)).
Bizer, Ky., 57 S.W.3d 271, 279 (2001).
See also Berrier v.
A judicial admission is
a deliberate, clear, unequivocal statement of a party about a
fact within that party’s peculiar knowledge.
See Schoenbaechler
v. Louisville Taxicab & Transfer Co., Ky., 328 S.W.2d 514, 515
(1959); Greenwell v. Boatwright, 184 F.3d 490, 498 (6th Cir.
1999).
Unlike evidentiary admissions that may be contradicted,
a party making detrimental judicial admissions under
circumstances where there is no probability of error may not
introduce other evidence such as his own testimony or that of
other witnesses or experts to rebut the admissions.
See, e.g.,
Moore v. Roberts, Ky., 684 S.W.2d 276, 277-78 (1982); Sutherland
v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024 (1941); Robert G.
Lawson, The Kentucky Evidence Law Handbook § 815 at 385-86 (3d
ed. 1993).
One policy justification for the conclusive effect
of judicial admissions is to eliminate the temptation to commit
perjury.
See Hansen v. Ruby Const. Co., 155 Ill. App. 3d 475,
108 Ill. Dec. 140, 508 N.E.2d 301 (1987).
It is well established that statements made under oath
in a pretrial deposition may constitute judicial admissions
sufficient to summary judgment.
See Fletcher v. Indianapolis
and Southeastern Trailways Inc., Ky., 386 S.W.2d 264 (1965);
Bell v. Harmon, 284 S.W.2d 812 (1955); Lawson, supra.
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A party
may not create a genuine issue of material fact by taking a
position contradictory with a judicial admission.
Van’s
Material Co. v. Department of Revenue, 131 Ill.2d 196, 212, 137
Ill. Dec. 42, 545 N.E.2d 695, 703 (1989); Hansen, 155 Ill.
App.3d at 480, 508 N.E.2d at 304.
Whether a statement is a
judicial admission is a question of law.
See Strouse v. K-Tek,
Inc., 129 Idaho 616, 618, 930 P.2d 1361, 1363 (Idaho App. 1997);
Hansen, supra.
Jerry challenges the circuit court’s summary judgment
in favor of Joy on two grounds.
First, he contends the trial
court erred in determining that his deposition statements were
judicial admissions.
Jerry maintains that his statements were
not a deliberate, clear, and unambiguous waiver of liability
absolving Joy of negligence.
Relying on McCallum v. Harris,
Ky., 379 S.W.2d 438 (1964), he states that his testimony merely
involved the absence of facts supporting negligence by Joy.
In
McCallum, Virgil Harris and his 18 month-old daughter, Rhonda
Fay, died in an automobile accident involving a car driven by
Virgil and a semi-trailer truck.
The court held that the
testimony of Golene Harris, who was Virgil’s wife and another
passenger in the car, did not constitute a judicial admission
absolving Virgil of negligence because it was not “deliberate,
unequivocal and unexplained.”
The court characterized her
testimony as of a “negative character; that is, she simply
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testified as to an absence of knowledge about the crucial facts
of the accident.”
Id. at 441.
The McCallum case does not compel reversal of the
circuit court in this appeal for several reasons.
First, any
comparison is hampered by the absence of a description of Golene
Harris’s specific testimony in the opinion.
Second, the
McCallum court’s conclusion is based on Golene Harris’s “absence
of knowledge about the crucial facts of the accident” with the
court specifically noting that she was not in a “favorable
position to observe accurately what occurred” because she was
blinded by the lights of the oncoming truck.
Id.
On the other hand, Jerry was a passenger in the front
seat of the vehicle with no obstructions.
He explicitly stated
that he had no criticism of the manner in which his wife handled
the vehicle either before or during the incident and that she
did everything she could including turning into the slide.
His
statements were affirmative representations that Joy acted
properly, not equivocations based on lack of knowledge.
We
believe that Jerry’s testimony was sufficiently deliberate,
clear, and unequivocal statements about facts within his
particular knowledge to qualify as judicial admissions.
In support of his position, Jerry also cites to Arnett
v. Thompson, Ky. App., 433 S.W.2d 109 (1968), but that case is
clearly distinguishable.
In Arnett, a wife sued her husband for
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injuries she sustained in an accident while a passenger in a
vehicle driven by her husband.
The court held that a pretrial
written statement by a wife endorsing her husband’s pretrial
written version of the accident exonerating him and placing sole
fault on the other driver was not a judicial admission.
The
court’s decision, however, was based on the fact that the wife’s
endorsement was not done in the course of judicial proceedings.
Jerry’s statements were made in a deposition taken as part of
the judicial proceedings in this case.
Having concluded that Jerry’s deposition statements
constituted judicial admissions, we turn to the question of
whether Joy was entitled to summary judgment.
A judicial
admission has a conclusive effect on the party who makes it that
prevents that party from introducing further evidence to
disprove or contradict the admitted fact.
See Bell, supra;
Zipperle v. Welsh, Ky., 352 S.W.2d 556 (1961).
In order to
state a cause of action for negligence, a plaintiff must
establish a duty on the part of the defendant, a breach of that
duty, and a causal connection between the breach of the duty and
injury to the plaintiff.
Commonwealth, Transportation Cabinet,
Department of Highways v. Shadrick, Ky., 956 S.W.2d 898, 900
(1997); Lewis v. B & R Corp., supra at 436.
The absence of any
one of these three elements is fatal to a claim.
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Id.
Jerry’s deposition statements that Joy did all she
could do and expressing no criticism of her actions effectively
negate any claim that Joy breached her duty to handle her
vehicle in a reasonable manner.
As a result, there is no
genuine material factual issue in dispute and Joy was entitled
to judgment as a matter of law.
Jerry’s December 2001 affidavit
does not alter this conclusion.
It merely consists of vague,
general statements that fail to offer sufficient specificity to
create a genuine material factual dispute.
Jerry also argues that application of the res ipsa
loquitur doctrine creates genuine issues of material fact that
preclude summary judgment.
He claims the doctrine of res ipsa
loquitur should be applied to create an inference that Joy was
negligent in operating her vehicle.
He cites several cases
involving single vehicle accidents where res ipsa loquitur was
applied.
See, e.g., Wireman v. Salyer, Ky. App., 336 S.W.2d 349
(1960); Vernon v. Gentry, Ky. App., 334 S.W.2d 266 (1960);
Beatty v. Root, Ky. App., 415 S.W.2d 384 (1967).
In Eaton v.
Swinford, Ky., 424 S.W.2d 118 (1967), the court set out the
elements of res ipsa loquitur as follows:
1.
The defendant must have had full
management of the instrumentality which
caused the injury;
2.
The circumstances must be such that,
according to common knowledge and the
experience of mankind, the accident could
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not have happened if those having control
and management had not been negligent;
3.
The plaintiff’s injury must have
resulted from the accident.
Id. at 119.
Jerry’s argument lacks merit for several reasons.
First, having concluded that his deposition statements
constitute judicial admissions, those statements conclusively
rebut any presumption of negligence that would exist under the
res ipsa loquitur principle.
Secondly, the requirements for res
ipsa loquitur do not exist in this case.
As the court noted in
Cox v. Wilson, Ky., 267 S.W.2d 83 (1954), res ipsa loquitur
would apply only if the circumstances in a particular case
involve an accident which would not in the ordinary course of
things occur without negligence.
In Thurmond v. Chumbler’s
Administratrix, Ky., 287 S.W.2d 908, 910 (1956), the court noted
that in several cases, the courts “recognize the fact that an
automobile may skid on a slippery road without negligence in its
operation and the rule that the skidding of an automobile on
such a road does not of itself summon the aid of the doctrine of
res ipsa loquitur.”
In our situation, the wet, icy conditions
of the roadway militate against applying the res ipsa loquitur
doctrine because Joy could have lost control of her vehicle even
in the absence of negligence on her part.
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Finally, Jerry asserts that summary judgment is
unavailable because Joy admitted fault after the accident when
she stated, “I wrecked my car.”
He claims this statement
creates a disputed issue of material fact.
While we question
whether this statement constitutes an admission of negligence,
Jerry failed to preserve this issue for review.
it for the first time on appeal.
He has raised
This Court will not review
issues not raised in or decided by the trial court.
Regional
Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 228 (1989);
Burgess v. Taylor, Ky. App., 44 S.W.3d 806, 814 (2001).
For the foregoing reasons, we affirm the order of the
Harrison Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Vincent E. Johnson
Louisville, Kentucky
Charles H. Cassis
J. Michael Wells
Louisville, Kentucky
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