Hammig v. Ford

• Decision Date: 19 January 1990
• Docket Number: No. 62579,62579
• Parties: Bonnie HAMMIG, Appellant, v. Thomas FORD, Appellee.
• Court: Kansas Supreme Court

Page 977

785 P.2d 977

246 Kan. 70

Bonnie HAMMIG, Appellant, v. Thomas FORD, Appellee.

No. 62579.

Supreme Court of Kansas.

Jan. 19, 1990.

Syllabus by the Court

Under the circumstances of this case, the trial court did not err in granting summary judgment upon a finding that there was no causal connection as a matter of law between the defendant's actions and the plaintiff's injury, where: (1) the defendant pursued a hit-and-run driver in order to obtain his vehicle license plate number; (2) the hit-and-run driver, although cognizant of the pursuit, testified that this awareness affected neither his speed nor the length of time he drove while fleeing from the accident scene; (3) the defendant slowed, pulled over, and stopped upon discerning the license number of the hit-and-run vehicle; and (4) the defendant was no longer in pursuit when the hit-and-run driver sped through an intersection, colliding with an automobile in which plaintiff's husband was a passenger and was fatally injured.

Joseph R. Ebbert, of Niewald, Waldeck, Norris & Brown, argued the cause, and Stephen S. Brown and Catherine R. Hutson, Overland Park, were with him on the brief for appellant.

Jerome V. Bales, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, argued MILLER, Chief Justice:

the cause, and Kenton M. Hall, Overland Park, was with him on the briefs for appellee.

This is a wrongful death case brought by Bonnie Hammig against Thomas Ford. The District Court of Johnson County granted summary judgment in favor of defendant Ford. The propriety of that order is the controlling issue before us.

FACTUAL BACKGROUND

Thomas Ford was driving north on Metcalf Avenue in Overland Park, Kansas, on November 21, 1985. James Brooks was driving south on the same thoroughfare. Brooks, in making a left turn onto 107th Street, collided with the Ford vehicle. Brooks fled the scene by proceeding east on 107th. As soon as it was apparent to Ford that Brooks was not going to stop, he followed Brooks in order to obtain his license number.

Shortly east of Metcalf, 107th Street makes an S curve; thereafter, it is straight all the way to Lamar, one-half mile east of Metcalf. The two cars sped east on 107th, with speeds reaching 60 miles per hour, although the speed limit was 30 or 35 miles per hour. Neither Brooks nor Ford remembers any other traffic on 107th. Brooks testified by deposition that, after about a block, he became aware that Ford was following him, but that was not why he was speeding; he was determined to leave the scene and go to Missouri. He did not want to be arrested for driving without a license.

Even though Brooks had a head start, Ford was able to catch up to him and to read his license number. Ford then pulled over to the side of the street, about a half block west of Lamar, to write down the number. Brooks, however, did not stop or slow down. He proceeded to speed into the four-way stop intersection at Lamar, and in doing so collided with another vehicle in which Bret Hammig was a passenger. Hammig died of injuries sustained in the crash.

This action is brought by Hammig's widow and sole heir, Bonnie Hammig, individually and as administratrix of his estate. Suit was commenced against Brooks; Brooks' parents, who were the owners of the car he was driving; and Ford. Summary judgment was entered in favor of Brooks' mother. Later, plaintiff's claims against Brooks and his father were settled, and an order was issued dismissing those claims with prejudice. The orders relating to the claims against Brooks and his parents are final, and no appeal has been taken from them.

DISTRICT COURT'S DISPOSITION

Defendant Ford moved for summary judgment, and the trial court agreed, finding

"that there are no material issues of fact remaining, and that reasonable minds cannot differ as to the fact that the actions or inactions of defendant Ford did not in any way cause or contribute to cause the collision between the Brooks and Hammig vehicles. Therefore, the Court finds that the defendant Ford is entitled to judgment as a matter of law."

Plaintiff appealed.

COURT OF APPEALS' DISPOSITION

The Court of Appeals, in an unpublished opinion filed June 2, 1989, 774 P.2d 378, reversed. After setting forth the facts and the rules relating to the entry of summary judgment, the opinion states:

"To recover in a negligence action a plaintiff must establish the following: (1) a duty owed by the defendant to the plaintiff; (2) defendant breached that duty; (3) plaintiff was damaged; (4) the breach of duty was a cause in fact of the damage; (5) and the breach of duty was the 'proximate' or 'legal' cause of the damage. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987).

"Proximate cause has been defined as follows:

" 'The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the "Generally, drivers have a duty to operate their motor vehicles in the same manner as a prudent driver would do and whether they have done so is ordinarily a question of fact to be determined by the jury in light of all the evidence. Drennan v. Penn. Casualty Co., 162 Kan. 286, 288, 176 P.2d 522 (1947). Failure to use that degree of care and caution which an ordinary careful and prudent person would exercise under same or similar circumstances is negligence. Morris v. Hoesch, 204 Kan. 735, 738, 466 P.2d 272 (1970).

injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. [Citation ommitted.]' Baker, 240 Kan. at 557[, 731 P.2d 278.]

"Viewing the record in the light most favorable to the plaintiff as the nonmoving party, we conclude it was reversible error for the district court to grant summary judgment for defendant because there exists a genuine issue as to the proximate cause of the collision."

We granted Ford's petition for review.

RULES RELATING TO SUMMARY JUDGMENTS

A party seeking summary judgment bears a heavy burden. The trial court is required to resolve all inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. If factual issues exist, they must be material to the case to preclude summary judgment.

The same rules apply on appeal. The appellate court is required to read the record in the light most favorable to the party who defended against the motion for summary judgment. Summary judgment must be found improper where the appellate court finds that reasonable minds could differ as to the conclusions drawn from the evidence. Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); see Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).

The trial judge, a reasonable person, concluded that the evidence led to but one conclusion: that Ford's actions or inactions "did not in any way cause or contribute to cause the collision between the Brooks and Hammig vehicles." Judges of a Court of Appeals panel, reasonable people, upon consideration of the same evidence, came to a conclusion that "there exists a genuine issue as to the proximate cause of the collision." As reasonable minds differ on the conclusion to be drawn from the evidence, summary judgment must be deemed improper unless our independent review of the record shows that Ford is entitled to judgment as a matter of law. Although summary judgment is seldom proper in negligence cases, it is proper if the plaintiff fails to provide evidence of an element essential to his case. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. at 307, 756 P.2d 416.

NEGLIGENCE CASES

The plaintiff in a negligence case must establish these essential elements:

(1) A duty of reasonable care owed by the defendant to the plaintiff;

(2) a breach of that duty;

(3) damage to the plaintiff; and

(4) a causal connection between the duty breached and the damage sustained.

See Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987) (citing Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 [1983]. The Baker opinion also states:

"[T]he breach of duty must be the actual and proximate cause of the injury. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient In Baker, plaintiff sustained personal injuries when a tractor-trailer ran a red light and struck the Baker vehicle. Baker brought suit against the truck driver, the truck owner, its insurance carrier, the county, the city, and the Kansas Department of Transportation. The first three settled; the county was granted summary judgment; and, at the close of trial, the judge granted a directed verdict in favor of the city and KDOT. Plaintiff appealed the directed verdict, claiming that improper timing and installation of the traffic lights by the city and KDOT caused or contributed to the collision. Noting that whether conduct is the proximate cause of a plaintiff's injuries is normally a question of fact for the jury, we nevertheless affirmed. We held there was no evidence in the record to indicate that either the timing or the installation of the signal lights caused the truck driver's failure to stop. Thus, there was insufficient evidence to permit the causation issue relating to the city or KDOT to go to the jury.

intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. Wilcheck [246 Kan. 74] v. Doonan...