Brannon v. Wilson

• Decision Date: 24 August 2000
• Docket Number: No. 41A01-9906-CV-225.,41A01-9906-CV-225.
• Parties: Anthony BRANNON, Appellant-Defendant, v. Chris WILSON, Individually and as Executrix of the Estate of Danny L. Wilson, Appellee-Plaintiff.
• Court: Indiana Appellate Court

733 N.E.2d 1000

Anthony BRANNON, Appellant-Defendant, v. Chris WILSON, Individually and as Executrix of the Estate of Danny L. Wilson, Appellee-Plaintiff.

No. 41A01-9906-CV-225.

Court of Appeals of Indiana.

August 24, 2000.

Linda Y. Hammel, Yarling & Robinson, Indianapolis, Indiana, Attorney for Appellant.

George Hoffman, III, Jones Hoffman & Admire, Franklin, Indiana, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

Anthony Brannon ("Brannon") appeals the trial court's denial of his motion for partial summary judgment. Brannon raises one issue for our review, which we restate as: whether the trial court erred by denying his motion for partial summary judgment.

We reverse.

On August 18, 1995, Brannon was involved in an automobile accident with Danny L. Wilson ("Wilson"), who suffered from chronic liver disease prior to the accident. The accident resulted in injuries to Wilson, including bilateral forearm contusions and hematoma, a periumbilical contusion, a chest wall contusion and a motor vehicle accident forehead contusion. Wilson and his wife, Chris ("Chris"), filed a complaint against Brannon alleging negligence on September 13, 1996. Wilson died on December 10, 1996. On August 5, 1997, the trial court granted leave for Chris to file an amended complaint. This amended complaint included a count for the wrongful death of Wilson, alleging that the trauma suffered by Wilson in the accident had aggravated his liver disease and hastened his death.

On February 4, 1999, Brannon filed a motion for summary judgment on the wrongful death claim. Brannon argued that he was entitled to judgment as a matter of law on that claim, because Chris could present no evidence that the accident was a cause of Wilson's death. In support of his motion, Brannon designated the affidavit of Dr. S. Chris Pappas, who opined that, based upon his review of Wilson's medical records, Wilson's liver disease was not aggravated by the accident, and that the progression of Wilson's liver disease following the accident was not unusual. Dr. Pappas further stated that his review of a CT scan taken shortly after the accident revealed that there was no laceration or hematoma to Wilson's liver as a result of the accident. Dr. Pappas also stated that a prominent duct dilation in the left lobe of Wilson's liver, revealed in the CT scan, raised the suspicion that Wilson was developing a dominant stricture or cholangiocarcinoma that was not related to the accident, but was common in the natural history of Wilson's disease. Finally, Dr. Pappas stated that, had Wilson suffered an injury that aggravated his liver disease, the accelerated deterioration of his liver would have required almost immediate medical attention. Wilson did not seek medical attention for liver complications until May, 1996, nearly nine months after the accident.

In support of Chris's response to Brannon's motion for partial summary judgment, she designated portions of the pleadings, and a portion of the deposition of Dr. Lawrence Lumeng, Wilson's treating physician. In his deposition testimony, Dr. Lumeng stated that there was a possibility that the physical trauma sustained in the accident made Wilson's liver disease worse, and hastened his death. Further, Dr. Lumeng stated that it was possible that a lesion on the right side of Wilson's liver was caused by the accident.

Following a hearing, the trial judge determined that a genuine issue of material fact existed as to whether the accident caused or accelerated Wilson's death, and denied Brannon's motion for partial summary judgment. The trial court certified its order, and this court accepted the interlocutory appeal.

We readily acknowledge that cases based upon claims of negligence do not, as a general proposition, lend themselves to disposition by summary judgment. Smith v. Beaty (1994) Ind.App., 639 N.E.2d 1029. We further acknowledge that a plaintiff, in opposing summary judgment, need not prove her case by a preponderance of the evidence as she would be required to do at trial. Jarboe v. Landmark Community Newspapers, Inc. (1994) Ind., 644 N.E.2d 118. Furthermore, she is not precluded from avoiding summary judgment merely because it is unlikely that she will succeed at trial in convincing the trier of fact. Best Homes, Inc. v. Rainwater (1999) Ind.App., 714 N.E.2d 702.

Nevertheless, a plaintiff should not be permitted to require a defendant to enter into a full-scale trial defense of a claim which is supported solely by speculation or mere possibility. Czarnecki v.

Hagenow (1985) Ind.App., 477 N.E.2d 964.¹Cf. Smith, supra, 639 N.E.2d at 1034

(an expert's opinion that something is "possible" may be adequate "when rendered in conjunction with other, probative evidence establishing the material factual question to be proved") (citing Noblesville Casting Div. of TRW, Inc. v. Prince (1982) Ind., 438 N.E.2d 722, 731) (emphasis supplied).

To be sure, and as above noted, the test necessary to be met by a non-movant at the summary judgment stage is not the same burden which she bears in order to recover damages at trial. However, in the context of the case before us, Brannon has carried his prima facie summary judgment burden and that demonstration has not been adequately combated by Wilson.

Brannon has carried his prima facie burden of demonstrating that there is no genuine issue of material fact with regard to whether the automobile accident was a proximate cause of Danny Wilson's death. The affidavit of Dr. Pappas categorically controverted Wilson's claim that the accident aggravated Danny Wilson's chronic liver disease and hastened his death. The affidavit of Dr. Pappas clearly and unmistakably opined that there was a total absence of proximate cause as between the automobile accident and Danny Wilson's death.

Although Wilson, in response to Brannon's Motion for Summary Judgment, sought to inject an issue of fact as to the possibility of whether the accident was a proximate cause, such issue is not the focal point of our summary judgment analysis, nor may it suffice to defeat Brannon's Motion.

A summary judgment for a defendant is appropriate where the moving party has negated at least one element of plaintiff's claim. American Legion Pioneer Post No. 340 v. Christon (1999) Ind. App., 712 N.E.2d 532, trans. denied. The element in question here is that of proximate cause. That element, in turn, depends upon whether the accident was more probably than not, a causative factor in Danny Wilson's death. In order to successfully avoid summary judgment, Wilson was required not merely to advance some evidence that there was a possibility of causal connection, but rather to advance some evidence to demonstrate the existence of a genuine issue as to whether a causal connection was probable.

Albeit not in a summary judgment setting, our Supreme Court stated the proposition well in Palace Bar, Inc. v. Fearnot (1978), 269 Ind. 405, 381 N.E.2d 858, 864:

"A doctor's testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury's own speculation as to what is or is not possible."

It would seem that if Dr. Lumeng's affidavit, submitted in opposition to Dr. Pappas's affidavit concerning the total lack of proximate cause, is no evidence at all, it is necessarily inadequate to refute Dr. Pappas's opinion. Wilson has demonstrated no genuine issue of fact as to the crucial element of causation.

Even in light of the view expressed by Justice Boehm, joined by Chief Justice Shepard, in Lenhardt Tool & Die Co. v. Lumpe (2000) Ind., 722 N.E.2d 824, concerning the extreme difficulty of establishing a negative, Brannon has done so here. He has established the negative proposition relative to proximate cause sufficient to meet even the misconstruction of Jarboe, supra, by subsequent cases as criticized by Justice Boehm and Chief Justice Shepard. See Cole v. Gohmann (2000) Ind.App., 727 N.E.2d 1111

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A majority of the...