Brooks v. Tri-Systems, Inc.

• Decision Date: 11 October 2005
• Docket Number: No. 04-3441.,04-3441.
• Citation: 425 F.3d 1109
• Parties: Kenneth BROOKS; Terrie Brooks, Plaintiffs — Appellants, v. TRI-SYSTEMS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

425 F.3d 1109

Kenneth BROOKS; Terrie Brooks, Plaintiffs — Appellants, v. TRI-SYSTEMS, INC., Defendant-Appellee.

No. 04-3441.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2005.

Filed: October 11, 2005.

John P. Lewis, Hot Springs, AR, and Bill R. Holloway, McGehee, AR, for appellant.

James W. Tilley and Michael M. Harrison, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

LOKEN, Chief Judge.

In this diversity suit, Kenneth and Terrie Brooks appeal the district court's¹ grant of summary judgment dismissing their claim that Tri-Systems, Inc. ("Tri-Systems"), negligently spilled construction debris on a state highway that caused Kenneth Brooks's single-vehicle accident. Reviewing the grant of summary judgment de novo, and viewing the facts in the light most favorable to Mr. and Mrs. Brooks, the non-moving parties, we affirm. See Roeder v. Metro. Ins. & Annuity Co., 236 F.3d 433, 436 (8th Cir.2001) (standard of review).

Brooks left his cabin on a Sunday afternoon to do laundry and watch television at the home of relatives who were out of town. That night, unable to sleep, he decided to return to his cabin, a one hour drive. At approximately 1:00 a.m., near his cabin, Brooks failed to negotiate a curve in the road, lost control of his pick-up truck, and crossed back and forth across the roadway before colliding with a concrete bridge and then the bank of a ditch. The truck came to rest upside down with Brooks unable to exit. He was rescued several hours later and sustained serious permanent injuries.

At the time of the accident, Tri-Systems was regularly hauling construction debris from the site of a nearby project. Tri-Systems had shut down its operations at the site at 5:00 p.m. the preceding Thursday, some eighty hours before the accident, and did not resume work until after the accident. Mr. and Mrs. Brooks later heard of complaints that the Tri-Systems dump truck lacked a tailgate and routinely dumped debris in the road where the accident occurred. They commenced this action, alleging that debris negligently spilled by Tri-Systems proximately caused the accident.

In his deposition, Brooks testified that he could not recall whether there was debris in the roadway when he lost control of his truck. In her deposition, Mrs. Brooks testified that, when Brooks awoke in the intensive care unit of the hospital, she asked him what happened, and he responded, "I hit some rocks in the road. I hit some gravel in the road. . . . All I know is I hit a bunch of gravel and lost control of my truck." In response to Tri-Systems' motion for summary judgment, Mr. and Mrs. Brooks submitted an affidavit by Denver McRae, the owner of a nearby store. McRae averred that many customers had complained of debris in the road spilled by the Tri-Systems truck. At the end of the affidavit, McRae stated, "On the day of the accident there was debris at the big curve, the exact curve where Mr. Brooks had his accident."

The district court granted summary judgment in favor of Tri-Systems, concluding that, without credible evidence that there was debris in the road at the time of the accident, or that Tri-Systems was hauling debris shortly before the accident, any finding that Tri-Systems debris caused the accident would be impermissible speculation. On appeal, Mr. and Mrs. Brooks argue that the McRae affidavit and Mrs. Brooks's testimony relating what Mr. Brooks said when he awoke are sufficient evidence to create a genuine issue of material fact whether Tri-Systems debris in the road caused the accident.

We begin with the McRae affidavit. Rule 56(c) of the Federal Rules of Civil Procedure provides that affidavits may be considered in ruling on a motion for summary judgment. However, affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e). When...