Delmore v. American Family Mut. Ins. Co., 82-598
| Decision Date | 30 May 1984 |
| Docket Number | No. 82-598,82-598 |
| Citation | 348 N.W.2d 151,118 Wis.2d 510 |
| Parties | William T. DELMORE, individually and as Special Administrator of the Estate of Rosemary C. Delmore, Deceased, Plaintiff-Appellant-Petitioner, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, ABC Insurance Co., and Wayne J. Konkol, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Larry B. Brueggeman, Milwaukee (argued), for plaintiff-appellant-petitioner; Larry B. Brueggeman, Virginia M. Antoine and Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, on brief.
James R. Sommers, Waukesha (argued), for defendants-respondents; Hunter & Sommers, Waukesha, on brief.
This is a review of an unpublished per curiam decision of the court of appeals dated February 9, 1983, which affirmed a judgment of the circuit court for Waukesha County, John P. Buckley, Circuit Judge.
The circuit court summary judgment was entered after a motion by the defendant Konkol and his insurance company, American Family Mutual Insurance Company. The underlying contention of the plaintiff was that Wayne J. Konkol, a passenger in a car driven by Anthony E. Donarski, assumed the duties of the driver as to management, control, and lookout of the vehicle driven by Donarski, and that such conduct was negligent, for which conduct Konkol could be held liable to persons in a vehicle with which the Donarski car collided. The plaintiff's argument, in light of the facts, was rejected by the circuit court, and the judgment was affirmed by the court of appeals. We affirm the court of appeals.
In a summary judgment proceeding, a court must make two determinations: First, whether there is a dispute as to a material fact, and, second, whether the law is clear. If there is a factual dispute, the case must be tried and the facts determined by a judge or jury. Either party may, in a proper case, move for summary judgment; but, because the effect of granting the motion is to deprive the other party of a trial, the burden is on the movant to establish there are no material facts in dispute. In the event affidavits or other of the moving party's documents, viewed in a light most favorable to the party opposing the motion, do not with clarity establish the absence of any factual dispute on a material matter, the motion must be denied. 1 In the event there is no factual dispute, a question of law is presented. Thus, in the event no material facts are in dispute, a court's next determination is in respect to the applicable law: Is the movant, under the law, entitled to judgment or should judgment be granted as a matter of law to the nonmoving party.
We turn, then, to the facts as recited in the affidavits of the parties or in their attorneys' affidavits in which witnesses' affidavits or depositions are excerpted.
In summary of the facts constituting the plaintiff's claim for relief, it appears that Wayne J. Konkol went to a school dance as a passenger in a car driven by Anthony E. Donarski. Donarski and Konkol met three friends, and they decided to go to the Pizza Hut after the dance. Because the friends, who were in two separate cars, did not know the route to the restaurant, they decided to follow Donarski, who did.
Enroute to the Pizza Hut, the Donarski car ignored a stop sign, went into the intersection of Crowbar Drive and State Highway 24 without stopping, colliding with an automobile operated by William T. Delmore and killing his wife, Rosemary, who was a passenger in the car.
Action was commenced against Anthony Donarski and his insurance company, as well as against Konkol and his insurers. The action against Donarski was settled by taking a Pierringer release. Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963).
Motion for summary judgment was made by the defendants, contending that there were no issues of material fact and that, as a matter of law, based on the undisputed facts, Konkol, under Wisconsin law, could not be liable.
Both the trial court and the court of appeals found that no material facts were at issue.
There appears to be no disagreement in respect to the following facts revealed in the various affidavits. Wayne Konkol at the time of the accident was fifteen years old. He was a passenger in the Donarski car and was not a licensed driver. After the two boys met their three friends at the high school and decided to go to the Pizza Hut, the three--John Schloesser, John Roeske, and Robert Treichel--followed in separate cars, one driven by Roeske and one by Schloesser. During the drive, Konkol would occasionally look to the rear to make sure that the other cars were still following. On at least one occasion, Konkol expressed concern whether the Roeske and Schloesser cars could keep up, and Donarski reduced his speed.
During the drive, Donarski passed a vehicle, referred to in the affidavits as the "phantom" vehicle. Before passing, there was an interchange between Konkol and Donarski whether to pass. As Donarski was passing, Konkol told Donarski that he had better speed up to avoid hitting an oncoming vehicle. Donarski "stepped on it," and got back into his lane, barely avoiding a collision with the oncoming car. In doing so, he cut in closely in front of the vehicle he was passing--the "phantom" car.
When Donarski stopped to permit his friends to catch up, Roeske told Donarski and Konkol that Schloesser had been stopped and threatened by the driver of the "phantom" car--the one which Donarski had passed. Donarski and Konkol became concerned that the "phantom" car was looking for them. To get them out of the area, Konkol gave Donarski directions where to turn off the road. Konkol was familiar with the area, and he "thought" that Donarski was not (an undisputed portion of depositions of Anthony Donarski and of his father state that Anthony was familiar with the highway and its adjacent intersecting roads). After Konkol's directions, Donarski turned onto Crowbar Drive in the direction of its intersection with Highway 24. It is undisputed that the "phantom" vehicle was following at this time.
At a point about one-fourth mile from the intersection, Konkol saw the plaintiff's vehicle travelling on Highway 24. He also knew that the speed limit at that point was 35 miles per hour and that Donarski was exceeding it. He knew there was a stop sign to halt traffic approaching on Crowbar Drive. He did not warn Donarski of the approach of the Delmore car on the intersecting highway, nor did he advise Donarski of the stop sign. The affidavit of Donarski's father is again relevant on this question. He states that his son was familiar with the area and knew about the sign. Anthony's deposition acknowledges the same familiarity. Although the attorney for the plaintiff asserts that Donarski was unfamiliar with the area, that assertion is based upon Konkol's statement that he "thought" Donarski was not familiar with the area.
The plaintiff cites the following facts that are asserted to be material and in dispute: (1) Konkol told the driver, Donarski, that he was going to have to accelerate while passing the car, because it would otherwise be a close call; (2) the defendant functioned as a lookout, because he looked back from time to time and told Donarski whether the friends were still following; and (3) Konkol functioned as a navigator, because about two miles from the accident scene he told Donarski he could get out of the area by turning. 2
A review of all the affidavits reveals that there is no disputed material fact. The only dispute in respect to the three "issues" stated above is not of fact, but, rather, of the characterization or effect of the passenger's conduct. These do not pose fact issues.
The only fact that conceivably could be considered to be disputed is in respect to whether Donarski was familiar with the area approaching the collision scene and the collision scene itself. Putting aside how material a fact that is, Konkol only asserted that he did not "think" Donarski was familiar with the area. Donarski and his father both stated that he was familiar with the area, and the father stated that his son should have known there was a stop sign at the intersection. There was thus no dispute about the younger Donarski's familiarity with the area.
Thus, the facts are undisputed. Nevertheless, summary judgment should not be granted if reasonable, but differing, inferences can be drawn from the undisputed facts. Jones v. Sears Roebuck & Co., 80 Wis.2d 321, 325, 259 N.W.2d 70 (1977). Hence, one must determine whether, from the undisputed facts, reasonable persons could reach different inferences. Maynard v. Port Publications, Inc., 98 Wis.2d 555, 563, 297 N.W.2d 500 (1980).
Here it is contended that, inferentially at least, the conduct of Konkol was equivalent to the assumption of the duties as a driver of the vehicle in which he was a passenger in respect to management, control, and lookout. We deem that inference unreasonable and conclude that Konkol was acting only as a passenger.
In respect to the first of the items which the plaintiff has identified as an issue of material fact, there is no evidence from the affidavits that Konkol's course of conduct was to tell, direct, or command Donarski to speed up to avoid a collision. He did not direct Donarski when to speed up or slow down. What did happen was merely an isolated incident, when an individual in the role of a passenger would naturally express concern that, unless they completed the pass with sufficient rapidity they would be participants in a head-on collision. This is an expression of concern for the passenger's own safety. There was no evidence of any agreement or pattern of performance which would show that Konkol had taken over the function of routinely advising or directing Donarski.
While the plaintiff has presented this court with a finely crafted brief on the legal issues, it is...
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