Mitchell v. Ramsey
| Decision Date | 05 January 2011 |
| Docket Number | No. CA 10–565.,CA 10–565. |
| Citation | 2011 Ark. App. 9,381 S.W.3d 74 |
| Parties | Courtney MITCHELL and Teresa Markin, Appellants v. John RAMSEY, Tri–State Delta Chemicals, Inc., d/b/a United Agri Products, Mid–South, Appellees. |
| Court | Arkansas Court of Appeals |
OPINION TEXT STARTS HERE
Prior Version Recognized as Repealed by Implication
Timothy Oliver Dudley, Little Rock, Lohnes Tiner, Harrisburg, for appellant.
Kyle Ray Wilson, Gary D. Marts, Jr., Wright, Lindsey & Jennings LLP, Little Rock, for appellee.
[Ark. App. 1]This case has been to this court previously. In our decision dismissing the earlier appeal for lack of finality, see Mitchell v. Ramsey, CA 07–1190, 2008 WL 4287333 (Ark.App. Sept. 17, 2008) (unpublished), we set forth the case's history as follows:
Appellants Courtney L. Mitchell and Teresa Markin, individually and in their representative capacities as administrators of the estate of Tyson Massengill, appeal the August 13, 2007 order of the Crittenden County Circuit Court wherein the trial court granted the summary judgment motion of appellees John Ramsey and Tri–State Delta Chemicals, Inc., d/b/a United Agri Products, Mid–South (UAP). The trial court found appellants' claim of negligence against Ramsey inconsistent with appellants' claim against the manufacturer, which had been settled previously. The issue presented on appeal is whether the trial court erred in granting summary judgment....
In this wrongful death and survival action, appellants filed suit against appellees and others contending that appellees' negligence caused the death of decedent, Tyson Massengill. Massengill was killed when the pick-up truck he was driving was struck by the arm of a field sprayer driven by appellee Ramsey, who was employed by appellee UAP. In their second amended complaint filed April 14, 2005, appellants claimed that [Ark. App. 2]Ramsey was negligent by operating the vehicle in a careless manner as evidenced by a failure to keep a proper lookout and failure to maintain proper control; that he operated the vehicle at an unreasonable speed in light of conditions, without a proper escort, without the requisite safety precautions for its width, without the required lamp or flag marker, and without the required lamps; and that he operated an oversized vehicle and unsafe vehicle in violation of the Arkansas Code.
Appellants also sued Case Corporation, which manufactured the field sprayer, and Gemini Enterprises, Inc., which leased the field sprayer to appellees. Appellants claimed the field sprayer was defective because the arm on the sprayer came down while the sprayer was in transit....
....
Appellees Ramsey and UAP filed a third-party complaint against Case Corporation for contribution, should appellees be held liable. Before trial, appellants settled their claims against Case Corporation and Gemini Enterprises. However, the third-party complaint was not dismissed.
Appellees filed a motion for summary judgment, arguing that because appellants had alleged that the field sprayer was defective, and that the defect was the cause of the arm of the field sprayer deploying while it was in transit, appellants could not take the alternative position that appellee Ramsey was negligent in failing to stow the arm of the field sprayer before moving up the highway. Appellees also argued that appellants' claims regarding appellees' negligence in failing to register the field sprayer should be summarily dismissed because no proximate cause could be proven. Finally, appellees argued that there was no evidence before the court that warranted imposition of punitive damages. Appellants responded by claiming that the doctrine of inconsistent positions did not apply because they pled alternatively; that appellees' violation of the law was a proximate cause of appellants' damages; and that the evidence warrants the submission of punitive damages to the jury.
The trial court granted appellees' motion for summary judgment by order filed August 13, 2007....
Mitchell, slip op. at 1–3. Because the summary judgment order left issues outstanding, we dismissed.
On remand, appellees filed another motion for summary judgment, arguing that the [Ark. App. 3]first summary judgment had resolved all of the issues concerning negligence in the operation of the field sprayer and that only the registration and permitting issue remained. They asserted that they were entitled to summary judgment on that issue because a permit was not required at the time of the accident, and even if it had been, any statutory violation was not a proximate cause of the accident. They supported this motion with the affidavit of Don Hartlein, who was UAP's Operations Manager responsible for registering its vehicles for that area, who stated:
5. The Case field sprayer in question in the above-referenced case was not registered in April 2002 as UAP relied on Arkansas Code Annotated § 27–35–102 which exempted the field sprayer from the registration requirement as it is considered an article of husbandry.
6. It has come to my attention that earlier this year the Arkansas Supreme Court ruled that Arkansas Code Annotated § 27–35–102 was superceded by a subsequently enacted statute. As a result, UAP is now moving forward to register all implements like the field sprayer in accordance with Arkansas law.
7. Had UAP known that Arkansas Code Annotated § 27–35–102 had been superceded, it would have registered the Case field sprayer at issue and the field sprayer would have been registered on April 15, 2002, the day of the accident. Therefore, the sprayer would have been operating in the same manner, at the same location and at the same time as it was on April 15, 2002.
In response, appellants referred to the permit regulations for the movement of oversize and overweight vehicles promulgated by the Arkansas Highway and Transportation Department. The circuit court granted the motion for summary judgment, ruling that its first order had included all claims other than the registration and permitting issue, on which appellees were entitled to summary judgment. The court stated that registration and [Ark. App. 4]permitting were not required at the time of the accident, and that, even if they had been required at that time, the lack of registration and permitting did not constitute proximate cause. The circuit court dismissed all of appellants' claims, along with appellees' third-party complaint against Case Corporation and their cross-claims against Gemini Enterprises, the lessor of the equipment. Appellants then pursued this appeal.
Summary judgment may be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Bisbee v. Decatur State Bank, 2010 Ark. App. 459, 376 S.W.3d 505. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issues as to a material fact. Id. When there are genuine questions of material fact with regard to a party's intent, summary judgment is improper. Id. On appeal, we need only decide if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. In making this decision, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
In their first point, appellants argue that the trial court erred in granting summary [Ark. App. 5]judgment to appellees because neither the doctrine of inconsistent positions nor judicial estoppel apply to alternative pleading. They contend that, from the beginning of this case, they have alleged two alternative causes of the accident; in their second amended complaint, they asserted that the boom on the field sprayer was either left down by Ramsey or it came down improperly. A plaintiff is allowed to allege alternative theories of liability. See George v. Jefferson Hosp. Ass'n, 337 Ark. 206, 987 S.W.2d 710 (1999); Odom v. Odom, 232 Ark. 229, 335 S.W.2d 301 (1960). Appellants contend that the trial court erred in finding that their expert, Douglas Muster, opined that the sole cause of the accident was a design defect in the field sprayer; that they never adopted the position that the accident was caused solely by a design defect, but that it was caused, at least in part, by Ramsey's negligence; and that Muster also opined that the accident was caused by Ramsey's negligence in, among other things, operating the sprayer in violation of Arkansas law.
It is true that a party is bound by his pleadings and the allegations therein and cannot maintain a position inconsistent therewith, and that a litigant is not permitted to assume wholly inconsistent positions on the same issue in the same case. Parsons Dispatch, Inc. v. John J. Jerue Truck Broker, Inc., 89 Ark. App. 25, 199 S.W.3d 686 (2004). Appellants did not, however, assume inconsistent positions in settling with Case Corporation and asserting their negligence claims against appellees. In their second amended complaint, appellants stated:
22. The collision between the two vehicles occurred in the Plaintiff's lane of traffic when the extended boom on the case field sprayer crushed the lower portion of the roof of the cab on the driver's side of Tyson Massengill's vehicle, killing Tyson Massengill. The boom either was left down by the operator, John Ramsey, or came [Ark. App. 6]down improperly.
23. The Defendant Ramsey was operating this field sprayer at night on a state highway without escort...
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