Schermer v. Muller

• Decision Date: 15 January 1986
• Docket Number: No. 84-868,84-868
• Parties: Dorothy SCHERMER; Kara Marie Schermer and Mary Christine Schermer, Minors, by Ron Schermer, their Father and Next Friend; and Ethel Neibauer, Appellants, v. Linda MULLER, as Administrator of the Estate of Danny Muller; and M.W. Thornburgh, as Administrator of the Estate of Karl Layne Anderson, Appellees.
• Court: Iowa Supreme Court

Page 684

380 N.W.2d 684

Dorothy SCHERMER; Kara Marie Schermer and Mary Christine Schermer, Minors, by Ron Schermer, their Father and Next Friend; and Ethel Neibauer, Appellants, v. Linda MULLER, as Administrator of the Estate of Danny Muller; and M.W. Thornburgh, as Administrator of the Estate of Karl Layne Anderson, Appellees.

No. 84-868.

Supreme Court of Iowa.

Jan. 15, 1986.

Rehearing Denied Feb. 24, 1986.

Raymond P. Drew of Hobson, Cady & Drew, Hampton, for appellants.

George Lindeman of Lindeman & Yagla, Waterloo, for appellee Muller Estate.

E.R. McCann and Jim D. DeKoster of Swisher & Cohrt, Waterloo, for appellee Anderson Estate.

Considered en banc.

WOLLE, Justice.

The plaintiffs, eastbound travelers on a two-lane Iowa highway, were injured when their automobile collided with a pickup which itself was involved in a head-on collision with a second pickup. The summary judgment record we here review discloses much about how the three vehicles were being operated as they proceeded toward each other, but little about their movements just before impact. The trial court granted summary judgment for the defendants, administrators of the estates of the two pickup drivers, on the ground that negligence could not be presumed and had not been established by evidence in the summary judgment record. The court of appeals reversed, finding in the summary judgment record substantial evidence from which a jury could infer that one or both of the pickup drivers were causally negligent. We affirm the decision of the court of appeals and remand the case to the district court for further proceedings.

This personal injury action was commenced by plaintiffs Dorothy Schermer, her minor daughters Kara Marie and Mary Christine, and her mother Ethel Neibauer. Dorothy Schermer was the driver of the automobile in which the other three plaintiffs were passengers. Danny Muller and Karl Layne Anderson were the owners and operators of the two pickup trucks which collided at about the same time and at the same place where the Schermer vehicle struck Anderson's pickup. Both Muller and Anderson were killed in the accident and are represented as defendants by the respective administrators of the two decedents' estates. For convenience we refer to the defendants as Muller and Anderson.

Discovery depositions were taken of all known surviving eyewitnesses, and the summary judgment record consists of affidavits, transcripts of the deposition testimony, and plaintiffs' answers to written interrogatories. Plaintiffs must rely in part on circumstantial evidence, because there is little direct evidence of what happened in the last few seconds before the vehicles collided. Of the three drivers directly involved, only plaintiff Dorothy Schermer survived the collision. Moreover, blowing snow from a semi truck-tractor she was meeting just before the collisions obscured both her view of the collision scene and the semi driver's view to the rear. Schermer's mother Ethel Neibauer, a passenger, had no recollection of what happened other than the general nature of the planned trip. Schermer's two daughters, six and one-half years old and twenty months old at the time of the accident, respectively, were unable to recount what happened.

The summary judgment record, though understandably silent in some respects, does reveal many essentially undisputed facts leading up to the collisions involving the Schermer, Anderson and Muller vehicles. The collisions occurred on the morning of April 5, 1982, on Iowa highway 3, west of Allison. Schermer, with her two daughters and her mother, was traveling east toward Waterloo from her home in Hampton. She was driving approximately thirty-five to forty-five miles per hour because a snowstorm and traffic were creating patches of packed snow on the paved roadway. At Dumont, Anderson's pickup pulled out onto the highway ahead of the Schermer vehicle, and Anderson and Schermer proceeded east, with Schermer approximately fifteen to twenty car lengths behind Anderson.

Meanwhile two vehicles were traveling west on the highway toward the eastbound Anderson and Schermer vehicles. Terry Weller, not a party in this lawsuit, was operating a semi truck-tractor and pulling an empty petroleum tanker, driving west on the highway at approximately thirty-five to forty-five miles per hour. Behind Weller's semi was defendant Muller, driving a pickup with a propane gas tank in the bed and towing a small stock trailer. Weller judged the speed of Muller's pickup to be faster than his own because Muller was steadily closing the distance between them.

As Weller, driving the lead westbound vehicle, met the eastbound Anderson pickup, Weller noticed snow on the highway that was being blown about by the wind. At that time all four vehicles appeared to be in their own right hand lanes of travel. After Weller met and passed the Anderson pickup, he observed in his rearview mirror that his semi had kicked up a large cloud of blowing snow. Weller next met and passed the eastbound Schermer vehicle which was following Anderson. Dorothy Schermer testified that her vision was completely obscured by the snow that the semi had sprayed up as it passed her.

As Schermer came out of the blinding conditions caused by the blowing snow around Weller's semi, she saw Anderson's pickup stopped directly in front of her in the eastbound lane of travel a short distance ahead. Schermer attempted to brake but was unable to stop before her vehicle struck the Anderson pickup causing the injuries for which plaintiffs seek recovery from the estates of Muller and Anderson.

Although Schermer did not see the Muller pickup before colliding with the Anderson pickup, we know that the Muller and Anderson pickups also collided head-on behind the Weller semi, either before or after Schermer collided with the Anderson pickup. Neither Muller nor Anderson survived that collision, and Schermer did not see the pickups collide. Weller saw in his rearview mirror only a ball of fire behind him in the blowing snow, which he attributed to the collision of the two pickups. Weller stopped immediately and parked his semi on the shoulder of the westbound lane of the highway before returning to the scene of the collisions. Weller's deposition testimony, set forth in more detail hereafter, provides critical support for the plaintiffs' negligence claims, particularly the claims against Muller.

Another witness by deposition was an Iowa state trooper who, by coincidence, had been proceeding west on the highway to investigate a separate accident west of Dumont. The trooper saw a ball of fire rise up over a knoll ahead of him, then came upon the three vehicles scattered about in the roadway. The trooper noted in his testimony that the Muller pickup, which he later learned had been westbound, was completely turned around and facing in a southeasterly direction. The Anderson pickup, which had been eastbound before the collision, was stopped at an angle perpendicular to the roadway. The Schermer vehicle was facing east. Neither Weller nor the patrolman could find marks on the highway nor any other evidence at the scene from which they could determine which of the vehicles had first crossed over the center line. The circumstances, of course, foreclose any possibility that all of the vehicles remained in their own right hand lanes of travel preceding the collisions, for if they had the eastbound Anderson and Schermer vehicles would simply have met and passed the westbound Muller vehicle without incident.

Plaintiffs filed three separate petitions against the estate of Muller and Anderson for personal injury damages arising from the accident. These petitions contained common allegations of negligence against the defendants, including a pleaded theory of res ipsa loquitur, and the district court entered an order consolidating the three cases. The court held a hearing on defendants' resisted motions for summary judgment in the consolidated cases and then granted the motions of both defendants, finding res ipsa loquitur inapplicable and no factual support for plaintiffs' specific allegations of negligence. We transferred to the court of appeals the plaintiffs' direct appeals from those summary judgments. The court of appeals reversed, holding that genuine issues of material fact precluded entry of summary judgment even though the doctrine of res ipsa loquitur was inapplicable to these factual circumstances.

We have granted defendants' applications for further review of the court of appeals decision and here consider whether defendants were entitled to summary judgment on plaintiffs' negligence claims. We have not granted plaintiff's cross-application for further review and therefore do not address that portion of the district court opinion which found the doctrine of res ipsa loquitur inapplicable to the facts of this case.

I. Review of Summary Judgment Record.

Starting with the essentially undisputed background facts summarized above, we must ascertain whether the full summary judgment record discloses genuine issues of fact for trial. Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970); Iowa R.Civ.P. 237(c). General principles governing that determination can more easily be repeated than applied. We concisely stated in Tasco, Inc. v. Winkel, 281 N.W.2d 280 (Iowa 1979):

The trial court (and this court on review) must look at the whole record in the light most favorable to the one against whom the motion is made. The moving party has the burden to show the absence of a fact issue. Even if the facts are undisputed, summary judgment is not appropriate if reasonable minds may draw different inferences from them.

Id. at 282. We also explained in Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984), that summary judgment is functionally akin to a directed verdict, with the nonmoving party entitled to "every legitimate inference that reasonably can be deduced from the evidence" and summary judgment...