Shepperd v. Shepperd
| Decision Date | 01 August 2003 |
| Docket Number | NO. 2002-CA-000936-MR.,2002-CA-000936-MR. |
| Parties | JERRY SHEPPERD, APPELLANT, v. JOY HILL SHEPPERD, APPELLEE. |
| Court | Kentucky Court of Appeals |
Vincent E. Johnson, Louisville, Kentucky, brief for Appellant.
Charles H. Cassis, J. Michael Wells, Louisville, Kentucky, brief for Appellee.
BEFORE BAKER, GUIDUGLI AND KNOPF, JUDGES.
OPINION AFFIRMING
Jerry Shepperd appeals from an order of the Harrison Circuit Court granting Joy Hill Shepperd summary judgment on Jerry's complaint for tort damages involving injuries he received as a passenger in a single vehicle accident. Finding no error, we affirm.
On January 23, 2000, Jerry and Joy Hill Shepperd, his wife, were visiting friends in Harrison County. When they were returning home on Oddville-Sunrise Road, a two-lane road, with Joy driving her 1997 Chevrolet Cavalier and Jerry as the passenger, it was dark and snowing lightly. The roadway had snow covering a thin layer of ice. As they approached a rise in the road, the vehicle started to fishtail to the right. When Joy attempted to straighten it, the rear of the vehicle slid to the left, back to the right, and eventually left the pavement. The vehicle then careened onto an embankment with the front striking a wire fence. Damage to the vehicle was relatively minor, and the couple was able to continue on their trip home.
Jerry had some soreness that night but experienced increased pain the next day. He went to the hospital complaining of pain in his middle and lower back. Jerry ceased working as a heavy construction equipment operator temporarily, but he did return to work. He has received conservative treatment of physical therapy and medication for his back.
On November 6, 2000, Jerry filed a complaint seeking tort damages for physical injuries he allegedly suffered in the accident. Jerry alleged that Joy "operated her vehicle in such a careless and negligent manner so as to cause physical injury to the Plaintiff, a passenger in her vehicle." On April 26, 2001, Joy took Jerry's deposition. Jerry stated that the couple had replaced the tires and brakes on the Cavalier approximately six months before the accident. He said that just before the incident, he did not notice Joy having any handling problems with the vehicle despite the weather conditions. In response to questions from Joy's attorney, Jerry stated as follows:
Question: Okay. As far as your — anything
that you may have noticed before
the car went out of control, if
that's a fair characterization of
what happened, do you have any
criticisms about the manner in
which your wife was operating the
vehicle
Answer: No, sir
Question: As far as when the vehicle —
again if this is a fair
characterization, when the
vehicle began to lose control, do
you have any criticisms of the
manner in which your wife handled
the vehicle when the car began to
lose control
Answer: Besides — no, not really. She
done everything she could do I
guess because I did notice that
she did turn into the slide like
you're supposed to and went the
other way. And she tried to
correct it, and went back the
other way. By that time we were
leaving the road
Jerry also testified that he was awake and had a good view of the events as a passenger in the front seat.
On August 10, 2001, Joy filed a motion for summary judgment pursuant to Kentucky Rules of Civil Procedure (CR) 56 and an accompanying memorandum in support. In the memorandum, Joy argued she was entitled to summary judgment based on judicial admissions by Jerry in his deposition. The motion included a notice that it would be brought at a hearing on August 17, 2001. On the noticed hearing date, only Joy's attorney appeared. On August 31, 2001, the circuit court entered an order granting the motion for summary judgment stating judicial admissions made by Jerry in his deposition exonerated Joy of negligence in that he stated unequivocally that Joy's "driving conduct was not to be faulted for the accident in question."
On September 7, 2001, Jerry's attorney filed a motion to set aside the summary judgment based on lack of notice with an accompanying affidavit stating that he had not received a copy of the summary judgment until August 31, 2001. Following a hearing, the circuit court gave Jerry an opportunity to file a memorandum opposing summary judgment. In his memorandum, Jerry claimed his deposition testimony was exhaustive and the principle of res ipsa loquitur created a presumption of negligence by a driver in a single-car accident. On November 16, 2001, Jerry filed a motion for extension of time to file an affidavit in support of his memorandum in opposition of summary judgment. On December 5, 2001, Jerry filed an affidavit stating that prior to operating her vehicle on the night of the accident, Joy was aware that it had been snowing and sleeting. He said it was "my opinion that Joy Hill Shepperd failed to have her automobile under reasonable control and failed to exercise ordinary care to avoid collision [sic]." On April 10, 2002, the circuit court entered an order denying the motion to set aside the August 31, 2001, order granting summary judgment to Joy. This appeal follows.
Jerry challenges the circuit court's conclusion that his deposition testimony concerning Joy's actions constituted judicial admissions. He further contends that under the doctrine of res ipsa loquitur, he is entitled to an inference or presumption that his wife was negligent in operating her vehicle. Jerry asserts that genuine material factual issues remain in dispute, which precludes summary judgment in Joy's favor.
The standard of review on appeal when a trial court grants a motion for summary judgment is whether the trial court correctly found there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Palmer v. International Ass'n of Machinists, Ky., 882 S.W.2d 117, 120 (1994); Stewart v. University of Louisville, Ky. App., 65 S.W.3d 536, 540 (2001); Ky. R. Civ. P. 56.03. The movant bears the initial burden of convincing the court by evidence of record that no genuine issue of fact is in dispute, and then the burden shifts to the party opposing summary judgment to present at least some affirmative evidence showing that there is a genuine issue of material fact for trial. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 482 (1991). See also City of Florence v. Chipman Ky., 38 S.W.3d 387, 390 (2001); Lucchese v. Sparks-Malone, Ky. App., 44 S.W.3d 816, 817 (2001). The court must view the record in a light most favorable to the nonmovant and resolve all doubts in his favor. Commonwealth v. Whitworth, Ky., 74 S.W.3d 695, 698 (2002); Lipsteuer v. CSX Transportation, Inc., Ky., 37 S.W.3d 732, 736 (2000). An appellate court need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved. See Barnette v. Hospital of Louisa, Inc., Ky. App., 64 S.W.3d 828, 829 (2002); Lewis v. B&R Corp., Ky. App., 56 S.W.3d 432, 436 (2001).
Establishing the propriety of the circuit court's grant of summary judgment in favor of Joy requires a multi-step analysis. First, we must determine as a matter of law that Jerry's deposition testimony included judicial admissions. Second, if Jerry made judicial admissions, we look to whether the circuit court properly decided that there were no genuine material issues of fact in dispute and Joy was entitled to judgment as a matter of law.
"A judicial admission is a formal act by a party in the course of a judicial proceeding which has the effect of waiving or dispensing with the necessity of producing evidence by the opponent and bars a party from disputing a proposition in question." Nolin Production Credit Ass'n v. Canner Deposit Bank, Ky. App., 726 S.W.2d 693, 701 (1986)(citing Center v. Stamper, Ky., 318 S.W.2d 853, 855 (1958)). See also Berrier v. Bizer, Ky., 57 S.W.3d 271, 279 (2001). A judicial admission is a deliberate, clear, unequivocal statement of a party about a fact within that party's peculiar knowledge. See Schoenbaechler v. Louisville Taxicab & Transfer Co., Ky., 328 S.W.2d 514, 515 (1959); Greenwell v. Boatwright, 184 F.3d 490, 498 (6th Cir. 1999). Unlike evidentiary admissions that may be contradicted, a party making detrimental judicial admissions under circumstances where there is no probability of error may not introduce other evidence such as his own testimony or that of other witnesses or experts to rebut the admissions. See, e.g., Moore v. Roberts, Ky., 684 S.W.2d 276, 277-78 (1982); Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024 (1941); Robert G. Lawson, The Kentucky Evidence Law Handbook § 815 at 385-86 (3d ed. 1993). One policy justification for the conclusive effect of judicial admissions is to eliminate the temptation to commit perjury. See Hansen v. Ruby Const. Co., 155 Ill. App. 3d 475, 108 Ill. Dec. 140, 508 N.E.2d 301 (1987).
It is well established that statements made under oath in a pretrial deposition may constitute judicial admissions sufficient to summary judgment. See Fletcher v. Indianapolis and Southeastern Trailways Inc., Ky., 386 S.W.2d 264 (1965); Bell v. Harmon, 284 S.W.2d 812 (1955); Lawson, supra. A party may not create a genuine issue of material fact by taking a position contradictory with a judicial admission. Van's Material Co. v. Department of Revenue, 131 Ill.2d 196, 212, 137 Ill. Dec. 42, 545 N.E.2d 695, 703 (1989); Hansen, 155 Ill. App.3d at 480, 508 N.E.2d at 304. Whether a statement is a judicial...
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