Theunissen v. Brisky
| Decision Date | 29 March 1989 |
| Docket Number | No. 16184,16184 |
| Citation | 438 N.W.2d 221 |
| Parties | Doraine THEUNISSEN, Administratrix of the Estate of William T. Theunissen, Deceased, Plaintiff and Appellant, v. John Teen BRISKY, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Raymond M. Schutz and Philo Hall of Siegel, Barnett & Schutz, Aberdeen, for plaintiff and appellant.
Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, for defendant and appellee.
Doraine Theunissen (Theunissen), Administratrix of the Estate of William T. Theunissen (decedent), appeals from a partial summary judgment entered by the trial court against her in her action seeking damages against John Teen Brisky (Brisky) for wrongful death arising from a collision. We reverse.
Briefly the background facts are as follows. On December 20, 1983, shortly after 11:00 a.m., Brisky, the driver of a semi truck collided with the pickup decedent was driving, at the intersection of U.S. Highway 12 and Edmunds County Highway 35 near Mina, South Dakota. The collision occurred when decedent attempted to make a left-hand turn from Highway 212 onto Highway 35 in front of Brisky's vehicle. At the time of the collision, the weather was cold and it was snowing. The concrete pavement was snow covered and visibility was diminished. Further facts will be related as necessary to the discussion.
Theunissen brought this action for wrongful death on behalf of herself, as widow, and the seven surviving children of decedent. Brisky answered, denying liability and asserting the affirmative defenses of contributory negligence and assumption of the risk. Brisky moved for summary judgment and the matter was submitted to the trial court based on the pleadings, deposition, answers to interrogatories, affidavits and briefs of counsel. By memorandum opinion and order, the trial court granted partial summary judgment, denying total summary judgment.
In essence, the trial court determined that: (1) decedent's actions constituted negligence as a matter of law; (2) the legal presumption of due care was rebutted by the evidence; and (3) the question of comparative negligence under SDCL 20-9-2, more particularly the weighing of Brisky's negligence in overdriving road conditions against decedent's contributory negligence, is a factual question properly left to a jury.
Theunissen petitioned for permission to appeal from the order and this court granted the petition. Theunissen raises five issues in her brief which we have synthesized into the following two:
1. Did the trial court err in granting partial summary judgment upon the basis that:
(a) the decedent was contributorially negligent as a matter of law under the circumstances; or
(b) the evidence of decedent's negligence overcame the presumption of due care on his part; and
2. On motion for summary judgment, did the trial court err by granting only partial summary judgment not specifically prayed for?
We first examine Theunissen's second issue, the propriety of partial summary judgment, absent a petition and notice for adjudication of the particular issues or sub-issues. We find this a novel issue, but wholly without support under our procedural statutes.
Theunissen relies on the provisions of SDCL 15-6-7(b)(1), the general procedural statute governing motions. 1 However, particular motions for summary judgment are governed by the provisions of SDCL 15-6-56(a) through (g). The gist of Theunissen's objection lies in the trial court granting partial summary judgment when the petitioner had asked for total summary judgment. We find that the answer lies in the provisions of SDCL 15-6-56(d) which provides in pertinent part:
If on motion under Sec. 15-6-56 judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.
It is basic law that the specific provision prevails over the general. Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982). The trial court followed the provision quoted above and entered the order for partial summary judgment. The California cases 2 relied upon by Theunissen are inappropriate because of differences in the statutory procedures. We affirm the procedural aspect of the trial court's entry of the partial summary judgment order.
Before examining the substantive issue, we define our scope of review. In Nizielski v. Tvinnereim, 429 N.W.2d 483, 485 (S.D.1988) (quoting Time Out, Inc. v. Karras, 392 N.W.2d 434, 436-37 (S.D.1986)), we said:
Our scope of review on appeal [from a granting of a summary judgment motion] is not under the 'clearly erroneous' doctrine, but rather under the strict standards attendant upon entry of summary judgment as delineated in [Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968) ]:
(1) Evidence must be viewed most favorable to the nonmoving party;
(2) The burden of proof is on the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;
(3) Summary judgment is not a substitute for a court trial or for trial by jury where any genuine issue of material fact exists;
(4) Surmise that a party will not prevail upon trial is not sufficient basis to grant summary judgment on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious that it would be futile to try them;
(5) Summary judgment is an extreme remedy which should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant;
(6) When no genuine issue of fact exists, summary judgment is looked upon with favor and is particularly adaptable to expose sham claims and defenses.
In considering the first sub-issue, whether decedent was contributorially negligent as a matter of law, we examine our provision regarding comparative negligence. SDCL 20-9-2 provides:
In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.
With respect to this statute, we said in Lovell v. Oahe Elec. Co-op, 382 N.W.2d 396, 399 (S.D.1986), that
[t]he comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person.... However, the norm of conduct of an ordinary, reasonably prudent person must be considered in determining the extent to which each party fell below that standard and, thus, was found negligent or contributorially negligent. (Citations omitted.)
In contributory negligence cases, we have said: "Where the evidence establishes that the plaintiff was beyond reasonable dispute guilty of negligence more that slight it is the duty of the court to direct a verdict for the defendant." Starnes v. Stofferahn, 83 S.D. 424, 432-33, 160 N.W.2d 421, 426 (1968); see also Ford v. Robinson, 76 S.D. 457, 80 N.W.2d 471 (1957); Kundert v. B.F. Goodrich Co., 70 S.D. 464, 18 N.W.2d 786 (1945). This would be equally applicable to motions for summary judgment.
In this case, however, it would appear to us that this is a singularly inappropriate case for granting summary judgment, in total or in part. It is a negligence case and as we said in Wilson v. Great Northern Railway:
Summary judgment is generally not feasible in negligence cases because the standard of the reasonable man must be applied to conflicting testimony. Issues of negligence and such related issues as wanton or contributory negligence are ordinarily not susceptible of summary adjudication either for or against a claimant and should be resolved by trial in the ordinary manner....
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