Timmons v. Reed

Decision Date13 September 1977
Docket NumberNo. 4681,4681
Citation569 P.2d 112
PartiesHenry Martin TIMMONS, Appellant (Plaintiff below), v. James Henry REED, NEPECO Company and Marathon Oil Company, Appellees (Defendants below).
CourtWyoming Supreme Court

C. S. Hinckley, of Hinckley & Hinckley, Basin, for appellant.

William S. Bon and Robert H. McCrary, Casper, for appellees James Henry Reed and NEPECO Co.

Richard E. Day, of Wehrli & Williams, Casper, for appellee Marathon Oil Co.

Before McCLINTOCK, RAPER, THOMAS and ROSE, JJ., and ARMSTRONG, D. J., retired.

ROSE, Justice.

This appeal concerns the propriety of entering a summary judgment against appellant-plaintiff in his tort and nuisance action for damages arising out of a rear-end collision, which involved two trucks on a fog-covered highway near Byron, Wyoming. Defendants, James Henry Reed and NEPECO Company (hereinafter referred to as "Reed"), and defendant, Marathon Oil Company, moved for and were granted summary judgments on the grounds that there was no disputed issue of material fact, and that plaintiff was contributorily negligent as a matter of law for failure to comply with the so-called assured-clear-distance rule. We will reverse.

In his complaint, plaintiff alleged that defendants, Reed and NEPECO, were negligent; that Marathon was strictly liable for maintenance of an "abnormally dangerous activity;" and that Marathon was strictly liable for willful and intentional maintenance of a nuisance. Defendants asserted then, and now, that plaintiff's contributory negligence was a bar to his entire action for recovery.

In setting the tone for our considerations here, we are put in mind of what we said in Merback v. Blanchard, 56 Wyo. 152, 105 P.2d 272, 275-276, reh. den. 56 Wyo. 286, 109 P.2d 49, where we reversed a directed verdict for the defendant, and the assured-clear-distance rule was our concern. We said:

"A question of more doubt is whether the directed verdict was justified by evidence tending to support the defense of contributory negligence. In considering this question we should keep in mind not only the rule noticed above, that evidence and inferences favorable to plaintiff will be accepted as true, but also that the burden of proof on the issue of contributory negligence was on defendants and, as stated in Ries v. Cheyenne C. & T. Co., 53 Wyo. 104, 118, 79 P.2d 468, 473, that the question was one of fact that should have been submitted to the jury unless 'reasonable men can draw but one inference which points unerringly to such negligence.' "


Upon reviewing the record on appeal from the granting of a summary judgment,

". . . we have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did. . . ." Seay v. Vialpando and Anderson, Wyo., 567 P.2d 285, 287; Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244, and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685.

We inquire from the viewpoint most favorable to the party opposing the motion. Seay v. Vialpando, supra; Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714, 717; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387; Bluejacket v. Carney, Wyo., 550 P.2d 494, 497. The moving party in a summary judgment proceeding has the burden of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should not be granted. Knudson v. Hilzer, supra, and Johnson v. Soulis, Wyo., 542 P.2d 867, 871-872. This is particularly true in negligence cases, where the question of negligence is usually one of fact for the jury to determine, if the evidence respecting such negligence is in conflict. 1 Summary judgments are not commonly interposed and even less frequently granted in negligence actions because issues of negligence do not often lend themselves to summary adjudication. Gilliland v. Steinhoefel, supra, and Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57. With these restrictions in mind, we proceed to the initial determination of whether the defendants in this negligence case have sustained their heavy burden of showing there to be no genuine issue of material fact.


According to the pleadings, affidavits, and answers provided by the interrogatories and depositions taken in a light most favorable to the plaintiff-appellant, on February 7, 1973, at about 7:30 a.m., plaintiff was driving an empty sugar-beet truck west on U.S. Highway 14A. It was just getting light and the temperature was about 10 degrees. Approximately two miles west of Byron, Wyoming, he encountered intermittent fog just prior to the location of an oil-treater facility maintained by Marathon. The treater facility, located immediately south of the highway, discharged 126-degree water into an enclosed conduit which ran underneath the highway to a point approximately 87 feet north of the highway. At this juncture, the heated water passes into an open ditch which conveys it to a nearby lake. Other truckdrivers, and the plaintiff, testified that on cold mornings the fog was very dense for a quarter to a half mile on either side of the water ditch, even when there was no other fog in the general area. Marathon's area superintendent, whose office was near the scene of the accident, stated that although he had seen vapors rising from the open ditch, they had never caused fog in the area which would create a highway-visibility problem. The facility had been in operation since December, 1971.

As plaintiff approached the eventual scene of the accident, he heard a chain rattling on the back of his truck and, for the purpose of securing it, he stopped on a relatively clear stretch of road. In so doing, he pulled his truck off the highway at a point which was approximately two-tenths of a mile beyond the turn-off leading to Marathon's treater facilities and about two- tenths of a mile before the eventual point of collision. Plaintiff observed no other trucks pass him while he was stopped. There is no evidence that the Reed truck did pass the plaintiff while he was stopped. There is no evidence that the Reed truck entered upon the highway at any intersection between the point where plaintiff stopped to adjust his chain and the location of the accident that was yet to happen. When the plaintiff proceeded, he had reached his fourth gear (his truck had eight gears) but was in a slowing-down process because of an extremely dense fog-bank which had formed near the Marathon ditch. As the nose of his truck entered the fog, he almost immediately saw another truck, which he described to be approximately ten feet in front of him. At about the same time, the plaintiff hit his brakes but was unable to avoid colliding with the rear portion of this vehicle, which turned out to be the water-truck driven by Reed and owned by NEPECO. Plaintiff estimated his speed at the point of impact to be about twenty miles per hour or less. He testified he had been driving this stretch of road every night for about two months and was aware of the dense fog-bank near the treater facilities. Plaintiff observed no taillights on the truck, and testified further that it was his opinion that Reed was stopped on the highway when he, the plaintiff, first sighted the vehicle just inside the fog-bank.

Reed, on the other hand, said that he had just picked up a load of water from the Marathon treater facility and was proceeding at about twenty-five miles per hour at the time of impact. The route taken by Reed was the same as that being utilized by plaintiff, which means that at some point in time the defendant-truck passed the location where the defendant either had stopped or would stop to adjust his chain. Reed also testified that he could see some seventy feet ahead of him as he proceeded into the fog and that both his headlights and taillights were on and operating.

Other sugar-beet truckdrivers testified, by affidavit, that Reed's truck was old and either did not have taillights, or the taillights were not usually visible due to an accumulation of oil and dirt. One of the drivers stated that he had previously had an accident in the fog on this part of the highway.

The investigating patrolman testified, in his deposition, that twenty-five miles per hour was a safe speed for this portion of the highway and that he proceeded into and through the fog-bank at approximately this speed. He also stated that plaintiff had indicated, later in the hospital, that he was going forty miles per hour at the time of impact. Plaintiff denied making the statement. The patrolman made no independent determinations of speed, nor did he examine the tire marks in the area of the accident for purposes of ascertaining the respective speeds of the vehicles.

We said in Johnson v. Soulis, supra, at 872:

". . . (F)or purposes of ruling upon a motion for summary judgment a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Such a fact would necessarily affect the application of the appropriate principle of law to the rights and obligations of the parties. In considering a motion for summary judgment it is appropriate for a court to identify the essential elements of the plaintiff's cause or of the defense asserted, and to then determine the materiality of any fact in the light of whether it will establish or refute one of those essential elements. If it does not have that effect, it would not be a material fact in the controversy, and a genuine issue with respect to that fact, no matter how sharp, would not foreclose the granting of a motion for summary judgment." (Emphasis supplied)

The emphasized language in Johnson...

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