Van Voorst v. Federal Exp. Corp.

• Citation: 16 So.3d 86
• Decision Date: 03 October 2008
• Docket Number: 1050577.
• Parties: Gracie VAN VOORST, individually and as mother and next friend of Cheyenne Van Voorst, a minor v. FEDERAL EXPRESS CORPORATION and Diane M. Hyde.
• Court: Supreme Court of Alabama

16 So.3d 86

Gracie VAN VOORST, individually and as mother and next friend of Cheyenne Van Voorst, a minor v. FEDERAL EXPRESS CORPORATION and Diane M. Hyde.

1050577.

Supreme Court of Alabama.

October 3, 2008.

Rehearing Denied February 13, 2009.

Milton E. Yarbrough, Jr., of Yarbrough Law Firm, Decatur, for appellant.

Judith E. Dolan and Cynthia N. Williams of Clark, Dolan, Morse, Oncale & Hair, P.C., Birmingham, for appellee Federal Express Corporation.

Stephen F. Brown and Barnes F. Lovelace, Jr., of Harris, Caddell & Shanks, P.C., Decatur, for appellee Diane M. Hyde.

PARKER, Justice.

This appeal arises out of a motor-vehicle accident that occurred in Morgan County involving a vehicle operated by Evelyn Van Voorst and one operated by Diane M. Hyde. A parked vehicle belonging to Federal Express Corporation ("FedEx"), was also allegedly involved in the accident. The trial court entered a summary judgment in favor of FedEx and Hyde and a partial summary judgment in favor of the estate of Evelyn Van Voorst, who died as a result of injuries sustained in the accident. This appeal followed.

Facts

The underlying action arises out of a motor-vehicle accident that occurred on September 26, 2002, at the intersection of Alabama Highway 36 and Freeman Avenue in Morgan County. The accident involved two vehicles, one of which was operated by Evelyn Van Voorst and the other by Hyde. Gracie Van Voorst and her minor daughter, Cheyenne Van Voorst, were passengers in the vehicle operated by Evelyn Van Voorst.

Gracie alleges that at the time of the accident a FedEx vehicle was parked on Highway 36 near where that highway intersects with Freeman Avenue. She alleges that the location of the parked FedEx vehicle interfered with Hyde's and Evelyn Van Voorst's ability to appreciate traffic approaching and entering the intersection where the collision occurred. But Gracie also testified in deposition that Evelyn Van Voorst, who was traveling on Freeman Avenue, did not come to a complete stop before entering Highway 36.

Alabama State Trooper Cpl. Tim White, one of the officers who investigated the accident, testified that the FedEx vehicle was stopped at a house to make a delivery when the accident occurred. By the time Trooper White arrived at the scene, the FedEx vehicle had left. Trooper White did not try to locate the FedEx driver and was not aware of any action taken by the State of Alabama against FedEx as a result of this accident. To Trooper White's knowledge, neither FedEx nor the driver of the FedEx vehicle was charged with any traffic violation in conjunction with the accident.

Hyde testified that at the time of the accident between Hyde's vehicle and Evelyn Van Voorst's vehicle, the FedEx vehicle was parked in a gravel area adjacent to Alabama Highway 36. Hyde was traveling west on Highway 36. She passed the parked FedEx vehicle, which was parked to the right of Hyde's travel lane in a gravel area. Hyde testified that no portion of the FedEx vehicle extended onto the paved surface of Highway 36 at the time of the accident. She recalled that the wheels of the FedEx vehicle were on the gravel adjacent to the roadway, not on the asphalt. Hyde said that she did not have to swerve around the FedEx vehicle as she approached it while traveling on Highway 36. The FedEx vehicle did not block Hyde's vision. Hyde's testimony is consistent with the police report, which places the FedEx vehicle on the gravel adjacent to the roadway. The FedEx vehicle was parked at the time of the impact between Hyde's vehicle and Evelyn Van Voorst's vehicle.

In her deposition, Gracie initially testified that she did not remember whether any portion of the parked FedEx vehicle protruded onto Highway 36. After a recess in the deposition, Gracie changed her testimony and stated that the front tire on the driver's side of the FedEx vehicle was on the road, but she could not estimate as to how far into the road. She testified that more of the parked FedEx vehicle was on the gravel shoulder than on the road.

Case History

Gracie, individually and as representative of her minor daughter, Cheyenne, sued FedEx, Hyde, and the estate of Evelyn Van Voorst alleging, among other things, negligence. FedEx filed an answer denying every material allegation and denying any negligent conduct on its part. Gracie amended her complaint on December 17, 2004, identifying the personal representative for the estate of Evelyn Van Voorst and stating that FedEx is also known and identified as Federal Express Corporation and as FedEx, a corporation. FedEx answered the amended complaint on January 3, 2005, reasserting every defense set forth in its original answer. FedEx filed a second amended answer on May 2, 2005, adding as a defense that Gracie¹ failed to keep an adequate lookout at the time of the accident.

On June 21, 2005, FedEx filed a motion for summary judgment and a brief in support of the motion. Gracie filed a response to FedEx's summary-judgment motion on September 2, 2005. Along with her response, Gracie submitted her own affidavit. FedEx filed a motion to strike Gracie's affidavit because, it said, the affidavit contained speculative statements, inadmissible hearsay, and legal conclusions and was untimely filed. Hyde and the estate of Evelyn Van Voorst also filed motions for a summary judgment.

On September 7, 2005, the trial court conducted a hearing on all pending motions. On October 31, 2005, the trial court granted FedEx's motion to strike Gracie's affidavit and the summary-judgment motions of FedEx, Hyde, and the estate of Evelyn Van Voorst as to the negligence count, which was the only claim asserted against FedEx and Hyde. On November, 21, 2005, the trial court certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Thereafter, on November 28, 2005, Gracie filed a motion to vacate the summary judgment pursuant to Rule 59(e), Ala R. Civ. P.; that motion was denied on December 20, 2005, without a hearing.

Gracie appealed. The appeal was subsequently dismissed as to the estate of Evelyn Van Voorst, leaving FedEx and Hyde as appellees.

Standard of Review

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala. 1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Analysis

A. Did the trial court err in striking Gracie's affidavit?

Rule 56(e), Ala. R. Civ. P., states:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him."

Gracie mailed a response to FedEx's summary-judgment motion on September 2, 2005; she submitted her affidavit at that time. FedEx moved to strike Gracie's affidavit, asserting four separate grounds: (1) that the affidavit was untimely filed in light of the trial court's order and Rule 56(c)(2), Ala. R. Civ. P.; (2) that the affidavit represented hearsay, speculation, and contradictory testimony and was based on an absence of personal knowledge; (3) that the affidavit contained legal conclusions; and (4) that the affidavit included an unauthenticated photograph of the house in front of which the FedEx truck was parked at the time of the accident. The trial court, "after careful consideration of [FedEx's] separate motion, [Gracie's] response thereto, as well as argument presented by counsel at the hearing," granted the motion to strike on October 31, 2005, without stating a reason.

The affidavit was filed with Gracie's response to FedEx's summary-judgment motion in an effort to create a factual issue and thereby prevent the entry of a summary judgment.

"In Lady Cor[inne] Trawlers, Inc. v. Zurich Ins. Co., 507 So.2d 915 (Ala. 1987), we adopted the reasoning of Van T. Junkins & Assoc. v. U.S. Industries, 736 F.2d 656 (11th Cir.1984), which held that on a motion for summary judgment, a party may not create an issue of fact `with an affidavit that merely contradicts without explanation,...