Elawyers Elawyers
Washington| Change

Kenneth Brooks v. Tri-Systems, Inc., 04-3441 (2005)

Court: Court of Appeals for the Eighth Circuit Number: 04-3441 Visitors: 22
Filed: Oct. 11, 2005
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 04-3441 _ Kenneth Brooks; Terrie Brooks, * * Plaintiffs - Appellants, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Tri-Systems, Inc., * * Defendant - Appellee. * _ Submitted: May 13, 2005 Filed: October 11, 2005 _ Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges. _ LOKEN, Chief Judge. In this diversity suit, Kenneth and Terrie Brooks appeal the district court’s1 grant of summa
More
                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3441
                                   ___________

Kenneth Brooks; Terrie Brooks,          *
                                        *
      Plaintiffs - Appellants,          *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Tri-Systems, Inc.,                      *
                                        *
      Defendant - Appellee.             *
                                   ___________

                              Submitted: May 13, 2005
                                 Filed: October 11, 2005
                                  ___________

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      In this diversity suit, Kenneth and Terrie Brooks appeal the district court’s1
grant of summary judgment dismissing their claim that Tri-Systems, Inc. (“Tri-
Systems”), negligently spilled construction debris on a state highway that caused
Kenneth Brooks’s single-vehicle accident. Reviewing the grant of summary
judgment de novo, and viewing the facts in the light most favorable to Mr. and Mrs.
Brooks, the non-moving parties, we affirm. See Roeder v. Metro. Ins. & Annuity Co.,
236 F.3d 433
, 436 (8th Cir. 2001) (standard of review).

      1
      The HONORABLE ROBERT T. DAWSON, United States District Judge for
the Western District of Arkansas.
       Brooks left his cabin on a Sunday afternoon to do laundry and watch television
at the home of relatives who were out of town. That night, unable to sleep, he
decided to return to his cabin, a one hour drive. At approximately 1:00 a.m., near his
cabin, Brooks failed to negotiate a curve in the road, lost control of his pick-up truck,
and crossed back and forth across the roadway before colliding with a concrete bridge
and then the bank of a ditch. The truck came to rest upside down with Brooks unable
to exit. He was rescued several hours later and sustained serious permanent injuries.

       At the time of the accident, Tri-Systems was regularly hauling construction
debris from the site of a nearby project. Tri-Systems had shut down its operations at
the site at 5:00 p.m. the preceding Thursday, some eighty hours before the accident,
and did not resume work until after the accident. Mr. and Mrs. Brooks later heard of
complaints that the Tri-Systems dump truck lacked a tailgate and routinely dumped
debris in the road where the accident occurred. They commenced this action, alleging
that debris negligently spilled by Tri-Systems proximately caused the accident.

       In his deposition, Brooks testified that he could not recall whether there was
debris in the roadway when he lost control of his truck. In her deposition, Mrs.
Brooks testified that, when Brooks awoke in the intensive care unit of the hospital,
she asked him what happened, and he responded, “I hit some rocks in the road. I hit
some gravel in the road. . . . All I know is I hit a bunch of gravel and lost control of
my truck.” In response to Tri-Systems’ motion for summary judgment, Mr. and Mrs.
Brooks submitted an affidavit by Denver McRae, the owner of a nearby store. McRae
averred that many customers had complained of debris in the road spilled by the Tri-
Systems truck. At the end of the affidavit, McRae stated, “On the day of the accident
there was debris at the big curve, the exact curve where Mr. Brooks had his accident.”

      The district court granted summary judgment in favor of Tri-Systems,
concluding that, without credible evidence that there was debris in the road at the
time of the accident, or that Tri-Systems was hauling debris shortly before the

                                          -2-
accident, any finding that Tri-Systems debris caused the accident would be
impermissible speculation. On appeal, Mr. and Mrs. Brooks argue that the McRae
affidavit and Mrs. Brooks’s testimony relating what Mr. Brooks said when he awoke
are sufficient evidence to create a genuine issue of material fact whether Tri-Systems
debris in the road caused the accident.

       We begin with the McRae affidavit. Rule 56(c) of the Federal Rules of Civil
Procedure provides that affidavits may be considered in ruling on a motion for
summary judgment. However, 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.” Rule 56(e).
When an affidavit contains an out-of-court statement offered to prove the truth of the
statement that is inadmissible hearsay, the statement may not be used to support or
defeat a motion for summary judgment. See Pink Supply Corp. v. Hiebert, Inc., 
788 F.2d 1313
, 1319 (8th Cir. 1986).

        In this case, McRae had first hand knowledge of what customers told him about
debris on the road but not of the truth of what they told him. Thus, his entire affidavit
would likely be inadmissible to prove the truth of those customer statements. But
even if the customer portions of his affidavit could be considered, McRae provided
no source or support whatsoever for the additional averral that there was debris on the
curve in the road at 1:00 a.m. on the day of the accident. That averral is not
admissible because the affidavit does not “show affirmatively that the affiant is
competent to testify” to that matter. In some instances, courts will infer personal
knowledge from the content or context of a statement in an affidavit. See 11 Moore
et al., Moore’s Federal Practice ¶ 56.14[1][c] (3d ed. 2005). The content and context
of this statement, however, do not support an inference that it reflected McRae’s
personal knowledge. Thus, the district court properly ignored this statement and
concluded that the McRae affidavit was not evidence that Tri-Systems debris in the
road caused the accident.

                                          -3-
       Turning to Mrs. Brooks’s testimony, deposition testimony must also be
admissible to be considered in ruling on a motion for summary judgment. See
Firemen’s Fund Ins. Co. v. Thien, 
8 F.3d 1307
, 1310-11 (8th Cir. 1993). Mrs.
Brooks’s testimony about what her husband said is hearsay, but the district court
considered it, no doubt because Tri-Systems did not object and because the statement
made when Brooks awoke was at least arguably an “excited utterance.” See Fed. R.
Evid. 803(2); Reed v. Thalacker, 
198 F.3d 1058
, 1061 (8th Cir. 1999). But the
statement was inconsistent with Brooks’s subsequent testimony that he could not
recall if there was debris in the roadway. More importantly, the statement shed no
light on the source of whatever rocks or gravel may have been in the road, nor on
whether Brooks’s truck was riding on the shoulder and hit rocks or gravel there.

       Given the uncontroverted evidence that the Tri-Systems truck had not
navigated the curve for eighty hours before the accident, we agree with the district
court that Mrs. Brooks’s testimony, combined with the evidence that Tri-Systems
operated a dump truck without a tailgate that dumped debris in the road many days
before and after the accident, are insufficient to permit a reasonable jury to find that
debris spilled by Tri-Systems caused this accident. Accordingly, the district court
properly granted Tri-Systems motion for summary judgment. See Anderson v.
Liberty Lobby, Inc., 
477 U.S. 242
, 252 (1986) (summary judgment is appropriate if
reasonable jurors could find only in favor of the moving party).

      The judgment of the district court is affirmed.
                     ______________________________




                                          -4-

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer