Day on Torts
Where a car accident plaintiff responded to a motion for summary judgment by relying on his own deposition testimony and defendant’s interrogatory responses, the Court found that he had created a genuine issue of material fact.
In Arnold v. Malchow, No. M2022-00907-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2023), a pro se plaintiff brought a negligence claim against defendant driver and defendant underinsured motorist insurance company based on a car accident. The trial court granted summary judgment to defendants, finding that plaintiff’s response to the summary judgment motion was insufficient and relied only on inadmissible facts. On appeal, summary judgment was reversed.
Defendant’s statement of undisputed material facts stated that plaintiff did not see anything other than “something white” and that plaintiff did not see defendant driving her car before the accident. While plaintiff’s response to these facts included reliance on several inadmissible sources, he also relied on defendant’s interrogatory responses and his own deposition, both of which were admissible evidence.
In defendant’s interrogatory response, she stated that she was attempting to turn around and had pulled off the road into a parking lot or a street, and after she pulled out to re-enter the road another car made contact with her car. During plaintiff’s deposition, he stated that he was driving and there was suddenly something white in front of him, then there was a crash. He further stated that he saw defendant get out of her car after the accident and that the something white he saw was defendant’s car. The Court of Appeals ruled that, based on this evidence viewed in the light most favorable to plaintiff as the nonmoving party, a reasonable inference could be drawn that “plaintiff was driving along Eighth Avenue when [defendant] attempted to enter Eighth Avenue from a side street or parking lot and the collision occurred,” and that plaintiff had thus created a genuine issue of material fact regarding whether defendant breached her duty to “yield to close, oncoming traffic when entering the roadway.”
Defendant’s statement of undisputed material facts also stated that plaintiff had “provided no expert medical proof regarding the cause of his injuries.” While the Court agreed that no expert proof was presented, it pointed out that plaintiff himself had testified to being injured and to damage to his vehicle, so while he “may not be able to establish the full extent or value of his physical injuries without expert medical proof, this does not signal that he would be unable to establish having suffered physical trauma or property damage.”
Because there were genuine issues of material fact, summary judgment for defendant driver was reversed.
Further, dismissal of the claim against the underinsured motorist carrier was also reversed. That claim was dismissed on the basis that it was derivative and could not survive once summary judgment was granted to the defendant driver, so because summary judgment was reversed, dismissal of the potential underinsured motorist carrier claim was reversed as well.
This opinion was released four months after oral arguments in this case.