
    Jeffrey Bryant KIRK v. Dennis Lee GRIFFIN and Sherry A. Griffin.
    AV93000689.
    Court of Civil Appeals of Alabama.
    April 28, 1995.
    Certiorari Denied Aug. 11, 1995 Alabama Supreme Court 1941192.
    
      Gail Dickinson, Pell City, for appellant.
    Wade S. Anderson of Joe C. Carroll and Associates, Birmingham, for appellees.
   ON APPLICATION FOR REHEARING

MONROE, Judge.

This court’s original opinion, dated March 17, 1995, is withdrawn, and the following is substituted therefor:

This case involves an appeal from a summary judgment.

In August 1991, Jeffrey Bryant Kirk, while operating a motorcycle on the public streets of Birmingham, was in an accident with an automobile operated by Dennis Lee Griffin. Kirk and Griffin were both driving in the same direction on 21st Street South, a one-way street, when Kirk’s motorcycle struck Griffin’s automobile in the driver’s side. Kirk contends that Griffin, in an effort to make a left turn onto 9th Avenue South, turned across Kirk’s lane in front of him, thereby causing the accident. Sherry A. Griffin owned the vehicle driven by Dennis Griffin, which was insured by State Farm Mutual Automobile Insurance Company, Inc. “State Farm”. In 1993, Kirk sued the Griffins and others for damages based on personal injury and property damage. Kirk alleged negligence and/or wantonness on the part of Dennis and negligent entrustment on the part of Sherry. A claim against Kirk by State Farm, as subrogee of Sherry, was ultimately consolidated with Kirk’s claim against the Griffins. The Griffins answered with a general denial and with defenses of contributory negligence and the sudden emergency doctrine. In March 1994, the Griffins filed a motion for summary judgment, with supporting affidavits of Dermis Griffin and Joseph Maddry, an eyewitness, and the deposition testimony of Kirk. Kirk filed a response, with a supporting affidavit from his expert witness.

Following hearings, the trial court entered a summary judgment in favor of the Griffins and made that judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The court denied Kirk’s post-judgment motion, and he appealed.

The Griffins maintain that this court does not have subject matter jurisdiction over this appeal because, they say, the amount of damages claimed by Kirk exceeds the $10,000 jurisdictional limit of this court at the time the appeal was filed. We note that, effective January 1, 1995, which was after this appeal was filed, the jurisdictional limit of this court was raised to $50,000. Prior to January 1, 1995, this court had exclusive appellate jurisdiction of all civil cases where the amount involved did not exceed $10,000. § 12-3-10, Ala.Code 1975. “Where there is a recovery in the court below of any amount other than costs, the amount of such recovery shall be deemed to be the amount involved; otherwise, the amount claimed shall be deemed to be the amount involved....” Id. We note that on the notice of appeal form, Kirk specifically elected to appeal to this court and intentionally chose to indicate “no designated amount,” rather than indicating his claim to be in excess of $10,000. While it is impossible to determine with any certainty the exact amount involved in this controversy, viewing the totality of the language employed by Kirk in his claim and appeal, it appears that the amount involved is less than $10,000, and that appellate jurisdiction in this court is proper.

Kirk contends that the trial court erred in entering the summary judgment because Kirk, who claims to have suffered memory loss, had requested a continuance for further discovery; because the ease involved issues of negligence, proximate cause, and contributory negligence, all of which, Kirk argues, are in the province of a jury; and because Kirk’s expert based his opinion upon photographs and an accident report, which could have been introduced into evidence. We recognize that the complaint included a claim against Sherry for negligent entrustment, as well as a claim against Jeffrey for negligence. However, no arguments were made in the Griffins’s motion for summary judgment or on appeal regarding the claim for negligent entrustment. Therefore, we do not address the issue of negligent entrustment on appeal.

Although no motion for a continuance appears of record, apparently, an oral motion was made following a hearing on the Griffins’s motion for summary judgment and on the Griffins’s objection to Kirk’s affidavit in opposition thereof. Kirk contends that in view of his loss of memory, which he alleges results from injuries he received in the accident, exceptional circumstances existed that should bar the entry of a summary judgment before further discovery is completed.

The law is clear that the “mere pendency of discovery does not bar summary judgment.” Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988). If, however, it can be ascertained that discovery is crucial to the non-moving party’s case, then it is error for the trial court to enter a summary judgment before the discovery has been completed. Reeves, supra. Furthermore, Kirk, as the nonmoving party, had the burden of establishing that further discovery was crucial. Hope v. Brannan, 557 So.2d 1208 (Ala.Civ.App.1989). Kirk raised for the first time in his post-judgment motion the allegation that he suffered a memory loss as a result of the accident.

Kirk submitted the affidavit of his expert witness in opposition to the motion for summary judgment. Additionally, the record reveals that the parties conducted discovery from August 1993 until the hearing in April 1994. Given the amount of time that had passed for discovery to be conducted and the fact that Kirk was able to get an affidavit from Ms expert witness, we find no abuse of discretion by the trial court in denying Kirk’s motion for a continuance. He did not satisfy his burden of showing that further discovery was crucial.

Next, we address the issue of whether the summary judgment was proper in tMs case. In reviewing a summary judgment, tMs court applies the same standard used by the trial court. Southern Guaranty Ins. Co. v. First Alabama Bank, 540 So.2d 732 (Ala.1989). A summary judgment is proper only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(2), Ala.R.Civ.P.

“On a motion for summary judgment, the trial court is required to view the evidence, and all reasonable inferences available therefrom, in the light most favorable to the non-moving party.” Hill v. Toyota Motor Corp., 585 So.2d 19 (Ala.1991).

Viewing the evidence most favorably to Kirk, we conclude that the affidavit of Kirk’s expert witness provided substantial evidence in opposition to the motion for summary judgment.

The Griffins argue that the expert’s affidavit is not admissible because it was not based on personal knowledge and was based substantially on facts not in evidence. An affidavit supporting or opposing a motion for summary judgment “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), Ala.R.Civ.P.

In Ms affidavit, the plaintiffs expert stated that he based Ms opirnon on photographs, the police report, the affidavits of Denms Griffin and a witness, portions of the plaintiffs deposition, and the plaintiffs answers to interrogatories, as well as on Ms personal knowledge of the capabilities in the steering geometry of a veMcle. Clearly, tMs expert’s affidavit meets the requirements of Rule 56(e). It is based on his personal knowledge; it alleges facts that would be admissible in evidence, upon which he bases his opirnon; and it shows that he is competent to testify as to the matters contained in the affidavit.

The testimony of the plaintiffs expert that the defendant could not have been driving in the manner he claims he was, is clearly sufficient to create a genuine issue of material fact. In Ms affidavit, the expert stated:

“Based upon the review of tMs material, my framing and experience, it is my opinion that in order for the Chevrolet Celebrity to be positioned as it is shown in the photos and on the police report, that veM-cle would have had to turn left from the right hand lane of 21st Street. It would be impossible for that veMcle to turn sharply enough from the left hand lane to be in that position. Further, I have examined the marks left in the roadway by the motorcycle. These marks are evident in the police photos. Based upon the lengths of the marks, and their positions on the roadway, it is my opirnon that the motorcycle involved in tMs collision is traveling at a reasonable rate of speed, most probably within the speed limit. Further, the motorcycle was clearly traveling in the left hand traffic lane.”

(C.R. 55.)

In Alabama, expert opirnon evidence as to the point of impact of a collision is clearly admissible, so long as the expert details the facts upon which Ms conclusion is based. Dyer v. Traeger, 357 So.2d 328 (Ala.1978).

However, we note that even if the expert’s affidavit were found not to be admissible, the record reveals substantial evidence of a genuine issue of material fact in order to defeat summary judgment.

The fact that the point of impact was the driver’s side panel of the defendant’s automobile in itself creates a factual question, because it tends to support the plaintiffs contention that the defendant turned in front of Mm. The veMeles were traveling in the same direction on 21st Street South. For Kirk’s motorcycle to have impacted on Griffin’s driver’s side, Griffin’s automobile would have to have been turning left, across Kirk’s lane of traffic, at the time of impact. Additionally, the defendant’s testimony that he did not see the plaintiff before the wreck creates a factual question about whether the defendant was negligent in failing to keep a proper lookout before making a lane change. The plaintiffs testimony that he did not see the defendant before the impact creates a factual question about whether the defendant was actually in the lane ahead of the plaintiff as the defendant claimed, or had just turned in front of him, as the plaintiff claimed.

Summary judgments are rarely appropriate in cases involving issues of proximate cause, negligence, and contributory negligence. See Osmer v. Belshe Industries, Inc., 585 So.2d 791 (Ala.1991). Nothing in the record indicates that this is one of those rare cases where a summary judgment should be entered in a negligence case. Looking at the evidence in the light most favorable to the nonmovant, we find it clear that there was sufficient evidence to defeat the summary judgment motion. There is clearly a genuine issue of material fact as to who caused the accident.

The judgment is reversed, and this cause is remanded to the circuit court for proceedings consistent with this opinion.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED.

ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.

THIGPEN, J., dissents.

THIGPEN, Judge,

dissenting.

I respectfully dissent from the majority’s opinion regarding the appropriateness of a summary judgment because I believe that Kirk failed to produce substantial evidence to “set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), A.R.Civ.P. Once the Griffins, as the moving party, made a prima facie showing that there is no genuine issue of a material fact, and that they were entitled to a judgment as a matter of law, Kirk was required to present substantial evidence to defeat their motion. Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349 (Ala.1994).

Kirk’s complaint asserted numerous allegations against the Griffins. Although Kirk alleged that Sherry Griffin was negligent in permitting her son, Dennis, to drive her automobile, Kirk presented nothing to support that allegation. The Griffins’s motion sought a summary judgment “on all claims.” That motion was supported with a narrative summary of the Griffins’s statement of undisputed material facts, with affidavits of Dennis Griffin and Joseph Maddry, who was an eyewitness, and with portions of Kirk’s deposition. The Griffins asserted that Dennis was driving his mother’s car as he came from participating in a basketball tournament, and that Kirk failed to advance any evidence of negligence on the part of Dennis or Sherry Griffin. The Griffins asserted that Kirk failed to properly raise any issue of material fact, and that they were entitled to summary judgment as a matter of law, on all claims.

Griffin’s affidavit states that he was operating his mother’s automobile in the left lane of 21st Street South, preparing to make a left turn. As he was making the left turn, he said, he was struck by Kirk’s motorcycle “in my driver’s side quarter panel.” Griffin stated that he did not hear or see Kirk before the impact.

Maddry’s affidavit states that he and his wife were traveling in the vicinity of the accident on that occasion and observed the following:

“As we approached that intersection I was traveling in the left-hand lane. I noted a black motorcycle pass in the right-hand lane at a great rate of speed that I judged to be far too fast. I had an opportunity to view this motorcycle and formulate an opinion as to its rate of speed. My conclusion is that it was traveling between 50 and 55 miles per hour. At the same time, I noticed a car ahead of us that was merging into my lane. This car had a left turn signal on and it was 75% into my lane at the time the motorcycle began to cross in front of me. I observed this car and I had an opportunity to formulate an opinion as to its speed. I would estimate that that car was traveling approximately 20 to 25 miles per hour. I saw the motorcycle strike the left side of the ear.”

Kirk’s deposition discloses that Kirk did not know the speed limit on that street, that he did not know how fast he was travelling, and that, although he did not see the Griffins’s vehicle before he struck it, he believed that Griffin turned in front of him. Kirk also testified that he did not know whether Griffin’s turn indicator was on. Kirk further stated that immediately prior to the accident, although he changed to the right lane to pass a slower car, he did not know how fast he or that car was travelling, and that he did not know how far his lane change was from the accident scene.

Thus, the evidence produced by the Griffins, in support of the motion for summary judgment, clearly made a prima facie showing that neither Dennis nor Sherry Griffin were negligent, and that they were, therefore, entitled to a judgment as a matter of law.

In opposition to the motion for summary judgment, Kirk merely disputed the Griffins’s assertions and submitted an affidavit of his expert witness. That witness stated that his opinion was based upon a review of the police report, photographs of the scene, the affidavits of Dennis Griffin and Joseph Mad-dry, portions of Kirk’s deposition, and Kirk’s answers to interrogatories. The expert concluded:

“[I]t is my opinion that in order for the Chevrolet Celebrity to be positioned as it is shown in the photos and on the police report, that vehicle would have had to turn left from the right hand lane of 21st Street. It would be impossible for that vehicle to turn sharply enough from the left hand lane to be in that position.”

He further stated that his opinion regarding the position of the automobile “prior to the collision [was] based on the turning radius that vehicle [was] capable of, and applying that information to a scale diagram of the scene. This is further backed up by personal knowledge of the capabilities in the steering geometry of a vehicle.”

An affidavit offered in opposition to a motion for summary judgment must be made on personal knowledge, and must not be based on hearsay, speculation, or subjective beliefs of the affiant. Hall v. Harris, 504 So.2d 271 (Ala.1987). Assertions in an affidavit must be supported by admissible evidence, such as actual documents or affidavits of witnesses. Mere hearsay does not create an issue of fact. Ex parte Head, 572 So.2d 1276 (Ala.1990). The Griffins questioned the admissibility of the expert’s conclusions and timely objected to the admission of his affidavit, contending that his opinion was not based on personal knowledge, but that he relied on hearsay evidence such as the police report and photographs, and that he relied upon evidence that was not properly authenticated. Nevertheless, even if the affidavit is admissible, Kirk’s expert merely speculated that Griffin might have turned left from the right lane. Conelusory allegations and mere speculation are not sufficient to create a genuine issue for trial. Hollis v. Brock, 547 So.2d 872 (Ala.1989). This affidavit, without more, is not substantial evidence rebutting the Griffins’s prima facie showing, i.e., it is not “evidence 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, the requirements of Rule 56(e), A.R.Civ.P., regarding opposing affidavits are mandatory. Head, supra. Because it appears to me that the opinion of Kirk’s expert is based on questionable evidence and merely speculates regarding how the Griffins’s vehicle was positioned prior to the collision and how Griffin would have to turn to position the vehicle as it was shown in the photos and the police report, I am not convinced that Kirk’s expert met the requirements of Rule 56(e), A.R.Civ.P. See Head, supra Furthermore, the opinion of Kirk’s expert does nothing to challenge, much less overcome, the Griffins’s prima facie showing that the Griffins were not negligent.

I also disagree with the majority’s statement that “even if the expert’s affidavit were found not to be admissible, the record reveals substantial evidence of a genuine issue of material fact in order to defeat summary judgment.” The affidavit of Kirk’s expert was the only evidence Kirk presented to support his opposition to summary judgment. If the affidavit is inadmissible, there is simply no other evidence. It is clear that “[w]hen a motion for summary judgment is made and supported ... [Kirk] may not rest upon the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Rule 56(e), A.R.Civ.P.

This court is limited to the evidence that is in the record. See Blackston v. State ex rel Blackston, 585 So.2d 58 (Ala.Civ.App.1991). The most favorable view of the allegations and mere denials contained in Kirk’s pleadings might support a finding that Kirk was not negligent; however, Kirk has presented nothing to show that the Griffins were negligent, or that the Griffins had anything to do with causing the accident. See Hollis, supra. Furthermore, once the burden shifted to Kirk, Kirk simply failed to rebut the Griffins’s prima facie showing that the Griffins were not negligent, and are, therefore, entitled to judgment as a matter of law.

Although summary judgment is rarely appropriate for cases involving issues of proximate cause, negligence, and contributory negligence, the record evidence in this case establishes that the Griffins were not negligent and did not cause the accident. Kirk presented nothing to show otherwise. While this court may not be able to determine from the record evidence the exact cause of this accident, clearly, the Griffins have made a prima facie showing that they were not responsible for the accident. Kirk’s mere assertion that he was not negligent or at fault does not establish the Griffins’s negligence. See Franklin v. Cannon, 565 So.2d 119 (Ala.1990). Simply, Kirk “produced no evidence of how [the accident was caused] and no evidence that [the Griffins] had anything to do with [causing the accident].” Hollis, 547 So.2d at 873. The Griffins clearly made a prima facie showing and once the burden shifted, Kirk failed to produce any evidence, substantial or otherwise, to oppose the entry of summary judgment for the Griffins; i.e., after the Griffins established that they were not negligent, Kirk presented nothing to indicate that the Griffins were negligent. See Harris v. Brewer, 487 So.2d 252 (Ala.1986).

Because I would affirm the trial court’s entry of summary judgment for the Griffins, I must respectfully dissent.  