acknowledging it is “rare” that summary judgment is proper in a negligence case, but concluding summary judgment on a limitations ground does not address the question of negligence
How later courts described this case
- acknowledging it is “rare” that summary judgment is proper in a negligence case, but concluding summary judgment on a limitations ground does not address the question of negligence
- summary judgment is rarely appropriate in negligence actions, even on undisputed facts, because determination of existence of negligence requires a judgment as to the reasonableness of conduct under the circumstances
- “If reasonable minds could draw different inferences and reach different conclusions from the facts, even though undisputed, the issue must be reserved for trial.”
- summary judgment court is not bound to accept evidence in the record as true even though it is uncontra-dicted
Written by the judges who cited it.
The opinion
UHLENHOPP, Justice
(dissenting).
Usually a question of negligence cannot be resolved by opposing affidavits because negligence is a fact matter and fact matters are determined by trial. But the summary judgment rule does not exempt negligence cases from its operation. In broad language, the rule applies to “a claim, counterclaim, or cross-claim” and either a plaintiff or a defendant may call the rule into operation. Rule 237(a) and (b), Rules of Civil Procedure. If a case involves an issue which is determinable by summary judgment, summary judgment procedure is applicable although the action is based on negligence. Such was the situation in Gruener v. City of Cedar Falls, 189 N.W.2d 577 (Iowa) (question of timely notice in negligence ease).
The present negligence case is one which is susceptible to resolution by summary judgment. Defendant doctors are not attempting to try the question of negligence itself by summary judgment. They are endeavoring to ascertain whether plaintiff has the essential evidence of negligence. The very purpose of summary judgment procedure is to ascertain whether a party has essential evidence or whether his claim or defense exists only on paper. Joiner, Determination Of Issues Without A Factual Trial, 32 Iowa L.Rev. 417, 426.
Plaintiff cannot recover in this lawsuit unless he produces expert testimony. The court states in its opinion, and I agree, that “it will be incumbent upon plaintiff in order to generate a jury question to show by expert testimony the pertinent standards of care and that the failure by defendant-doctors to comply with such standards in one or more of the particulars alleged was a proximate cause of the decedent’s death.” (Italics added.) Specifically, the doctors by their motion required plaintiff to show that he has such expert testimony.
In order to set summary judgment procedure in operation, the doctors had to file a motion supported by affidavit (or by other proof) meeting the requirements of rule 237(e). They did so. The affidavit is by a medical doctor, he speaks from personal knowledge, and he makes statements which would be admissible evidence. He states the facts as to what happened and swears that the doctors in so acting used the care and skill ordinarily exercised by physicians and surgeons. Under proper questioning, he could so testify on trial. That the affi-ant is one of the defendants would not render this testimony inadmissible; he is still an expert. 61 Am.Jur.2d Physicians, Surgeons & Other Healers § 116 at 240 (“As to the issue of standard of practice, such standard may be established by the defendant’s own testimony.”). Indeed, the affidavits in summary judgment proceedings are frequently by the parties themselves, stating matters in their own interest.
This meant that plaintiff had to come forth with affidavits (or other proof) likewise meeting the requirements of rule 237(e), which in this case means an affidavit or other proof by an expert, since expert testimony is essential.
Plaintiff did not produce such an affidavit or proof. Hence the trial court properly sustained the motion. Had plaintiff come forth with the essential affidavit or proof, then a question of negligence would have been posed which would have required determination by trial.
Either plaintiff can get the essential expert evidence or he cannot get it. If he can get it, he had to do so at the summary judgment stage. When confronted by a proper motion for summary judgment, he could not elect to wait until trial to get his evidence. The very purpose of the motion is to require that evidence be then set forth, to see whether a trial will be necessary at all. If the party needs additional time to get evidence before hearing on the motion, he can ask an extension of time. See Schulte v. Mauer, 219 N.W.2d 496 (Iowa).
*738 But if the party cannot get the evidence, and he did not produce it here or ask an extension of time, then no reason exists to put the parties to a trial. Summary judgment procedure was devised to weed out just such cases.
I would affirm.