Petition — Northern Commercial Co. v. Sells

| Supreme Court, U. S,

~ FJLED

| FEB 9 977

MICHAEL PODAK, JR., CLER®

ass = ae —_—-—— —

‘

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

eae | me. 76-1066"

| NorTHian COMMERCIAL COMPANY,

: Jig, | Petitioner,

CHargces SELLs,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WiuaM H. Jurrerss, Je.

} ae aaky MILLER, CASSIDY,

eer 5 LARROCA & LEWIN

| saeetty 2555 M Street, N.W.

hy iy ts Suite 500.

| Has oie Washington, D.C. 20037

Bei te ae Attorneys for Petitioner.

? : 3 ‘

——————————————————————

Watireton D.C. + THIEL PRESS - (207) 638.4571

(?)

TABLE OF CONTENTS

acs cee cabins bane

pF re ee ere eR

QUESTION PRESENTED..................-.

TABLE OF AUTHORITIES

Cases:

Arney v. United States, 479 F.2d 653 (9th Cir.

auld; dace nss eiube ude aeeean

Chubbs v. City of New York, 324 F. Supp. 1183

Ree eee ”

Hughes v. American Jawa, Ltd., 529 F.2d 21

I ls fl de int

Rogers v. Peabody Coal Co., 342 F.2d 749 (6th

- PPT TTTeTETERCTTTTTTTELTTTe

Ross v. John’s Bargain Stores Corp., 464 F.2d 111

—S Ee a are

Roucher v. Traders & General Ins. Co., 235 F.2d

a RR aay ee

Tarshis v. Lahaina Investment Corp., 480 F.2d 1019

"SRG. eels hairs

Statutes:

I eas

Rules:

Rule 56, Federal Rules of Civil Procedure.........

Miscellaneous:

Guiher, Summary Judgments — Tactical Problems

for a Trial Lawyer, 48 Va.L.Rev. 1263 (1962)....

(ii ita

IN THE

OE AE P

Miscellaneous, continued: ~ SUPREME COURT OF THE UNITED STATES

Louis, Federal Summary Judgment Doctrine: A Cas Seay fre

Critical Analysis, 83 Yale L.J. 745 (1974)............ 7

J. Moore, Federal Practice (2d ed. 1976).......-..200- “o | No.

Restatement of Terte,30, S966... wc ccc ccccccccces 5

1976 Annual Report of the Director, Administrative

Office of the United States Courts... .........cccce0. 7 NORTHERN COMMERCIAL COMPANY

Petitioner,

v.

CHARLES SELLS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINION BELOW

The opinion and judgment of the court of appeals

(App. A, infra, pp. la-3a) is not yet reported. The Memo-

randum and Order of the district court granting summary

judgment (App. C, infra, pp. 5a-21a) is unreported.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). The opinion and judgment of the

court of appeals (App. A, infra, p. la) was entered on

1

2

October 6, 1976. A timely petition for rehearing was

denied on November 16, 1976 (App. B, infra, p. 4a). This

petition is timely filed within 90 days of that date.

QUESTION PRESENTED

Whether the refusal of the Court of Appeals to permit

decision of a negligence issue on a motion for summary

judgment violates the letter and purpose of Rule 56, Fed-

eral Rules of Civil Procedure.

STATEMENT

On October 3, 1971, during daylight hours, Richard

Weldin, age 17, was driving his El] Camino automobile on

a wet highway in Anchorage, Alaska. The respondent’s

son, Brian Sells, also age 17, was a passenger in the vehi-

cle. The car went out of control, crossed the centerline of

the highway, left the pavement, traveled through a deep

drainage ditch, turned 180 degrees, and struck a road

grader owned by the petitioner and parked on its own

property no less than eighteen feet from the edge of the

pavement. Brian Sells was thrown from the automobile

and received serious injuries. The scene of the accident,

including the position of the road grader, the El Camino

and the highway, is accurately reflected by the photo-

graph, a deposition exhibit in the district court, which is

reproduced on the opposite page.

The respondent filed suit on January 6, 1972, in state

court, and the petitioner removed the action to federal

court on the basis of diversity. Extensive discovery was

taken over a three-year period by both sides, and on

January 31, 1975, the petitioner filed its motion for sum-

mary judgment arguing that there was no genuine issue of

material fact, and that on the facts established, the plain-

tiff’s claim was insupportable as a matter of law.

4

On May 2, 1975, the district judge entered a meticu-

lous memorandum opinion exploring every conceivable

basis in the record for recovery by the respondent against

the petitioner. The district court noted that “motions for

summary judgment are only infrequently granted in negli-

gence actions” and that “{a]ll inferences must be re-

solved against the movant’ (App. C, infra, p. 19a), but

found that in this case the petitioner was entitled to

judgment as a matter of law.

A divided court of appeals reversed. Although it felt

the question was “close,” it noted generally that “ques-

tions of reasonableness and foreseeability can rarely be

decided as a matter of law because they depend upon the

totality of the circumstances in each case,” and held that

whether the petitioner was “chargeable with knowledge

that a vehicle on the highway might skid off a rain and oil

slick road and crash into the grader parked where it was”

constituted a question of “fact” which “could not prop-

erly be resolved on appellee’s motion for summary

judgment” (App. A, infra, pp. la-2a). District Judge Niel-

sen, dissenting, noted that “‘[d] iligent search by everyone

connected with this case, including this court, has re-

vealed no case attaching liability to a landowner in any

similar situation,” and would have affirmed the judgment

of the district court (App. A, infra, p. 3a).

REASONS FOR GRANTING THE WRIT

This is a case falling within the diversity jurisdiction of

the district court, presenting an issue the decision of

which turns upon the facts developed in the record. As

such, it is not the type of case normally considered by

this Court as appropriate for the exercise of discretionary

jurisdiction through a writ of certiorari. One consequence

of this normal policy, however, is that an important

principle of federal law — the virtually total preclusion of

5

summary judgment in negligence cases — has been per-

mitted to develop in the courts of appeals without review

by this Court. We submit that this principle, so dramatic-

ally illustrated by this case, is in conflict with the lan-

guage and purpose of Rule 56,-Federal Rules of Civil

Piocedure, and deprives the federal courts, in a very large

proportion of their caseload, of their most important tool

for the prompt and efficient disposition of unmeritorious

claims.

There is no question as to the standard of negligence

applicable in this case. The respondent himself, in his

brief on appeal, stated that the applicable rule is that of

the Restatement of Torts 2d, Section 368: A landowner

is responsible to persons who “are traveling on the high-

way” or “‘foreseeably deviate from it in the ordinary

course of travel,” for harm caused by a condition which

the landowner creates on his land

“so near an existing highway that he realizes or

should realize that it involves an unreasonable risk

to others accidentally brought into contact with

such condition while traveling with reasonable care

upon the highway .. .”

It was an undisputed fact in this case that the petitioner

parked its road grader beyond a deep drainage ditch at

least eighteen feet from the highway, as illustrated by the

photograph reproduced herein. Although the court of

appeals stated (App. A, infra, p. 2a) that the questions

of reasonableness and foreseeability depend upon “the

totality of the circumstances,” neither the court nor the

respondent pointed to any circumstance indicating that

the road grader posed an unreasonable risk of harm to

persons who might foreseeably leave the highway in the

ordinary course of travel. In short, if this case is not one

where summary judgment for the petitioner is proper,

then the summary judgment procedure must be regarded

as wholly inappropriate on a negligence issue.

6

The attitude of the court of appeals on this matter was

expressed in Arney v. United States, 479 F.2d 653, 660

(9th Cir. 1973), also reversing the district court’s award

of summary judgment for the defendant: “Issues of negli-

gence are ordinarily not susceptible of summary adjudica-

tion.” This proposition has been repeated so often by

courts of appeals as to have become a formula for the

almost automatic reversal of any summary judgment

under Rule 56 in a negligence case.' See, e.g., Hughes v.

Amencan Jawa Ltd., 529 F.2d 21, 23 (8th Cir. 1976);

Tarshis v. Lahaina Investment Corp., 480 F.2d 1019, 1021

(9th Cir. 1973); Ross v. John’s Bargain Stores Corp., 464

F.2d 111, 115 (5th Cir. 1972); Rogers v. Peabody Coal

Co., 342 F.2d 749, 751 (6th Cir. 1965); Roucher v.

Traders & General Ins. Co., 235 F.2d 423, 424 (5th Cir.

1956). Indeed, one survey of Fourth Circuit cases found

that over a 23-year period, only one award of summary

judgment in a negligence case was affirmed in that Cir-

cuit. Guiher, Summary Judgments — Tactical Problems

for a Trai Lawyer, 48 Va. L. Rev. 1263, 1265, 1272

(1962). In contrast, the survey found that in North Caro-

lina state courts during a three-and-one-half period, eight

out of twelve awards of summary judgment in negligence

cases were affirmed on appeal.

The summary judgment procedure of Rule 56 is de-

signed to permit the prompt and efficient disposition of

complaints or defenses which, given the liberal pleading

requirements of the Federal Rules, are sufficient to with-

stand a motion to dismiss, but are unsupported by prova-

ble facts sufficient to raise a genuine question for trial.

See 6 J. Moore Federal Practice 956.04[1] (2d ed.

1976). This procedure thus saves the burden and expense

of pointless trials, not only for the parties but also for the

1 Indeed, a review of all reported decisions of the Ninth Circuit

for the past five years reflects not a single case in which summary

judgment has been upheld in a negligence case.

7

judicial system. The unrealistic and inappropriate stand-

ard for summary judgment in negligence cases illustrated

by the decision of the court of appeals in this case in

effect deprives the federal courts of this important device

for relieving the burden of litigation on the parties and

the courts. As Judge Weinstein remarked, referring to the

standard under which summary judgment motions must

be denied if there is the “slightest doubt”’ as to the exist-

ence of a disputed issue, the standard “‘means that sum-

mary judgment is almost never to be used — a pity in this

critical time of overstrained legal resources.” Chubbs v.

City of New York, 324 F. Supp. 1183, 1189 (S.D.N.Y.

1971). See also Louis, Federal Summary Judgment Doc-

trine: A Critical Analysis, 83 Yale L. J. 745 (1974).

As of June 30, 1976, there were over 25,000 case's

pending in federal district courts involving personal injury

claims — approximately eighteen percent of the total fed-

eral docket.2* We submit that the question presented in

21976 Annual Report of the Director, Administrative Office

of the United States Courts, at 86. The figures given in the text are

a sum of the following categories of cases listed in the Report:

FELA, motor vehicle personal injury, marine personal injury, and

other personal injury.

8

this case — whether, in negligence cases, the plaintiff is

entitled to a jury trial even where the record after full

discovery shows no basis for recovery — is sufficiently

important to the administration of justice in federal

courts to warrant reyiew by this Court.

Respectfully submitted,

WILLIAM H. JEFFRESS, JR.

MILLER, CASSIDY,

LARROCA & LEWIN

2555 M Street, N.W.

Suite 500

Washington, D.C. 20037 A p p ie N D [ X

Attorneys for Petitioner.

te

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 75-2617

CHARLES SELLS, individually

and as parent and next friend

of BRIAN SELLS, a minor,

Plaintiff-Appellant,

v.

NORTHERN COMMERCIAL COMPANY,

Defendant-Appellee.

MEMORANDUM

Appeal from the United States District Court

District of Alaska

Before: HUFSTEDLER and KENNEDY, Circuit

Judges, and NIELSEN ,* District Judge.

Although the question is close, as the district court’s

meticulous memorandum discloses, we have concluded

that the question of negligence could not properly be

resolved on appellee’s motion for summary judgment.

Should appellee have realized that parking its road grader

on its property some 18 feet from the edge of the high-

way created an unreasonable risk of harm to those who

foreseeably could deviate from the highway?! The

*Honorable Leland C. Nielsen, United States Districi Judge,

Southern District of California, sitting by designation.

1 We assume for the purpose of the discussion that the grader

was parked 18 feet from the highway because the district court

[Footnote continued]

2a

district court held that the answer is negative as a matter

of law.

The questions of reasonableness and foreseeability can

rarely be decided as a matter of law because they depend

upon the totality of the circumstances in each case.

Among the circumstances are the conditions of the par-

ticular highway adjacent to appellee’s property that ap-

pellee knew or should have known: Was the highway

straight, curving, flat, narrow or wide? What were the

conditions of visibility of the grader? What speeds should

the appellee have anticipated that vehicles would be

travelling when they approached its property? What kind

of hazard did the grader pose?

None of the cases cited helps us very much. The cases

involving poles or other fixtures do not pose the same

kinds of problems as mobile equipment such as trucks,

road graders, and other vehicles. The landowner may have

very little choice in where he can locate fixtures and, at

the same time, give himself maximum enjoyment of his

real property. To be sure, a landowner may be similarly

limited as to places to park his vehicles under some cir-

cumstances, but no such circumstances here existed.

As a matter of fact, the appellee may not be chargeable

with knowledge that a vehicle on the highway might skid

off a rain and oil slick road and crash into the grader

parked where it was, but we cannot say that the conclu-

sion follows as a matter of law.

REVERSED.

made that assumption in deciding the motion. The evidence on the

subject was conflicting, and the district court took the evidence

most favorably to the appellant to avoid the conflict which the

court knew could not be resolved on summary judgment.

3a

NIELSEN, District Judge, Dissenting:

I respectfully dissent.

I do not think that any reasonable jury could find that

a landowner must foresee that a car traveling in the day-

light on an urban highway is going to leave that highway

at such a speed that it will go through a deep ditch and

strike the landowner’s road grader parked at least 18 feet

from the edge of the highway. Therefore, the landowner

owes no duty to any occupant of such a car.

It is submitted that this situation is clearly not covered

by Restatement, Second, Torts §368, which provides:

“$368. Conditions Dangerous to Travelers on Adja-

cent Highway

A possessor of land who creates or permits to re-

main thereon an excavation or other artificial condi-

tion so near an existing highway that he realizes or

should realize that it involves an unreasonable risk

to others accidentally brought into contact with

such condition while traveling with reasonable care

upon the highway, is subject to liability for physical

harm thereby caused to persons who

(a) are traveling on the highway, or

(b) foreseeably deviate from it in the ordinary

course of travel.”

Diligent search by everyone connected with this case,

including this court, has revealed no case attaching liabil-

ity to a landowner in any similar situation.

I would therefore affirm the decision of the District

Court granting summary judgment to the defendant.

/s/ Leland C. Nielsen

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 75-2617

CHARLES SELLS, individually

and as parent and next friend

of BRIAN SELLS, a minor,

Plaintiff-Appellant,

v.

NORTHERN COMMERCIAL COMPANY,

Defendant-Appellee.

ORDER

Before: HUFSTEDLER and KENNEDY, Circuit

Judges, and NIELSEN, * District Judge.

A majority of the panel as constituted in the above

case has voted to deny the petition for rehearing and to

reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for an

en banc hearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

*Honorable Leland C. Nielsen, United States District Judge,

Southern District of California, sitting by designation.

5a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

CHARLES SELLS, individually

and as parent and next friend

of BRIAN SELLS, a minor,

Plaintiff,

vs.

NORTHERN COMMERCIAL COMPANY,

Defendant.

No. A-14-72 Civil

MEMORANDUM AND ORDER

GRANTING SUMMARY JUDGMENT

This is a negligence action begun in state court and

thereafter removed to federal court on the basis of diver-

sity jurisdiction. 28 U.S.C. § §1332, 1441. On October 3,

1971, Richard Weldin was driving north on Arctic Boule-

vard in his 1965 El Camino Chevrolet. Plaintiff, Brian

Sells, was a passenger. The vehicle went out of control,

crossed the centerline, and left the west side of the road-

way. Plaintiff claims that the El Camino thereafter col-

lided with a motor grader owned by Northern Commer-

6a

cial Machinery Company (N.C.) that was parked close to

the road. At some point during the course of the accident

Brian Sells was thrown from the vehicle and afterwards

was found lying in front of the grader. He received very

serious injuries, for which he claims N.C. is liable. Besides

legal questions, factual matters in dispute include the

cause of the loss of control of the vehicle and the proxim-

ity of the grader to the road. Defendant has moved for

summary judgment and plaintiff has opposed this mo-

tion. Fed. R. Civ. P. 56.

Plaintiff alleges that one of the factors resulting in the

loss of control of the vehicle was oil on the pavement

caused by defendant’s operation of its business of selling

and servicing heavy equipment. This allegation raises at

least four issues: was there oil on the highway; did the oil

cause the El Camino to skid; did the oil accumulate on

the highway due to N.C.’s operations; if the oil film was

caused by N.C., was N.C. negligent. Various statements

and the deposition of Officer Metrokin, the investigating

police officer, suggest an affirmative answer to the first

issue (film of oil on road) and the bare possibility of an

affirmative answer to the second issue (it was a factor in

the accident). However, there is no direct evidence on the

third issue (was the oil on the highway due to N.C.), or

the fourth issue (was N.C. negligent). Because of this,

plaintiff seeks to rely on inference and circumstantial evi-

dence. Plaintiff asserts that the jury is entitled to infer

that N.C. is responsible for the oil from the facts that

N.C. operates a machinery company, heavy equipment

has a known propensity to leave oil slicks, and the oil

film was somewhere in the vicinity of the entrance to

N.C.’s business.

The use of circumstantial evidence is discussed in

Prosser, Torts, 4th Ed. §39, p. 212:

7a

“Like all other evidence it may be strong or weak; it

may be so unconvincing as to be quite worthless, or

it may be irresistible and overwhelming. The gist of

it, and the key to it, is the inference or process of

reasoning by which the conclusion is reached. This

must be based upon the evidence given, together

with a sufficient background of human experience

to justify the conclusion. /t is not enough that plain-

tiff’s counsel can suggest a possibility of negligence.

The evidence must sustain the burden of proof by

making it appear more likely than not. The infer-

ence must cover all of the necessary elements of

negligence, and must point to a breach of the de-

fendant’s duty.” [emphasis added]

Courts have used similar language in describing the re-

quirements of circumstantial evidence: Dent v. Hardware

Mutual Casualty Co., 86 Id. 427, 388 P.2d 89 (1963)

(circumstantial evidence must show that plaintiff’s theory

is the more reasonable conclusion to be drawn therefrom,

and not equally consistent with another theory); Bottjer

v. Hammond, 200 Kan. 327, 436 P.2d 882, 884 (1968)

(that the only reasonable conclusion to be drawn there-

from is plaintiff's); Elms v. Chicago, Rock Island and

Pacific Railroad Co., 375 P. 2d 886 (Okla. 1962) (not

merely speculation or conjecture); Schmidt v. Pioneer

United Dairies, 60 Wn. 2d 271, 373 P.2d 764 (1962)

(only plaintiff's conclusion can fairly and reasonably be

drawn therefrom).

Often the use of circumstantial evidence in tort cases is

considered under the terminology of res ipsa loquitur.

The Restatement of Torts, Second, provides in

§ 328D(1)(a):

“(1) It may be inferred that harm suffered by the

plaintiff is caused by the negligence of the defen-

dant when

8a

(a) the event is of a kind which ordinarily does

not occur in the absence of negligence;

The Court cannot hold that the presence of an oil film on

a heavily traveled highway is such an event. Subsection

(b) of §328D(1) additionally limits the making of this

inference to when:

(b) other responsible causes including the conduct

of the plaintiff and third persons are sufficiently

eliminated by the evidence.

Subsection (b) embodies the requirement that it must be

the defendant’s negligence that caused the accident. Pros-

ser puts it this:

“It is never enough for plaintiff to prove merely that

he has been injured by the negligence of someone

unidentified. Even though there is beyond all possi-

ble doubt negligence in the air, it is still necessary to

bring it home to the defendant. . . . The injury must

either be traced to a specific instrumentality or

cause for which the defendant was responsible, or it

must be shown that he was responsible for all

reasonably probable causes to which the accident

could be attributed. Accordingly, res ipsa loquttur is

held not to apply where a chair is thrown from an

unidentified window in the defendant’s hotel, or

where the presence of such an object as a bolt on a

railway platform might easily have been due to the

act of a third party, or where gas or water or elec-

tricity escape from fixtures controlled in part by

another.

“Where such other causes are equally probable,

there must be evidence which will permit the jury to

eliminate them. ... Again, however, the evidence

need not be conclusive and only enough is required

to permit a finding as to the greater probability.”

Prosser, Torts, 4th Ed., §39, 218-219.

9a

Here, the only evidence that relates the oil to the de-

fendant is that the entrance of defendant’s machinery is

in the vicinity. The sketch of Officer Metrokin, who in-

vestigated the accident, does not place the film directly at

the entrance. (Exhibit E to Metrokin’s deposition.)

Metrokin could only speculate as to the source of the oil.

(Metrokin’s deposition, page 17.) The manager of the

Anchorage branch of the N.C. Machinery Company, Gary

Ratzlaff, has submitted an affidavit stating that almost all

of the heavy equipment is brought in by railroad or low

boy trailers and that:

“On the day of the accident involving the E] Camino

pickup there was no oil on Arctic Boulevard that

could specifically be attributed to the operations of

Northern Commercial and its employees.”

Plaintiff has offered no evidence to support his inference.

Although the Court has been unable to find any deci-

sions holding as a matter of law that the inference sought

by plaintiff is not supportable in the case of oil on the

highway, it has found several “mud” cases. Meil v. Syra-

cuse Constructors, Inc., 240 N.Y.S. 2d 403, 19 App. Div.

2d 10 (1963); Heuay v. Halifax Construction Co., 254

N.C. 252, 118 S.E. 2d 615 (1961); Davidson v. Cooney,

259 Ia. 1278, 147 N.W. 2d 819 (1967). In each of these

cases, the inference sought was that the mud on the high-

way adjacent to an excavation was caused by the excava-

tor’s trucks. This is admittedly a close question. In Mei

the inference was permitted (2 judges dissenting). In

Heuay it was not. In Davidson, the inference was also

permitted, and it is a good case to show the type of

evidence that can be developed to make the inference

reasonable. But here we are dealing with oil. The only

vehicles which are likely to leave mud on the highway are

those that have been off the pavement. All vehicles have

the potential of dropping oil. One would expect mud to

10a

be deposited soon after entering on the pavement, as it

would fly off the wheels. There is no particular spot one

would expect to find oil on the highway. There is no

evidence of a spill, but only a film. There is no evidence

of heavier deposits of oil closer to N.C.’s entrance. In

short, the mud cases, which are themselves ‘‘close,” are

much stronger than our oil case. A jury would have to

resort to mere speculation to determine the source and

the cause of the oil film. Such speculation is not enough

to prevent the granting of motion for summary judgment.

Ayers v. Pastime Amusement Company, 283 F. Supp.

773 (D.S.C. 1968); 10 Wright & Miller, Federal Practice

& Procedure, §2727, p. 549. Summary judgment will

therefore be granted on this issue.

The other issue to be considered is whether defendant

was negligent in parking the road grader near Arctic

Boulevard. There is conflicting evidence on the proximity

of the grader to the road. Defendant’s evidence suggests

the grader was 24 to 25 feet from the edge of the pave-

ment. This evidence includes: the statement of Officer

Metrokin, who arrived at the scene of the accident 12

minutes after it occurred, that he paced the distance off

at 25 feet (Metrokin deposition, page 13, Exhibit E); a

picture of the accident scene taken by Metrokin during

his investigation, which Richard Weldin, driver of the ve-

hicle, and Charles Sells, father of the plaintiff, acknow-

ledge as accurate (Weldin deposition, page 56, C. Sells

deposition, page 39); a plotting of the location of the

vehicles from their location in the picture taken by

Metrokin, by surveyor William Tucker locating the grader

24 feet from the pavement (affidavit of William Tucker);

and a plotting of the position of the grader by Tucker

showing it 25 feet from the pavement after its location

was physically pointed out to him on January 22, 1975,

by Gerald Johnson and Gay Morrell, employees of N.C.,

lla

who arrived at the scene of the accident shortly after it

occurred and have personal knowledge of the location of

the grader. (Affidavits of Tucker, Johnson and Morrell).

In opposition to this evidence, plaintiff relies on the

statements of Charles Sells, plaintiff’s father, a letter

written by Mark Sells, plaintiff’s brother, and the affi-

davit of plaintiff’s attorney swearing to facts reported to

him by a presently unavailable investigator, Francis

Wirth. The Court cannot consider most of plaintiff’s evi-

dence, however. The letter written by Mark Sells and the

statements of Charles Sells both indicate that the day

following the accident the two went to its site with a tape

measure, talked to an unidentified individual who indi-

cated that the grader had not been moved since the acci-

dent, and took various measurements fixing the position

of the grader at 12% feet from the road. The statements

of the unidentified individual are, of course, hearsay and

not admissible. Rego v. Decker, 482 P.2d 834, 841 (Ak.

1971). They cannot be relied on in a summary judgment

motion to create a genuine factual dispute. Twelve Hun-

dred “L”’ Street Corp. v. Inlet Company, 438 P.2d 708,

710 (Ak. 1968).

Without this hearsay evidence, plaintiff must rely on

the assumption that the grader had not been moved since

the time of the accident. Ordinarily, there is no presump-

tion that because a condition existed at one time it

existed prior to that time. Millard v. Mitchell Bros. Truck

Line, 263 Or. 34, 500 P.2d 713 (1972); State v. Craw-

ford, 13 Ariz. App. 225, 475 P.2d 515, 518 (1970);

Blaine Fashions, Inc., v. Scheri Shop, 84 Nev. 339, 440

P.2d 904, 905 (1968); Richardson v. Farmers Union Oil

Co., 131 Mont. 535, 312 P.2d 134, 145 (1957). This is

not an inflexible rule, however, if factors indicate that

the inference is justified. Allen v. Matson Navigation Co.,

255 F.2d 273, 281 (9th Cir. 1958); Ferran v. Jacquez, 68

12a

N.M. 367, 362 P.2d 519 (1961); State v. Pritchard, 47

Wn. 2d 545, 288 P.2d 480 (1955). Plaintiffs however,

have suggested no such factors. Indeed, the only evidence

that the Court is aware of suggests that the grader had

been moved. The day of the accident, Officer Metrokin

measured the distance of the grader to the entrance to

the N.C. business at 60 feet. (Metrokin Deposition, page

10.) The next day the Sells’ measured it at only 43 feet.

(Charles Sells deposition pp. 26-27.) This would be con-

sistent with the grader being moved toward the N.C.

entrance and Arctic Boulevard. In addition, Brian Sells’

glasses were found on the right rear side of the grader.

(Charles Sells deposition, page 20.) But Brian Sells was

thrown out and landed at the left front side of the grader.

(R Weldon deposition, pp. 47-48, exhibit B, C.) This is

again consistent with the possibility that the grader

moved forward toward the N.C. entrance (south) and to

the left (closer to the pavement) between the time when

the two measurements were made. It is true that Charles

Sells indicated that he saw some marks and gouges in the

mud, but their cause is unclear, and they derive their

significance largely from the hearsay statements of the

unidentified individual the Sells’ talked to.

Under these circumstances, there is no basis for the

inference that the same conditions found on October 4

by the Sells’ existed on October 3, the day of the acci-

dent. Even were Charles Sells’ measurements admissible,

their usefulness is severely hampered because he is not

clear where he made the measurement from. (Charles

Sells deposition, pp. 24-25.)

In addition to the defects with the substantive content

of the Sells’ statements, the letter written by Mark Sells

cannot be considered for another reason; it is hearsay.

Meyst v. East Fifth Avenue Service, Inc., 401 P.2d 430,

437 (Ak. 1965); Beavers v. State, 492 P.2d 88, 96 (Ak.

13a

1971). It would not be admissible at trial. In addition, it

| cannot be considered an affidavit because it has not been

| sworn to as it must be in order to be considered on a

} summary judgment. Local Union No. 490, U.R.C., L&P

| Wkrs. v. Kirkhill Rubber Co., 367 F.2d 956 (9th Cir.

1966).

The only remaining evidence relied on by plaintiff is

that developed in plaintiff's attorney’s affidavit. It states

_ in part:

“Upon being retained to represent plaintiff I en-_

gaged the services of Francis X. Wirth, Jr., an investi-

gator. On November 5, 1971, Mr. Wirth reported to

me, in pertinent part, that the accident in question

had occurred on a Sunday P.M.; that no one was

working in the area at that time and that he had

found no eye-witness but was able to photograph

the defendant’s grader ‘sitting in the same position

as it was on the day of the accident. It is approxi-

mately 28’ (twenty-eight feet) from the centerline

of the highway. I say approximately because there is

visible painted centerline on this pavement.’

“I am unable to provide an affidavit at this time

by Mr. Wirth because he is working as a supervisor

of the LIZ TWO space station near Pt. Lay on the

Dewline. I communicated with Mr. Wirth on Febru-

ary 17, 1975 at his then last known address in Fair-

banks, and received his reply from the Dewline.”

ad Rule 56(f) does permit exceptions from the requirement

that affidavits be filed, and the circumstances here fall

within one of those exceptions. 6 Moore, Federal Practice

q 56.24, p. 2878. It would be better if plaintiff's attorney

stated what efforts were being made to acquire an affi-

davit, and when it could be expected. But even if the

-_ above information were in affidavit form, there would be

some question as to its admissibility. Mr. Wirth does not

explain how he could tell that the grader was “sitting in

l4a

the same position as it was on the day of the accident,”

when he had found no eye-witnesses that could relate this

to him. The Court is also uncertain as to how “approxi-

mate” the measurement is. But accepting what Mr. Wirth

has to say as admissible, the most that it shows is that he

determined the grader to be 18 feet from the pavement

(Tucker’s affidavit and attached exhibit show that the

road is 20 feet wide, and since Mr. Wirth states that the

grader was 28 feet from the centerline, it was 18 feet

from the edge of the pavement). This figure is substan-

tially different from the inadmissible Sells’ evidence as

well as defendant’s evidence.

A sub-issue in the dispute of the distance of the grader

from the pavement concerns the location of the highway

right-of-way. Whether the grader was 25 feet from the

edge of the pavement, 18 feet or only 12% feet, it was on

N.C.’s property and not on the right-of-way. The affidavit

of William Tucker states that Arctic Boulevard is entirely

on the Alaska Railroad right-of-way, that the edge of the

pavement runs along the boundary of that right-of-way

and N.C.’s property, and that the land records do not

reflect any easement for the highway extending onto

N.C.’s property. This made a prima facie case that there

was no such easement. However, plaintiff was able to

suggest a legal theory where by operation of law, the

State of Alaska would have succeeded to an easement in

favor of the United States created by operation of law.

48 US.C. §321(a)-321(d). The key question in the

applicability of this theory, is whether the land was

entered for homestead prior to August 10, 1949. Of

course, plaintiff cannot avoid summary judgment merely

by posing theoretical questions. 10 Wright & Miller, Fed-

eral Practice & Procedure, §2727, p. 551. And after the

movant has made a prima facie case, the burden shifts

and the opponent must show specific facts justifying

15a

denial of summary judgment. /d. p. 538, et. seg. At any

rate, defendant has demonstrated that the land was

homesteaded in 1945, so that plaintiff’s theory is in-

applicable. In addition, the patent through which defen-

dant claims title contains no reservation of an easement.

Ordinarily, the description in the patent is conclusive.

Grainger v. United States, 197 Ct. Cl. 1018, 1024 (1972).

And one may challenge a patent only if he can show that

the patentee should not have received it and that the

challenger is entitled to it. Kale v. United States, 489

F.2d 449 (9th Cir. 1973); 63 Am. Jur. 2d Public Lands

§ 35. From the above, it is clear that plaintiff’s theory is

without merit and the Court holds that the road grader

was not on the highway right-of-way.

Plaintiff argues that even if the grader was 25 feet from

the edge of the pavement, it still presents a jury question

of whether the defendant was negligent. The Court will

resolve every inference in plaintiff’s favor and assume

that the grader was only 18 feet from the road in testing

his legal theories.

The basic proposition that plaintiff seeks to assert is

the rule that a landowner whose property abutts on a

highway is liable for his negligence in creating an artificial

condition on his property that involves an unreasonable

risk of harm to those traveling on the highway who for-

seeably deviate from it. The Restatement of Torts, 2nd,

recognizes this rule in § 368:

“A possessor of land who creates or permits to re-

main thereon an excavation or other artificial condi-

tion so near an existing highway that he realizes or

should realize that it involves an unreasonable risk

to others accidentally brought into contact with

such condition while traveling with reasonable care

upon the highway, is subject to liability for physical

harm thereby caused to persons who

16a

(a) are traveling on the highway, or:

(b) forseeably deviate from it in the ordinary

course of travel.”

It is approved in Prosser, Torts, 4th Ed. §57. Numerous

cases, infra, have applied this rule. The key to the inquiry

is the distance of the condition from the highway, and

the danger created by the condition. Restatement of

Torts, 2nd., §368, comment h; Louisville & N.R. Co. v.

Anderson, 39 F.2d 403 (5th Cir. 1930).

In support of his assertion that there is a jury question

as to defendant’s negligence in parking its grader 18 feet

from the edge of the pavement and the edge of the right-

of-way, plaintiff relies on four cases. Gerbich v. Southern

California Edison Co., 5 Cal. 2d 46, 53 P.2d 948 (1935);

Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194

So. 659 (1940); El Paso Electric Co. v. Leeper, 42 S.W.

2d 863 (Texas 1931); Kentucky Utilities Co. v. Sapp, 249

Ky. 406, 60 S.W. 2d 976 (1933). These are all utility pole

cases where the courts held that it was a jury question

whether the locating of the pole in close proximity to the

highway was negligence. In Gerbich, the pole was 6 feet

from the concrete, 4 feet from the macadam on a dirt

area often driven on; in Birmingham, the pole was within

the right-of-way, adjacent to the traveled portion of the

road; in El Paso, the pole was on the right-of-way; in

Kentucky Utilities, the pole was at the edge of the

shoulder which was approximately 2% feet wide. These

cases lend little support for plaintiff’s theory that liability

can extend 18 feet from the pavement. The Court has

also looked to the cases cited in Annot. 3 A.L.R. 2d 6

(1949). Significantly, the annotation places the dividing

line at three feet from the roadway. The Annotation

notes that it is often held that there is a jury question

when the pole or post is less than three feet from the

roadway. 3 A.L.R. 2d at 43. As the distance from the

l7a

highway increases, negligence is still a jury question in

some cases. Weiss v. Holman, 58 Wis. 2d 608, 207 N.W.

2d 660 (1973) (4 feet from road); United Gas Pipeline

Co. v. Jones, 236 Miss. 471, 111 So. 2d 240 (1959) (3%

feet from edge of pavement); Ohio Bell Telph. Co. v.

Ling, 129 Ohio St. 505, 196 N.E. 371 (1935) (5 feet

from inside edge of portion of Y in road); Lambert v.

Westchester Electric Co., 191 N.Y. 248, 83 N.E. 977

(1908) (4 feet from paved fire station driveway). But in

many cases where the distance is great., than three feet,

the issue of negligence is taken from the jury. Mississippi

Power Co. v. Sellers, 160 Miss. 512, 133 So. 594 (1931)

(pole 8 feet from road beyond drainage depression); Ohio

Postal Teleg. Cable Co. v. Yort, 64 Ohio App. 189, 28

N.E. 2d 646 (1940) (pole 11 feet from highway); Fezch-

ter v. Corbin, 254 Ky. 178, 71 S.W. 2d 423 (1934) (pole

7 feet from pavement); Ellis v. State, 16 App. Div. 2d

727, 226 N.Y.S. 2d 803 (1962) (pole 5 feet 10 inches

from pavement); Vines v. Southwestern Mississippi Elec-

tric Power Ass’n., 241 Miss. 120, 129 So. 2d 396 (1961)

(pole 3% feet from traveled way); Jafek v. Public Service

Co., 183 Okla. 32, 79 P. 2d 813 (1938) (pole 4 feet from

shoulder).

In addition, there are cases of Beyer v. City of Los

Angeles, 40 Cal. Rptr. 341 (1964); Kinne v. State, 8 A.D.

2d 903, 186 N.Y.S. 2d 895 (1959); Hayes v. Malkan, 26

N.Y. 2d 295, 258 N.E. 2d 695 (1970); and Millard v.

Mitchell Bros. Truck Line, 263 Or. 34, 500 P.2d 713

(1972). In Beyer, the appellate court upheld the granting

of a nonsuit where plaintiff collided with a water valve

that the city installed 12 feet from the edge of the pave-

ment on private property. The nonsuit was granted on

the ground that defendant had breached no duty owed to

plaintiff. Kinne held as a matter of law that the state was

not negligent in maintaining a maple tree beyond the

shoulder of the highway with which plaintiff collided.

18a

Hayes held as a matter of law that the landowner was not

liable. for injury to a traveler arising out of a collision

with a pole located on his property, even though it was

only 7 inches from the road. The court distinguished ex-

cavations as ‘traps,’ and explained its decision at 258 N.E.

2d 696:

_““Were we to apply the Trabisco [negligence is a

question of fact for the jury where the pole is on the

right-of-way] rule to the facts in this case, we would

be severely restricting the property owner’s use of

his own land. Indeed, under such a holding, a driver,

swerving off the road and striking an object entirely

on private property, would be entitled to bring an

action against the landowner and have a jury pass

upon the question of whether the placement of the

object, regardless of its distance from the road, was

such to create an unreasonable danger to travelers

on the highway.

“Carried to its logical conclusion, this rule would

require a landowner to remove every tree, fence,

post, mailbox, or name sign located on his property

in the vicinity of the highway, or permit them to

remain, subject to possible liability. This, in our

opinion, would impose an intolerable burden upon a

property owner.”

Three judges dissented. They rejected the notion that a

jury trial would always be required if the right-of-way

property lines were not accepted as the boundary to

liability. They distinguished between the pole being 7

inches from the highway, as it was there, and 7 feet from

it, thus implying no jury question would be presented in

the latter case. Finally, in Millard the Oregon Supreme

Court held that no jury question was presented by plain-

tiff’s claim that defendant negligently parked his truck in

an unsafe place. Plaintiff’s vehicle had collided with de-

fendant’s truck while it was parked on an 8 foot wide

19a

area beside the road; the road consisted of two lanes in

each direction, each 12 feet wide, and a center area 12

feet wide; the area for parking on the side of the highway

was ample for the truck; it was at night, but the street

was lighted and the pavement was dry.

As stated earlier, the distance: from the road is not

controlling. The important factor is the risk involved.

One would expect a greater clear area on roads with

higher speed limits. But Arctic Boulevard is an urban road

with corresponding speed limits. Similarly, the condition

of the road is a factor. Here, the roads were wet.

The theory underlying a motion for summary

judgment is substantially the same as that underlying a

motion for a directed verdict. It is that the movant

should be granted his judgment if there are no disputed

factual issues and he is entitled to it as a matter of law.

Braund, Inc., v. White, 486 P.2d 50, 53 (Ak. 1971). All

inferences must be resolved against the movant. McKean

v. Hammond, 445 P.2d 679, 682 (Ak. 1968). Because of

the role of the jury in applying the reasonable man stand-

ard, motions for summary ju: gment are only infrequent-

ly granted in negligence actions. 10 Wright & Miller,

Federal Practice & Procedure §2729, p. 560. However,

there are times when summary judgment is appropriate if

there are no disputed material factual issues. Morrison v.

City of Anchorage, 390 P.2d 782 (Ak. 1964); Thomas v.

Furness, Ltd., 171 F.2d 434 (9th Cir. 1948). 10 Wright &

Miller, Federal Practice & Procedure, §2729, p. 561. But

a genuine factual issue is not presented when one party’s

understanding of the fact is based on hearsay evidence

which would be inadmissible over objection at trial, and

the other party’s understanding of the fact is based on

direct, non-hearsay evidence. Twelve Hundred “‘L” Street

Corp. v. Inlet Company, 438 P.2d 708, 710 (1968).

20a

Although there is little admissible evidence to support

such a finding, the Court finds for the purpose of this

motion that the grader was 18 feet from the edge of the

road. On the basis of this finding, the Court holds that

the defendant is entitled to summary judgment as a

matter of law in that it breached no duty owed to plain

tiff. The cases discussed show that as the distance of the

obstruction from the highway increases, the willingness

of the Courts to impose liability or submit the question

to the jury decreases. No case has been found imposing

liability at a distance even remotely close to 18 feet. It is

not necessary for the Court to decide if a jury question

would be presented if the road grader were only 12 feet

from the road, or some other distance. Nor is it necessary

to decide whether the location of the grader on private

property immunizes the owner from liability, as in Hayes

v. Malkan, supra. It is enough to hold that 18 feet is too

far. The Court so holds. Defendant owed plaintiff no

duty at the point at which it was located. One of the

essential elements of a cause of action for negligence is

therefore missing.

Plaintiff in his response to defendant’s motion fails to

set forth specific facts showing that there is a genuine

issue for trial.

After considering the pleadings, depositions, briefs and

all other papers and documents filed in support of and in

opposition to defendant’s motion for summary judgment,

the Court finds and concludes that there is no genuine

issue as to any material fact and that the defendant,

Northern Commercial Company, is entitled to summary

judgment as a matter of law.

Counsel for defendant shall within twenty (20) days,

prepare, serve and submit to the Court for its considera-

tion, an appropniate proposed form of judgment.

2la

It is so ORDERED.

/s/ Raymond E. Plummer

Senior Judge

Dated: May 2, 1975

Copies to: Joe P. Josephson, Esq.

James J. Delaney, Esq.