# Petition — Northern Commercial Co. v. Sells

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 903

## Text

| 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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1309%3A1. Public record. Not legal advice.