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Critser v. Critser

Court of Appeals of Kentucky

November 15, 2019

MICHAEL CRITSER APPELLANT
v.
JUDY CRITSER APPELLEE

          APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN L. WILSON, JUDGE ACTION NO. 16-CI-00034.

          BRIEF FOR APPELLANT: C. Donald Thompson, Jr. Henderson, Kentucky.

          BRIEF FOR APPELLEE: Stephen D. Gray Davis L. Hunter Henderson, Kentucky.

          BEFORE: COMBS, JONES, AND L. THOMPSON, JUDGES.

          OPINION

          JONES, JUDGE.

         The Appellant, Michael Critser, was injured when a vehicle driven by his wife, the Appellee, Judy Critser, hit a patch of ice, skidded, and stopped suddenly causing a collision with another vehicle. Michael filed a negligence action against Judy in the Henderson Circuit Court. Following discovery, the trial court found that it was undisputed that Judy was obeying all traffic laws at the time of the accident and that the icy patch was a sudden emergency that Judy could not have avoided. On appeal, Michael argues that the trial court erred because whether the ice on the road constituted a sudden emergency is a factual determination that should have been decided by a jury after considering Judy's credibility and her perception of the road conditions. Having reviewed the record in conjunction with all applicable legal authority, we AFFIRM the trial court's summary judgment order in Judy's favor.

         I. Statement of the Facts

         The facts of this case are undisputed. On the morning of January 21, 2014, Michael asked Judy, his wife of over 40 years, to drive him to the doctor's office. With Judy driving and Michael in the front passenger seat, they left their home in Henderson, Kentucky, and headed westbound on Stadium Drive toward its intersection with Garden Mile Road, less than one mile from their home. While the sun was shining when the parties started their trip, there had been some snow and ice prior to their departure, and it was still cold outside. The road appeared wet from melted snow, but there was no ice visible.

         Michael testified that Judy was driving "pretty slow" and "carefully," no more than ten to twelve miles an hour when approaching Garden Mile Road. The posted speed limit for the area was 30 miles per hour. As they neared the intersection, Judy applied the brake. Immediately, the vehicle slid on a patch of black ice, which neither Judy nor Michael had seen. As they were sliding into the intersection, vehicles on Garden Mile Road were still approaching from both directions. Judy was able to turn the vehicle to the right, successfully avoiding a head-on collision with an oncoming vehicle traveling southbound on Garden Mile Road. However, a vehicle directly behind the Critsers' vehicle began to slip as well and rear-ended Michael and Judy.

         Michael was injured in the collision; he filed a negligence action against Judy in Henderson Circuit Court on January 20, 2016.[1] The parties engaged in written discovery, and Judy deposed Michael in May of 2017. Approximately a month later, Judy filed a motion for summary judgment. She pointed out that Michael testified in his deposition that she was not driving negligently and that ice was a sudden emergency that she could not have avoided. The trial court noted that it generally agreed with Judy's legal premise regarding the ice being a sudden emergency but believed that summary judgment was premature because Michael had not yet taken Judy's deposition, and there was no evidence as to how Judy perceived or reacted to the conditions on the road. The trial court's order was entered on August 10, 2017.

         Michael, however, did not make any effort to depose Judy or gather any additional discovery. On September 5, 2018, Judy renewed her motion for summary judgment. She included her own affidavit with her motion. Therein, Judy averred that that she did not see the ice on the roadway and had been driving slowly and carefully when the vehicle began sliding. Michael responded to Judy's motion, arguing that there were still genuine issues of material fact that should be left to a jury, including Judy's credibility and whether there was a sudden emergency. The trial court first determined that the parties agreed that Judy was driving carefully and that she could not have seen the ice. Applying the sudden emergency doctrine to these undisputed facts, the trial court ordered summary judgment in Judy's favor.

         This appeal followed.

         II. Standard of Review

         "[S]ummary judgment is to be cautiously applied and should not be used as a substitute for trial." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991). A motion for summary judgment should only be granted "when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor" even when the evidence is viewed in the light most favorable to him. Id. at 482; Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013). To survive a properly supported summary judgment motion, the opposing party must present ...


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