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Brannon v. Wilson8/24/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Anthony Brannon ("Brannon") appeals the trial court's denial of his motion for partial summary judgment. Brannon raises one issue for our review, which we restate as: whether the trial court erred by denying his motion for partial summary judgment.
We reverse.
On August 18, 1995, Brannon was involved in an automobile accident with Danny L. Wilson ("Wilson"), who suffered from chronic liver disease prior to the accident. The accident resulted in injuries to Wilson, including bilateral forearm contusions and hematoma, a periumbilical contusion, a chest wall contusion and a motor vehicle accident forehead contusion. Wilson and his wife, Chris ("Chris"), filed a complaint against Brannon alleging negligence on September 13, 1996. Wilson died on December 10, 1996. On August 5, 1997, the trial court granted leave for Chris to file an amended complaint. This amended complaint included a count for the wrongful death of Wilson, alleging that the trauma suffered by Wilson in the accident had aggravated his liver disease and hastened his death.
On February 4, 1999, Brannon filed a motion for summary judgment on the wrongful death claim. Brannon argued that he was entitled to judgment as a matter of law on that claim, because Chris could present no evidence that the accident was a cause of Wilson's death. In support of his motion, Brannon designated the affidavit of Dr. S. Chris Pappas, who opined that, based upon his review of Wilson's medical records, Wilson's liver disease was not aggravated by the accident, and that the progression of Wilson's liver disease following the accident was not unusual. Dr. Pappas further stated that his review of a CT scan taken shortly after the accident revealed that there was no laceration or hematoma to Wilson's liver as a result of the accident. Dr. Pappas also stated that a prominent duct dilation in the left lobe of Wilson's liver, revealed in the CT scan, raised the suspicion that Wilson was developing a dominant stricture or cholangiocarcinoma that was not related to the accident, but was common in the natural history of Wilson's disease. Finally, Dr. Pappas stated that, had Wilson suffered an injury that aggravated his liver disease, the accelerated deterioration of his liver would have required almost immediate medical attention. Wilson did not seek medical attention for liver complications until May, 1996, nearly nine months after the accident.
In support of Chris's response to Brannon's motion for partial summary judgment, she designated portions of the pleadings, and a portion of the deposition of Dr. Lawrence Lumeng, Wilson's treating physician. In his deposition testimony, Dr. Lumeng stated that there was a possibility that the physical trauma sustained in the accident made Wilson's liver disease worse, and hastened his death. Further, Dr. Lumeng stated that it was possible that a lesion on the right side of Wilson's liver was caused by the accident.
Following a hearing, the trial judge determined that a genuine issue of material fact existed as to whether the accident caused or accelerated Wilson's death, and denied Brannon's motion for partial summary judgment. The trial court certified its order, and this court accepted the interlocutory appeal.
We readily acknowledge that cases based upon claims of negligence do not, as a general proposition, lend themselves to disposition by summary judgment. Smith v. Beaty (1994) Ind.App., 639 N.E.2d 1029. We further acknowledge that a plaintiff, in opposing summary judgment, need not prove her case by a preponderance of the evidence as she would be required to do at trial. Jarboe v. Landmark
Page 1 2 3 4 Indiana Personal Injury Attorneys
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