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ESTATE OF OSWALD v. DUBUQUE COUNTY11/29/1993
n a motion for summary judgment is made and supported as provided in [Iowa R. Civ. P. 237], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Iowa R. Civ. P. 237(e).
The defendant/appellee, Dubuque County, argues the plaintiffs failed to support their resistance to the motion for summary judgment with specific facts and failed to file any supporting affidavits or to request the opportunity to present oral testimony. The district court noted the plaintiffs' resistance set forth a statement of disputed facts and a memorandum of authorities supporting the resistance as required by Iowa Rule of Civil Procedure 237(c). The district court, in support of its decision to grant defendant's motion for summary judgment, further noted:
Plaintiffs have not filed any affidavits, any reference to depositions or interrogatories in support of its Resistance, and did not ask to present oral testimony. Answers by Mr. Oswald's estate to Interrogatories do not help.
In determining whether a genuine issue exists as to any material fact and whether the moving party is entitled to a judgment as a matter of law, the court must consider the entire record. See Iowa R. Civ. P. 237(c); Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 464 (Iowa 1984). When considering all of the pleadings and discovery responses contained in the record at the time the plaintiff's resistance was being considered, the district court specifically stated in its ruling on the motion for summary judgment:
Photographs attached to the answers by Defendant to interrogatories indicate a "ROAD CLOSED" sign was on the barricade. There is a considerable difference between this and a "BRIDGE OUT" sign. . . . The Road Closed sign in this case would have been misleading — had it been in place. The language on the sign is academic, however, because it was not in place; and therefore, the choice of words did not mislead Plaintiffs' decedents and contribute to the accident.
The only facts the Court can recognize are the photographs of the bridge and bridge scene attached to Answers by Defendant to interrogatories. The Court cannot determine when the photographs were taken. The record, when viewed in the light most favorable to Plaintiffs, indicates the barricade and warning sign were gone at the time of the accident.
These determinations by the district court, standing alone, support the conclusion that genuine issues of material fact exist in the instant case. In one breath the district court states that it cannot determine when the photographs of the bridge and bridge scene were taken which show a "Road Closed" sign located on the barricade. In the next breath, the district court concludes the sign was not in place at the time of the accident. Similarly, the district court concludes that the "Road Closed" sign was misleading. These excerpts from the district court's ruling undeniably illustrate that the district court itself made determinations about disputed facts which should be left for the fact finder's determination (i.e. whether the sign was visible and misleading to the driver of the vehicle).
Having afforded the plaintiffs every legitimate inference that could be reasonably deduced from the evidence contained in the record at the time the district court considered defendant's motion for summary judgment, we conclude genuine issues of material [511 NW2d Page 640]
fact exist regardin
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