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Collins v. Morgan6/22/2005
ederal court decisions interpreting the Federal Rules of Civil Procedure establish that "a trial court may deny a motion for summary judgment based on a lack of credibility of the moving party affiants or witnesses." Clark, 64 Ark. App. at 320-21, 984 S.W.2d at 59 (emphasis added); see also 10A Charles Allan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure ยง 2726 at 440-47 (1998). The majority holds that, if there is potential bias, then a material question of fact exists. Under this standard, adverse parties in all cases would have potential bias, so summary judgment would never be appropriate. The object of summary-judgment proceedings is not to try the issues but to determine whether there are any issues to be tried. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001). When a summary judgment motion is put forth with affidavits attached, the motion's opponent cannot rely on a base denial or contrary allegations but must meet proof with proof. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). Here, appellants offered no proof as to Harold's knowledge or actions that would support their claim of negligent entrustment. Simply stated, appellants did not meet proof with proof, thus summary judgment is appropriate.
Finally, the majority states that Harold, Larry, and Sandra gave inconsistent statements as to the material facts for the cause of action of negligent entrustment; however, their statements are wholly consistent as to the material facts of this case. Each testified that Harold entrusted the car to Larry and that Harold was adamant that Sandra not drive the car after the one time he found her in it. They each also testified that neither Harold nor Larry gave Sandra permission to drive the car subsequent to that one occasion, including the date of the accident, and that Sandra took the car without permission.
For the reasons stated, I would affirm the trial court. I am authorized to state that Judge Glover joins this dissent.
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