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Jones v. Schabron6/8/2005
ts, Inc. v. Toner, 2004 WY 67, , 91 P.3d 917, 919, (Wyo. 2004) (quoting Feltner v. Bishop, 348 P.2d 548, 549-50 (Wyo. 1960)).
[ ] For purposes of summary judgment, Schabron established that at the time of the crash:
1. Nicholas Schabron was driving entirely within his lane on the highway.
2. He was driving within the speed limit.
3. He had no alcohol in his system.
4. He attempted to swerve to avoid the collision.
5. Haskins was entirely in the wrong lane on the highway.
6. Haskins' blood alcohol content was 0.16.
7. Haskins was driving 11 miles per hour over the speed limit.
8. Haskins made no effort to avoid the crash.
[ ] These facts, standing alone, were sufficient to establish a prima facie case that Nicholas Schabron did not fail to act reasonably or maintain a proper lookout, and that he was not negligent. Furthermore, Nicholas Schabron was presumed to have exercised due care. We recognize a presumption that in the absence of an eyewitness to the accident or other evidence sufficient to dispel or rebut the presumption, the decedent, acting on the instinct of self-preservation, was exercising ordinary care. DeJulio v. Foster, 715 P.2d 182, 187 (Wyo. 1986). The burden then shifted to Jones to present specific facts showing Nicholas Schabron was negligent. The record fails to include any such facts.
[ ] To counter Schabron's motion for summary judgment, Jones presented deposition testimony from an accident reconstruction engineer, Mr. Alcorn. In that deposition, Jones' counsel asked Alcorn if he agreed that:
Mr. Schabron was basically able to perceive Mr. Haskins['] vehicle in his -- "his" being Schabron's lane -- about 2 1/2 seconds before the impact; he had about one-to one-and-a half second reaction time to sort out what he was seeing[.]
[ ] Alcorn responded that he did not disagree with counsel's proposition. Later, Alcorn testified that a prudent driver has a normal reaction time of 1.5 seconds. Jones argues that these facts, together with the relative positions of the vehicles when they collided, could support a jury conclusion that Schabron could have and should have avoided the crash by reacting sooner.
[ ] Alcorn's testimony (or non-disagreement with counsel's testimony) that Nicholas Schabron could see Haskins in his lane 2.5 seconds before the accident is a conclusion, based upon an assumption that Haskins actually was in Nicholas Schabron's lane 2.5 seconds before the crash. Conclusions and assumptions, even if presented by an expert witness, are insufficient to oppose a motion for summary judgment. A party may not rely upon conclusions nor can they be employed in disposing of a motion for summary judgment. Campbell, 970 P.2d at 394.
[ ] Jones did not present any evidence indicating when Haskins crossed over into the northbound lane of the highway. He may have been in that lane for a long time, or he may have crossed over the instant before the crash. There is no evidence indicating when Nicholas Schabron could have recognized danger, and thus no evidence that he negligently failed to avoid danger.
[ ] The total lack of evidence about when Haskins actually was in the northbound lane and could have been observed eliminates the arguments that Nicholas Schabron drove too fast for conditions or failed to pass oncoming traffic on the right.
[ ] Commenting on the entire accident, Alcorn stated that:
There is no evidence on the ground, in the vehicle, or from any witnesses that will tell anyone how long it took Nick Schabron to respond to the presence of
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