Gilmore v. Board of Commissioners

2006 OK CIV APP 125, 147 P.3d 296, 2006 WL 3304425
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 26, 2006
DocketNo. 102,643
StatusPublished
Cited by5 cases

This text of 2006 OK CIV APP 125 (Gilmore v. Board of Commissioners) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilmore v. Board of Commissioners, 2006 OK CIV APP 125, 147 P.3d 296, 2006 WL 3304425 (Okla. Ct. App. 2006).

Opinion

Opinion by

KENNETH L. BUETTNER, Chief Judge.

"I 1 Plaintiff/ Appellant John W. Gilmore appeals from summary judgment granted in favor of Defendant/Appellee Board of Commissioners of Logan County (Commissioners).1 The material facts are not disputed, and they show Commissioners were exempt [298]*298from liability and were entitled to judgment as a matter of law.

12 Gilmore filed his Petition January 8, 2003, in which he asserted that on July 25, 2001, his wife Jennifer Gilmore (Decedent), then 8% months pregnant, was driving on Seward Road in Logan County when Defendants Trent and Adamson2 negligently caused a collision between Adamson's vehicle and the one driven by Decedent, resulting in the deaths of Decedent and her unborn twins, Jane Doe Gilmore and John Doe Gilmore. (Gilmore alleged that Commissioners negligently designed, built, and maintained the road, and also failed to warn motorists of the dangerous conditions existing at the location of the accident. Gilmore alleged the negligence of Adamson, Trent, and Commissioners caused the deaths of his decedents.3

13 In their Answer, filed March 31, 2008, Commissioners denied they were negligent, but asserted the negligence of Decedent or third parties exceeded any negligence of Commissioners. Commissioners also asserted they were immune from lability under the Governmental Tort Claims Act, and that Gilmore's damages for any liability Commissioners may have under the GTCA were capped. Commissioners asserted they did not cause the accident. Commissioners further asserted Gilmore could not maintain an action for damages which had been paid by an entity retaining a subrogation interest under the GTCA, and that they were entitled to a set-off of any damages paid by a third-party. Finally, Commissioners asserted the condition of the roadway was open and obvious, and Commissioners did not have notice of any alleged defect in the road.

T4 Commissioners filed their Motion for Summary Judgment August 8, 2005. Commissioners listed 15 undisputed facts which they contended showed they were entitled to judgment: 1) Commissioners asserted it was undisputed that District 1, the part of the county in which the accident occurred, received $60,000 to $70,000 per month for operations during 2002; 2) District 1 spent all of its allocated funds, except for a balance of $150,000 to $200,000 maintained to repair unforeseen damage caused by the elements; 3) District 1 did not have any of the special machines necessary for laying an oil and chip road; 4) an oil and chip road surface will last six months to a year without heavy traffic, or less than that in heavy traffic, after which Commissioners would be required to resurface the road or lay gravel; 5) budget constraints forced District 1 to make grant applications to improve a concrete road with a high traffic volume; 6) the District 1 Commissioner, Hall, routinely inspected the roads in the county and fielded complaints and reports of needed repairs; 7) laying gravel on a road is principally to combat mud and rain in order to provide a stable surface for tires; 8) dusty conditions on dirt and gravel roads are always present during hot summer months; 9) dust kicked up from a vehicle is a normal expectation of a driver on a dirt and gravel road; 10) after the accident, Commissioner Hall inspected the site and noted the road was a "good road" with no tire tracks in the middle, and with bar ditches in good repair; 11) the road conditions were good the day of the accident, the gravel was smooth and had no potholes or ruts; 12) both drivers were operating their vehicles right of center when they impacted; 4 18) nothing about the road caused Adamson to drive down the center of the road; 14) the vehicle in front of Adamson was kicking up a dust cloud through which Adamson drove, and Decedent was also driving through the dust cloud immediately before impact; and 15) there are no facts to indicate Decedent had any contact [299]*299with the first vehicle she passed or that she was unable to safely pass the oncoming vehicle before she entered the dust cloud.

T5 In his response, Gilmore agreed Commissioners' facts 1 and 2 accurately reflected Commissioner Hall's testimony, but he asserted those facts were not material. Gilmore asserted instead that it was material that the funds allocated for roads were wasted on corrective rather than preventive maintenance, and that Commissioner Hall admitted District 1 never spent all of the money it received for road maintenance. Gilmore also did not dispute Commissioners' fact 3, but he asserted the machines for laying an oil and chip road were available for hire. Gilmore disputed Commissioners' fact 4, alleging that an oil and chip road will last 8 to 5 years. Gilmore disputed Commissioners' fact 5, and denied that fact was material. Gilmore asserted instead that it was material that there were sources of outside funding for repairing and upgrading roads in District 1. Gilmore admitted Commissioner Hall routinely inspected the roads in District 1, but he denied Commissioner Hall fielded complaints about road repairs. Gilmore agreed Commissioners' fact 7 reflected Commissioner Hall's testimony, but he denied that fact was material.

T6 Gilmore also admitted facts 8 and 9, but denied they were material. Gilmore asserted instead that it was material that the dust suspended in the air was so thick that Adamson did not see Decedent's car until impact, the suspended dust caused such a blinding condition that the collision was inevitable, the suspended dust cloud was not the result of a natural condition but was the result of the passage of vehicles over a negligently maintained road surface, the application of gravel to the road increased the amount of dust present and exacerbated the visibility hazards encountered by motorists, and Commissioners' failure to properly maintain its roads increased the amount of dust on the road. Gilmore agreed Commissioners' facts 10-15 reflected the testimony, but he denied those facts were admissible or material. Gilmore asserted instead it was material that Adamson never saw Decedent's vehicle until after impact; in the immediate area of the collision, the road is a "two-track" roadway, meaning drivers are more likely to drive down the center of the road; and in the immediate area of the collision, the road includes a drainage structure which causes drivers to tend toward the center of the roadway. Gilmore did not dispute any material fact.

17 The trial court entered summary judgment in favor of Commissioners September 9, 2005. Gilmore appeals. Summary judgment proceedings are governed by Rule 18, Rules for District Courts, 12 0.8.2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the undisputed facts. Id. Further, we must review the evidence in the light most favorable to the party opposing summary judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275.

T8 Gilmore's response to the summary judgment motion showed he had three bases on which he claimed Commissioners were negligent. First, he asserted Commissioners were negligent in electing to keep the road as a gravel road rather than paving it with a solid surface.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 125, 147 P.3d 296, 2006 WL 3304425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-board-of-commissioners-oklacivapp-2006.