Wirth v. Reynolds Metals Co.

947 S.W.2d 401, 58 Ark. App. 161, 1997 Ark. App. LEXIS 511
CourtCourt of Appeals of Arkansas
DecidedJune 25, 1997
DocketCA 96-1161
StatusPublished
Cited by13 cases

This text of 947 S.W.2d 401 (Wirth v. Reynolds Metals Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wirth v. Reynolds Metals Co., 947 S.W.2d 401, 58 Ark. App. 161, 1997 Ark. App. LEXIS 511 (Ark. Ct. App. 1997).

Opinions

Judith Rogers, Judge.

This is an appeal from an order of summary judgment entered upon a finding that appellants, Randy and Mary Wirth, had faffed to offer proof of proximate causation to support their claim of negligence1 against appellee, Reynolds Metal Company. Adthough appellants contend that the trial court erred in its decision, we affirm.

In May of 1994, appellants drilled a water well to service a new home they were in the process of building in rural Sebastian County. Appellants and their four children moved into the home on December 31, 1994. The family consumed an average of 12,000 gallons of water a month, and the well produced eight gallons of water a minute, which was sufficient to meet their needs. After using the well for four months, appellants experienced problems with the well in terms of pressure and the quantity of water it produced. In July of 1995, production of the well decreased to half a gallon a minute. In October, appellants abandoned use of the well and drilled another well one hundred feet away.

Appellants filed this suit against appellee for damages connected with the failure of the first well. In their complaint, they alleged that appellee had drilled a gas well on adjacent property at a distance of 800 feet from their water well. They claimed that the damage caused to the water well was the proximate result of appel-lee’s drilling and operation of the gas well. Appellants prayed for damages in the amount of $10,000. Appellants subsequently amended their complaint to assert a claim of negligence against appellee. Specifically, in terms of proximate causation, appellants alleged that “the slurry or cement used by the [appellee] in casing their [sic] well leaked into the natural aquifer which served as a channel through which [appellants’] water supply flowed.”

Appellee moved for summary judgment on the issue of proximate causation. Submitted with the motion were the depositions of appellant, Randy Wirth, and T.H. Musgrove, appellants’ expert who had drilled appellants’ water wells, as well as the affidavit of Darwin Hale, the tool pusher who worked on the crew that drilled appellee’s gas well. In opposition to the motion, appellants relied on the same depositions and added the affidavit of a neighbor, Omar Gibson.

In his deposition, Wirth asserted that the problems with his well began two weeks after appellee drilled its well. He said that he did not have any information and did not know that there was anything inappropriate done in the drilling of the gas well, but that it was his “personal belief that this casing and cementing is what caused my problem.”

Mr. Musgrove related that there was no continuous aquifer in the area and that he had dug appellants’ well in a fault where water tends to collect. He had not examined the gas well or appellee’s log books, and he did not know the distance between the two wells or the differences in elevation. He could not say that appel-lee’s gas well had any effect on appellants’ water well. He said that the only scenario for appellee’s well to have caused the problem would be if cement had been lost during the drilling of the gas well. He stated that “[i]f they lost cement, it could possibly have bothered the well.” He said, however, that he had not checked to see if any cement had been lost, but he opined that the man who cemented the gas well would know.

Darwin Hale stated in his affidavit that no water had been encountered during the drilling of appellee’s well and that no cement had been lost. As based on his experience and knowledge, he averred that the drilling of the gas well did not and could not have had any effect on the water well.

In his affidavit, Mr. Gibson stated that he had lived in “close proximity” to appellants’ property for three years. He said that his well had run dry from time to time and that its production had decreased substantially since the drilling of appellee’s gas well.

On this record, the trial court granted appellee’s motion for summary judgment. The court took note of Mr. Musgrove’s testimony that the drilling of the gas well would not have caused the decreased water capacity of appellants’ well in the absence of a loss of cement during drilling, and the testimony of Mr. Hale who stated that no cement had been lost. The court thus found that appellants had faded to offer proof in support of their claim of a causal relationship between the drilling of the gas well and the damage to their water well.

In this appeal, appellants have discarded the theory of causation with respect to the loss of cement. It is their argument that summary judgment was not appropriate because of the circumstantial evidence contained in the record, which consists of proof indicating that their well and Mr. Gibson’s well developed problems two weeks after the drilling of appellee’s gas well. Applying the familiar principles of summary judgment to the evidence adduced in this case, we find no merit in this argument.

Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). All proof submitted must be considered in the light most favorable to the nonmoving party, and any doubts or inferences must be resolved against the moving party. Wozniak v. Colonial Ins. Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994). Rule 56(e) of the Arkansas Rules of Civil Procedure provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The supreme court has interpreted Rule 56(e) many times and has summarized its requirements by stating that once the moving party makes a prima facie showing of entitlement, the opposing party must meet proof with proof by showing a genuine issue of material fact. Dillard v. Resolution Trust Co., 308 Ark. 357, 824 S.W.2d 387 (1992). When a prima facie showing is made, the adverse party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995); Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991). An affidavit stating only conclusions is not sufficient to show the existence of a genuine issue of material fact. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).

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Bluebook (online)
947 S.W.2d 401, 58 Ark. App. 161, 1997 Ark. App. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wirth-v-reynolds-metals-co-arkctapp-1997.