Turner v. Turner

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Turner, Appellant, v. Turner, Appellee.
[Cite as Turner v. Turner (1993),     Ohio St.3d    .]
Civil procedure -- When litigant's affidavit in support of
     motion for summary judgment is inconsistent with his
     earlier deposition testimony, summary judgment in that
     party's favor is improper -- Witnesses -- Visual
     impairment is not a basis designated by Evid.R. 601 for
     exclusion of a witness's testimony.
1. When a litigant's affidavit in support of his or her motion
         for summary judgment is inconsistent with his or her
         earlier deposition testimony, summary judgment in that
         party's favor is improper because there exists a
         question of credibility which can be resolved only by
         the trier of fact.
2. Visual impairment or blindness is not a basis designated by
         Evid.R. 601 for the exclusion of a witness's testimony
         and cannot support a trial court's decision not to
         consider a party's affidavit or other evidentiary
         material offered against an opponent's motion for
         summary judgment pursuant to Civ.R. 56(E).
     (No. 91-2010 -- Submitted April 28, 1993 -- Decided
September 15, 1993.)
     Appeal from the Court of Appeals for Lorain County, No.
91CA004961.
     This appeal involves an automobile accident which occurred
on March 18, 1989 in Lorain County. Betty L. Turner,
defendant-appellee, was driving her son Ricky D. Turner,
plaintiff-appellant, home from the hospital in Cleveland, where
he had been a patient. It had been snowing for some time and
continuous flurries were adding to the accumulation of snow and
slush already on the road. Defendant drove at a reduced speed
(forty m.p.h. in a fifty-five m.p.h. zone) in the right lane of
westbound traffic on Interstate 90 and maintained a
two-car-length distance between her car and the vehicle
directly in front of her. A third car, traveling at
approximately the same speed, followed closely behind defendant
in the right lane. Upon viewing the vehicle in front of her
quickly slide out of its lane of traffic and skid left towards
the median, defendant braked her car and also started sliding.
Defendant's car spun one hundred eighty degrees around and came
to a stop partially on the berm and partially in her lane,
facing the westbound traffic. Seconds later, the car which had
been following struck defendant's car. Plaintiff sustained
serious injuries as a result of the collision.
     Ricky sued his mother, claiming that his injuries were
caused by her negligence. Following the taking of depositions
of both parties, defendant filed a motion for summary judgment,
in which she argued that her conduct in braking the car did not
constitute a negligent act. Attached to that motion was an
affidavit in which defendant stated that she braked her car in
order to avoid a collision with the car ahead of her.
Plaintiff filed his motion for summary judgment and a response
to defendant's motion for summary judgment. He supported his
motion with an affidavit in which he stated that his mother did
not have to brake the car in order to avoid hitting the car
sliding in front of them.
     The trial court denied Ricky Turner's motion, granted
Betty Turner's motion, and dismissed the complaint. In a
two-to-one decision, the court of appeals affirmed on the
ground that Ricky failed to present evidence of his mother's
negligence in order to withstand her motion for summary
judgment. The court of appeals, in discounting Ricky's
deposition testimony and his affidavit, determined that he had
failed to show affirmatively that he was competent to testify
as to whether his mother needed to brake in order to avoid a
collision with the car in front of their car because "he has
glaucoma and is visually impaired; he admitted that his vision
that night was further reduced as a result of the snow; and he
does not have a driver's license nor has he ever driven a car."
     The cause is now before this court pursuant to the
allowance of a motion to certify the record.

     Thomas R. Theado, for appellant.
     Savoy, Bilancini, Flanagan & Kenneally and Jerome J.
Savoy, for appellee.
     Janet D. Tomko, urging reversal for amicus curiae,
National Federation of the Blind of Ohio.
     Robert S. Mills, urging reversal for amicus curiae, Ohio
Legal Rights Service.

     Moyer, C.J.    Plaintiff advances two arguments in support
of his position that the trial court erred in granting
defendant's motion for summary judgment. In his first
argument, plaintiff contends that an evidentiary conflict
exists between defendant's deposition testimony and her
affidavit in support of her summary judgment motion, which
raises a genuine issue of material fact and thereby precludes
summary judgment in her favor. Plaintiff next argues that,
even assuming arguendo that no such evidentiary conflict
exists, summary judgment for defendant was still improper
because (1) plaintiff was competent to testify as to whether it
was necessary for defendant to brake in order to avoid
colliding with the car traveling ahead of their car, and (2)
through his affidavit and deposition testimony, plaintiff met
his burden of setting forth evidence of his mother's negligence
sufficient to withstand her motion for summary judgment.
                               I
                 Movant's Evidentiary Conflicts
     Pursuant to Civ.R. 56(C), summary judgment is
appropriately rendered when "(1) [n]o genuine issue as to any
material fact remains to be litigated; (2) the moving party is
entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of
the party against whom the motion for summary judgment is made,
that conclusion is adverse to that party." Temple v. Wean
United, Inc. (1977), 

50 Ohio St.2d 317, 327

, 

4 O.O.3d 466, 472

,

364 N.E.2d 267, 274

. Accord Harless v. Willis Day Warehousing
Co. (1978), 

54 Ohio St.2d 64

, 

8 O.O.3d 73

, 

375 N.E.2d 46

.
     Because summary judgment represents a shortcut through the
normal litigation process by avoiding a trial, "the burden of
establishing that the material facts are not in dispute and
that no genuine issue of fact exists is on the party moving for
the summary judgment." (Emphasis added.) Fyffe v. Jeno's,
Inc. (1991), 

59 Ohio St.3d 115, 120

, 

570 N.E.2d 1108, 1114

.
     Determination of the materiality of facts is discussed in
Anderson v. Liberty Lobby, Inc. (1986), 

477 U.S. 242

, 

106 S.Ct. 2505

, 

91 L.Ed.2d 202

. "As to materiality, the substantive law
will identify which facts are material. Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment." 

Id. at 248

, 

106 S.Ct. at 2510

, 

91 L.Ed.2d at 211

.
See, also, Perez v. Scripps-Howard Broadcasting Co. (1988), 

35 Ohio St.3d 215, 218-219

, 

520 N.E.2d 198, 202

.
     In the case sub judice, whether defendant's car would have
struck the car ahead of her had she not braked may affect the
outcome of her son's lawsuit against her. For instance, if
defendant had no other choice but to brake in order to avoid a
collision, her conduct will be deemed reasonable. If defendant
could have continued in her lane of traffic without striking
that car, a jury may find that she was negligent in suddenly
applying her brakes. Quite obviously, resolution of this
factual dispute determines the action.
     Having found that a material question of fact exists, we
next consider, pursuant to Civ.R. 56(C), whether there is a
genuine issue. Whether a genuine issue exists is answered by
the following inquiry: Does the evidence present "a sufficient
disagreement to require submission to a jury" or is it "so
one-sided that one party must prevail as a matter of law[?]"
Anderson v. Liberty Lobby, supra, 

477 U.S. at 251-252

, 

106 S.Ct. at 2512

, 

91 L.Ed.2d at 214

.
     Plaintiff's first argument is based on an alleged
evidentiary conflict between his mother's affidavit and her
deposition testimony on a factual issue: whether her car would
have struck the car traveling ahead of her had she not pressed
the brakes. In seeking summary judgment, defendant submitted
an affidavit containing the following statement: "In view of
the emergency created by the car in front of me when it lost
control, I felt that I had to apply my brakes to avoid a
collision." Defendant, however, had been less certain that she
needed to brake when she was deposed on that factual issue
three weeks earlier:
     "Q. *** My question has been, if you didn't hit the
brakes, would you have hit his car. And your answers have been
I don't know; is that correct?
     "A. Well, I really don't know.
     "Q. Okay. So you don't know. So, if someone were to say
yes, you would not have hit that car, you wouldn't know
otherwise, is that correct?
     "A. Well, I feel there was a possibility I could have hit
it and a possibility I could have missed it. How's that?
     "Q. You mean if you hadn't braked?
     "A. If I hadn't -- tell me again.
     "Q. Sure, absolutely. See, what this is trying to do is
figure out since you're there --
     "A. See, I really don't know. You don't know. Even I
don't think you could answer that question saying that if you
would have hit that car or you wouldn't have hit that car. I
mean, I did what I felt was right, I braked." (Emphasis added.)
     In deciding whether an evidentiary conflict exists so as
to preclude summary judgment, a trial court must adhere to
Civ.R. 56(C) and view the record in the light most favorable to
the party opposing the motion. Kunkler v. Goodyear Tire &
Rubber Co. (1988), 

36 Ohio St.3d 135, 138

, 

522 N.E.2d 477, 480

. Even the inferences to be drawn from the underlying facts
contained in the affidavits and depositions must be construed
in the nonmoving party's favor. Hounshell v. Am. States Ins.
Co. (1981), 

67 Ohio St.2d 427, 433

, 

21 O.O.3d 267, 271

, 

424 N.E.2d 311, 315

. Bearing this in mind, we must construe
defendant's equivocal responses made in her deposition
testimony to mean that she does not know whether braking was
necessary to keep from hitting the car that spun out of control
ahead of her. Therefore, even though defendant's affidavit
does not explicitly contradict her earlier statements made
while being deposed, we nonetheless find an evidentiary
conflict concerning the necessity of braking.
     It appears that the court of appeals determined the
credibility of the evidence, contrary to the purpose of Civ.R.
56(C). Credibility issues typically arise in summary judgment
proceedings when one litigant's statement conflicts with
another litigant's statement over a fact to be proved. Since
resolution of the factual dispute will depend, at least in
part, upon the credibility of the parties or their witnesses,
summary judgment in such a case is inappropriate. However, as
demonstrated by the case sub judice, credibility questions also
arise when an unambiguous statement contained in the affidavit
of the party moving for summary judgment is controverted by
that party's earlier deposition testimony. Such a discrepancy
over a material fact can be resolved only by the trier of fact
and, on this basis, the trial court erred in granting
defendant's motion for summary judgment. Accordingly, we hold
that when a litigant's affidavit in support of his or her
motion for summary judgment is inconsistent with his or her
earlier deposition testimony, summary judgment in that party's
favor is improper because there exists a question of
credibility which can be resolved only by the trier of fact.
                                II
                            Competency
     The second question presented for our determination is
whether the court of appeals erred when it affirmed the trial
court's action that disregarded Ricky's affidavit and his
deposition testimony where he gave his opinion that his mother
did not have to brake in order to avoid colliding with the car
in front of her. The trial court had before it plaintiff's
affidavit and his deposition testimony. Both contain
statements that refute defendant's argument that she acted
reasonably in braking her car because it was necessary to do so
in order to avoid hitting the car ahead of her car. Plaintiff
opined differently. In his affidavit, plaintiff stated, "My
mother did not have to brake in order to avoid hitting the car
which was in front of hers at around the State Route 611 exit
from Interstate 90 and which, all of a sudden, slid to the left
out of her car's lane of travel and quickly into the median."
(Emphasis sic.) This statement is consistent with plaintiff's
prior deposition testimony:
     "Q. *** How do you feel that your mother was negligent?
     "A. She didn't have to stop when the car in front of us
kept going. She could have kept on going and she did stop.
     "Q. You're saying she was negligent because she stopped in
that lane?
     "A. She didn't have to stop. I think that she could have
kept going."
     The court of appeals held that plaintiff failed to show
that he was competent to testify on this matter, pursuant to
Civ.R. 56(E).1 The court stated three factors that negatively
affected Ricky's competency to testify as to his mother's
negligence: (1) he is visually impaired because he suffers from
glaucoma, (2) he admitted that his vision was further impaired
on the night of the accident due to the snowy weather
conditions, and (3) he does not have a driver's license, nor
has he ever driven a car. The court of appeals erred in
holding that this evidence was excludable on the basis of
plaintiff's incompetency under Civ.R. 56(E). Since this
evidence raises a genuine issue of material fact, defendant's
motion for summary judgment was improperly granted.
     It is significant that the trial court never found that
plaintiff was incompetent to testify to the matters stated in
his affidavit and deposition testimony. The trial court
summarily ruled against Ricky on the motions for summary
judgment and dismissed his lawsuit without holding a competency
hearing.
     Proper judicial procedure requires the trial judge to
conduct a voir dire examination prior to determining a
witness's competency.
     The Civ.R. 56(E) requirement that all affidavits "show
affirmatively that the affiant is competent to testify" is
consistent with the general rule of competency contained in
Evid.R. 601. Evid.R. 601 provides that "[e]very person is
competent to be a witness" and then states exceptions. The
rule favors competency, conferring it even on those who do not
benefit from the presumption, such as children under ten, if
they are shown to be capable of receiving "just impressions of
the facts and transactions respecting which they are examined"
and capable of "relating them truly." Evid.R. 601(A). (See
State v. Frazier [1991], 

61 Ohio St.3d 247

, 

574 N.E.2d 483

, at
syllabus, for factors to be taken into consideration by the
trial court in determining whether a child under age of ten is
competent to testify; State v. Wilson [1952], 

156 Ohio St. 525

,
529-530, 

46 O.O. 437

, 439, 

103 N.E.2d 552

, 555.)
     In cases where the witness is under the age of ten or is
of unsound mind, the presumption is of incompetency and the
burden of proving competency is on the party offering the
testimony of that witness. Visual impairment or blindness is
not a basis designated by Evid.R. 601 for the exclusion of a
witness's testimony and cannot support a trial court's decision
not to consider a party's affidavit or other evidentiary
material offered against an opponent's motion for summary
judgment pursuant to Civ.R. 56(E).
     All of the factors cited by the court of appeals in
affirming the trial court relate to the credibility of the
statements made by Ricky, not his competency to testify. We
have held that an affidavit containing opinion testimony by a
lay witness offered in support of a motion for summary judgment
may be considered by a trial court or a reviewing court when it
meets the requirements set forth in Civ.R. 56(E) and Evid.R.
701. Tomlinson v. Cincinnati (1983), 

4 Ohio St.3d 66

, 4 OBR
155, 

446 N.E.2d 454

, at paragraph one of the syllabus. Evid.R.
701 provides the standards for admissibility of the opinion
testimony of a lay witness:
     "If the witness is not testifying as an expert, his
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on
the perception of the witness and (2) helpful to a clear
understanding of his testimony or the determination of a fact
in issue."
     Plaintiff's statements made in his affidavit and
deposition testimony are helpful to the determination of the
disputed material facts. Despite his sight impairment and lack
of driving experience, his opinion is relevant as a witness to
the collision. His opinion should have been sufficient to
avoid summary judgment against him. Whether his lay witness
opinion is accurate and worthy of belief is not a test of
admissibility under Evid.R. 601 or 701. Instead, it is for the
jury to determine the credibility of the witnesses and the
weight to be given their testimony.
     Accordingly, the judgment of the court of appeals is
reversed and the cause is remanded to the trial court for
further proceedings not inconsistent with this opinion.
                                    Judgment reversed
                                    and cause remanded.
     A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer,
JJ., concur.
     Wright, J., concurs in part and dissents in part.

FOOTNOTE:
     1 The relevant portion of Civ.R. 56(E) reads as follows:
     "Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
*** 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 affidavit 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." (Emphasis
added.)
     Wright, J., concurring in part and dissenting in part. I
concur in paragraphs one and two of the syllabus and Part II of
the opinion. I disagree that the facts of this case justify
the conclusion reached by the majority in Part I.