         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-01290-COA

GARY DILLON AND SHAWNA DILLON                                              APPELLANTS

v.

PICO, INC.                                                                     APPELLEE

DATE OF JUDGMENT:                          08/11/2016
TRIAL JUDGE:                               HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS:                  JAMES KENNETH WETZEL
                                           GARNER JAMES WETZEL
ATTORNEYS FOR APPELLEE:                    KATHRYN BREARD PLATT
                                           MATTHEW MILES WILLIAMS
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               AFFIRMED - 09/19/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    Gary Dillon (Dillon) was injured in a vehicle accident with a tractor-trailer driven by

an employee of PiCo Inc. Dillon and his wife, Shawna, sued PiCo under a theory of

respondeat superior. PiCo was granted summary judgment after Dillon failed to respond

timely to PiCo’s requests for admissions. On appeal, the Dillons argue the circuit court erred

in (1) denying their motion to amend, withdraw, or “strike [the] tardiness of” Dillon’s

answers to the requests for admissions, (2) denying their motion for additional time to

complete discovery, and (3) granting summary judgment. We find no error and affirm.

                                          FACTS
¶2.    On July 22, 2014, at approximately 5:30 a.m., Dillon rear-ended a tractor-trailer driven

by PiCo employee David Rodgers. Dillon was paralyzed from the waist down as a result of

the accident. On April 8, 2015, the Dillons filed suit in Hancock County Circuit Court

against PiCo under the doctrine of respondeat superior. According to the Dillons’ complaint,

Dillon was driving north on Highway 603 in Hancock County, and Rodgers’s tractor-trailer

was on the shoulder, also facing north. Dillon claimed that without warning, Rodgers pulled

onto the road directly in Dillon’s path, causing the collision.1 Dillon alleged PiCo’s and

Rodgers’s negligence caused his injuries, and Shawna alleged loss of consortium.

¶3.    On May 7, 2015, PiCo filed its answer and counterclaim, alleging the lawsuit was

frivolous and seeking attorney’s fees and costs. Also on May 7, 2015, PiCo served combined

discovery requests, including requests for admissions to Dillon. Dillon was required to

answer the requests for admissions by June 8, 2015. See M.R.C.P. 36(a) (setting a thirty-day

deadline to answer requests for admissions). When the deadline passed, the requests were

deemed admitted by default. Id. On July 14, 2015, Dillon answered PiCo’s requests for

admissions, denying all substantive requests. Discovery proceeded for the next eight months,

and a trial was set for August 22, 2016.

¶4.    On April 1, 2016, PiCo moved for summary judgment, relying in part on the deemed

admissions. PiCo also moved to compel Dillon to respond fully to interrogatories and



       1
         Dillon admits he has no recollection of the accident. Rodgers’s affidavit states that
at no time was he on the shoulder of the road. Rather, he states he was traveling north on
Highway 603 and had slowed to make a left turn when Dillon rear-ended his tractor-trailer.
In response, Dillon asserts that Rodgers was still at fault for the accident because Rodgers
failed to signal the turn and failed to use the brakes properly.

                                              2
requests, and PiCo submitted its supplemental interrogatory responses. On April 15, 2016,

the Dillons responded to PiCo’s summary-judgment motion by filing a Mississippi Rule of

Civil Procedure 56(f) motion for additional time for discovery to defend against the

summary-judgment motion, and for a scheduling order. Specifically, the Dillons sought

additional time to obtain expert opinions, inspect PiCo’s truck, present Dillon for a

deposition, and obtain a ruling on the Dillons’ motion to compel discovery. The motion did

not mention the deemed admissions. PiCo responded in opposition, asserting that Dillon had

not identified an expert, Dillon had not requested inspection of PiCo’s truck, and PiCo was

not required to take Dillon’s deposition, especially in light of Dillon’s admissions.

¶5.    On May 12, 2016, the parties convened for a hearing on PiCo’s summary-judgment

motion. The Dillons brought forth their Rule 56(f) motion. The circuit court expressed great

concern that Dillon had not timely answered the requests for admissions and had not moved

to withdraw the matters deemed admitted by operation of law. The Dillons stated they would

file a motion to withdraw the admissions the next day. Over PiCo’s objection, the court

granted additional time for motions practice under Mississippi Rule of Civil Procedure 78

and requested briefing on the admissions issue. The next day, PiCo filed a motion for

reconsideration of the circuit court’s decision. PiCo argued that it was an abuse of discretion

for the court to “help” Dillon by allowing more time, when almost a year had passed and

Dillon had failed to move to amend or withdraw the admissions. On May 16, 2016, the

circuit court entered an order, stating that “on or before May 19, 2016, Dillon may file any

additional motions relative to the pending Motion for Summary Judgment.” The court again



                                              3
specifically requested that Dillon address the issue of the admissions.

¶6.    On May 17, 2016, Dillon responded to PiCo’s summary-judgment motion and moved

to amend, withdraw, or strike the tardiness of the answers to the requests for admissions.

The Dillons asserted that the answers to the requests for admissions were filed late because

counsel had been unable to locate the Dillons. An affidavit from the Dillons’ counsel,

certifying as such, was attached to the motion. A hearing was held on all motions.

¶7.    On August 11, 2016, the circuit court granted PiCo’s motion to reconsider and PiCo’s

motion for summary judgment, and dismissed the action with prejudice. PiCo’s motion for

attorney’s fees and costs was denied. By separate order, the circuit court denied as moot all

other open motions, including the Dillons’ motion to amend, withdraw, or strike the tardiness

of the admissions and motion for time to complete discovery. The Dillons appeal, arguing

the motion to amend, withdraw, or strike the tardiness of the admissions should have been

granted, additional time was needed for discovery, and summary judgment was improper.

                                       DISCUSSION

       I.     Requests for Admissions

¶8.    Under Rule 36(a), a party may request in writing that another party admit the truth of

certain matters. The requests for admissions are deemed admitted by default “unless, within

thirty days after service of the request, . . . the party to whom the request is directed serves

upon the party requesting the admission a written answer or objection addressed to the

matter, signed by the party or by his attorney[.]” Young v. Smith, 67 So. 3d 732, 738 (¶10)

(Miss. 2011). “Rule 36 . . . carries harsh sanctions for failure to comply therewith.” Young,



                                               4
67 So. 3d at 738 (¶10). If the party fails to answer or object, the matter “is conclusively

established unless the court on motion permits withdrawal or amendment of the admission.”

M.R.C.P. 36(b). The trial court has broad discretion in deciding whether an admission may

be withdrawn or amended. Young, 67 So. 3d at 738 (¶11).

¶9.    “While Rule 36 is to be applied as written, it is not intended to be applied in

Draconian fashion. If the [r]ule may sometimes seem harsh in its application, the harshness

may be ameliorated by the trial court’s power to grant amendments or withdrawals of

admissions in proper circumstances.” DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26)

(Miss. 2002). “[T]he proper procedural mechanism” for a party to seek the amendment or

withdrawal of admissions “is to file a motion asking that the admissions be [amended or]

withdrawn.” Ross v. Wallack, 188 So. 3d 597, 601 (¶11) (Miss. Ct. App. 2015). We review

the denial of a motion to withdraw or amend admissions for abuse of discretion. Young, 67

So. 3d at 738 (¶11).

¶10.   PiCo served its requests for admissions on May 7, 2015. Dillon had thirty days, or

until June 8, 2015, to serve written answers or objections, or to seek additional time to do so.

M.R.C.P. 36(a). Once the deadline passed, the matters were deemed admitted by operation

of law. Id. Without explanation or requesting additional time, Dillon served his written

answers and objections on July 14, 2015—sixty-eight days after the requests for admissions

were served. While the Dillons did eventually move to withdraw the admissions, they did

not do so until May 17, 2016, nearly eleven months after the answers were due. Even then,

they only did so at the prompting of the circuit court. Even after PiCo moved for summary



                                               5
judgment on April 1, 2016, relying heavily on the admissions, the Dillons did not move to

amend or withdraw the admissions. Rather, the Dillons responded by filing a Rule 56(f)

motion for additional time for discovery. The motion failed to mention the admissions. At

the summary-judgment hearing, the circuit court expressed concern whether any dispute

remained for trial, given the admissions, and asked the Dillons to address them. Only then

did the Dillons file their motion to amend, withdraw, or strike the tardiness of the

admissions—five days after the scheduled summary-judgment hearing; over a month and a

half after PiCo’s summary-judgment motion, which relied on the admissions; and nearly

eleven months after the requests had been deemed admitted.

¶11.   The Dillons’ only explanation for the untimely answers is that their counsel had

trouble contacting the Dillons. Counsel’s trouble contacting the Dillons is not a justification

for failing to answer the requests for admissions timely or request additional time to answer.

Dillon’s signature was not required for the answers, as Rule 36(a) permits answers to be

“signed by the party or by his attorney.” (Emphasis added). Rule 36(a) also permits the

answers to be filed in a “longer time as the court may allow.”

¶12.   The Dillons argue that the circuit court abused its discretion in granting PiCo’s motion

to reconsider the Rule 78 order and by denying the motion to amend, withdraw, or strike the

tardiness of the admissions without first applying the “two-pronged test” in Rule 36(b). Rule

36(b) states that the trial court “may permit” admissions to be withdrawn or amended when:

(1) “the presentation of the merits of the action will be subserved thereby,” and (2) “the party

who obtained the admission fails to satisfy the court that withdrawal or amendment will



                                               6
prejudice him in maintaining his action or defense on the merits.” However, the Mississippi

Supreme Court has refused to find that these factors create a mandatory, two-pronged test.

Rather, the supreme court has held that “[a] mandatory, two-pronged test . . . is contrary to

both the plain language of Rule 36(b) and prior rulings of [the supreme c]ourt.” Young, 67

So. 3d at 739 (¶14). “In using the permissive term ‘may’ rather than the mandatory term

‘shall,’ Rule 36(b) does not create a mandatory, per se requirement that the lower court must

apply before denying the withdrawal or amendment of a deemed admission.” Young, 67 So.

3d at 739 (¶14). “The permissive language of [Rule 36(b)] respecting the trial court’s duties

clearly provides that relief from the definite time periods is only available at the trial court’s

discretion.” Earwood v. Reeves, 798 So. 2d 508, 515 (¶22) (Miss. 2001). Thus, the Dillons’

argument that Rule 36(b) contains a mandatory two-pronged test is without merit.

¶13.   Nonetheless, we find no merit to the Dillons’ arguments under Rule 36(b)—that the

merits of the case should be addressed and that PiCo would not be prejudiced by the

withdrawal of the admissions. These arguments are similar to the defendants’ arguments in

Earwood. Earwood, 798 So. 2d at 516 (¶25). The defendants in Earwood argued,

unsuccessfully, that “the [trial] court should have permitted withdrawal of the deemed

admissions because the presentation of the case on the merits would be promoted and that

permitting withdrawal would not result in undue prejudice or delay to [the plaintiff] in

maintaining his action on the merits.” Id. The supreme court found that prejudice had

resulted because the defendants had unnecessarily delayed the action by waiting ten months

to move to withdraw the admissions, and because the motion to withdraw was not filed until



                                                7
the plaintiff had moved to have the requests deemed admitted, to compel, and for partial

summary judgment. Id. The supreme court further found that any prejudice claimed by the

defendants was “self-imposed,” as the defendants were “aware of the date on which the

requests for admission were served[, and i]t was completely within their power to either

comply with the rules, request additional time in which to respond, or seek clarification from

the court” as to the deadline. Id. at 517 (¶28).

¶14.   The Dillons argue that the circuit court should have considered PiCo’s delay in

moving for summary judgment. They argue, in essence, that PiCo waived its right to rely on

the admissions by not doing so promptly. They state: “Eight months went by wherein PiCo

participated in substantial discovery and never once insinuated or postured that [it was]

treating Dillon’s . . . admissions as admitted for tardiness,” and it was “[m]uch to [the

Dillons’] surprise” when PiCo filed for summary judgment on April 1, 2016. However,

under Rule 56(b), a defendant may move for summary judgment “at any time.” Further, PiCo

was not required to notify the Dillons that it intended to rely on the admissions or take any

action to have the admissions admitted. “Rule 36 is self-executing, and no motion to have

a request deemed admitted is required.” Tyler v. Auto. Fin. Co., 113 So. 3d 1236, 1240 (¶13)

(Miss. 2013). Also, Rule 36 “does not require a party to inquire of another whether requests

for admission have been answered. Indeed, the point is that a diligent party will take great

pains to ensure the requests have either been admitted or denied, as they are automatically

deemed admitted after thirty days.” Scoggins v. Baptist Mem’l Hosp.-DeSoto, 967 So. 2d

646, 649 (¶15) (Miss. 2007).



                                              8
¶15.   This Court is “compelled to acknowledge the adage that rules are promulgated for a

purpose, this being precisely an instance in which that principle applies.” Id. at (¶13)

(quoting Earwood, 798 So. 2d at 516 (¶26)). “For certain, all courts, counsel, and litigants

would rather see cases decided on the merits.” Young, 67 So. 3d at 741 (¶17). However,

“this aspirational goal carries with it a commensurate responsibility imposed upon all to

abide by the [r]ules and the decisions of our courts, as opposed to seeking a benevolent

decision from a trial judge.” Id. “Rule 36 is to be enforced despite the fact that harsh

consequences might result[.]” DeBlanc, 814 So. 2d at 801 (¶23).

¶16.   “The requests for admissions . . . were a simple matter which could have been

answered in a few minutes time, or for which a motion for enlargement of time could have

been filed. Yet [Dillon] simply failed to timely respond.” Young, 67 So. 3d at 741 (¶16)

(internal citations and quotation marks omitted). Even after the time expired to answer the

requests for admissions, the problem created thereby “could easily have been eliminated if

a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if

there were justifiable excuse.” Scoggins, 967 So. 2d at 649 (¶15). However, “[i]n cases

involving unexplained, untimely responses, the appellate courts of this state unanimously

have emphasized that Rule 36 ‘is to be enforced according to its terms.’” Young, 67 So. 3d

at 738 (¶11) (quoting Educ. Placement Servs. v. Wilson, 487 So. 2d 1316, 1318 (Miss.

1986)).

¶17.   We cannot find the circuit court erred in granting PiCo’s motion to reconsider and

denying the Dillons’ motion to amend, withdraw, or strike the tardiness of the admissions.



                                             9
“The circuit court cannot ‘help’ the untimely party if [he] failed to avail [him]self of the

remedies provided under Rule 36(b).” Montgomery v. Stribling, 115 So. 3d 823, 829 (¶18)

(Miss. Ct. App. 2012) (internal quotation marks omitted). This issue is without merit.

       II.    Additional Time for Discovery

¶18.   The Dillons argue that the circuit court abused its discretion in denying their Rule

56(f) motion for additional time for discovery to defend against PiCo’s summary-judgment

motion. Summary judgment shall be granted when there is no genuine issue of material fact

for trial. M.R.C.P. 56(c). To defend against a summary-judgment motion, the opposing

“party may not rest upon the mere allegations or denials of his pleadings, but his response,

by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that

there is a genuine issue for trial.” M.R.C.P. 56(e).

¶19.   If discovery is incomplete when a party moves for summary judgment, the opposing

party may seek additional time for discovery to defend against the motion. M.R.C.P. 56(f).

Rule 56(f) states:

       When Affidavits Are Unavailable. Should it appear from the affidavits of
       a party opposing the motion that he cannot for reasons stated present by
       affidavit facts essential to justify his opposition, the court may refuse the
       application for judgment or may order a continuance to permit affidavits to be
       obtained or depositions to be taken or discovery to be had or may make such
       order as is just.

¶20.   Rule 56(f) is designed to “protect[] against improvident or premature grants of

summary judgment and is to be applied liberally.” Stanley v. Scott Petroleum Corp., 184 So.

3d 940, 942 (¶5) (Miss. 2016). “Rule 56(f) ‘contemplates that completion of discovery in

some instances is desirable and necessary before a court can determine that there are genuine

                                              10
issues as to the material facts.’” Roberts v. Boots Smith Oilfield Servs. LLC, 200 So. 3d

1022, 1026 (¶25) (Miss. 2016) (quoting Smith v. H.C. Bailey Cos., 477 So. 2d 224, 232

(Miss. 1985)). “This is especially true where the party seeking to invoke the protections of

Rule 56(f) claims the necessary information rests within the possession of the party seeking

summary judgment.” Roberts, 200 So. 3d at 1026 (¶25) (quoting Prescott v. Leaf River

Forest Prods. Inc., 740 So. 2d 301, 308 (¶13) (Miss. 1999)).

¶21.   “Rule 56(f) is not designed to protect the litigants who are lazy or dilatory.” Roberts,

200 So. 3d at 1027 (¶27) (quoting Owens v. Thomae, 759 So. 2d 1117, 1120 (¶12) (Miss.

1999)). Rather, “the party resisting summary judgment must present specific facts why he

cannot oppose the motion and must specifically demonstrate how postponement of a ruling

on the motion will enable him, by discovery or other means, to rebut the movant’s showing

of the absence of a genuine issue of fact.” Id. (quoting Prescott, 740 So. 2d at 308 (¶13)).

The grant or denial of a Rule 56(f) motion is reviewed for abuse of discretion. Roberts, 200

So. 3d at 1026 (¶25).

¶22.   The Dillons’ complaint was filed on April 8, 2015, and discovery proceeded for

almost a year before PiCo moved for summary judgment on April 1, 2016. On April 15,

2016, when the Rule 56(f) motion was filed, the Dillons had noticed the trial for August 22,

2016, and no experts had been designated. The Dillons’ Rule 56(f) motion gives the

following reasons for the need for additional time:

               Plaintiffs need a reasonable amount of time to conduct an in[-]depth
       investigation of the facts surrounding Defendant, Pico, Inc. Defendant has
       failed to even take the Plaintiff’s deposition. Plaintiff’s account of how the
       collision occurred will undoubtedly contradict the Defendant’s driver’s

                                             11
       deposition testimony. This will ultimately create an undeniable genuine issue
       of material fact for the jury to decide. There will be a question of comparative
       [negligence] and apportionment of fault. If the Defendant is unwilling to take
       the deposition, the Plaintiff will sign an affidavit to his narrative of the auto
       collision.

                 . . . [T]he Plaintiff still needs additional time to secure and complete
       their expert opinion in regards to the collision and the lighting of the PiCo, Inc.
       truck. Also, Plaintiffs have not been afforded an opportunity to physically
       inspect the truck in question. Most importantly, the Defendant has not taken
       . . . Dillon’s deposition regarding the facts of the collision. Plaintiffs have not
       had time to complete discovery[;] there are still outstanding discovery disputes
       that are at issue before the [c]ourt. The Defendant has objected to and refused
       to produce their own safety manual.

¶23.   The circuit court found the motion failed to demonstrate with “specific facts” how

additional time for discovery would aid in opposing the summary-judgment motion. While

the Dillons asserted that PiCo had failed to depose Dillon before moving for summary

judgment, PiCo was not required to do so. As stated in Rule 56(b), a defendant may move

for summary judgment “at any time.” Also, as PiCo points out, PiCo had no need to depose

Dillon, given Dillon’s admissions. And while Dillon asserted he would sign an affidavit,

there was no explanation why Dillon’s affidavit could not be presented prior to the summary-

judgment hearing. In fact, through a later filing, it was discovered that Dillon’s affidavit had

been executed on April 28, 2016—two weeks prior to the May 12, 2016 summary-judgment

hearing. Dillon had “until the day before [the] summary[-]judgment hearing to serve

opposing affidavits.” Vicksburg Healthcare LLC v. Dees, 152 So. 3d 1171, 1174 (¶12)

(Miss. 2014) (citing M.R.C.P. 56(c)). There is no explanation why the affidavit was not

served. Finally, while the Dillons asserted they had “not been afforded an opportunity” to

inspect PiCo’s truck or obtain an expert, no request to inspect the truck had been made, and

                                               12
there is no explanation how an expert would be useful in this matter.

¶24.   Importantly, the motion again failed to address the admissions. In its order granting

summary judgment, the circuit court pointed out that the Dillons had inexplicably failed to

mention the requests for admissions in response to PiCo’s summary-judgment motion,

despite the fact that the “motion spent considerable time on the matter of the admissions.”

Given the admissions, the Dillons have not demonstrated how additional time for discovery

would aid them in defending against PiCo’s summary-judgment motion. Thus, we cannot

find the circuit court abused its discretion in denying the Rule 56(f) motion. See Roberts,

200 So. 3d at 1027 (¶27). This issue is without merit.

       III.   Summary Judgment

¶25.   Summary judgment must be granted “if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” M.R.C.P. 56(c). A trial court’s grant or denial of summary judgment

is reviewed de novo. Young, 67 So. 3d at 741 (¶18).

¶26.   To prove negligence, a plaintiff must show by a preponderance of the evidence a duty

owed by the defendant, a breach of that duty, causation, and injury. Sanderson Farms Inc.

v. McCullough, 212 So. 3d 69, 76 (¶17) (Miss. 2017). “An action against an employer based

on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent

conduct of its employee within the scope of his or her employment.” J&J Timber Co. v.

Broome, 932 So. 2d 1, 6 (¶19) (Miss. 2006). “Loss of consortium is similarly derivative[.]”



                                              13
Id. “The spouse seeking compensation for loss of consortium must show that he or she

suffered damages arising out of the other’s injuries.” Coho Res. Inc. v. McCarthy, 829 So.

2d 1, 22 (¶66) (Miss. 2002). “[I]f the underlying personal[-]injury claim is disposed of, the

loss[-]of[-]consortium claim cannot be maintained on its own.” J&J Timber, 932 So. 2d at

6 (¶19).

¶27.   The circuit court granted summary judgment on Dillon’s negligence claim based on

Dillon’s Rule 36 admissions. Accordingly, summary judgment was also granted on

Shawna’s derivative loss-of-consortium claim. Among the items Dillon admitted by default

are: (1) Dillon and Rodgers were traveling north on Highway 603 for at least two minutes

and at least one mile before the accident; (2) there is no shoulder on Highway 603 North in

the one mile preceding the accident site; (3) Rodgers did not pull out in front of Dillon in the

sixty seconds prior to the accident; (4) Dillon failed to see Rodgers in front of him just prior

to the accident and failed to keep a proper lookout for vehicles ahead of him; (5) Rodgers had

the right-of-way; (6) Dillon failed to keep his car under proper control; (7) Dillon failed to

apply his brakes in a timely fashion; (8) Dillon did not hit his brakes prior to the accident; (9)

Dillon was speeding; (10) Dillon’s eyes were distracted from the road in the moments prior

to the accident; (11) Dillon caused the accident, and no action or inaction by Rodgers caused

the accident; (12) Dillon had the last chance to avoid the accident; and (13) the Mississippi

Highway Patrol and Dillon’s insurance company found him 100% at fault for the accident.

¶28.   The Dillons argue that despite the admissions, there are still genuine issues of material

fact for trial, such as whether Rodgers properly applied his brakes or used his turn signal, and



                                               14
whether the tractor-trailer was properly illuminated in accordance with state and federal

regulations. However, Dillon failed to attempt to oppose the summary-judgment motion with

affidavits or other evidence, as required by Rule 56(e), or state why he could not do so. Rule

56(e) states that a party opposing summary judgment “may not rest upon the mere allegations

or denials of his pleadings,” but “must set forth,” by affidavits or other appropriate means,

“specific facts showing that there is a genuine issue for trial.”

¶29.   The Dillons failed to respond or present any evidence in opposition to summary

judgment until May 17, 2016—five days after the scheduled summary-judgment

hearing—when Dillon presented his own affidavit and the deposition testimony of Rodgers

and PiCo driver David Simmons. Dillon’s affidavit was executed on April 28, 2016, and

Rodgers’s and Simmons’s depositions were taken on February 18, 2016. There is no

explanation why the evidence was not presented prior to the summary-judgment hearing,

despite it being available.

¶30.   Regardless, in light of the admissions, the affidavit and deposition testimonies do not

present genuine issues of material fact for trial. Dillon admitted that he failed to keep a

proper lookout and that no action or inaction on Rodgers’s part caused the accident. Further,

it is undisputed that Dillon stated that he had no recollection of the accident. PiCo submitted

Rodgers’s affidavit in support of its summary-judgment motion. Rodgers swore in his

affidavit that at no time was he on the shoulder of the road, as alleged in the Dillons’

complaint; rather, he was traveling north on Highway 603 and had slowed to turn left when

Dillon rear-ended his tractor-trailer. Rodgers states in the affidavit that he used his turn



                                              15
signal and that before leaving PiCo’s yard at around 5 a.m., approximately thirty minutes

before the accident, he had inspected the truck and trailer to make sure the lights and signals

were working properly. Two photographs of the accident scene were attached to the

affidavit, showing the lights were operable and illuminated. In his deposition, Rodgers stated

that in order to slow the truck down to make the turn, he “geared down,” which involved

applying the brakes, then shifting, then applying the brakes again, in a sequence. Simmons

testified that he was traveling behind Rodgers and could see Rodgers’s taillights from a

quarter mile away shortly before the accident, although he was not looking at the tractor-

trailer at the exact moment of the accident.

¶31.   Given the admissions, the Dillons have failed to show the existence of a genuine issue

of material fact for trial. We find summary judgment was appropriately granted.

¶32.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON AND WESTBROOKS, JJ., CONCUR.




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