 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cordeiro v. Burns5/5/1989
f the accident is consistent with the account given by Felipe at her deposition:
hey come down, and I go up. And I see them straight yet. All sudden he come to my lane.
Id. at 690. In our view, in light of the foregoing, there is no discrepancy or conflict between Burns' deposition testimony and the statement he gave to the police at the time of the accident when he was intoxicated and probably highly traumatized by the tragic incident.
Appellant's reliance on Jacoby v. Kaiser Foundation Hospital, 1 Haw. App. 519, 622 P.2d 613 (1981) is misplaced. In Jacoby, the plaintiff, a non-moving party in a summary judgment motion, refuted the defendant-movant's statute of limitations defense by an affidavit stating that she did not discover the movant's breach of duty and the causal connection between such breach and her injuries until a certain date which was within the limitations period. Her testimony thereby properly raised a credibility issue for the jury regarding the limitations defense.
III.
Finally, Appellant challenges the propriety of the summary judgment in the County's favor because the County merely filed a joinder in the State's motion for summary judgment and failed to file its own motion. This challenge is without merit.
In essence, Appellant's challenge raises the issue of whether a circuit court may grant summary judgment to a non-moving party. In Flint v. MacKenzie, 53 Haw. 672, 501 P.2d 357 (1972), the supreme court stated that "the great weight of authority answers in the affirmative." See also 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice para. 56.12 (2d ed. 1988). The court held that the circuit court should enter a summary judgment in favor of a non-moving "prevailing party" where there is no genuine issue as to any material fact, reasoning that the purpose of summary judgment to expedite matters "should not be thwarted because one
party has not fulfilled the mechanical procedures normally required." Flint, at 672-73, 501 P.2d at 357.
Here, the lower court granted summary judgment to both the State and the County as a matter of law because it was Burns' negligence, and not the alleged negligence of the State or the County, which was the sole cause of the fatal accident. Furthermore, the record clearly indicates that Appellant had sufficient notice of the County's intent to seek summary judgment, as well as an adequate opportunity to persuade the lower court that summary judgment should not be granted to the County.
Accordingly, the lower court properly granted a summary judgment in the County's favor, notwithstanding the failure of the County to "fulfill the mechanical procedures normally required."
We therefore affirm the summary judgment in favor of both the State and the County.
Page 1 2 3 4 5 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|