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10/19/87 SHERYL WIXOM v. GLEDHILL ROAD MACHINERY

Filed: October 19, 1987.

SHERYL WIXOM, ADMINISTRATRIX OF THE ESTATE OF CHARLES WIXOM AND SHERYL WIXOM, APPELLANTS (PLAINTIFFS BELOW),
v.
THE GLEDHILL ROAD MACHINERY COMPANY, APPELLEE (DEFENDANT BELOW)



APPEAL FROM THE JOHNSON SUPERIOR COURT, ROOM # 2, Cause No. SC2-85-1838, The Honorable Jeffrey C. Eggers, Judge.

Miller, P.j., concurs. Ratliff, C.j., concurs in result.

Author: Conover

CONOVER, J.

Sheryl Wixom on her own behalf and as administratrix of the estate of Charles Wixom (Wixom) appeals the entry of summary judgment in favor of the Gledhill Road Machinery Company (Gledhill) in a suit for her personal injuries and his death resulting from their automobile's collision with one of Gledhill's snowplow blades.

We affirm.

ISSUES

This appeal presents the following issues:[Footnote 1]

1. whether Gledhill's allegedly wrongful act only became "operative" at the time of impact, and

2. whether the colliding driver's negligence was an intervening cause of such injuries and death which cut off Gledhill's liability, if any.

FACTS

The operative facts are not in dispute. In December, 1983, the Wixoms were driving their car northbound on State Highway 135 in Johnson County traveling approximately 30 miles per hour. The roads were icy. Bobby D. Waltz's (Waltz) automobile struck the Wixom car in the rear causing it to skid out of control across the highway's center line. As it did so, the Wixom car turned in a half circle so as to present its passenger side to a southbound Indiana State Highway truck with a snowplow blade manufactured by Gledhill attached. In the ensuing collision, one of the blade's edges cut through the structural portions of the Wixom car and entered the passenger compartment. As a result, Charles was killed and Sheryl seriously injured.

Discussion AND DECISION

When reviewing the grant of a motion for summary judgment, we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E.2d 155, 158. Therefore, we consider the same matters as it does. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 163. The burden is on the moving party in a summary judgment motion to establish the lack of any genuine issue of material fact. Ancich v. Mobil Oil Corp. (1981), Ind.App., 422 N.E.2d 1320, 1322, reh. denied.

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Creighton ...


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