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The HONORABLE ROBERT T. DAWSON, United States District Judge for

the Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3441

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Kenneth Brooks; Terrie Brooks, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Tri-Systems, Inc., *

*

Defendant - Appellee. *

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Submitted: May 13, 2005

Filed: October 11, 2005

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Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

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LOKEN, Chief Judge.

In this diversity suit, Kenneth and Terrie Brooks appeal the district court’s1

grant of summary judgment dismissing their claim that Tri-Systems, Inc. (“TriSystems”), negligently spilled construction debris on a state highway that caused

Kenneth Brooks’s single-vehicle accident. Reviewing the grant of summary

judgment de novo, and viewing the facts in the light most favorable to Mr. and Mrs.

Brooks, the non-moving parties, we affirm. See Roeder v. Metro. Ins. & Annuity Co.,

236 F.3d 433, 436 (8th Cir. 2001) (standard of review).
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Brooks left his cabin on a Sunday afternoon to do laundry and watch television

at the home of relatives who were out of town. That night, unable to sleep, he

decided to return to his cabin, a one hour drive. At approximately 1:00 a.m., near his

cabin, Brooks failed to negotiate a curve in the road, lost control of his pick-up truck,

and crossed back and forth across the roadway before colliding with a concrete bridge

and then the bank of a ditch. The truck came to rest upside down with Brooks unable

to exit. He was rescued several hours later and sustained serious permanent injuries.

At the time of the accident, Tri-Systems was regularly hauling construction

debris from the site of a nearby project. Tri-Systems had shut down its operations at

the site at 5:00 p.m. the preceding Thursday, some eighty hours before the accident,

and did not resume work until after the accident. Mr. and Mrs. Brooks later heard of

complaints that the Tri-Systems dump truck lacked a tailgate and routinely dumped

debris in the road where the accident occurred. They commenced this action, alleging

that debris negligently spilled by Tri-Systems proximately caused the accident. 

In his deposition, Brooks testified that he could not recall whether there was

debris in the roadway when he lost control of his truck. In her deposition, Mrs.

Brooks testified that, when Brooks awoke in the intensive care unit of the hospital,

she asked him what happened, and he responded, “I hit some rocks in the road. I hit

some gravel in the road. . . . All I know is I hit a bunch of gravel and lost control of

my truck.” In response to Tri-Systems’ motion for summary judgment, Mr. and Mrs.

Brooks submitted an affidavit by Denver McRae, the owner of a nearby store. McRae

averred that many customers had complained of debris in the road spilled by the TriSystems truck. At the end of the affidavit, McRae stated, “On the day of the accident

there was debris at the big curve, the exact curve where Mr. Brooks had his accident.”

The district court granted summary judgment in favor of Tri-Systems,

concluding that, without credible evidence that there was debris in the road at the

time of the accident, or that Tri-Systems was hauling debris shortly before the
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accident, any finding that Tri-Systems debris caused the accident would be

impermissible speculation. On appeal, Mr. and Mrs. Brooks argue that the McRae

affidavit and Mrs. Brooks’s testimony relating what Mr. Brooks said when he awoke

are sufficient evidence to create a genuine issue of material fact whether Tri-Systems

debris in the road caused the accident. 

We begin with the McRae affidavit. Rule 56(c) of the Federal Rules of Civil

Procedure provides that affidavits may be considered in ruling on a motion for

summary judgment. However, 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.” Rule 56(e).

When an affidavit contains an out-of-court statement offered to prove the truth of the

statement that is inadmissible hearsay, the statement may not be used to support or

defeat a motion for summary judgment. See Pink Supply Corp. v. Hiebert, Inc., 788

F.2d 1313, 1319 (8th Cir. 1986). 

In this case, McRae had first hand knowledge of what customers told him about

debris on the road but not of the truth of what they told him. Thus, his entire affidavit

would likely be inadmissible to prove the truth of those customer statements. But

even if the customer portions of his affidavit could be considered, McRae provided

no source or support whatsoever for the additional averral that there was debris on the

curve in the road at 1:00 a.m. on the day of the accident. That averral is not

admissible because the affidavit does not “show affirmatively that the affiant is

competent to testify” to that matter. In some instances, courts will infer personal

knowledge from the content or context of a statement in an affidavit. See 11 Moore

et al., Moore’s Federal Practice ¶ 56.14[1][c] (3d ed. 2005). The content and context

of this statement, however, do not support an inference that it reflected McRae’s

personal knowledge. Thus, the district court properly ignored this statement and

concluded that the McRae affidavit was not evidence that Tri-Systems debris in the

road caused the accident.
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Turning to Mrs. Brooks’s testimony, deposition testimony must also be

admissible to be considered in ruling on a motion for summary judgment. See

Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310-11 (8th Cir. 1993). Mrs.

Brooks’s testimony about what her husband said is hearsay, but the district court

considered it, no doubt because Tri-Systems did not object and because the statement

made when Brooks awoke was at least arguably an “excited utterance.” See Fed. R.

Evid. 803(2); Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir. 1999). But the

statement was inconsistent with Brooks’s subsequent testimony that he could not

recall if there was debris in the roadway. More importantly, the statement shed no

light on the source of whatever rocks or gravel may have been in the road, nor on

whether Brooks’s truck was riding on the shoulder and hit rocks or gravel there.

Given the uncontroverted evidence that the Tri-Systems truck had not

navigated the curve for eighty hours before the accident, we agree with the district

court that Mrs. Brooks’s testimony, combined with the evidence that Tri-Systems

operated a dump truck without a tailgate that dumped debris in the road many days

before and after the accident, are insufficient to permit a reasonable jury to find that

debris spilled by Tri-Systems caused this accident. Accordingly, the district court

properly granted Tri-Systems motion for summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (summary judgment is appropriate if

reasonable jurors could find only in favor of the moving party). 

The judgment of the district court is affirmed.

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