IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00888-COA NED B. CLARK, JR. AND EDNA MARIE CLARK APPELLANTS

v. CHARLES MCCORKLE APPELLEE DATE OF JUDGMENT: 05/04/2016 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: CARROLL COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: GREGORY MALTA ATTORNEYS FOR APPELLEE: JACOB MICHAEL JENKINS A. LEE ABRAHAM JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND REMANDED - 11/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. On May 4 , 2016, t he Carrol l C o u n t y C i r c u i t C o urt granted Charles M cCorkle’s m otion
f or sum m ary judgm ent on Ned and Edna Clark’s (the Clarks) com plaint f or dam ages resulting f rom a highway accident. In response to the grant of sum m ary judgm e nt, the Clarks
f iled a m otion f

or rehearing o n the m atter, which the t rial court denied. The Clarks now appeal. ¶2. Upon review of the record and applicable law, we f ind that questions of m aterial f act exist, thus precluding the grant of sum m ary judgm ent. As a result, we reverse and rem and the trial court’s grant of sum m ary judgm ent.FACTS

¶3. On the m orning of Tuesday , October 16, 2012, at approxim ately 7:24 a .m ., Ned was driving his 1 991 Ford Ranger southbound on Missis s i p p i H i ghway 3 5 i n Carroll County , Mississippi, when h e rear-ended M cCorkle, who was driving a 1985 John D eere f arm tractor
t h a t w a s p u lling a f

latbed “cotton” trailer. 1 A s a result o f the accident, Ned s uf f ered f ive broken ribs, a punctured lung, and his lef t arm was am putated. ¶4. On Novem

ber 21, 2014, the Clarks f

i led a com plaint a gainst M cCorkle asserting three

causes of action: that M cCorkle was (1) negligent, (2) grossly negligent, a nd (3) negligent
per se b ecause he was operati n g a t r a c t or and trailer w i th inadequate lighting in a low-visibility

area. ¶5. Af ter conducting discovery , McCorkle m oved f or s um m a ry judgm ent. The trial court granted sum m ary judgm ent af ter f inding that no genuine issues of m aterial f a c t e x i s ted

conce r n i n g McCorkle’s negligence. The trial c ourt held that “absent an em ergency or unusual c o n d i tion, it was [ N ed] who had the prim ary d uty to avoid hitting McCorkle’s trailer.” In addition, the trial court concluded that the Clarks’ expert witness’s opinion was “not based on suf

f icient evidence, and [ could not] establish a genuine issue o f m aterial f act.” ¶6. On May 1 5, 2 0 16, the Clarks m oved f or rehearing. The trial court denied the m otion
f or rehearing. ¶7. The Clarks n ow a p p e a l , a s s e r t i n g t he f ollowing assignm ents of e rror: (1) the trial

court erred in g ranting sum m ary judgm ent, (2) the trial cou r t abused its d iscretion in

1 B o th th e f

arm tracto r a n d co tto n traile r w e r e e q u ip p ed w ith a ref lecto r trian g le p lacard

. 2dism issing the opinion and testim ony of Jason W a l ton, the C l a r k s’ e xpert witness, and (3)

the trial court erred in f

ailing to grant the Clarks their constitutional right to a trial by jury

. STANDARD OF REVIEW ¶8. W e r eview a t rial court’s g rant of sum m ar y j u d g me n t d e n o v o, with the evidence viewed in the light m ost f avorable to the nonm oving party

. Karpinsky v. Am. Nat’l Ins ., 109
So. 3d 84, 88 (¶9) (Miss. 2013). Upon review, this Court exam ines “all the evidentiary

m atters bef

ore [ it], i ncluding adm issions in pleading s , a n s w e r s t o i n t e r

r o g a t o r i e s , d e p o s i tions, and af f idavits.” Albert v. Scott’s Truck Plaza Inc ., 978 So. 2d 1264,1266 ( ¶5) (Miss. 2008) (citations om itted)

. “ If no genuine issue o f m a t erial f act exists and the m oving party is entitled to judgm ent a s a m atter of law, sum m ary judgm ent should be entered in t hat party ’s f avor.” Stringer v. Trapp , 30 So. 3d 339, 341 (¶9) (Miss. 2010).
DISCUSSION ¶9. The Clarks argue that the trial c ourt erred in granting sum m ary judgm ent in f avor of McCorkle. The Clarks a ssert that they presented su f f i cient evidence to prove McCorkle’s negligence and def

eat s um m ary judgm ent, i ncluding: (1) N ed’s sworn af f idavit f iled with his

com plaint, (2) Ned’s dep o s i t i o n , (3) McCorkle’s deposition, a nd (4) t he deposition and report of expert w itness W alton, an accident-reconstruction specialist. The Clarks m a intain that the evidence subm itted shows that McCorkle breached his d uty of care by negligently operating

an oversized slow-m oving vehicle during f oggy and low-light conditions without m aking the
f latbed trailer connected to his tractor properly v isible to other drivers on the highway

. The Clarks also c laim t hat the trial court f ailed t o provide them with an opportunity f or s u rrebuttal

3to ref

u te McCorkle’s m ischaracterization of their pleadings, specif ically r egarding whether a dispute of

a m a terial f

act existed on the issue of poor visibility

resulting f

rom f og. ¶10. As stated, on appeal, we a pply a de novo standard to our review of a t rial court’s g rant of sum m a ry judgm ent. See Spann v. Shuqualak Lumber C o. , 990 So. 2d 1 86, 1 89-90 ( ¶¶6,
11-13 ) (Miss. 2008) (holding that whether f og em itted f

rom the lum

ber-dry ing plant was actually present at the tim e of t h e collision and, if so, whether the f og constituted an unreasonably dangerous condition or cause-in-f act of the collision, constituted a question of
f act f or the jury , thus precluding sum m ary judgm ent). ¶11. In its order granting sum m ary judgm e nt in f a v or of McCorkle, the trial court quoted
W hite v. Miller , 513 So. 2d 6 00, 602 n.3 (Miss. 1987), and recognized that “where two cars

are traveling i n the sam e direction, the prim ary duty of avoiding a collision rests with th e f ollowing driver and[ ,] in the absence of an em ergency or unusual condition[ ,] he is negligent

as a m atter of l a w i f h e runs into the car ahead.” The trial court ruled that “absent an

em ergency or unusual condition, it was [ Ned] who had the prim ary duty to a v o i d hitting McCorkle’s trailer.” The trial court f ound tha t “ n o evidence establishes t he s tretch of roadway was f oggy at t he tim e. . . . The only claim that the area in question was under f og is f rom the com plaint” f iled by the Clarks. ¶12. Regarding the d eposition and ev i d e n c e p r o v i d e d b y Wa l t o n , the Clarks’ expert witness, the t rial c o u r t f o und that W alton a dm itted that in preparing his accidentreconstruction report, “[ W a lton] did n ot review any depos ition t ranscripts, written d iscovery ,

or interview [ N ed], a nd [ he] only v i s i t e d t h e accident scene y ears af ter the accident took

4p lace.

. . . W alton’s sole basis f or determ ining that f

o ggy conditions existed was t h e

com plaint i t s e l f

. ” T h e trial court thus held that W alton’s testim ony “is n ot based on suf f i cient evidence, and cannot establish a genuine issue of m aterial f act.” ¶13. Af ter reviewing the evidence subm itted, the t rial court also opined that McCorkle did

not com m it negligence per s e i n regard to the illum ination of his tractor with ref lective gear or lights, explaining: [ N]o statute requires [ McCorkle] t o display an em b lem or tape, or have lights on his tractor. However, h e s till has a ge neral duty t o act as a r easonable person woul d

. [ N e d] a lleges that McCorkle breached this duty by using a ref lective triangle that w a s w orn and h ad lost its ref lectiveness. The only evidence to support t his is W alton’s expert testim o n y . B ut W alton never observed the triangle at the tim e of the accident. Instead, t he f irst W alton had seen of the triangle w as in 2015, af ter the triangle had been m o ved to [ the] gate and sat in sunlight f

or two y ears. 2 ¶14. Regarding the Clarks’ claim of gross neglig e n c e, t he t rial court held: “Because this [ c]ourt f inds the re to be no evidence of negligence on the part of [ McCorkle], his actions

cannot rise to the h igher level of gross negligence. Even w ere there evidence o f n egligence, the [ c]ourt f

inds [ that the C l a r k s h a ve] presented no evidence that McCorkle’s conduct evinced a reckless indif

f erence to any

consequences of

driving his trailer.” ¶15. However, the Clarks subm it that they provided suf f i cient evidence to prove genuine issues o f m aterial f

acts existed in order to def eat s um m a ry j udgm ent. Contrary to the trial

2 I n i ts o rd er g ran tin g s u m m ary j u d g m e n t , t h e trial co u r t cited M ississip p i C o d e A n n o tated sectio n 6 3 -7 -9 1 (R ev . 2 0 1 3 ) an d stated th a t “ M ississip p i statu to ry law g en erally ex em p ts f arm related v eh icles f

ro m eq u ip m en t an d id en tif icatio n req u i r e me n ts,” b u t reco g n i zed t h at “[ n ] o state ap p e llate co u rt in M ississip p i h as stated w h eth e r t h e p ro v isio n s o f [ sectio n ] 6 3 -7 -9 1 a re req u ired f o r f arm tracto rs.” In its o rd er d en y in g th e C lark s’ m o tio n f o r reco n sid eratio n , th e trial co u rt f u rth er stated “ n o state law im p o sed a d u ty o n M cC o rk le to d isp lay th e p lacard at all.” 5court’s d eterm ination, the Clarks assert that Ned’s d epos i t i o n t e s tim ony ref lects that an obstruction af

f ected his vision at the tim e of the accident: Q: Now I n otice, I r em em ber y ou said a while ago y ou said t hat there was this l ittle—approxim ate l y h o w h igh of f the—of f the regular road surf ace was this knoll?
A: Just a little incline, just a little incline. I don’t know what—what else to say . It was a sm a ll hill. Q: So just a very

slight incline?
A: Sm all, sm all hill. Q: Okay , other t han that, w e r e t h e re any o ther obstructions to y o ur vision? A: No, sir. (Em phasis added). Ned explained throug h h i s d eposition testim ony that he did not see McCorkle’s tractor and tra i ler until he c am e o ver t he hill. Ned also provided deposition testim o ny that on the m orning of the accident, patches of f og appeared in low-ly ing areas. 3

3 T h e reco r d ref

l ects th at N ed p ro v id ed th e f o llo w in g testim o n y

in h i s d ep o sitio n : Q : N o w , aro u n d w h a t tim e d id th e accid en t tak e p lace?
A : S ev en o ’clo ck

. Q : Wh at w as th e w eath er lik e th at d ay ?
A : It w as co o l. A little b it co o l an d a little f o g g y early th at m o r n in g . Q : Was it f

o g g y in p a tch es o r f

o g g y

— A : Ju st i n p atch es. A t

. . . lo w -ly in g areas. L ik e I said , i t w as co o l, h ad m y w in d o w u p .

. . . . 6The C larks’ com plaint f urther alleged that “[ a]t the tim e of the collision visibility in the area
was very poor due to low-light conditions at the dawn of day and heavy f

o g in the area.” ¶16. The C larks also a lleged in their com plaint that McCorkle was negligent f or f ailing to
p r o p e r l y i l l um inate t he tractor and t railer. The record ref lects that the Clarks retained
W a lton, an accident-reconstruction specialist, to pr e p a r e a n e x pert report on behalf of the Clarks. In preparing h is r eport, the record ref lects that W a lton reviewed the f o llowing: the Mississippi unif

o r m crash report; a personal site inspection of the scene; photographs taken of t he scene by W alton; m e asurem ents taken by W alton utilizing f orensic m apping techniques; a crash-reconstruction report of f ered by B rett Alexander; h istorical sunrise data
f o r t he d ate of t he collision; W alton’s i nterview with McCorkle; a nd c o m m only acc e p t e d

m ethodology

in the f ield of accident reconstruction. ¶17. In his report, W a lton opined that with “ low v isibility and f og present,” Ned “did not
possess the tim e, nor distance needed to perceive and r e a c t t o t h e h azard of t he tractor.”
W a lton also provided the f ollowing in his report:
It is also m y o pinion that [ McCor k l e ] w a s t he sole proxim ate cause of this collision by operating an oversized tractor on the state highway in poor lighting conditions without adequate warning to o ncom ing drivers. [ McCorkle] was c om

pletely a w a r e t hat this vehicle caused d angerous condi t i o n s when operated on this highway due to its size and continued to operate this vehicle in the early m orning hours with poor lighting conditions. ¶18. In his reply i n support o f h is mo tion f o r sum m ary judgm ent, McCorkle alleged that the C larks f

a iled to disclose that W alton’s f indings of wear an d reduced ref lective
Q : O k a y . Was th ere f o g o n th e k n o ll?
A : N o t

o n th e k n o ll. In th e lo w -ly in g area. 7capabilities were m ade over two and a half y ears af ter the accident in question. McCorkle asserted that W alton acknowledged in his deposition testim ony tha t h e h a d n o way of knowing the ref

l ective q ualities of the triangle placard on the day o f the accident. The record ref lects, however, t hat W alton spoke directly t o McCorkle about the ac c i d e n t

. McCorkle inf orm ed W alton that “right af ter the accident had o ccurred,” he took the r ef lective triangle of f of the tractor and put it on the gate “because it was so old.” ¶19. The Mississippi Suprem e C ourt h as p rovided that the test applicable in determ ining the liability of a def

endant in an autom obile-collision case is “whether t he negligence prior

to or at the tim e of t he c ollision was a proxim ate or contributing cause of the accident.” Elsworth v
. Glindmeyer , 234 So. 2d 31 2 , 3 2 0 ( Miss. 1970). S ee and compare Jamison v. Barnes , 8 So. 3d 238, 246-47 (¶¶21, 26) (Miss. Ct. App. 2008). I n Jamison , 8 So. 3d at 246-
47 (¶¶21, 26), this Court addressed whether an unusual or em ergency condition existed at the tim e of a collision between an autom obile a n d a tractor, thereb y p r o x i m ately c ausing the collision. In that case, the t r i a l c o urt granted Barnes’s ( the m otorist) m otion f or sum m ary judgm ent and denied Jam ison’s (the tractor driver) m otion f or sum m ary judgm ent. Id

. at 242 (¶6). On appeal, this Court reversed the trial court, f inding that “e v e n i f Jam ison were negligent per se [ f

or violating p rovisions o f the Unif o rm Highway Traf

f ic Regulation Law], it would not bar his re covery if he could show that Barnes was also negligent, under the
f am iliar doctrine of com

parative negligence.” Id. at 246 (¶21). T he Jamison C ourt e xplained that “[ e]ven if com

parative negligence were t aken of f the table, M ississippi C ode Annotated section 63-7-81 [ (Rev. 2013)]

. . . f urther provides that, ‘Nothing in this c hapter shall be so

8construed as to c urtail or a bridge the right of any person to prosecute a c ivil suit f or dam ages by reason of injuries to person or property resulting f rom the negligent use of the h ighway s by any m o tor vehicle, or its owner[ .]’” Id

. ¶20. The Jamison Court also recognized that “Mississippi has never adopted a p er se rule th a t t h e d river of the f

o llowing car is negligent if he collides w ith the rear of a preceding vehicle.” Id

. at 242 (¶10). The Jamison Court quoted the suprem e c o urt’s d ecision in W hite , 513 So. 2d at 601, which provided the f ollowing guidance: The driver of a v ehicle f

ollowing along behind another, and not attem pting to pass, has a duty encom

passing f our interrelated f

unctions: he m

ust h ave his vehicle under proper control, keep a proper look-out ahead, and com m ensurate therewith drive at a speed a nd suf f icient distance behind t he preceding v ehicle so t hat should the p receding vehicle stop suddenly , he can nevertheless s top his vehicle without colliding with the f orward vehicle.
Jamison , 8 So. 3d at 242-43 (¶10) (quoting W hite , 513 So. 2d at 601). The Jamison Court cautioned that “where there is evidence of an em ergency or unusual condition, this operates

as a ‘non-rule’ that presents a jury question a s t o whether the c ircum stances rise to the level of em ergency

or abnorm al condition.” Id

. at 243 (¶10). 4 ¶21. Additionally , t he suprem e court in W hite , 513 So. 2d at 6 01, cited several cases where

a f a ctual question existed as t o the presence of an em ergency or unusual condition. Id. One of those cases w as Szarapski v. Joaquin , 292 P.2d 959 (Cal D ist. Ct

. A pp. 1956). In Szarapski , the def

endant unexpectedly encountered the plaintif f ’s vehic l e , which was

4 C o m p a re B ro w n -M

iller C o
. v. H

o w ell , 2 2 4 M iss. 1 3 6 , 1 4 7 , 7 9 S o . 2 d 8 1 8 , 8 2 1 (1 9 5 5 ) (su p rem e co u r

t f o u n d th at ev id en ce raised a q u estio n o f f act f o r th e j u ry as to w h eth er th e p o s i t i o n o f a t ru ck o n th e sh o u ld er o f th e ro ad in d en se f o g w as n eg lig e n ce t h at “p ro x im ately cau sed o r co n t rib u ted to th e in j u ry an d d e a th o f th e d e ced en t” w h o h it th e tru ck o n th e s h o u ld er o f

th e ro ad ). 9“m oving slowly or stopped, and perhaps unlighted” at 1:00 a . m . Id. at 962. The appellate

court f ound that whether the def endant f ailed t o keep a proper lookout or was f ollowing the
p l a intif f ’s vehicle too closely w ere questions of f act f or the jury

. Id

. Im

portantly , t h e appellate court f

urther f ound that whether the p l a i n tif f ’s vehicle was m oving too slowly without adequate warning w as also a question of f act f or the jury

. Id

. Theref

ore the jury , not this Court, m

ust decide whether o r not the circum stances rise to a level of e m ergency or abnorm al conditions. See W hite , 513 So. 2d at 603 n.3. ¶22. W e recognize th a t “ [ t ] h e mo v i n g p a r t y h a s the burden of dem onstrating that no genuine issue of m aterial f acts exists, and the nonm oving party m ust be g iven t he benef

it of the doubt concerning the existence of a m aterial f a c t.” Jamison , 8 So. 3d at 242 (¶7) (citing City of J ackson v. Sutton , 7 97 So. 2 d 977, 979 (¶7) (Miss. 2001)). Upon review, we f ind that the Clarks presented suf f icient evidenc e s howing that genuine issues of m a t erial f act precluding sum m ary judgm e nt exist as to the f ollowing: (1) whether the f o g constituted an unusually dangerous c ondition; and (2) w hether McCorkle was negligent in the illum ination of his t railer in said f

og at the tim e of the c ollision. Based upon the f oregoin g a n d in apply ing t he law to this c ase, we theref ore r everse the trial court’s g r a n t o f sum m ary judgm ent and rem and this case f or trial. ¶23. Since we reverse t he t rial court’s grant of s um m a ry judgm ent and rem and this case f or trial, the Clarks’ two rem a ining claim s—that t h e t r i a l c ourt abused i ts discretion in dism issing the opinion and t estim o ny of W alton and erred in f ailing to grant the Clarks their constitutional right to a trial by jury —are rendered m oot, and we will not address them

.

1 0¶24. REVERSED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., FAIR, WESTBROOKS AND TINDELL, JJ., C ONCUR. GREENLEE, J., DIS SENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND WILSON, JJ. GREENLEE, J., DISSENTING: ¶25. The m ajority reasons t hat the Clark s p r e s e n t e d s u f f i c i e n t evidence showing that genuine issues o f m aterial f acts e xist regarding: (1) w hether f o g c o nstituted an unusually dangerous condition; and (2) whether McCorkle was negligent in the illum i nation of his f a rm trailer at the tim e of

the collision. I respectf

ully d isagree and theref

ore dissent.
DISCUSSION
I. Whether the Clarks produced sufficient e v idence of an unusual or em ergency condition

. ¶26. As the plaintif

f s in a negligence claim , the Clarks bore the burden to prove all of the required elem ents—duty , breach, c a usation, and dam age. Sanderson Farms Inc. v. McCullough , 212 So. 3 d 6 9, 76 (¶17) (Miss. 2017). In granting McCorkle’s m otion f or

sum m ary judgm ent, the circuit court held the Clarks f a i led to s u f

f iciently show the existence of an em ergency or unusual c ondition and theref ore could n ot show M cCorkle was negligent in pulling his trailer. ¶27. As the circuit co u r t n o t e d , a b s ent a n em ergency or unusual condition, a f ollowing

v e h i c l e has a duty to avoid colliding with a m oving vehicle in f ront o f him

. Reese v. Summers , 792 So. 2 d 992, 996 (¶9) ( M i s s . 2 0 0 1 ). There is an exception, however, to this general duty w hen s uf

f icient evidence of an e m e r g e n cy or u nusual condition is presented. The presence o f such evidence “presents a j ury question as to whether the c ircum stances rise

1 1to the level of em ergency or abnorm al condition.” Jamison v. Barnes , 8 So. 3d 238, 243 (¶10)

(Miss Ct. A pp. 2008). T hus, absent an em ergency or unusual condition, it was Ned who had the prim ary

duty to avoid hitting McCorkle’s trailer. ¶28. The m ajority f

i nds that the Clarks produced suf f icient evidence s howing that genuine issues of m aterial f

act existed r egarding (1) whether f og constituted an unusually d angerous condition; and ( 2 ) whether McCorkle was negligent in the illum ination of his f arm trailer at the tim e of

the collision. ¶29. The Clarks argue the f a c t u a l situation bef

ore t he Court i llustrates a n em ergency or unusual condition—the collision was unavoidable because Ned s uddenly cam e upon a slowm oving t ractor with inadequate visibility under f o ggy conditions. T hey a rgue that their sworn

com plaint and the testim ony of their expert produced suf f icient evidence, creating a genuine issue of m aterial f

act as to (1) the existence of f o g a nd (2) the ref

lectiveness o f McCorkle’s slow-m oving-vehicle sign or saf ety em blem

. ¶30. M c C o rkle argues t hat: ( 1 ) the Clarks’ verif i e d o r “ s w o r n t o ” c o mp l a i n t w a s i n s u f f icient to establish a genuine issue of f act regarding the weather condition s o n t h e

m orning of the accident because Ned adm itte d t h a t there was no f o g where the accident

occur r e d , a nd (2) t he undisputed evidence shows McCorkle was operating h is trailer i n a reasonable m anner—by having a “ slow-m oving-vehicle s ign” on the lef t-back corner of his trailer.
A. Existence of Fog ¶31. The m ajority f

inds that the Clar k s produced suf f icient evidence to create a genuine

1 2issue o f m aterial f act r egarding whether the f og constitut e d a n unusually d angerous condition. The m ajority

lends credence to the opinion of the Clarks’ expert, J a son W alton. However, the circuit court assessed W alton’s opinion correctly and, f urther, was correct in its determ ination of

whether or not f

og contributed to the accident. ¶32. The c ircuit c ourt reviewed the issue of f og twice, f

irst on M c C o r k l e ’ s mo tion f or

sum m ary judgm ent and then on the Clarks’ m otion f o r rehearing. Upon its f

irst review, the circuit court f

ound the Clarks’ prof

f er—in opposition to the m otion f or sum m ary j u d g me nt—was insuf

f icient to establish a genuine issue of m aterial f act concerning th e existence of

f o ggy conditions. ¶33. The evidence prof f ered b y the Clarks to support t he assertion o f f oggy conditions at the tim e o f the accident r e lied o nly on their verif ied com plaint and testim ony of their expert. The m a j ority ref erences the verif

ied com p laint as “Ned’s sworn af f idavit f iled with his

com plaint.” However, o nly a “Verif ication” was attached to the com plaint. T h is verif

ication attested that the f

a cts in the f

oregoing com

plaint were “true and correct.” It, t heref ore, was

a v erif ied or “sworn to” co m

p l aint. The com

plaint m erely s tated t hat “[ a]t the tim e of the collision visibility

in the area was very

poor due t o low light conditions at the dawn of day and heavy f

o g in the area.” However, the c o m plaint did not “set f

orth specif

ic f acts showing that there [ w a s ] a genuine issue f or trial.” M.R.C.P. 56(e). Further, as McCorkle correctly points out, parties opposing sum m ary judgm ent are “required to do m ore than rest on the

m ere allegations of their pleadings, sworn or unsworn.” S tuckey v. Provident B ank , 912 So. 2d 859, 868 (¶19) (Miss. 2005)

. Next, the circuit c ourt exam ined the underly ing bases f or

1 3W a lton’s testim ony a nd f ound that the Clarks’ expert had relied s olely on t he allegations in the Clarks’ v e r i f

i e d c o mplaint that it was f oggy at the tim e of the accident. T heref ore, in granting sum m ary j udgm ent, the c ircuit court f ound that t he Clarks’ verif ied com plaint and expert testim ony

were insuf

f icient to establish a genuine issue of m aterial f

act. ¶34. Upo n t h e C larks’ m otion f or rehearing, the circuit court reexam i ned its decision in light o f w hether they presented suf f icient evidence showing “a need to correct a c lear error of l aw or to prevent m anif est i njustice.” Bang v. Pittman, 749 So. 2d 47, 52-53 (¶29) (Miss. 1999) (overruled on other grounds). Deny ing their m o tion f or r ehearin g , t h e c i rcuit court f ound the Clarks relied on t he allegations of f og w ithin t h e i r v e r if

i ed com plaint and the opinion of

their expert. ¶35. In determ ining whether f og was at issue, the court revie w e d the deposition of Ned Clark, which was prof

f ered b y McCorkle in support of the m otion f

or sum m ary j udgm ent. Ned testif i ed that there was a “[ k]noll” or “[ j]ust a little h ill” w ith “[

j ]ust a l ittle incline, just little incline,” and that h e “seen t he tractor” as soon as he cam e over the little h ill. Moreover, later in his deposition testim ony , Ned stated f og was “[ n]ot on the k

noll.” 5 Thus, by his own adm ission, other than the “sm all, sm all hill,” there were no other obstructions to Ned’s vision on the m orning of

the accident.

5 P rev io u sly in h is testim o n y N e d stated t h at th e w eath e r co n d itio n w as “[ a] little f o g g y early th at m o rn in g ” b u t “[ j ] u st in p atch es. A t lo w

— lo w -ly in g areas.” T h e m aj o rity p resu p p o s es th at f

o g e x isted at th e tim e o f th e accid en t. H o w ev er, N ed testif ied th a t “as so o n as [ h e] cam e o v er th e l ittle h il l ” h e h ad “[ s] een th e tracto r” a n d w as “ [ r] ig h t o n it. It w as v isib le w h en I to p p ed th e h ill.” T h eref o re, h is earlier testim o n y reg ard i n g f o g i s im m aterial b ecau se t h e a c c i d e n t d i d n o t o c cu r at a l ow-ly ing area but rather at the crest o f the hill or sm all knoll, which he adm its had no f og on it. 1 4¶36. Further, the court e xam ined the testim ony of W alton, the C larks’ expert. Not only did
W a lton’s testim ony reveal that he had not l ooked at any specif ic d ocum ents in preparing his

r e p o r t , but also he adm itted that he had not “reviewed a ny deposition transcripts” and t h a t “[ he] just had [ the Clarks’] original com plaint.” Thus, the court f

ound that W alton’s opinion that f og existed a t the site w as directly contrary to Ned’s own testim ony . 6 T h e ref ore, the circuit court reasoned, the expert’s opinion was purely speculative, and thus insuf f icient to def eat sum m ary judgm ent. Based upon what the C larks prof f ered bef ore the circuit court, the depositions of Ned and W alton, and t h e c o u r t ’ s review of the other evidence bef ore it, the circuit court’s determ ination that no genuine issue of m aterial f

act existed was correct.
B. Reflectiveness of Slow-Moving-Vehicle Sign ¶37. The m ajority f

inds that the Clarks produced s u f f icient evidence to create a genuine issue of m aterial f

act regarding whether McCorkle was negligent in the i llum ination of his trailer at the tim e of t h e collision. Again, the m ajority uses W alton’s expert opinion. However, the circuit court correctly assessed W alton’s opinion and, f urther, was correct in its determ ining whether o r n ot t here was a q uestion of l aw or m a t e r i a l f a ct on the issue of negligence in the operation of McCorkle’s tractor and trailer. ¶38. The Clarks a sserted that McCorkle’s tractor and trailer were not properly illum inated under the circum stances. 7 I n support, the Clarks cited several statutes that the circuit court

6 N ed ’s d ep o sitio n h a d b een f i l e d i n su p p o rt o f M c C o rk l e’s m o tio n f o r su m m ary j u d g m en t. T h e C l a r k s d id n o t u se N ed ’s d ep o sitio n to d ef en d ag a in st th e m o tio n f o r su m m a ry j u d g m en t

. 7 In th eir c o m

p lain t, th e C l ark s asserted th at M cC o rk le “f ail[ ed ] to p ro p erly o u tf

it h is v eh icle an d trailer . . . f

o r lo w lig h t, p o o r w e a th er an d v isib ility co n d itio n s .” 1 5fo u

n d i n a p p l i c a b l e b e c a u s e t h e y a l l either applied solely t o a utom obiles; provided exem ptions
f or f arm equipm ent, i.e. t ractors and trailers; or dealt with required v ehicle signs. Notwithstanding the i napplicability of these statutes, the circuit court reasoned, McC o r k le did not b reach his g ener a l d u t y o f a reasonable p erson because the Clarks did not produce evidence of the ref

l ective triangle’s condition at the tim e of the accident. ¶39. The m a

jority relies on J

amison v. Barnes, 8 So. 3d 2 38 (Miss. Ct. App. 2008), and the doctrine of c om

parative negligence t o suggest t hat whe t h e r M c C o r kle’s operation of his

tractor was r easonable under the circum stances is a question best lef t t o the jury

. Generally , the f ollowing car owes a duty to avoid running into the rear of t he vehicle i n f r o nt of it.
W h ile the occurrence of a rear-end collision does not m ake t he f ollowing driver n egligent per
se, the doctrine o f com

parative negligence requires that the other party be negligent as well. Here, McCorkle was not negligent in the operation of his tractor because he i s exem pt f rom the equipm ent requirem ents of title 63 of the Mississippi C o d e A n n o t a t e d, and it is undisputed that the accident o ccurred af ter sunrise. See Miss Code Ann. § 63-7-9 (Rev. 2013). Theref

ore, absent the presence of f og, t here are no genuine issues of m aterial f act lef t f or a jury to decide. ¶40. Regarding McCorkle’s statutory duty , the circuit court properly f ound that none of the cited statutes applied to McCorkle. The Clarks alleged that McCorkle violated two statutes, Mississippi Code Annotated sections 63-3-709 (Rev. 2013) and 63-13-3 (Rev. 2013) (repealed 2015). As the circuit court f ound, section 63-3-709, which deals with signaling, is inapplicable because the record does not containing any allegations of McCorkle p erf orm ing

1 6a m aneuver requiring a signal. As f or secti o n 6 3

- 1 3-3, t he circuit c ourt properly f ound it inapplicable because it e xplicitly provides an exception to its requirem ents f or “f arm trailers engaged in f

arm operations, or to any f arm t ractor, com

b ine, cotton picker, s em itrailer, pole trailer, o r o ther agricultural or f arm ing equipm ent or m achinery , or any com b ination thereof

, used prim arily

f or agricultural purposes.” Miss. Code Ann. § 63-13-3. ¶41. W i th t hose statutes being inapplicable, Mc C o r k l e s t i l l o w e d a g e n e r a l d u ty of reasonable c are under t h e c ircum stances. The Clarks asserted McCorkle violated this duty because his tractor and t railer w ere not properly visible under the circum stances. The circuit

court f ound that the Clarks did n ot present s u f f icient evidence of the triangle’s condition at the tim e of

the accident, and theref

ore no genuine issue of

m a terial f

act existed. I agree. ¶42. The only evidence the Clarks provided regarding the condition of the t riangle was the testim o ny of their expert, W alton. W alton, however, stated that his f irst observation of the ref lective triangle was over t wo y ears a f t e r t he a ccident, and he acknowledged that a triangle’s ref

lective quality c an deteriorate over that period. W hile McCorkle did personally speak with W alton and tell him that he took the ref lective triangle of

f the tractor and put it

on a gate because of old a ge, this does not show a g enuine i ssue of m aterial f act. W alto n d id

n o t o b serv e th e trian g le at th e tim e o f th e a ccid e n t an d ad m itted th at h e h ad “ n o w ay o f k n o w in g ex actly h o w ref lectiv e it w as o n th e d ay o f th e accid en t.” T h e f a c t th at M cC o rk le

rem o v ed th e trian g le af

ter t h e accid en t d o es n o t p ro d u ce su f f i cien t ev i d en ce o f th e co n d itio n

o f th e t rian g le at th e tim e o f t h e accid en t. F u rth er, “ rig h t af ter th e accid e n t ” d o es n o t p ro v id e

a d ef in ite tim e p erio d as to w h en it w as m o v ed

. Walto n d id n o t v i ew th e trian g le u n til n early

1 7tw o y ears af ter th e accid e n t, an d th eref o re h e h as n o k n o w led g e o f th e trian g le a t th e t im e

o f t h e accid en t n o r th e co n d itio n o f th e sig n w h en it w as rem o v ed an d p laced o n th e g ate. ¶43. Theref

ore, his expert opinion and r e p o r t c o u l d n o t s u f f i ciently raise an issue of

m aterial f act as to the c o n d i t i o n o f the ref lective quality of the triangle o n the day of the accid e n t or if its condition contributed to the accident where Ned rear-ended McCorkle during day light hours.
II. Whether Walton’s “ex pert” t estim ony should h ave been a dm itted. ¶44. Though n ot addressed by the m ajority , the Clarks on appeal assert that the circuit court erred in not considering the exper t testim ony of W alton without conducting a Daubert 8 hearing or giving t he C larks t he o pportunity to be h eard. As noted by the Clarks in their brief ,

a c i rcuit court is n ot r equired to h old a Daubert hearing, but is only r equired to allow t h e parties to have a n o pportuni t y t o b e h e a rd. Edmonds v. State , 9 55 So. 2d 787, 792 (¶10) (Miss. 2007)

. A c ircuit court i s given great latitude is deciding how to test an expert’s reliability

. Id. It is in the trial court’s purview “to decide whethe r o r w h en special brief ing

or other proceedings are needed to investigate r eliability .” I d

. (citing Kumho Tire Co. v. Carmichael , 5 26 U.S. 137, 152 (1999)). This Court will not upset a circuit court’s exclusion of expert t estim o ny unless it is clearly arbitrary or erroneous. Patterson v. Tibbs, 60 So. 3d 742, 748 (¶19) (Miss. 2011). In the case at hand, the c ircuit court did n ot abuse i ts discretion in not considering W a lton’s testim ony . ¶45. The Clarks assert that in the f ace of challenged e xpert testim ony , they m ust be given

8 D a u b ert v. M

errell D o w . P h a rm . In c. , 5 0 9 U .S . 5 7 9 (1 9 9 3 ).

1 8a f

air opportunity to be heard. However, this is n ot applicable to the posture of this case. The circuit court, in g r anting s um m ary judgm ent, di d n o t a ctually strike W alton’s expert testim o ny . The circuit court f o und that it was based o n s peculation and was i nsuf f icie n t to def eat sum m ary judgm ent. S ee Rogers v. B arlow Eddy J enkins P.A. , 22 S o. 3d 1219, 1225 (¶21) ( M i ss C t. App. 2009) (“Sum m a ry judgm ent m a y not be def e ated through expert opi n i o n s t hat are n ot based o n f acts but instead are based o n a guess, speculation, or conjecture.”). ¶46. W h ile the circuit judge noted Mississippi Rule o f Evide n c e 7 0 2 ’ s r e q u irem ent f or reliability , the judge f

ound that regardless of whether the testim ony was adm issible, it did not establish a genuine issue of m a terial f act because it was not supported by t he evidence in the

case. The circuit judge f

ound that W alton of

f ered no proof of the weather conditions that day other than those recited in the Clarks’ sworn, verif ied com plaint. The court noted that W alton qualif ied the c ritical part of his analy sis b y stating “ if f oggy conditions were present coupled with the l ow-light conditions o n the road way ” 9 (em phasis added), and t hat W alton adm itted that he did not know of the triangle’s condition at the tim e o f the accident. The circuit judge reasoned that W alton’s testim o ny was based on c o n j e c t u r e a n d s p e c ulation, and theref ore was
not expert testim ony or an opinion that could assist t he f act-f i nder. As the testim ony was not

9 T h e m aj o rity u t ilizes Walto n ’s statem en t th at w ith “lo w v isib i lity an d f o g p resen t,” N e d “d id n o t p o ssesses th e t im e , n o r d istan ce n eed ed to p erceiv e an d react t o th e h azard o f th e tracto r” to in f

er th e creatio n o f a g en u in e issu e o f m aterial f a ct. H o w ev er, N ed testif

ied th at th e re w as n o f

o g o n th e h i ll. M o reo v er, t h e ex p ert’s testim o n y reg ard i n g th e co n d itio n s at th e tim e o f th e accid en t w a s b ased o n ly o n th e v erif i ed co m p lain t, w h i c h n o tes su ch co n d itio n s as co n trary to th e p o lice rep o rt t h a t d escrib es th em as d ay lig h t, d ry , an d clear. T h e ex p ert’s t estim o n y n o t b ein g b ased o n ev i d en ce, th eref o re, can n o t create a g e n u in e issu e o f m aterial f act. 1 9based on the evidence, but rather on speculation and conjecture, W alton’s testim ony could not be used to def

eat sum m a ry

judgm ent.
III. W h e t h e r t he trial c ourt, i n granting sum m a ry judgm ent, denied t h e Clarks their constitutional right to a jury trial. ¶47. Although not reached by the m ajority , the Clarks a l so assert the trial judge’s grant of

sum m ary judgm ent denied their constitutional right to a jury trial. W hile t he Clarks correctly

assert Article 3 of the Mississippi Constitution of 1890 guarantees the right to a t rial by jury , “[ t]rial b y jury i s about disputes of f act.” Towner v. Moore ex rel. Quitman Cty. Sch. Dist. , 604 So. 2d 1093, 1098 (Miss. 1992). Absent s uch disputed f acts, a properly granted m otion
f or s um m ary judgem e nt precludes the right to a jury trial. See Brown v. Credit Ctr. Inc. , 444
S o . 2 d 3 58, 362 (Miss. 1983) (“There is no violation of the right o f trial by jury w h e n judgm ent is entered sum m arily in cases where there is n o genuine issue of m aterial f act and the m oving p arty is entitled to judgm ent as a m atter of law.”). A s discussed a bove, there was
not suf f icient evidence to establish genuine issues o f m aterial f act, and t heref

o re the circuit court did not violate the Clarks’ constitutional right to a jury trial.
CONCLUSION ¶48. The Clarks f

ailed to produce suf

f icient evidence t o create genuine issues of m aterial
f act regarding both the presence of f og and McCorkle’s negligent operation o f his tractor and trailer. Further, the Clarks f a iled to produce evidence showing McCorkle breached a duty of

care, which proxima t e l y c aused Ned’s injury

. The circuit court was correct in granting McCorkle’s m otion f

or sum m ary judgm ent. Theref ore, I respectf

ully dissent. BARNES AND WILSON, JJ., JOIN THIS OPINION.

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