Wirth v. Reynolds Metals Co.

Judith Rogers, Judge.

This is an appeal from an order of summary judgment entered upon a finding that appellants, Randy and Mary Wirth, had faffed to offer proof of proximate causation to support their claim of negligence1 against appellee, Reynolds Metal Company. Adthough appellants contend that the trial court erred in its decision, we affirm.

In May of 1994, appellants drilled a water well to service a new home they were in the process of building in rural Sebastian County. Appellants and their four children moved into the home on December 31, 1994. The family consumed an average of 12,000 gallons of water a month, and the well produced eight gallons of water a minute, which was sufficient to meet their needs. After using the well for four months, appellants experienced problems with the well in terms of pressure and the quantity of water it produced. In July of 1995, production of the well decreased to half a gallon a minute. In October, appellants abandoned use of the well and drilled another well one hundred feet away.

Appellants filed this suit against appellee for damages connected with the failure of the first well. In their complaint, they alleged that appellee had drilled a gas well on adjacent property at a distance of 800 feet from their water well. They claimed that the damage caused to the water well was the proximate result of appel-lee’s drilling and operation of the gas well. Appellants prayed for damages in the amount of $10,000. Appellants subsequently amended their complaint to assert a claim of negligence against appellee. Specifically, in terms of proximate causation, appellants alleged that “the slurry or cement used by the [appellee] in casing their [sic] well leaked into the natural aquifer which served as a channel through which [appellants’] water supply flowed.”

Appellee moved for summary judgment on the issue of proximate causation. Submitted with the motion were the depositions of appellant, Randy Wirth, and T.H. Musgrove, appellants’ expert who had drilled appellants’ water wells, as well as the affidavit of Darwin Hale, the tool pusher who worked on the crew that drilled appellee’s gas well. In opposition to the motion, appellants relied on the same depositions and added the affidavit of a neighbor, Omar Gibson.

In his deposition, Wirth asserted that the problems with his well began two weeks after appellee drilled its well. He said that he did not have any information and did not know that there was anything inappropriate done in the drilling of the gas well, but that it was his “personal belief that this casing and cementing is what caused my problem.”

Mr. Musgrove related that there was no continuous aquifer in the area and that he had dug appellants’ well in a fault where water tends to collect. He had not examined the gas well or appellee’s log books, and he did not know the distance between the two wells or the differences in elevation. He could not say that appel-lee’s gas well had any effect on appellants’ water well. He said that the only scenario for appellee’s well to have caused the problem would be if cement had been lost during the drilling of the gas well. He stated that “[i]f they lost cement, it could possibly have bothered the well.” He said, however, that he had not checked to see if any cement had been lost, but he opined that the man who cemented the gas well would know.

Darwin Hale stated in his affidavit that no water had been encountered during the drilling of appellee’s well and that no cement had been lost. As based on his experience and knowledge, he averred that the drilling of the gas well did not and could not have had any effect on the water well.

In his affidavit, Mr. Gibson stated that he had lived in “close proximity” to appellants’ property for three years. He said that his well had run dry from time to time and that its production had decreased substantially since the drilling of appellee’s gas well.

On this record, the trial court granted appellee’s motion for summary judgment. The court took note of Mr. Musgrove’s testimony that the drilling of the gas well would not have caused the decreased water capacity of appellants’ well in the absence of a loss of cement during drilling, and the testimony of Mr. Hale who stated that no cement had been lost. The court thus found that appellants had faded to offer proof in support of their claim of a causal relationship between the drilling of the gas well and the damage to their water well.

In this appeal, appellants have discarded the theory of causation with respect to the loss of cement. It is their argument that summary judgment was not appropriate because of the circumstantial evidence contained in the record, which consists of proof indicating that their well and Mr. Gibson’s well developed problems two weeks after the drilling of appellee’s gas well. Applying the familiar principles of summary judgment to the evidence adduced in this case, we find no merit in this argument.

Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). All proof submitted must be considered in the light most favorable to the nonmoving party, and any doubts or inferences must be resolved against the moving party. Wozniak v. Colonial Ins. Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994). Rule 56(e) of the Arkansas Rules of Civil Procedure provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The supreme court has interpreted Rule 56(e) many times and has summarized its requirements by stating that once the moving party makes a prima facie showing of entitlement, the opposing party must meet proof with proof by showing a genuine issue of material fact. Dillard v. Resolution Trust Co., 308 Ark. 357, 824 S.W.2d 387 (1992). When a prima facie showing is made, the adverse party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995); Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991). An affidavit stating only conclusions is not sufficient to show the existence of a genuine issue of material fact. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).

Here, the appellants alleged that the damage to their well was caused by the negligence of appellee attributable to the loss of cement when the gas well was drilled. Appellee refuted that allegation and thus made a prima facie showing of entitlement to summary judgment. See Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994); Hensley v. White River Medical Center, 28 Ark. App. 27, 770 S.W.2d 190 (1989). It then fell to appellants to discard the shielding cloak of formal allegations and meet proof with proof to show a genuine issue of material fact. Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995); Cummings, Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980); J.M. Products, Inc. v. Ark. Capital Corp., 51 Ark. App. 85, 910 S.W.2d 702 (1995). This they failed to do. Although there was proof that the well developed problems shortly after the drilling of the gas well, the wells were located at a distance of over two football fields apart, and appellants offered no specific evidence demonstrating how the drilling of the gas well might possibly have caused the damage to their well. Appellants’ claim is thus based on mere allegations and conclusions, which are not sufficient to overcome appellee’s prima facie showing of entitlement to judgment as a matter of law.

To accept appellants’ argument that the mere timing of these events established a causal connection, we would have to engage in reasoning based on a logical fallacy known as post hoc ergo propter hoc, meaning “after this and therefore because of this.” Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 n. 8 (10th Cir. 1987). The failure of post hoc ergo propter hoc reasoning to prove proximate causation was ably set forth by the Supreme Court of Mississippi in Western Geophys. Co. of America v. Martin, 174 So. 2d 706 (Miss. 1965). Like the instant case, Martin involved a damaged water well. Martin, the well owner, asserted that Western’s negligent conduct damaged his well. The issue on appeal was whether the trial court erred in denying Western’s motion for a directed verdict. The court described Western’s conduct and its relation in time and place to Mr. Martin’s water well as follows:

The Western Geophysical Company of America, hereinafter called Western, is engaged in seismograph work, the main purpose of which is to locate subsurface formations capable of producing oil. This work involved the detonating of small charges of dynamite in relatively, shallow holes, thereby sending out energy waves which in turn bounced off the lower formations and traveled back to the surface where they were detected and recorded by extremely sensitive instruments.
Appellee charged that on May 6, 1963, around three o’clock in the afternoon, the appellant detonated a charge of dynamite close to the appellee’s property and a water well of the appellee, so that the appellee’s water well, which had been operating properly, ceased to do so and began to pump sand, which ruined the pump. More specifically, the appellee charged Western’s wrongful act was “the firing of dynamite in the water stream that your plaintiffs water well was in and the firing of dynamite or other explosives too close to the plaintiffs house and water well.” Appellee further charged that the vibration damaged the strainer, causing the pump to pump sand and rusty water, and that the sand burned up the pump. The appellee contended that the explosion was the proximate cause of the loss of his well and that he sustained actual and punitive damages in the sum of $2,500.

Martin, 174 So. 2d at 707-08.

The court then summarized a great deal of testimony offered by Western to the effect that its conduct in setting off the dynamite charge did not damage Mr. Martin’s water well. Thereafter, the court noted:

In the case at bar, there is not any specific, competent testimony as to how and in what manner the well was damaged by the appellant’s detonation. In fact, there is no testimony on this point except by the appellee [Martin] himself, who admitted that he did not know what damage was caused; that he just assumed damage was caused.

Martin, 174 So. 2d at 713.

In concluding that the trial court should have granted Western’s motion for a directed verdict, the court relied on its previous decisions in Humble Oil and Refining Co. v. Pittman, 49 So. 2d 408 (Miss. 1950), and Kramer Service, Inc. v. Wilkins, 186 So. 625 (Miss. 1939), and observed:

The language of the court in the Pittman case deserves our attention. In that case it was said:

Against this expert testimony there is left only the circumstance that soon after the charges were fired some disturbance of the well appeared. This may of course have had a causal connection with the explosions. There is plausible ground for lay witnesses so to suspect. Yet verdicts may not rest upon suspicion or conjecture. In its last analysis the circumstantial evidence adduced to support the verdict is the theory post hoc ergo propter hoc. This basis has never of itself been held substantial enough upon which to erect proximate causation. (Citing Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625, 627 (1939).)

The Pittman case relied upon the Wilkins case, in which the court, speaking through Justice Griffith, said:

There is one heresy in the judicial forum which appears to be Hydra-headed, and although cut off again and again, has the characteristic of an endless removal. That heresy is that proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is sufficient in probative force to take the question to a jury. Such was never the law in this state, and we are in accord with almost all of the other common-law states. . . . “Post hoc ergo propter hoc” is not sound as evidence or argument. Nor is it sufficient for a plaintiff seeking recovery for alleged negligence by an employer towards an employee to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation.
This terse and expressive language had no such limited application as that it governed only in employer and employee cases, but is to be paraphrased as follows: It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. Post hoc ergo propter hoc is not sound as evidence or argument. Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by another toward the plaintiff, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation. (184 Miss, at 496, 497, 186 So. at 627.)

Martin, 174 So. 2d at 714-15.

We find the Mississippi Court’s analysis in Martin and the precedents upon which Martin relies to be persuasive.

Proximate causation is an essential element for a cause of action in negligence. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). See also Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983). Appellants presented no evidence upon which fair-minded people could have concluded without speculation that the drilling of the gas well had any effect on their water well. Proximate causation cannot be based on mere coincidence. Therefore, we cannot say that the trial court erred in granting appellee’s motion for summary judgment. See, e.g., Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995) (summary judgment affirmed where plaintiff failed to offer proof that the defendant’s feed caused the death of plaintiff’s ostriches); Continental Geophys. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967) (holding that motion for a directed verdict should have been granted when no evidence was presented to show that the defendant’s seismographic detonations caused the damage to plaintiffs’ water wells).

Affirmed.

Pittman, Griffen, and Meads, JJ., agree. Stroud and Crabtree, JJ., dissent.

We certified this case to the supreme court as one presenting a question in the law of torts. Ark. Sup. Ct R. l-2(a)(15). However, the court returned the case to us for decision.