dissenting:
Because the question of which gate the Dover and Disera vehicles used to enter the highway is material to the negligence cause of action, I would reverse the summary judgment entered in favor of defendant on the negligence counts. Hence, I must dissent from the majority decision as to that question.
The majority concludes that the design and construction of gate 4 could not possibly be the cause of the accident because the Dover vehicle had travelled three-tenths of a mile on the highway before being rear-ended.
If, as Cynthia Dover stated in her deposition, the Dover vehicle exited at gate 3 and slowed down as it approached gate 4 because of poor visibility of traffic using gate 4, the design and construction of gate 4 could be relevant to the issue of proximate cause even if there was no traffic actually using gate 4 at the time.
On the other hand, if, as Cynthia Dover stated to the police officer at the scene, the Dover vehicle exited gate 4 and travelled three-tenths of a mile before the accident, the design and construction of gate 4 would be irrelevant.
Given the material nature of these contradictory factual assertions, and the credibility issue raised thereby, I would conclude that the trial court erred in entering summary judgment as to the negligence cause of action. The issue of which gate was used should be determined by the trier of fact.
I agree with the majority that summary judgment as to the dram-shop counts should be affirmed.