Kraus v. Board of County Road Commissioners – Case Brief
Kraus v. Board of County Road Commissioners, 364 F.2d 919 (6th Cir. 1966).
Facts: Kraus’ (P) husband was killed in an auto accident and Kraus sued the Board (D) for wrongful death, alleging that his death was due to the Board’s failure to keep the roads in reasonable repair. D’s defense was that Kraus and not given notice of the claim within 60 days of the accident as required by statute. The trial court denied D’s motion for summary judgment on the grounds that the statute did not apply to wrongful death suits. The court certified the ruling for immediate interlocutory appeal under 28 U.S.C. 1292(b).
Issue: What is required in order for an interlocutory appeal to be proper under 28 U.S.C. 1292(b)?
Holding and Rule: In order to grant an interlocutory appeal under 28 U.S.C. 1292(b) the appeal must materially advance the ultimate termination of the litigation.
The court held that grant of interlocutory appeal is discretionary. Section 1292(b) is to be used only in exceptional cases where intermediate appeal may avoid protracted litigation. In this case, many months would pass before the appeal could reach the docket, and if the order were affirmed the case would be remanded for trial. On the other hand the case could be tried in a few days.
Disposition: Leave to appeal denied.