No. 13904
IN THE SUPREME COURT OF THE STATE OF MONTANA
NANCY McALPINE, individually and as
a personal representative,
Plaintiff and Appellant,
ROGER DAHL, d/b/a DAHL'S WRECKING
SERVICE, MIDLAND ELECTRIC CO., and
the STATE OF MONTANA,
Defendants and Respondents.
Appeal from: District Court of the Eighth Judicial District,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellant:
John C. Hoyt argued and Tom Lewis argued, Great Falls,
Montana
For Respondents:
Marra, Wenz, Iwen and Johnson, Great Falls, Montana
David Hopkins argued, Great Falls, Montana
Cure and Borer, Great Falls, Montana
Edward W. Borer argued, Great Falls, Montana
Submitted: May 2, 1978
~ecided
: 3 1978
Filed: ,v
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Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Plaintiff appeals from an order of the District Court
in Cascade County granting summary judgment for defendants
in a wrongful death action.
Plaintiff, Nancy McAlpine, brought the action for
wrongful death of her husband against defendants on July 1,
1975. Almost two years later, after extensive discovery
defendants moved for summary judgment. On May 16 and May
28, 1977, summary judgment was granted to each defendant in
a brief order which did not set out the basis for the ruling.
The facts giving rise to this controversy follow.
On April 27, 1975, Midland Electric dispatched a pickup
truck and five-wheel gooseneck trailer driven by Arthur
Krueger from Billings to Shelby. The truck and trailer had
four breakdowns, the final one occurring about 9:30 p.m. as
the truck traveled westward on a two-lane stretch of Highway
89, approximately eleven miles east of Great Falls on Mehrnke
Hill. According to highway plats, the hill crests approxi-
mately 3,000 feet east of where the disabled truck stopped,
makes a sweeping right to left curve around the hill,
turning about thirty-five degrees total and straightening
out approximately where the accident occurred.
Krueger had no flares or other warning devices, but
passing motorists loaned him three reflectors, which were
placed approximately 100, 200 and 300 feet to the east
behind the trailer. Within twenty minutes Highway Patrolman
James Coey arrived. Coey parked his patrol car just east of
the disabled vehicle. He and Krueger sat in the patrol car
and talked for thirty to forty minutes. Coey radioed Dahl's
Wrecking Service and instructed Dahl to tow the disabled rig
eastward toward an approach some 300 feet away. Coey gave
Krueger a fusee and left the scene shortly before Roger
Dahl of Dahl's Wrecking Service showed up.
Roger Dahl, assisted by his stepson Ronald Mammen,
fastened the back end of the trailer and, without placing
additional warning devices on the highway, proceeded to
tow the rig backwards about four miles per hour eastward
in the westbound lane toward the approach. Dahl hitched
the trailer in such a way that it protruded about four feet
further into the westbound lane than the wrecker. A rotating
beacon on top of the wrecker, wrecker clearance lights and
emergency flashers on the truck were in operation.
Dahl had towed the trailer and truck about 150 feet
toward the approach when a westbound 1974 Datsun driven by
Michael Hofer approached the scene, passed the wrecker
closely to his right and slammed into the back end of the
trailer. Hofer and occupant Dan McAlpine, were killed
instantly. McAlpine, owner of the car, had employed Hofer
as a farm hand the previous Friday.
Post-mortem blood samples indicated the driver, Hofer,
had a blood alcohol content of .09 percent and McAlpine .14
percent. There is also evidence that the car in which the
two were riding was traveling seventy to seventy-five miles
per hour at the time of impact.
Individuals deposed during discovery included Dennis
James, a motorist who came upon the scene immediately before
the accident; Leroy Hall, who passed by just after the
accident and had been overtaken by the Hofer vehicle at an
estimated seventy to seventy-five miles per hour about two
or three miles from the scene; Kevin McGuire, who next drove
by the accident and who had been passed by the Hofer vehicle
twenty miles earlier at an estimated eighty miles per hour;
and Charles Niswanger, who next passed by the accident and
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who had been overtaken by the Hofer vehicle forty miles
earlier at an estimated seventy to seventy-five miles per
hour.
James testified that when he came over the hill just
east of the accident site, immediately before the accident,
he was "blinded" by the headlights of the wrecker and had
difficulty passing it. He also stated, however, he saw the
beacon and flashers, and proceeded safely around the
wrecker at about twenty miles per hour. James called the
highway patrol the next day to complain about the "blinding"
headlights of the wrecker. The other witnesses testified
they saw the beacon and flashers at least a half-mile away
from the scene. Roger Dahl, driver of the wrecker, testified
his headlights beamed higher than usual because of the
weight of the truck and trailer in tow, but that he did not
turn his headlights on until after the accident occurred.
Plaintiff contends there was a genuine issue of material
fact precluding summary adjudication.
This Court is especially cautious in reviewing grants
of summary judgment on questions of negligence. The
issues involved are generally considered not susceptible to
summary judgment and better resolved by trial. Mally v.
Asanovich (1967), 149 Mont. 99, 423 P.2d 294.
The objective of a hearing on motion for summary judgment
is to determine if the facts have been established beyond
reasonable controversy rather than to reconcile factual
issues. 6 Moore's Federal Practice S56.11 at 56-197.
Plaintiff contends that genuine issues of material fact
remain unresolved. She alleges negligence per se was committed
by Midland Electric in violating sections 32-21-151 (duty to
carry flares or emergency reflectors); 32-21-152(b) (duty to
place warning devices at least 500 feet from vehicle disabled
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within 500 feet of curve); and 32-21-154, R.C.M. 1947, (duty
to keep truck in safe mechanical condition). She contends
the conduct of Midland Electric was wanton and reckless by
dispatching an overloaded truck and trailer, and by proceeding
down the highway after several breakdowns, in total disregard
of the safety of others. She also alleges the State's
conduct was reckless and wanton because the patrolman did
not fulfill his duty to prevent accidents by not staying
with the disabled vehicle, by not insuring the road was
properly marked and by giving improper towing instructions
to Dahl. In sum, she concludes the conduct of each of the
defendants concurred in proximately causing the accident and
injury .
Although Midland Electric and the State deny negligence,
they also contend that Hofer's negligence was an intervening
(superseding) sole proximate cause of McAlpine's death.
They contend the driver, , was negligent per se in
speeding
rbgfer
(section 32-21443) , R.C.M. 1947) , failing to yield
the right of way to an emergency vehicle (section 32-2175,
R.C.M. 1947) and in failing to keep a proper lookout.
Boepple v. Mohalt (1936), 101 Mont. 417, 54 P.2d 857. In
arguing that Hofer's negligence was a superseding cause of
the accident, they contend they could not foresee his
negligent conduct.
The District Court granted its summary judgment order
without explanation. We can only assume defendants' argument
prevailed and the District Court determined that driver
Hofer's conduct was the sole proximate cause of the accident.
Accordingly, we focus our attention on the threshold question
of whether Hofer's conduct in driving the automobile was as
a matter of law the sole proximate cause of the accident and
resulting death.
Plaintiff contends its allegations of willful and
wanton conduct on the part of Midland Electric and the State
create material issues of fact. Assuming, arguendo, that
Hofer was negligent, plaintiff argues it cannot be concluded
as a matter of law that Hofer was the sole proximate cause
of the collision. Plaintiff also contends the negligence of
Hofer, could not, as a matter of law, be imputed to McAlpine.
We need not and cannot however, decide the issue of imputed
negligence in this appeal. Rather, we confine our opinion
as to whether Hofer's conduct was the sole proximate cause
of the accident.
Plaintiff's contention on the issue of Hofer's negligence
turns on recognized distinctions between the conduct of
actors confronted by a dangerous situation created by
another's negligent conduct. See Jimison v. United States
(D.C. Mont. 1967) 267 F.Supp. 674, 679; 57 Am Jur 2d Negligence
S333. In the context of this case, where the second actor
(Hofer) becomes aware of the potential danger and acts
negligently, resulting in his loss, he is held liable under
the theory that the first actor's (defendants Midland Electric,
the State of Montana and Dahl's Wrecking Service) conduct
merely furnished the circumstances for the accident and was
not the proximate cause. Where, however, the second actor's
(Hofer's) negligence occurs without awareness of the danger,
adding to existing peril, his conduct is said to concur with
the first actor's (defendants') negligence in proximately
causing the loss. The distinction is crucial. If the
second actor (Hofer) saw or should have seen the danger and
negligently failed to avoid it, his conduct is held an
unforeseeable intervening cause (superseding cause) cutting
off liability in the first actor (defendants) as a matter of
law. However, if the second actor's negligence (Hofer's)
occurs without knowledge of the dangerous condition created
by the first actor (defendants) a jury question exists on
the issue of proximate cause. Here, there is a material
issue of proximate cause.
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Plaintiff relies in part on conflicting accounts (in
the deposition) of whether the driver Hofer may have been
blinded by the headlights of the wrecker and therefore not
able to see the warning lights and devices on the vehicles
and highway. Dennis James drove by the wrecker and truck-
in-tow immediately before the Hofer-McAlpine vehicle came
upon the scene and crashed into the trailer. James testified
the headlights "blinded" him until he passed. Defendants
attempt to undermine James* testimony by pointing out that
James also admitted he saw the assortment of red and yellow
lights on the wrecker and truck as well as the warning
devices on the highway. James, however, testified he
voluntarily telephoned the authorities the day after the
accident to complain about the wrecker's having "pulled on
his headlights" because it aggravated an already dangerous
situation. The driver of the wrecker, on the other hand,
testified his headlights were not turned on until after the
accident. Given these conflicting statements, neither we nor
the District Court can say as a matter of law that Hofer's
conduct was the sole proximate cause of the accident. Whether
he saw or should have seen the other warning lights is a
question for the jury to decide.
Defendants contend the facts of this case fall within the
doctrine embodied in the line of case law denying recovery
to a motorist who failed to see what was in plain sight. Halsey
v. Uithof (1975), 166 Mont. 319, 532 P.2d 686; Jimison, supra.;
Boepple v. Mohalt (1936), 101 Mont. 417, 54 P.2d 857. They
argue the fact of nighttime darkness is a "distinction without
a difference." We disagree.
Assuming the wrecker headlights were on at the time of
the collision, we cannot say as a matter of law how the glare
might have affected Hofer's vision of the impending hazard.
Hofer and McAlpine are dead. Dahl admitted at the least, that
the headlights, when turned on, were upturned and blinding.
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There are two views as to the effect that blinding
lights have on a plaintiff's right to recover in a negligence
action. The traditional view, sometimes referred to as the
"range of vision" rule, was that a motorist blinded by
approaching lights must either stop or proceed at such speed.
that he can stop to avoid collision. Failing to do so, he
was charged with negligence as a matter of law and precluded
from recovering as against the party negligently obstructing
the road. Annot., 6 4 A.L.R.3d 557-558. Modernly, the
impracticability of such a rule has resulted in a more
flexible standard--that of reasonable care. Rather than
requiring the blinded driver to stop or proceed at his
peril, his duty is deemed the standard of ordinary care
exercised by a reasonably prudent person, dependent upon all
the circumstances and ordinarily a question for the jury.
Annot., 6 4 A.L.R.3d at 559-562. By the modern rule, the
sightless motorist is not always expected to stop or slow
down.
The majority of jurisdictions now appear to have adopted
the more flexible rule in a variety of forms:
"Some courts . .
. have specifically taken
the position that the element of blinding
headlights is not to be regarded as an
intervening cause, but rather as a condition
imposing upon drivers the duty to exercise
that degree of due care required by all the
circumstances. Others have said that a
statute requiring a driver to proceed at a
speed no greater than will permit him to bring
his vehicle to a stop within the assured clear
distance ahead has no application to a blinded
driver.
"Other jurisdictions, while recognizing the
rule which requires stopping or proceeding
at one's peril as generally controlling, have
held that it must be applied in the light of
the particular circumstances prevailing at the
time, and that it is subject to a number of
exceptions and qualifications, depending upon
such factors as traffic conditions, such as
whether the blinded motorist was closely followed
by another car, the nature and visibility of the
object obstructing the road, and the suddenness
of the blinding." Annot., 46 A.L.R.3d 562-565.
Courts have extended this flexible formula to cover
collisions with parked or standing vehicles. Annot. 46
A.L.R.3d at 583. In the case of blinding lights from a
moving or stationary light source, the contention of contri-
butory negligence in proceeding without reduction in speed
is usually considered as but one relevant factor to the
jury's determination of fact. Annot., 46 A.L.R.3d at 619.
This State also has recognized the considerable influence
blinding lights have on a motorist's nighttime driving and
how it bears on the reasonableness of his conduct. In
Ashley v. Safeway Stores, Inc. (1935), 100 Mont. 312, 47
P.2d 53, the glare of oncoming headlights so obscured plaintiff's
vision that he collided with defendant's parked, unlighted
truck. This Court upheld the verdict for plaintiff notwithstanding
the contention, plaintiff failed to keep a proper lookout.
The "proper lookout" issue was declared one of fact for the
jury. In Burns v. Fisher (1957), 132 Mont. 26, 313 P.2d
1044, defendant, blinded by approaching headlights, collided
with a stalled, unlighted truck in which plaintiff's defendant
sat. This Court affirmed the District Court's grant of
nonsuit and held the doctrine of last clear chance had no
application where defendant could not see the truck for the
blinding lights. We therefore reject defendants' contention
that darkness and alleged blinding lights are of no consequence.
An additional fact present in this case militates
against finding Hofer's conduct the sole proximate cause of
the accident as a matter of law. The wrecker and truck-in-
tow were traveling east in the westbound lane of traffic.
Although this course may have been reasonable in the considered
judgment of defendants Coey or Dahl, Hofer's action in
pulling out to pass on the right might also be considered
reasonable. See Annot., 47 A.L.R.2d 6-11 (1956 & Supp.
1969, 1978). This too is a jury question.
The record before this Court indicates each of the
named defendants played a part in bringing about the hazardous
situation which resulted in plaintiff's loss. It is entirely
possible that a jury would find their individual conduct to
have so contributed to the collision as to be concurring proximate
causes of it. See Kudrna v. Comet Corp. (1977), Mont .
, 572 P.2d 183, 34 St.Rep. 1386, 1395, and cases there
cited.
We decide only that Hofer's conduct was not, as a matter
of law, the sole proximate cause of this tragic accident.
The order granting summary judgment to each defendant
is reversed and the case is remanded to the District Court
for further proceedings consistent with this opinion.
We Concur:
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Chief Justice
* Justices I-