No. 84-266
IN THE SUPREME COURT OF THE STATE OF MONTA1.A
1984
GONZ and DORIS MORALES, as surviving
parents of TIMOTHY MORALES, Personal
Representative of the Estate of
RAYMOND MORALES, deceased,
Plaintiffs and Appellants,
SALLY TUOMI and EDWIN TUOMI,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Lynaugh, Fitzgerald & Hingle, Billings, Montana
For Respondents:
Crowley Law Firm; Ronald Lodders, Billings, Montana
Submitted on Briefs: Oct. 18, 1984
Decided: January 3 , 1985
8 fi I!; , 1985
Filed: *
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The surviving parents and. personal representative of
Raymond. Morales, plaintiffs below, appeal from an order of
the Thirteenth Judicial District Court, County of
Yellowstone, granting summary judgment to defendants Sally
and Edwin Tuomi. We affirm the decision of the District
Court.
This case arose from an automobile accident which
occurred outside of Billings early in the morning on July 2,
1981. Sally Tuomi, defendant and. respondent, had borrowed
her father's car and had visited a. couple of Billings
nightspots, includincj an establishment known as "Gramma's."
Tuomi and two friends, Linda McAllister and Doreen Crawford,
met Raymond Morales at Gramma's early in the morning on July
2, 1981. Apparently, at about the time that the bar was
closing, Tuomi and Morales decided to travel via backroads to
Laurel, Montana. McAllister and. Crawford both signed sworn
affidavits stating that Morales was driving the Tuomi vehicle
when it left Gramma's. At some point thereafter, the car
failed to negotiate a sharp right hand turn, left the
roadway, and ended up in an irrigation ditch. Sally Tuomi
signed a sworn affidavit stating that Morales was driving at
the time of the accident. Tuomi managed to escape the
submerged vehicle, and left for help. When divers with a
rescue team a-rrived, they discovered the body of Raymond
Morales behind the steering wheel of Tuomi's automobile.
They also noted a hole in the windshield on the passenger
side which might have heen large enough for a person to pass
through.
The coroner's lab report listed the cause of Morales'
death as being asphyxiation following a blunt force head
injury which lead to unconsciousness. The pathologist who
conducted the autopsy, Dr. Kenneth Mueller, later stated by
sworn affidavit that based on his post mortem findings, he
was unable to determine whether Morales was the driver of or
passenger in the automobile at the time of the accident.
On March 10, 1983, the parents and personal
representative of Raymond Morales filed a wrongful death and
survivorship action, naming Sally and Ed.win Tuomi as
defendants. Edwin Tuomi, Sally's father, was the owner of
the accident vehicle. The complaint alleged that Sally Tuomi
negligently caused the death of Morales through her careless
operation of the Tuomi vehicle at the time of the accident.
On January 4, 1984, the defendants filed a motion for
summary judgment; briefs were filed and affid-avits submitted
by both parties. The District Court granted the motion on
March 3, 1984 in a memorandum order.
Upon appeal, the only question is whether there is a
genuine factual issue concerning who was driving the Tuomi
vehicle at the time of the accident.
As their first assignment of error, appellants
maintain that in granting summary judgment the District Court
incorrectly concluded that the defendants-respondents had
sustained their burden of demonstrating a complete absence of
any genuine issue of material fact. In the alternative,
appellants argue that even if defendants sustained their
burden, appellants then came forward with sufficient evidence
to raise a material factual issue, thereby defeating the
motion.
The purpose of Rule 56, M.R.Civ.P., is to dispose of
those actions which fail to raise genuine issues of material-
fact, thereby eliminating the burden and expense of an
unnecessary trial. Van Uden v. Hendricksen (Mont. 1 9 8 0 ) ~615
P.2d 220, 222, 37 St.Rep. 1431, 1433; Silloway v. Jorgenson
(1965), 146 Mont. 307, 310, 406 P.2d 167, 169.
The burden upon the party moving for summary iudgment
is stated in Rule 56 (c), M.R.civ.P. :
"The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories and admissions
on file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law."
To satisfy his burden of proof, the movant must provide
the court with evidence which clearly indicates what the
truth is, and which excludes any real doubt as to the
existence of a genuine issue of material fact. --
Van Uden, 615
P.2d at 222, 37 St.Rep. at 1433.
In this case, defendants filed five sworn affidavits
with their motion for summary judgment relating defen.dantsl
view of the accident which resulted in the death of R.a.ymond
Morales. Michael Alexander, a scuba diver on the rescue
team, stated that when the Tuomi vehicle was located in the
ditch, Morales was in the driver's seat. Doreen Crawford and
Linda McAllister, both of whom accompanied Sally Tuomi to
Gramma's bar on the night of the accident, stated that Ray
Morales was driving the Tuomi vehicle at the time that it
left Gramma's. Sally Tuomi, the only eyewitness to the
accident, stated that Morales was driving the Tuomi vehicle
when she and Morales left Gramma's; that from the time they
left Gramma's to the time of the accident they neither
stopped the car nor changed drivers; and that Morales was
driving the car at the time of the accident. Defendants'
counsel, Ronald Lodders, also filed an affidavit, noting that
an interrogatory had been submitted to plaintiffs inquiring
as to all facts, documents and witnesses which supported
plaintiffs' assertion that Sally Tuomi was driving at the
time of the accident. Ladders noted that in their answer to
the interrogatory, plaintiffs merely stated that they would
cal.1 a.n accident reconstruction expert who would use
testimony to be provided by the divers, the pathologist, a.nd
a highway patrolman to establish that Tuomi was the driver.
Lodders' assertions are verified by the record. Plaintiffs
later attempted to bolster their reply to this interrogatory
by filing supplemental answers, wherein it was stated that:
" Dr. Kenneth Mueller, a forensic
pathologist, will testify that the
injuries to Raymond Morales were to his
head and were inconsistent with injuries
sustained by a driver of the automobile
involved in such an accident. Mike Blohm
and Mike Alexander, the divers, k7ill
testify that to the best of their
knowledge the only open window was on the
driver's side of the vehicle, and thus
the only escape from the vehicle was by
the driverfs side. We believe that this
testimony supports the allegation that
the defendant was driving. . 11
(Emphasis provided.)
Plaintiffs' attorney, Thomas Lynauqh, also filed an affidavit
reiterating his belief that Dr. Mueller and Michael Blohm
would provide testimony placing Sally Tuomi in the driver's
seat.
Defendant then responded by filing the affidavits of
Dr. Kenneth Mueller and Michael Blohm. Mueller stated that
he was unable to form an opinion, as a result of his
examination of Moralesf injuries, as to whether Morales was a
driver of or a passenger in the Tuomi vehicle at the time of
the accident. Rlohm stated that when the Tuomi vehicle was
located in the ditch, the windshield on the passenger side
had a ho1.e in it which may have been large enough for a
person to pass through.
We find that the affidavits filed by defendants clearly
discharged their burden of proof under Rule 56(c), M.R.Civ.P.
It then became incumbent upon plaintiffs, as the party
opposing the motion, to come forward with substantial
evidence raising a genuine issue of material fact. Rule
56 ( e ) , M.R.Civ.P., Riley v. Carl (Mont. 1981.), 622 P.2d 228,
230, 38 St.Rep. 83, 85. Such evidence must be in proper form
and conclusions of law will. not suffice; the proffered
evidence must be material and of a substantial nature, not
fanciful, frivolous, gauzy or merely suspicious. --
Van Uden,
615 P.2d at 224, 37 St.Rep. a.t 1435. Furthermore, as with
any other affiant under Rule 56, an attorney's affidavit "is
admissible only to prove facts that are within his personal
knowledge and as to which he is competent to testify; an
affidavit stating what the attorney believes or intends to
prove at trial will he disregarded." 10A Wright, Miller and
Kane, Federal Practice and Procedure S2738 (1983).
Here the plaintiffs failed to provide the trial court
with any substantial evidence indicating that it was Tuomi,
and not Morales, who was driving at the time of the accident.
Plaintiffs, citing Brown v. Merrill Lynch, Pierce, Fenner &
Smith, Inc. (Mont. 1982), 640 P.2d 453, 39 St.Rep. 305,
insist that they are entitled to all reasonable inferences
which may be drawn from their offered proof ir, defeating
summary judgment. While we agree with the cited rule, the
fact is that plaintiffs have simply failed to offer any proof
which would support an inference in their favor.
Plaintiffs also argue that because their cause of
action was based on negligence, summary judgment was
inappropriate, citing our decisions in Dean v. First ~ational
Bank of Great Falls (1969), 152 Mont. 474, 452 P.2d 402, and
Malley v. Asanovich (19671, 149 Mont. 99, 423 P.2d 294.
However, those cases clearly indicate that summary judgment
is inappropriate in negligence cases when the contested facts
actually involve the issue of a negligent breach of a legal
duty, requiring application of the reasonable man standard.
Dean, 152 Mont. at 483, 452 P.2d at 407. "[Ilt would be
wrong to assume that summary judgment is never appropriate in
negligence actions. A summary judgment motion j.n favor of
defendant should be granted in those cases in which there is
no genuine issue as to any fact that is crucial to
plaintiff's cause of action so that as a ma.tter of law 1 e
1
cannot recover.'' 10 A. Wright, Miller, and Kane, Federal
Practice and Procedure S 2729 (1983) .
Upon review of the offered proof, we can only conclude
that Raymond Morales was driving the Tuomi vehicle
immediately prior to the accident which instigated this
lawsuit, and as a matter of law plaintiffs cannot recover
upon their complaint alleging negligence.
Finally, plaintiffs contend that defendants resisted
the taking of depositions in this case, particularly the
depositions of Dr. Mueller and the two rescue team divers,
and thus granting defendant's motion for summary judgment
"cut off" discovery prematurely. This argument is incorrect
both substantively and procedurally. Rule 56 (f), M. R.Civ. P.
provides that:
"Should it appear from the affidavits of
a party opposing the motion that he
cannot for reasons stat-ed present by
affidavit facts essential to justify his
opposition, the court may . . .
order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had. ..
"
Plaintiffs did not present the required affidavit to the
court stating reasons why the depositions could not be taken.
Nor did plaintiffs attempt to exercise their prerogative
under Rules 30, 31 or 37, M.R.Civ.P. at any time after the
complaint was filed. Plaintiffs had over a year in which to
fortify their case through discovery, and for whatever
reason, they failed to do so.
The judgment of the District Court is aff
We concur:
?,a+&
Chief Justice
$,%&
Justices
I concur in the result only.