No. 8?-237
IN THE SUPREME COURT OF THE STATE OF MONTANA
JEAN M. WHITFIELD; JOHN F. WHITFIELD;
ANNE M. WHITFIELD; JEAN M. WHITFIELD,
as Guardian for STEVEN C. WHITFIELD,
and CAROL E. WHITFIELD; and the ESTATE
OF HAROLD F. WHITFIELD, JR., Deceased,
Plaintiffs and Appellants,
-vs-
THERRIAULT CORP., a Montana corp., a/k/a
THERRIAULT RANCH, a/k/a THERRIAULT CREEK
RANCH; and THE STATE OF MONTANA,
Defendants and Respondents.
THERRIAULT CORPORATION, a Montana corporation,
Defendant and Third-Party Plaintiff,
-vs-
THE STATE OF MONTANA,
Defendant and Third-Party Defendant.
APPEAL FROM: District Court of the Nineteenth Judicial Di-strict,
In and for the County of Lincoln,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Warden, Christiansen, Johnson & Berg; Thomas R.
Bostock, Kalispell, Montana
For Respondent :
Chris D. Tweeten, Agency Legal Services, Helena,
Montana
S. Y. Larrick, Kalispell, Montana
Submitted on Briefs: Sept. 17, 1987
Decided: Novemher 19, 1987
Prt,
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Nineteenth Judicial District,
Lincoln County, dismissed plaintiffs' claim for wrongful
death against the State of Montana (State), and granted the
State summary judgment. Plaintiffs appeal. We affirm.
The issue is whether the District Court erred in grant-
ing summary judgment in favor of the State.
Harold F. Whitfield, Jr., died on October 29, 1984, as a
result of injuries sustained in an automobile accident which
occurred on October 23, 1984. The highway patrol accident
report indicates that on the morning of the accident, Mr.
Whitfield was traveling north on U.S. Highway 93. At approx-
imately 7:30 a.m., he apparently encountered two horses on
the roadway about two miles south of Eureka, Montana. Mr.
Whitfield's automobile collided with one of the horses and
Mr. Whitfield was fatally injured.
Mr. Whitfield's wife and children brought this wrongful
death action against the party alleged responsible for the
loose horses, Therriault Corporation (Therriault). Plain-
tiffs have settled with Therriault, and Therriault is not a
party to this appeal. Before settling with plaintiffs,
Therriault filed a third party complaint seeking indemnity
and contribution from the State. The plaintiffs amended
their complaint to add a claim against the State. The claim
against the State is based upon a highway department mainte-
nance employee's observation of two horses in the roadway
prior to the accident.
Hubert McKenzie, the highway department employee, testi-
fied in a deposition that he saw the horses at approximately
5:15 a.m. while checking road conditions from Eureka to
St-ryker in a highway department dump truck. He said he
followed the horses down the road for approximately one-half
mile before he was able to pass them as they turned off on an
approach road. He did not make any report of the horses
being loose, but did note in his logbook that he had seen
them. Mr. McKenzie testified that he proceeded to Stryker,
turned around and returned to Eureka, arriving at approxi-
mately 7:00 a.m. Mr. McKenzie stated that he did not see the
horses on his return trip.
Janice Pinson, who lives in a house near the accident
scene, testified in a deposition that she observed Mr.
McKenziels encounter with the horses. She stated that she
saw a highway department dump truck "chase" the horses be-
tween 6:30 a.m. and 7: 15 a.m., and that she was not sure of
the exact time, but that the sun had not fully risen.
The plaintiffs contend that Mr. McKenzie failed to
exercise reasonable care after discovering the horses on
Highway 93. They argue that Mr. McKenzie breached a duty
owed to Mr. Whitfield by failing to clear the horses from the
roadway or to warn oncoming motorists. Plaintiffs also
contend that the discrepancy between Mr. McKenziels testimony
and the testimony of Mrs. Pinson as to the time Mr. McKenzie
first encountered the horses constitutes a material issue of
fact and that summary judgment was improperly granted.
Did the District Court err in granting summary judgment
in favor of the State?
Rule 56, M.R.Civ.P., allows a court to enter summary
judgment when the pleadings, depositions, and other documents
on file, together with any affidavits filed, demonstrate no
genuine issues of material fact and that the moving party is
entitled to a judgment as a matter of law. In reviewing a
summary judgment, this Court is free to examine the entire
case and reach a conclusion in accordance with its findings.
Shimsky v. Valley Credit Union (Mont. 1984), 676 P.2d 1308,
1310, 41 St.Rep. 258, 260. In the present case, the District
Court file contains a number of depositions, along with
answers to interrogatories and a number of exhibits.
A claim of negligence must establish a legal duty,
breach of that duty, and damages proximately caused by the
breach. Detert v. Lake County (Mont. 1984), 674 P.2d 1097,
1100, 41 St.Rep. 76, 79. Plaintiffs cite the general duty of
the department of highways to maintain highways in a safe
condition. See $$ 60-1-101 and -102, MCA. They also cite
several cases in which the state was found negligent in
vehicle-stock collisions on federal-aid primary highways.
(Highway 93 is a federal-aid primary highway. ) However,
several of these cases hinge on the state's duty to post
warning signs for animal crossings. E.g., Jensen v. Maricopa
County (Ariz. 1974), 522 P.2d 1096. The State's duty to post
warning signs is not at issue here. In fact, there was
testimony that the area in which Mr. Whitfield's accident
occurred was posted for range cattle. The plaintiffs also
cite the State's duty under S 60-7-103, MCA, to fence the
right-of-way through high hazard areas of the open range.
Plaintiffs do not assert that this section of road had been
classified as "high hazard." Nor do they assert that this
highway was constructed or reconstructed after July 1, 1969,
as is required in order for the statute to apply.
Plaintiffs have not cited any authority stating that a
Montana highway maintenance employee has a duty to remove
live animals from the roadway. In addition, Mr. McKenzie's
uncontradicted deposition testimony is that the horses had
turned off onto an access road when he last saw them. They
were no longer on the roadway. Plaintiffs have cited no
authority for their further assertion that Mr. McKenzie had a
d-uty to somehow insure that the horses did not come back onto
the highway. We conclude that the plaintiffs have not shown
any duty on the part of Mr. McKenzie to do more than he did.
Plaintiffs contend that the differences in the testimony
of Mr. McKenzie and Mrs. Pinson as to the time at which Mr.
McKenzie encountered the horses constitutes a material issue
of fact prohibiting summary judgment. We disagree. As
discussed above, the plaintiffs' case fails to establish a
duty on the part of Mr. McKenzie. Absent a showing of such a
duty, the time at which Mr. McKenzie saw the horses is not a
material issue of fact. We conclude that the discrepancy
between the time given by Mr. McKenzie and that given by Mrs.
Pinson is not a basis to deny summary judgment to the State.
We affirm the lower court's dismissal of the State from
this action.
We concur: .-,,
,I