Schellinger v. Marschall, Preston & Associates, Inc.

No. 86-378
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

BONITA S. SCHELLINGER, individually,
and as Personal Representative of the Estate
of ROBERT K. SCHELLINGER and Guardian Ad
Litem of TODD R., STACY K. and RORY K., Minor
Children; and BRYAN E. SCHELLINGER,
Plaintiffs and Appellants,
-vs-
MARSCHALL, PRESTON & ASSOCIATES, INC.,
an Idaho Corporation, MIKE RHODES AND
DALE SCHULTZ ,
Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of P4issoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bothe Law Firm; David W. Lauridsen, Columbia Falls,
Montana
For Respondent:

Williams Law Firm; Paul Sharkey, Missoula, Montana

Submitted on Briefs: Nov. 20, 1986
Decided: February 24, 1987
Filed: FEB 2 4 1987

u*,- Clerk
Mr. Justice Fred J. Weber delivered. the Opinion of the Court.

Appellants brought a wrongful death and survivorship
action against Marschall, Preston and Associates and two of
their employees (Marschall) alleging negligence. The Dis-
trict Court for the Fourth Judicial District, Missoula Coun-
ty, granted the summary judgment motion of Marschall. We
affirm.
The issue is whether the District Court erred in grant-
ing Marschall's motion for summary judgment.
Robert K. Schel-lingerwas a helicopter pilot who ran his
own helicopter service and carried persons for compensation.
He was hired by Marschall to transport part of a geological
survey crew into and out of the Cabinet Mountains in 1981.
In early May 1981, Mr. Schellinger was in the process of
picking up two members of the survey crew on a steep hillside
when the rotors of the helicopter hit the hillside, causing
the helicopter to crash. Mr. Schellinger was killed in the
crash.
In their complaint, the surviving spouse and children of
Mr. Schellinger allege that the defendants:

. . . had a duty to inform, advise and direct the
decedent as to the location of his helicopter in
relationship to the hillside and breached their
duty by failing to properly notify the decedent
that the rotors of his helicopter were too close to
the hillside for a safe and proper boarding by the
Defendants. In addition, the Defendants ...
knew, or should have known, that if they attempted
to board the helicopter, the aircraft would move
downward due to the change in weight distribution
and collide with the adjoining hillside.
The District Court granted Marschall's motion for summa-
ry judgment and the Schellingers appealed maintaining there
are material facts to be resolved and thus the summary
judgment order was improper.
Did the District Court err in granting Marschall's
motion for summary judgment?
Mayer Bros. v. Daniel Richard Jewel.ers, Inc. (Mont.
1986), 726 P.2d 815, 43 St.Rep. 1821, contains a pertinent
discussion of the summary judgment elements with which we are
concerned:

Thus, we may find summary judgment proper when "the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affida-
vits, 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."
Rule 56 (c), M.R.Civ.P.
Mayer Bros., 726 P.2d at 816, 43 St.Rep. at 1823.
Mayer Bros. further emphasizes the nature of the required
record stating:

Once the record discloses no genuine issue of
material fact, the burden of proof shifts to the
party opposing the motion for summary judgment to
show by present facts of a substantial nature that
a material fact issue does exist. (Cases cited.)
Mere conclusory or speculative statements are
insufficient to raise a genuine issue of material
fact. (Case cited.) The opposing party "may not
rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as
otherwise provided in this rule, - - forth
must set
specific facts showing there - - genuine issue for
is a
trial." (Emphasis added.) Rule 56 (e), M.R.Ci~.P.
Mayer Bros., 726 P.2d at 816, 43 St.Rep. at 1823.
With the foregoing in mind, we now consider the conten-
tions on the part of the Schellingers. In their briefs, the
Schellingers attempt to raise the following issues of materi-
al fact: (1) whether the survey crew's contact with the
helicopter prior to the crash caused the helicopter crash;
(2) whether the survey crew's lack of training and. experience
in helicopter procedure contributed to the crash; (3) whether
one of the survey crew members actually opened the door of
the helicopter; and (4) whether the testimony of one of the
survey crew members was credible. Unfortunately, the record
does not support the contentions of the plaintiffs. The
record includes the transcript of the lower court's hearing,
the depositions of Bonita S. Schellinger (wife of the de-
ceased) , Michael C. Duffield (the Schellinger Is accountant) ,
Robert B. Evans (private investigator), James W. Kruger
(helicopter pilot) , and Kenneth McNees (Federal Aviation
Administration), several answers to interrogatories, requests
for admissions, and various documents requested for produc-
tion. Nothing in this record supports the contentions of the
plaintiffs with regard to the issues of material fact.
As pointed out in Mayer Bros., the responsibility of the
plaintiffs is to set forth by affidavits, or as otherwise
provided in Rule 56, M.R.Civ.P., specific facts showing that
there is a genuine issue for trial. The defendants, Mike
Rhodes and Dale Schultz, who apparently were the only eye
witnesses, were not deposed nor was a sworn statement of any
type obtained from them. The record just does not support
the arguments on the part of the plaintiffs.
Although we agree with the District Court's conclusion
that summary judgment was proper in this case, we do wish to
point out that the standard the District Court used to reach
that conclusion was incorrect. In its order granting
Marschall's summary judgment motion the District Court
stated:

Plaintiffs present no substantial admissible evi-
dence to the effect that any negligence of the
Defendants proximately caused, or was even a sub-
 stantial factor in bringing about, the helicopter
crash.
The test to determine whether summary judgment should be
granted is not whether the party presented any "substantial
admissible evidence," but rather whether there is a genuine
issue of material fact. Rule 56(c), M.R.Civ.P. We recognize
that the District Court initially stated that there was no
issue of material fact and that Marschall was entitled to
judgment as a matter of law. However, we emphasize the
correct standard to be applied in summary judgment proceed-
ings so there will be no confusion in future cases.
After a careful review of all of the materials in the
record, we conclude that the plaintiffs have not shown the
existence of a genuine issue of material fact. We affirm the
summary judgment of the District Court.

We Concur:

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Justices