No. 87-232
Y THE SUPREME COURT OF THE STATE OF MONTANA
I
1988
PATRICIA BROHMAN,
Plaintiff and Appellant,
-vs-
STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
P. Keith Keller; Keller, Reynolds, Drake, Sternhagen
& Johnson, Helena, Montana
For Respondent :
John Maynard, Dept. of Administration, Helena, Montana
Submitted on Briefs: Nov. 6, 1 9 8 7
Decided : January 19, 1988
Filed:
.i)R% 1 g 19@
- -
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal of an order of the First Judicial
District, Lewis and Clark County, granting the
defendant/respondent State of Montana (State) a motion for
summary judgment against the plaintiff/appellant, Patricia
Brohman (Brohman). The District Court ruled as a matter of
law that appellant's negligence exceeded that on the part of
the State. It is from this ruling that Brohman appeals.
We affirm.
On January 21, 1984, at about 8:10 p.m., Brohman was
driving east from Missoula, Montana to Helena, Montana on
Highway 12. She was accompanied by her husband, two
daughters and one son. The roads were intermittently snow
packed. Approximately two miles west of Elliston, Brohman
attempted to pass a slower moving truck driven by Jason
Newton. At this point in the highway, a hump in the roadway
existed disallowing sight from either the west or east side.
As Brohman pulled into the passing lane, another car, driven
by Sean Kane who was accompanied by three other Carroll
College students, was cresting this hump from the opposite
direction. Neither Brohman nor Kane could react and a
head-on collision resulted. All parties suffered varying
degrees of injury and two of the passengers in Kane's car
died.
The hump in the road is not noticeable from a distance.
A driver in either direction can see vehicles if they are far
enough away but lose sight once the vehicle is closer to the
hump. The highway runs parallel to a railroad track that is
completely flat. Although the highway is marked with a
double stripe indicating a no-passing zone, there were no
signs indicating a no-passing zone and on the night of the
accident the stripes were covered with snow and ice. The
investigating highway patrolman, Bernard Barton, testified in
deposition that he had to dig through the packed snow to find
the highway striping.
At the time of the accident, Brohman's visibility was
obscured by blowing snow. Barton stated that on his way to
the accident scene he passed the ambulance but could do so
only because he had radio communication with the ambulance
driver.
Brohman could not remember events leading to the
accident or the accident itself. She did, however, testify
that she had traveled this stretch of highway frequently.
This action is a result of the Brohman-Kane accident.
The underlying claims in this case were originally filed in
Federal District Court where the estates of the two deceased
victims sued Brohman and the Shaklee Corporation (Shaklee)
because of diversity of citizenship. Brohman worked for
Shaklee, was driving a leased vehicle that she and her
husband received through their participation with Shaklee,
and was returning from a Shaklee meeting in Missoula when the
accident occurred.
Brohman attempted to join the State in the Federal
cases as a third-party defendant but the Federal District
Court denied the motion on March 7, 1986 on grounds that the
presence of the State as a third party defendant would
destroy diversity of citizenship. On March 13, 1986, the
Federal District Court granted motions for partial summary
judgment against Brohman and Shaklee on the issue of
liability.
This suit was filed in State District Court on January
29, 1986 alleging the State's negligence caused the accident
because of careless and reckless design, construction or
supervision. The State moved for partial summary judgment on
grounds that Brohman was collaterally estopped from denying
liability because the Federal District Court had ruled she
was negligent as a matter of law. The State then moved for
partial summary judgment on grounds that Brohman's negligence
exceeded any negligence on the part of the State. Both
motions were granted and final judgment against Brohman was
entered.
On this appeal, Brohman relies on the report of her
expert, Donald Reichmuth, an engineer, who concluded that the
stretch of highway was dangerous. Reichmuth based this
conclusion on a "deficient stopping sight distance for 55 mph
and [a] blind spot in the passing sight distances from both
east and west." He stated that the posted speed should be 45
or 40 mph and no passing signs should augment the no-passing
zone pavement markings.
The only issue we have before us is whether the
District Court erred in granting the State's motion for
summary judgment.
Summary judgment may be granted pursuant
to Rule 56, M.R.Civ.P., when there is no
genuine dispute over material facts and
the moving party is entitled to a
judgment as a matter of law. The initial
burden of proof is upon the party moving
for summary judgment. The moving party
must demonstrate that no genuine issue of
material fact exists. Then, the party
opposing the motion must come forward
with substantial evidence that raises a
genuine issue of material fact.
Hendrickson v. Neiman (1983), 204 Mont. 367, 370, 665 P.2d
219, 221.
Brohman contends the general rule disallows disposal of
negligence cases with a summary judgment motion.
Ordinarily, issues of negligence are not
susceptible to summary judgment and are
better determined at trial. Brown v.
Merrill Lynch, Pierce, Fenner & Smith,
Inc. (1982), Mont., 640 P.2d 453, 458, 39
St.Rep. 305, 310. Liability should not
be adjudicated upon a motion for summary
judgment where factual issues concerning
negligence and causation are presented.
Duchesneau v. Silver Bow County (1971),
158 Mont. 369, 492 P.2d 926, 931.
Hendrickson, supra, 665 P.2d at 222.
However, we have in the past affirmed the granting of
summary judgment on negligence when it is clear that a party
has breached a duty and caused an accident. Birky v. Johnson
(Mont. 1986), 716 P.2d 198, 43 St.Rep. 488.
In this case, we are dealing with a suit by Brohman
against the State for injuries she suffered. For Brohman to
recover, she would have to prove, .that the negligence on the
part of the State exceeded any negligence on her part in
causing the collision. Section 27-1-702, MCA. Section
61-8-325 (1) and (2)(a), MCA defines the applicable duty for
Brohman under the circumstances of this case:
(1) No vehicle shall be driven to the
left side of the center of the roadway in
overtaking and passing another vehicle
proceeding in the same direction unless
such left side is clearly visible and is
free of oncoming traffic for a sufficient
distance ahead to permit such overtaking
and passing to be completely made without
interfering with the safe operation of
any vehicle approaching from the opposite
direction or any vehicle overtaken. In
every event the overtaking vehicle must
return to the right-hand side of the
roadway before coming within 100 feet of
any vehicle approaching from the opposite
direction.
(2) No vehicle shall at any time be
driven to the left side of the roadway
under the following conditions:
(a) when approaching the crest of a
grade or upon a curve in the highway
where the driver's view is obstructed
within such distance as to create a
hazard in the event another vehicle might
approach from the opposite direction.
The State has the duty to provide and maintain safe
highways for the citizens of the state of Montana. State v.
District Court of the Fourteenth Judicial District (1977),
175 Mont. 63, 67, 572 P.2d 201, 203. Brohman argues that the
State failed to properly warn her of the no-passing zone
because the double striping was covered with snow and there
were no no-passing signs in the area. Brohman contends
therefore, that the State breached its obligation under
5 61-8-203, MCA:
The department of highways shall place
and maintain traffic-control devices,
conforming to its manual and
specifications, upon all state highways
it considers necessary to indicate and to
carry out this chapter and chapter 9 or
to regulate, warn, or guide traffic.
From its plain language, this statute shows the State
of Montana is required to place a sign where "[ilt considers
necessary ... " In the case of no-passing zones, the duty
on the part of the State is discretionary.
The department of highways may determine
those portions of a highway where
overtaking and passing or driving to the
left of the roadway would be especially
hazardous, - i may
and t a appropriate
signs or markings - - roadway indicate
on the
the beginning and end of these zones.
When the signs or markings are in place
and clearly visible to an ordinarily
observant person, every driver of a
vehicle shall obey the directions of
those signs. (Emphasis added.)
Section 61-8-326, MCA.
No evidence was presented at the District Court level
that any accidents had occurred at this particular spot on
Highway 12 prior to the Brohman accident. Patrolman Barton
stated he had no knowledge of any subsequent accidents.
The District Court in its memorandum and order granting
the motion for summary judgment stated:
Normally, negligence is a question of
fact. In certain cases, however, where
reasonable minds cannot differ, the cause
of an accident may be a question of law
for the Court to determine . . . thus.
. . .
when reasonable minds could reach - -
but one
conclusion, questions of fact may -
-- -
be
determined as - matter - -
a oflaw.
Citing, Hartley v. State (Wash. 1985), 698 P.2d 77, 81, see
also, Prosser and Keeton, The Law of Torts, pp. 238, 319-320
(5th Ed. I 1984).
The District Court determined reasonable minds could
not differ that Brohman's negligence exceeded that of the
State. The District Court concluded, because of the unusual
nature of the case, summary judgment was appropriate:
It is true that because of the peculiarly
exclusive nature of the concept of
negligence, it is the rare personal
injury case which may be properly
disposed of by summary judgment.
(Citations omitted. ) [TIhe mistake
should not be made of supposing that
because summary judgment cannot normally
be granted in a particular kind of case,
the motion should not be granted in an
unusual case of the kind in question
where such procedure is in fact
appropriate. Citing Bland v. Northfolk
and Southern Railroad Company (4th Cir.
19691, 406 F.2d 863, 866.
This case falls into the category that allows the court
to determine negligence as a matter of law.
In its memorandum and order of April 15, 1987, the
District Court stated:
[Ilt is undisputed that Plaintiff
attempted to pass at night, in a no
passing zone; that the highway was
intermittently snow packed; that
visibility was obscured by blowing snow
so that she could not see when she was
passing; and that she had traveled that
highway frequently...
Summary judgment demands that all
reasonable inferences from the proof
presented must be drawn in favor of the
non-moving party. Here that means the
Court must assume negligence on the part
of the State.
I conclude that reasonable minds would
not differ on the issue of comparative
negligence. The only conclusion to be
reached is that the Plaintiff ' s
negligence exceeded that of the State's.
I find therefore, that as a matter of
law, the Plaintiff was more responsible
for her injuries than the State may have
been in designing the highway or in
failing to have signs.
Patrolman Barton testified, in his deposition used in
the Federal District Court cases in regard to his subsequent
accident report, that the hill and improper passing were
contributing factors. Additionally, he commented that
Brohman's visibility was obscured when she pulled into the
passing lane. He stated:
Q. Describe for us what you mean by
improper passing.
A. Okay. If you had been able to see
the solid line, the pass was being made
where there was a solid line. The
visibility was obscured so she could not
see when she was passing ...
Q. You said it was snowing when you
arrived?
A. Yes. It would snow -- you know, it
wasn't a steady snow. It was off and on.
Mainly the visibility was bad from
blowing snow.
Q. Such as the snow that's kicked up by
the car in front of you or a truck?
A. Just the wind blowing snow. It was
kind of like a ground blizzard coming
through there.
Q. The snow was not falling heavily at
that time?
A. No. Before we left it had started
snowing quite heavy. But at the time of
the accident it was more of a blowing
snow type thing ...
Q. As you were proceeding to the
accident scene, say east of Avon and for
that area of roadway between Avon and the
accident scene, how was your visibility
so far as blowing snow as you've earlier
described and snowing conditions?
A. The visibility was poor, especially
when there was another vehicle in the
area. I followed the ambulance for quite
a ways just on account of the visibility.
Q. You eventually passed the ambulance,
I think you said, and arrived at the
accident scene prior to the ambulance
arriving?
A. Yes. But they advised me that it was
clear ahead to pass. You know, if we
wouldn't have had contact, there would
have been no way I could pass them,
because they were kicking up the snow
Q. Were the conditions similar in the
area where you attempted to pass the
ambulance as they were at the area of the
accident?
A. Yes ...
Barton also stated at the coroner's inquest that "[tlhe
pass could not be made in safety . .. on account of the
visibility."
From this testimony, the negligence of Brohman is
apparent. She drove her vehicle to the left of the
centerline in a snowstorm while lacking the ability to see
clearly whether there was oncoming traffic. Reasonable
people could not disagree that a reasonable person under
these circumstance would not, and could not, pass in safety.
Brohman could remember nothing of the accident nor events
leading to the accident. Therefore, no evidence asserted by
Brohman's counsel of her objective knowledge at that time is
authentic.
The testimony of Newton and Mike Hataway, the
individuals in the vehicle overtaken by Brohman, at the
corner's inquest further confirmed that Brohman's vision had
to have been obstructed. Newton stated:
Q. What were the weather conditions; do
you recall?
A. It was snowing and the visibility
wasn't all that good ...
Q. Was the snow blowing at that time; do
you recall?
A. Mrn hmm.
Hataway, the passenger in the passed vehicle, concurred.
Q. [D]o you recall what the weather
conditions were?
A. It was snowing fairly hard. The road
was partially snow packed in places,
patchy, and the visibility was not real
good.
Q. The wind was blowing?
A. Yeah, there was snow blowing around
...
On this testimony the Federal District Court based its
conclusion that Brohman's operation of her car caused the
collision and that she violated the Montana Vehicular Safety
statutes. With this information, the District Court
determined that Brohman was, "[als a matter of law... more
responsible for her injuries than the State may have been in
designing the highway or in failing to have signs."
On this appeal, Brohman argues that the District Court
erred in finding that she was collaterally estopped from
bringing the negligence claim and that a material issue of
fact was raised by the affidavits and reports filed by her
expert.
The District Court's order shows that it independently
considered the facts of the case in its own determination
that reasonable minds would not differ on the issue of
comparative negligence. The District Court assumed
negligence on the part of the State and made all reasonable
inferences in favor of Brohman prior to concluding that
Brohman's negligence exceeded that of the State.
In this case, the District Court properly found Brohman
liable as a matter of law. In any action for negligence, the
plaintiff must produce evidence from which it can be
reasonably inferred that the negligent conduct on the part of
the defendant was the proximate cause of the plaintiff's
injuries. Krone v. McCann (1982), 196 Mont. 260, 638 P.2d
397; Bostwick v. Butte Motor Co. (1965), 145 Mont. 570,
403 P.2d 614. The lack of signing in this case has not
been shown to be the proximate cause of this accident. Even
assuming, as the District Court did, that there was
negligence on the part of the State, Brohman's act of
attempting to pass without a clear view was the proximate
cause and far exceeded any negligence on the part of the
State.
Brohman would have to prove by a preponderance of the
evidence that her damages were proximately caused by the
State's presumed negligence. Holenstein v. Andrews ( 1 9 7 5 ) ,
166 Mont. 60, 530 P.2d 476. Under the facts of this case,
the evidence presented and the depositional testimony, it is
clear that Brohman could not prove by a preponderance of the
evidence that the State proximately caused her injuries.
Reasonable minds could not differ in this result.
Finally, as to the claim that Brohman's expert created
an issue of fact, viewing the expert's conclusions in a light
most favorable to Brohman, a question of fact is still not
raised. Reichmuth stated in his report: "[a] driver --who does
not frequently drive this stretch - -
of road might not perceive
the existence of the hump and its accompanying blind spot
which limits visibility." (Emphasis added. ) Brohman
traveled this stretch of road numerous times.
Q. With what frequency in the five years
that you've lived in Helena, now, do you
have to go to Missoula? Any idea? ...
A. Well, it has varied. But it has
varied between one and three times a
week.
Q. I take it, then, you have driven the
road between Missoula and Helena
frequently?
A. Yes ...
From the depositions in this record and the exhibits
and documents available, we hold that the District Court did
not err in granting summary judgment. The State met its
burden of showing no material issue of fact as to Brohman's
negligence. Brohman failed to produce substantial evidence
that raised a genuine issue of material fact. All-State
Leasing Co. v. Top Hat Lounge, Inc. (1982), 198 Mont. 1, 649
P.2d 1250, 1251-1252.
We affirm.
We concur: /--+"