No. 90-208
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
SHANE HENDRICKSON,
Plaintiff and Appellant,
-vs-
TODD A. POCHA, and K-BAR M RANCH,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
b-
:rT
z For Appellant:
j
<--i
-
.I
'. c
-
7
[
,
:? I I
I II
James A. Manley, Esq., Manley Law Office, Polson,
Montana
. .-
c - J
4-
- -For Respondents:
.I
<,
a) 5 Steven S. Carey, Esq., Garlington, Lohn & Robinson,
02 Missoula, Montana
Ll-! t-
Submitted on Briefs: August 23, 1990
Decided: October 25, 1990
Filed:
~usticeJohn Conway Harrison delivered the opinion of the Court.
This is an appeal from summary judgment entered against the
plaintiff in favor of both defendants by the District Court of the
Fourth Judicial District, in and for the County of Missoula. We
affirm the District Court's grant of summary judgment.
Issue on review:
Whether the District Court erred in granting summary judgment.
This case involves an accident which occurred on Montana
Highway 200, near mile post 25, between Missoula and Great Falls
on February 24, 1988 at approximately 8:15 a.m. At the time of the
accident, plaintiff, Shane Hendrickson, was an experienced long-
haul truck driver. Defendant K-Bar M Ranch (K-Bar) owned a ranch
along the highway where the accident occurred. Defendant Pocha was
employed by K-Bar at the time.
Hendrickson, whose vehicle rear-ended Pochals vehicle, sued
for damages.
Montana Highway 200 is a busy east-west, two-lane highway.
It is the major route for long-haul trucks between Missoula and
Great Falls.
On February 24, 1988, Hendrickson left Dixon at approximately
5:30 a.m., bound for Great Falls. His truck was fully loaded with
lumber. Plaintiff testified that his truck had new tires and was
in excellent mechanical condition.
At approximately 8:15 a.m. on the morning of the accident,
Pocha was pulling a round bale feeder with K-Bar's Ford tractor
for approximately two miles on the highway to get to another
2
I ' I '
1 r
section of the ranch to feed cattle. Pocha testified by affidavit
that he did this approximately six or seven times a week. Pocha
pulled onto the highway approximately four-tenths of a mile west
of the bridge where the accident occurred. Pocha was traveling at
an undetermined slow rate of speed heading in an easterly
direction, toward the bridge.
Shortly thereafter, Hendrickson drove his semi-truck over the
top of Greenough Hill approximately one-half mile from the bridge
and heading east as well. Hendrickson testified by affidavit that
as he came over the hill he did not see the Pocha vehicle because
of contours in the road, and the positions of the respective
vehicles. Hendrickson stated in his deposition that when he first
saw the Pocha vehicle he was "probably less than a quarter of a
mile" from it.
Both parties agree that the accident could not be avoided by
either pulling into the other lane due to an on-coming logging
truck or by pulling onto the right shoulder of the road due to its
steep terrain.
Hendrickson described what happened as follows:
[Alnd then I seen the tractor just before then, and then
I jumped on the brakes and I geared down a couple of
times, but as I said before, I was doing approximatelv
50 miles an hour, and I had a full load on, and there
just wasn't enough distance in between to stop.
(Emphasis added.)
Indeed Hendrickson was unable to stop before striking the
Pocha vehicle from behind. Both agree that on the morning of the
accident the sky was blue and the roads were clear and dry.
Hendrickson filed his complaint May 6, 1988. ~ollowing
service of process, defendants filed their answer and counterclaim
August 2, 1988. Hendrickson filed a reply to the counterclaim
August 5, 1988.
On June 14, 1989, following discovery, defendants moved for
summary judgment. The motion was briefed, argued, and on October
12, 1989, the District Court entered summary judgment on the issue
of liability in favor of defendants. There being no dispute as to
the damages awardable to defendants, judgment was entered in favor
of defendants on February 15, 1990.
Notice of entry of judgment was filed February 21, 1990.
Hendrickson filed his notice of appeal March 6, 1990.
Upon appeal, the only question is whether there is a genuine
factual issue concerning the respective negligence of the parties
involved. Hendrickson maintains that in granting summary judgment
the District Court incorrectly concluded that the defendants had
sustained their burden of demonstrating a complete absence of any
genuine issue of material fact.
Ordinarily issues of negligence are not susceptible to summary
adjudication. Hendrickson v. Neiman (1983), 204 Mont. 367, 665
P.2d 219. We must be extremely cautious in reviewing grants of
summary judgment in this area for the issues involved in a
determination of negligence are better resolved at trial.
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 eliminatingthe burden and expense of an unnecessary trial.
VanUden v. Hendricksen (1980), 189 Mont. 164, 615 P.2d 220.
The burden upon the moving party as stated in Rule 56(c),
M.R.Civ.P., is:
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 its 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. VanUden at 167, 615 P.2d at 222.
Once the movant has discharged its burden of proof under Rule
56 (c), M.R.Civ.P. , it becomes incumbent upon 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
(1981), 191 Mont. 128, 622 P.2d 228.
Here, both plaintiff and defendants filed briefs and other
supporting documents, including sworn affidavits, with defendants'
motion for summary judgment.
This Court finds that there is no issue of material fact in
this case and summary judgment was properly granted. The evidence
shows that Pocha did not violate a single traffic law in operating
his vehicle when the collision occurred. On the other hand, the
evidence clearly shows that Hendrickson violated every law on the
books that pertains to a vehicle overtaking another with a
possibility of passing it.
Whether Pocha was driving his farm vehicle at 5 to 10 miles
per hour, or 20 or 30 miles per hour, makes no difference as to
Hendricksonlsnegligence. Pocha was lawfully upon the highway and
Hendrickson owed a duty to Pocha to avoid striking his vehicle
while it was lawfully on the highway.
Hendrickson violated the following statutes in causing the
collision:
Section 61-8-303, KCA. Under this statute, it was
Hendrickson's duty to operate his vehicle on the public highway in
a careful and prudent manner, and at a rate of speed no greater
than was reasonable and proper under the conditions existing in the
point of operation, and he was required to drive his truck so as
not to unduly or unreasonably endanger the life, limb, property or
other rights of persons entitled to the use of the street or
highway. Further, under this statute, he was required to drive at
an appropriate reduced speed when approaching a hill crest, or when
a special hazard existed with respect to other traffic then on the
highway.
Section 61-8-323, MCA. Under this statute, the driver of a
vehicle overtaking another vehicle proceeding in the same direction
is required to pass to the left thereof at a safe distance, and may
not again drive to the right side of the roadway until safely clear
of the overtaken vehicle.
Section 61-8-325, MCA. Under this statute, Hendrickson was
forbidden to overtake and pass Pocha unless the left side of the
roadway was clearly visible and 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
either the oncoming vehicle or the vehicle being overtaken.
Moreover, under this statute, the vehicle was not to be driven to
the left of the roadway or attempt to pass when approaching the
crest of a grade or upon a curve of the highway or where the
driver's view was obstructed within such distance as to create a
hazard in the event another vehicle might approach from the
opposite direction.
Section 61-8-328, MCA. This statute requires that where the
roadway is divided in two or more clearly marked lanes for traffic,
the vehicle shall be driven as nearly as practicable entirely
within a single lane, and shall not be moved from such lane until
the driver has first ascertained that such movement can be made
with safety.
Section 61-8-329, MCA. This statute requires that the driver
of a motor vehicle shall not follow another vehicle more closely
than is reasonable and prudent, and with due regard to the speed
of such vehicle and the traffic upon and the condition of the
highway.
Section 61-8-361, MCA. Under this statute, the driver of a
motor vehicle traveling through narrow valleys, canyons or on
mountain highways shall hold such motor vehicle under control and
as near the right-hand edge of the highway as reasonably possible.
Under the foregoing statutes, it was the duty of Hendrickson,
driving over roadways where the view was obstructed by reason of
hills or possibly by sunshine, to operate his motor vehicle in such
a way that he could stop his unit and avoid striking or colliding
with another vehicle lawfully upon the highway. Clearly he did not
follow this requirement.
In Farris and Senecal v. Clark (1971), 158 Mont. 33, 37, 487
P.2d 1307, 1309, this Court upheld a judgment in favor of the
overtaken vehicle stating:
This Court long ago ruled on the liability of a
person who negligently collides with another vehicle
while attempting to pass. In the case of McDonough v.
Smith, 86 Mont. 545, 550, 284 P. 542, 544, this Court
held:
'!The person passing is negligent if he so carelessly
directs or manages his automobile that a collision
results, or if he attempts to pass in a time or under
conditions which are not reasonably safe."
Again, in Custer Broadcasting Corporation v. Brewer (1974),
163 Mont. 519, 518 P.2d 257, this Court again stated:
Considering the propriety of granting a directed
verdict, this Court in Holland v. Konda, 142 Mont. 536,
541, 385 P.2d 272, 275, stated:
"'"No case should ever be withdrawn from the
jury when reasonable men might draw different
conclusions from the evidence." [Citing case]
I1'This rule is firmly established by other
decisions of this court, and we feel that
further citation on the point is
unnecessary.
However, in cases where a driver of a vehicle is
following another vehicle too closely, we follow the
doctrine that the primary duty of avoiding a collision
rests upon the following driver.
In Farris and Senecal v. Clark, 158 Mont. 33, 37,
487 P.2d 1307, a recent rear end collision case, this
Court sustained the trial court's decision to grant
summary judgment for plaintiffs. There we reviewed the
fact situation not unlike the instant case, except that
here it was a daytime accident and in Farris it was
nighttime .. . .
This Court has long held'.thatviolation of a statute
concerned with highway traffic is negligence as a matter
of law. Farris should have controlled the courtls
decision in considering plaintiffs1 motion for a directed
verdict.
Custer Broadcastinq Corporation, 163 Mont. at 521-22, 518 P.2d at
In this case, Hendrickson's own admission is that he was
driving a tractor and trailer loaded with lumber in such a manner
that even at his claimed speed of 50 miles an hour, he could not
bring his unit to a stop within a quarter of a mile without
colliding with another vehicle lawfully on the roadway. His single
negligence is completely the cause, without any argument. The
District Court was correct in granting,summary judgment to Pocha
and his employer.
Affirmed.
/ 5
We concur:
Chief Justice
Justices
9
I
Justice R. C. McDonough dissents.
In this era of comparative negligence there are the following
issues of material fact relative to the defendant's negligence:
Whether the hazard warning lights were flashing and whether
slow moving emblems were affixed to the back of both the tractor
and the bale feeder, in compliance with 5 5 61-9-219(4) and 61-9-
415, MCA.
Whether the defendant's warning flashers and the slow moving
emblems were partly or totally obscured because of dirt, mud and
flying hay and debris, in violation of 5 61-9-219(4), MCA.
Whether defendant was traveling without the exercise of due
care (too slowly) considering the contours of the highway. See 5 5
61-8-311 and 61-8-303, MCA.
These issues of material fact prohibit summary judgment, and
I would reverse and remand for further proceedings and trial.
Justice
B'
Justices Diane G. Barz and Fred J. Weber concur in the
foregoing dissent. I