No. 91-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
WILLIAM F. O'CONNOR,
Plaintiff and Appellant,
v.
DONALD NIGG,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David N. Hull, Attorney at Law,
Helena, Montana
For Respondent:
Joe Seifert, Gough, Shanahan, Johnson
and Waterman, Helena, Montana
Submitted on Briefs: December 30, 1991
Decided: September 21, 1992
Filed:
~usticeTerry N. Trieweiler delivered the opinion of the Court.
Plaintiff William F. OIConnor brought this action against
defendant Donald Nigg alleging that he was injured in an automobile
collision which was the proximate result of Nigglsnegligence. The
District Court granted summary judgment to defendant, dismissing
plaintiff's claim. The plaintiff appeals that order of summary
judgment. We affirm.
The sole issue on appeal is whether the District Court
properly concluded as a matter of law that the defendant's
negligence was not the proximate cause of plaintiff's accident and
injuries.
On March 21, 1988, Nigg was operating his vehicle in an
easterly direction on Interstate Highway 90. At a location
approximately three quarters of a mile west of Drummond, Montana,
he lost control of his vehicle. The vehicle left the traveled
portion of the roadway, overturned, and came to rest in the median
area between the westbound and eastbound lanes of travel. No
portion of the vehicle remained on or obstructed any portion of the
highway. At the time of Nigg's accident, James and Julie Gallagher
were following him in another vehicle. They observed the accident
and stopped to render assistance. They pulled their vehicle off to
the right hand side of the eastbound lanes, near where Nigg left
the road. No part of their vehicle was in the traveled portion of
the highway, and they turned on their emergency flashers as a
warning to oncoming traffic.
The Gallaghers comforted Nigg and assisted him into another
vehicle which arrived shortly after the accident. That vehicle
took Nigg to a nearby town for medical assistance.
Approximately five minutes after Niggrs accident, Roger
Cousineau, a member of the Montana Highway Patrol, arrived at the
scene. He pulled his vehicle off the highway on the left hand side
of the eastbound lanes. No part of his vehicle obstructed the
eastbound lanes and he turned on the flashing blue and red light on
top of his vehicle to warn oncoming traffic of his presence.
The roadway at the scene of the accident was straight and
level. Cousineau estimated that there was visibility to the west
for a distance of about one-half mile, and to the east for a
distance of approximately one mile, The weather was overcast, but
not to the extent that visibility was obscured. There were no
other obstructions to a driverts view in either direction on the
highway. Furthermore, the roadway was dry.
Approximately five minutes after Cousineau arrived, and while
he was continuing his investigation of Nigqqs accident, OIConnor
approached the accident scene from the west. Cousineau recalls
looking over his shoulder and seeing OIConnor's vehicle slowing
down as it approached the accident location. He recalls motioning
to him to keep going.
Julie Gallagher testified by deposition that in spite of
Cousineau's directions to OIConnor, he continued to slow his
vehicle while looking back at the accident scene. She testified
that if he was not completely stopped, he came close to stopping
his vehicle on the highway.
After Onconnor had reached a point shortly beyond where
Cousineau's vehicle was parked, he was struck from behind by a
vehicle being operated in an easterly direction by Valerie
Drapella .
In spite of the flashing lights on the patrol car and the
Gallagher vehicle, and in spite of OfConnorlspresence in the
middle of the eastbound passing lane, Drapella failed to apply her
brakes until shortly before the collision, and struck OIConnor at
a high rate of speed. Drapella's first remark when Julie Gallagher
approached her car was, Where in the hell did that idiot come
from?
O'Connor filed his complaint on September 29, 1989, alleging
that as a proximate result of Nigg's negligence and the accident
investigation that followed, he was involved in a motor vehicle
collision from which he was injured.
After answering the complaint, Nigg moved for summary judgment
on the basis that, if negligent, his negligence was not the
proximate cause of plaintiff's injuries.
On May 10, 1991, Nigg's motion for summary judgment was
granted. In awarding summary judgment, the District Court reasoned
that although Nigg may have been negligent, and his negligence may
have been a cause in fact of O'Connor's injury, Niggvsconduct was
not the proximate cause of OrConnor's collision or injuries because
the intervening act of negligence by Drapella was not foreseeable.
The District Court relied on our recent decision regarding
proximate cause in Kitchen Krafrers v. Easfside Bank of Montana (1990), 242
Mont. 155, 789 P.2d 567.
It is plaintiff's position on appeal that based upon our
previous decisions on proximate cause there was a factual issue for
a jury to determine whether it was reasonably foreseeable that the
hazard created by the defendant's original act of negligence could
lead to the kind of second collision that occurred in this case.
Plaintiff relies on our prior decisions in Thayerv. Hicks (1990), 243
Mont. 138, 793 P.2d 784, and S k m o r e v . MontanaPowerCo. (1990), 246
Mont. 37, 803 P.2d 629. Plaintiff submitted evidence by affidavit
that further harm to other persons is always a concern at an
accident scene and contends that that was sufficient to raise an
issue of fact to be decided by the jury.
The defendant, on the other hand, contends that in order to
establish proximate cause there must be an uninterrupted chain of
events and that in this case the negligence of plaintiff and
Drapella were new, independent causes as a matter of law. The
defendant relies on our prior decision in Halsey v. Uithof (1975), 166
Mont. 319, 532 P.2d 686, and decisions from other jurisdictions
based on similar or nearly identical fact situations.
We conclude that the outcome in this case is controlled by
Hahey. In that case, defendant Uithof's westbound truck was
stalled on Highway 40 west of Browning, Montana. A second vehicle,
which was eastbound, approached the stalled truck and waited for a
third vehicle, which was westbound, to go around the truck. While
waiting, the second vehicle was struck by a fourth vehicle which
was also eastbound. After the collision between the fourth and
second vehicles, a fifth vehicle, which was also eastbound, swerved
into the westbound lane to avoid the other two vehicles, where it
collided with the plaintiff, operating a sixth vehicle in a
westerly direction.
The plaintiff sued the defendant, alleging that the presence
of his stalled truck caused the plaintiff's ultimate collision.
Following a jury verdict for the defendant, the district court
granted plaintiff a new trial. We reversed and concluded that the
defendant should have been entitled to a directed verdict for the
reason that the chain of causation between the defendant's original
act of negligence and the plaintiff's collision and damages had
been interrupted by the independent, intervening negligence of
other persons.
We held that:
In determining whether the negligence in creating a
hazard (the truck stalled on the highway) was a proximate
cause of the accident, this test is to be applied: Did
the wrongful act, in a natural continuous sequence of
events, which might reasonably be expected to follow,
produce the injury? If so, it is a concurring proximate
cause of the injury even though the later negligent act
of another (Walker and ~cWhirk)cooperated to cause it.
On the other hand, if the latter's act of negligence in
causing the accident was of such a character as not
reasonably to be expected to happen in the natural
sequence of events, then such later act of negligence is
the independent, intervening cause and therefore the sole
proximate cause of the injury. Jimison v. United States,
267 F.Supp. 674: Sumner v. Amacher, 150 Mont. 544, 437
P.2d 630; DeVerniero v. Eby, 159 Mont. 146, 496 P.2d 290;
Ford v. Rupple, 161 Mont. 56, 504 P.2d 686; Brandenburger
v. Toyota Motor Sales, 162 Mont. 506, 513 P.2d 268; 30
St.Rep. 808.
Halsey, 5 3 2 P.2d at 328,
In applying the rule of "independent, intervening cause8' in
that case, we held that under those circumstances the chain of
causation between the defendant's act of negligence and the
plaintiff's damages had been broken as a matter of law.
We stated:
Applying Jimiron here, appellant was not obliged to
foresee or anticipate that either Walker or McWhirk would
come over the hill at such speeds that they could not
stop within the assured clear distance ahead of them.
Neither was appellant obliged to foresee that Walker
would continue over the hill without braking after seeing
the reflector at the top and should have realized there
might be trouble on the other side. All of this leads to
the conviction that the district court should have
granted appellant's motion for a directed verdict at the
close of respondenttscase-in-chief.
Halsey, 5 3 2 P.2d a t 328.
We find that the only authority presented from other
jurisdictions under circumstances similar to the facts in this case
supports our conclusion, For example, in Williams v. S i h (N.C. 1984) ,
mt
314 S.E.2d 279, the defendant was involved in a motor vehicle
accident which was admittedly caused by his negligence. A police
officer who investigated the accident was injured when struck by a
third vehicle while directing traffic at the scene. The police
officer then sued the defendant. However, the case was dismissed
in the superior court by summary judgment. On appeal to the Court
of Appeals of North Carolina, that court affirmed summary judgment
for the defendant.
After citing rules of proximate cause and foreseeability
similar to those previously established by this Court in this state
(see Youngv. Flathead County (1988), 232 Mont. 274, 757 P.2d 772; Kitchen
Kiaftemv. EastsideBankofMontana (1990), 2 4 2 Mont. 155, 789 P.2d 567;
Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784), the North
Carolina court reached the following conclusion:
The parties stipulated that the original accident
was the result of the negligence of the defendant Ling,
and his negligence was its proximate cause. The second
collision, which involved plaintiff and the second
defendant Smith, took place some twenty to forty-five
minutes later while plaintiff was directing traffic.
There was no unbroken connection between the negligent
act of defendant Ling and plaintiff's injury. The facts
do not constitute a continuous succession of events, so
linked together as to make a natural whole. Rather,
Ling's negligence was too remote and not foreseeable as
such to constitute a proximate cause of plaintiff's
injury. Plaintiff was injured by an independent act of
negligence on the part of defendant Smith, an intervening
act which was not itself a consequence of defendant
~ing's original negligence, nor under the control of
defendant Ling, nor foreseeable by him in the exercise of
reasonable prevision. Therefore, plaintiff's injurious
consequence must be deemed too remote to constitute the
basis of a cause of action against Ling.
For similar results under similar circumstances, s e e H a w o ~ h
v.
Mosher (loth Cir. 1968), 395 F.2d 566, and Lewkv. Esselman (MO. 1976),
As in Halsey, the defendant in this case was not obliged to
foresee or anticipate that the plaintiff would bring his vehicle to
a nearly complete stop in the middle of the passing lane on
Interstate 90, nor that Valerie Drapella would fail to notice the
Gallagher vehicle with its flashing lights, the highway patrol
vehicle with its twirling, flashing blue and red light, and the
plaintiff's vehicle which was directly in front of her on the
highway and had been visible for a distance of one-half to one mile
before she struck it. The defendant was not obliged to foresee
that someone would arrive a t the scene of h i s accident under those
circumstances and be unaware of "where in the hell the idiot that
she struck came from."
Under the facts in this case, as applied to our previous case
law, the acts of the plaintiff and the person who collided with him
were independent, intervening causes of the plaintiff's injury as
a matter of law and the defendant was entitled to summary judgment.
The judgment of the District Court is, therefore, affirmed.
We concur: / w
Chief Justice
September 21, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
DAVID N. HULL
Attorney at Law
P.O. Box 534
Helena, MT 59624
Joe Seifert, Esq.
GOUGH, SHANAHAN, JOHNSON & WATERMAN, P.C.
P.O. Box 1715
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA