NO. 91-227
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
KELVIN DILLARD,
Plaintiff and Appellant,
-vs-
JOHN DOE, and THE STATE OF MONTANA,
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Manley; Manley Law Offices, Polson, Montana
For Respondents:
Hon. Marc Racicot, Attorney General, Betsy
Brandborg, Assistant Attorney General, Helena
Montana
Submitted on Briefs: August 29, 1991
Decided: January 28, 1992
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
The appellant, Kelvin Ijillard, appeals from an order of the
District Court of the Twentieth Judicial District, Lake County,
granting summary judgment in favor of the respondents, John Doe and
the State of Montana. We affirm in part, reverse in part and
remand for further proceedings.
The sole issue on appeal is whether the District Court erred
in granting summary judgment to the respondents.
Early on the morning of January 9 , 1989, the appellant, Kelvin
Dillard, was walking from his home on Fulkerson Lane near Flathead
Lake to work the 7 : O O a.m. shift at Flathead Lumber in Polson,
Montana. It was dark, windy and snowing as the appellant followed
Highway 3 5 west into Polson. Wearing a Levi coat, jeans, and a
black hat and carrying his yellow hard hat, he walked next to the
highway delineator posts with his back to the wind and blowing snow
and to traffic headed in the same direction as he was. It did not
appear to the appellant that the highway had been plowed yet.
The appellant testified in his deposition that as he walked "I
kept turning around and looking behind me hopefully to thumb a ride
with a car and watching out for the plow because I didn't want to
get hit. I seen the plow as it rounded the corner at Fulkerson
Hill." He knew the approaching vehicle was a snowplow because he
could see the flashing yellow lights and hear the scraper.
The appellant's testimony of the events which occurred after
he saw the snowplow round the corner is as follows:
2
A. I saw [the snowplow]. I says to myself, "Before that
guy gets up here, I've got to get on the other side of
the ditch, or I m going to he buried in snow." I maybe
'
walked another 25, 30 yards, stopped, hung my hard hat on
the reflector, bent over to light a cigarette, and that's
when I caught the reflection of his yellow flashing light
in the snow and (indicating), he got me.
Q. With what did he get you?
A. I believe it was the blade.
The appellant was between the fogline and the delineator post with
one foot on the pavement when he was hit. The snowplow continued
on, its operator apparently unaware of what had occurred.
On August 7, 1989, the appellant filed suit against the
operator of the snowplow, named in the complaint as John Doe, and
the State of Montana alleging negligence and seeking to recover
general, special and punitive damages. During discovery, the
respondent State of Montana filed a motion for summary judgment.
A hearing on the motion was held on January 16, 1991. Thereafter,
the District Court granted summary judgment in favor of the
respondents.
In its memorandum and order granting summary judgment the
District Court first determined that the appellant was negligent as
a matter of law. The court determined that the appellant was
negligent in that: (1) he violated 5 61-8-506, MCA, which requires
a pedestrian to walk only on the left side of the roadway facing
traffic which may approach from the opposite direction; (2) he
violated § 61-8-507, MCA, which prohibits standing in a roadway for
the purpose of soliciting a ride; and (3) after hearing and seeing
the snowplow, he "walked 25 yards further, stopped, hung his hard
3
hat on the highway delineator post and bent slightly to light a
cigarette with his back still to the traffic when he was hit either
by the snowplow [blade] or by thrown snow."
The snowplow operator had not yet been deposed at the time of
the hearing on the motion for summary judgment. The District Court
found that the appellant's factual allegations failed to establish
any negligence on the part of the snowplow operator and that the
record was devoid of any evidence of negligence by the respondents.
The court went on, however, f o r purposes of the summary judgment
motion only, to infer and assume negligence by the respondents
based on the appellant's allegations, even though those allegations
were not supported by facts on the record. Assuming first that the
snowplow was owned by the State and operated by its employee, John
Doe, at the time of the accident, the court went on to assume that
the snowplow operator was negligent in failing to keep a proper
lookout, failing to maintain control of his vehicle, driving too
close to the appellant and driving too fast.
The District Court then concluded that reasonable minds could
not differ on the issue of comparative negligence: the appellant's
negligence far exceeded the respondents' negligence. Thus, the
court ruled that the respondents were entitled to summary judgment
as a matter of law.
Did the District Court err in granting the motion for summary
judgment?
In order for summary judgment to issue, the movant must
demonstrate that there is no genuine issue as to facts deemed
4
material in light of the substantive principles entitling the
movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.:
Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760
P.2d 57, 60. If the movant meets this burden, the burden then
shifts to the non-moving party to demonstrate a genuine issue of
material fact. Friqon, 233 Mont. at 117, 760 P.2d at 60.
Ordinarily,,issues of negligence are questions of fact not
susceptible to summary adjudication. Brohman v. State (1988), 230
Mont. 198, 201, 749 P.2d 67, 69. 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, 377, 492 P.2d 926, 931.
However, in certain cases where reasonable minds could reach but
one conclusion