No. 93-565
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
DONALD C. WHITE
and EDITH J. WHITE,
Plaintiffs and Appellants,
SHIRLEY S. MURDOCK, ROBERT
JOSEPH LYNDS, JANE DOE, JOHN
DOE and the STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Twenty-first Judicial
~istrict,In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
James A. Haynes, Hamilton, Montana
For Respondents:
Robert E. Sheridan, Garlington, Lohn & Robinson,
Missoula, Montana (Murdock)
Shelton C. Williams, Williams & Ranney, P.C.,
Missoula, Montana (Lynds)
Betsy Brandborg, Special Assistant Attorney General,
Helena, Montana
FILED
5
Filed:
- -
JUN 27 1994
Submitted on Briefs:
Decided:
March 4, 1994
June 27, 1994
>
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2
CLERK OF StlPREkqE COURT
STAXE QF MONTANA
Chief Justice J. A. Turnage delivered the opinion of the Court.
Edith White was injured in an automobile accident when the
vehicle in which she was riding struck a moose on the highway and
rolled over. She and her husband, Donald White, brought this
action in the District Court for the Twenty-first Judicial
District, Ravalli County, to recover their damages. The District
Court granted the summary judgment motions of defendants Robert
Lynds, Shirley Murdock and the State of Montana. We affirm.
The issue is whether disputed issues of material fact preclude
summary judgment.
This case arose out of two motor vehicle accidents on U.S.
Highway 93 between Hamilton and Darby, Montana, at approximately
10:45 p.m. on August 21, 1991. Defendant Lynds was driving south
at a speed of 50 to 55 miles per hour in a rented Winnebago motor
home. It was a clear, dark night and the road was dry. Just north
of Darby, at milepost 34.3, an 800- to 900-pound moose suddenly
entered the highway five to eight feet in front of the motor home.
The motor home struck the moose before Lynds was able to bring it
to a controlled stop 300 to 600 feet further down the highway.
Lynds does not remember actually seeing any oncoming vehicles at
the time the motor home struck the moose, but he was certain he had
his headlights dimmed in anticipation of oncoming traffic.
The accident pushed the radiator against the engine block and
the motor home began to fill with steam or smoke. After Lynds
checked to make sure the moose was not in the immediate vicinity of
the disabled motor home, he and his family got out. Lynds then
became aware that another vehicle was possibly in trouble when he
heard voices and saw headlights shining at an unnatural angle to
the road.
Plaintiff Edith White was a passenger in the front seat of the
second motor vehicle, a Ford Bronco driven by her niece, defendant
Shirley Murdock. Murdock, her two children, her niece, and White
had been visiting White's daughter. Murdock turned north onto
Highway 93 from White's daughter's private driveway, which was
located approximately one-tenth of a mile south from where Lynds
struck the moose.
When Murdock first saw the dead or dying moose, it was lying
on the road in her lane of traffic near the center line, approxi-
mately two car lengths ahead of her. She swerved to miss the moose
but hit it with the tires on the driver's side of the Bronco. She
lost control and the vehicle rolled. Murdock's estimated speed at
the time of impact was 25 to 30 miles per hour. Neither Murdock
nor White recalls seeing the Lynds vehicle before or during the
accident.
Lynds, Murdock, and the State of Montana were the only
remaining defendants in this action when they moved for summary
judgment in the District Court. The Whites asserted that these
three defendants were negligent and that their negligence was an
actual and proximate cause of Edith White's injuries sustained in
the accident. The defendants argued that the undisputed material
facts show that both accidents were unavoidable "acts of God" and
that they were not liable as a matter of law.
The parties filed deposition testimony by Lynds, Murdock,
Edith White, highway patrol officer Charles Gorman, and State of
Montana Highway Department employees Rusty Wrigg and Darrell Daw.
After reviewing the deposition testimony and the arguments and
briefs of the parties, the District Court granted summary judgment
in favor of defendants Lynds, Murdock, and the State. The court
found that the Whites presented no evidence, other than speculative
conjecture, which would raise material questions of fact as to
whether Lynds or Murdock failed in their duty to act as reasonable
persons under the circumstances. The court found that the Whites
were not able to establish the element of proximate cause against
the State. Concluding that the Whites had failed to sustain their
claims of negligence against any of the defendants, the court
dismissed the action with prejudice.
Do disputed issues of material fact preclude summary judgment?
Summary judgment is proper when there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P. This Court's standard of
review is the same as that of the district court. Knight v. City
of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276.
A negligence action requires proof of four elements: (1)
existence of a duty; (2) breach of the duty; (3) causation; and (4)
damages. If the plaintiff fails to offer proof of one of these
elements, the action in negligence fails and summary judgment in
favor of the defendant is proper. U.S. Fidelity and Guar. Co. v.
Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. The causation
element requires proof of both cause in fact and proximate cause.
Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 167-68,
789 P.2d 567, 574.
The Whites maintain they have established questions of fact as
to whether both Lynds and Murdock should have seen the moose before
they did and as to whether Lynds failed a duty to warn Murdock of
the moose in the road. They cite this Courtls opinion in Dillard
v. Doe (1992), 251 Mont. 379, 824 P.2d 1016, as authority that, in
a summary judgment motion, the court must presume that a breach of
duty occurred. That was not the holding of Dillard.
Dillard was a comparative negligence case in which the
plaintiff was injured when a snowplow hit him while he was walking
on a roadway. For purposes of a motion for summary judgment, the
district court was asked to assume that defendant snowplow driver
was negligent. Given that assumption, the court was asked to rule
whether, as a matter of law, the plaintiff s negligence was greater
than defendant s, thus barring recovery. The court answered yes"
and granted summary judgment for defendant. This Court reversed on
that issue. Remanding, this Court stated "it remains to be seen
after sufficient further development of the record, whether any
actual negligence on the part of the [defendant] can be shown by
the [plaintiff]." Dillard, 824 P.2d at 1020.
The Whites also cite language from Payne v. Sorenson (1979),
183 Mont. 323, 326, 599 P.2d 362, 364, which was recently quoted in
Okland v. Wolf (1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306:
Under Montana law, a motorist has a duty to look not only
straight ahead but laterally ahead as well and to see
that which is in plain sight. Furthermore, a motorist is
presumed to see that which he could see by looking, and
he will not be permitted to escape the penalty of his
negligence by saying that he did not see that which was
in plain view.
This language only establishes a presumption of negligence where
there is evidence of something "which he could see by lookingw or
"which was in plain view." As discussed below, no such evidence
was produced in this case. Further, neither Payne nor Okland is
analogous to the present case.
In Pavne, the appealing plaintiff argued that the defendant
was negligent as a matter of law and that the question of defen-
dant's negligence was erroneously submitted to the jury. We
rejected that argument, in the absence of evidence that all
reasonable minds could agree on the issue. Pavne, 599 P.2d at 364.
In Okland, the plaintiff produced evidence of defendant's
negligence, including the testimony of an eyewitness off-duty
police officer and expert testimony by an accident reconstruction-
ist. Both witnesses testified that the defendant should have seen
the plaintiff before the collision. Okland, 850 P.2d at 305-06.
Here, the Whites have produced no evidence whatsoever in
support of their position that Lynds was negligent. Lynds was not
ticketed and the investigating highway patrol officer testified
that Lynds could not have avoided hitting the moose under the
circumstances of this case. It was a dark night, and a dark moose
suddenly came onto the road directly in front of Lynds. There was
no evidence that Lynds was looking other than where he should have
been or that it was possible for him to have seen the moose any
sooner than he did.
As to a duty to remove the moose from the highway after he hit
it, Lyndst uncontradicted testimony demonstrated that he simply did
not have enough time to do anything to warn Murdock of the
possibility of a moose in the road. The Bronco had already rolled
by the time Lynds got his family out of the motor home. There was
additional testimony that three men working together were unable to
move the moose carcass, and that a truck was finally used to drag
it off the road. We conclude that the District Court did not err
in ruling that the Whites have failed to establish material issues
of fact concerning whether Lynds breached a duty.
Next the Whites argue that the bare facts of the accident
involving the Bronco supply enough evidence that Murdock failed to
act as a reasonable person to defeat her motion for summary
judgment. To establish material questions of fact, the party
opposing summary judgment must set forth specific facts and cannot
rely on speculative, fanciful, or conclusory statements. Sprunk v.
First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 105.
The Whites presented nothing other than their conclusory statement
in support of their position that Murdock should have seen the
moose sooner than she did and that she did not react as a reason-
able, prudent person would be expected to react. The opinions in
the depositions of the investigating highway patrol officer,
Murdock herself, and Edith White do not establish anything Murdock
did which was inappropriate or negligent. Because the Whites have
produced no evidence upon which a jury could, without relying upon
speculation or conjecture, conclude that Murdock failed to act as
a reasonable person, we hold that the District Court did not err in
ruling that they failed to establish a material question of fact as
to whether Murdock breached a duty.
Finally, the Whites contend there is a factual question as to
whether the absence of moose hazard signs caused or contributed to
this accident and is attributable to the State. They maintain that
the nnsubstantial
factorw test of causation is appropriate in this
case, rather than the "but fornn
test. The substantial factor test
is applied only when each of several acts, alone, could have caused
the damages. Kitchen Krafters, 789 P.2d at 574. Here, it cannot
be said that the absence of warning signs alone could have caused
Edith Whitens injuries. The "but for" test applies.
Additionally, no evidence was produced that there was an
established or known moose crossing place at or near milepost 34.3,
where these accidents occurred. State highway department employees
testified that there had been a known moose crossing several miles
up the road, and that warning signs had, in the past, been posted
there. However, they also testified that the signs had been
repeatedly stolen and after the road was rebuilt and the slough
which had formerly attracted moose to that area was drained, it was
decided that the signs would not be replaced.
Even if the signs had remained posted, Lynds testified that he
did not believe his increased caution as a result of reading the
warnings would have enabled him to see the moose earlier than he
did or to avoid hitting the moose. The signs had been posted north
of where Murdock encountered the moose. Because she was traveling
north, she would not have come across the signs before she
encountered the moose. The Whites have not produced rebuttal
evidence on these points. We hold that the District Court did not
err in ruling that the Whites have failed to establish material
issues of fact as to whether actions or inactions of the State of
Montana proximately caused their damages.
Affirmed.
We concur:
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
The majority has once again usurped the function of the jury
to resolve the legitimate factual issues presented by the evidence
in this case.
Only when there are no issues of material fact and the moving
party is entitled to judgment as a matter of law is summary
judgment pursuant to Rule 56 (c), M.R. Civ. P., appropriate. Reaves v.
Reinhold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898.
In concluding whether there are issues of material fact, the
role of the district court and this Court requires more than simply
construing the testimony of the moving party in the manner most
favorable to that party. All reasonable inferences that may be
drawn from the offered proof are to be drawn in favor of the party
opposing the summary judgment. Reaves, 615 P.2d at 898.
Furthermore, we have, for good reason, held that ordinarily
issues of negligence are questions of fact not susceptible to
summary adjudication . Duchesneau v. Silver Bow County (1971), 158 Mont .
369, 377, 492 P.2d 926, 931. This case is a classic example of why
issues of negligence are not normally susceptible to summary
judgment .
Before discussing the facts, and inferences from those facts
which give rise to issues of fact, it is necessary to discuss the
rules of law which pertain to the defendants' conduct.
Both defendants, Shirley Murdock and Robert Lynds, are excused
from their collision with a 600 to 900 pound moose based on the
majority's acceptance of their disclaimer that they did not observe
it until it was too late to avoid it. However, their protest is of
little assistance to them under Montana law. As noted by the
majority, we held in Paynev.Sorenson (1979), 183 Mont. 323, 326, 599
P.2d 362, 364, that:
Under Montana law, a motorist has a duty to look not
only straight ahead but laterally as well and to see that
which is in plain sight. Furthermore, a motorist is
presumed to see that which he could see by looking, and
he will not be permitted to escape the penalty of his
negligence by saying that he did not see that which was
in plain view.
Montana's laws pertaining to motor vehicle equipment require
that any vehicle being operated on Montana's highways between
sunset and sunrise must be equipped with headlamps which on high
beam are capable of illuminating objects at a distance of 350 feet,
and on low beam are capable of illuminating objects at a distance
of 100 feet. Section 61-9-220, MCA. Unless approaching or
following another vehicle, use of the higher beam is required.
Section 61-9-221(2), MCA.
In other words, it makes no difference that defendant Murdock
claims not to have seen a 600 to 900 pound moose lying in the
middle of the highway until she was two car lengths away, and it
makes no difference that defendant Lynds failed to see the same
moose until it was located in his lane of travel at a distance of
5 to 8 feet away. Both parties are presumed to have seen that
which could have been seen had they been reasonably diligent and,
if their vehicles were equipped as required by law with the proper
headlamps which were being used as required by law, they should
have seen the object with which they collided in this case at a
distance of at least 350 feet away.
Lynds testified that he was operating a recreational vehicle
at a speed of 50 to 55 m.p.h. and proceeding in a southerly
direction on Highway 93 just north of Darby. It was dark out, but
there was little traffic and the road was straight and dry. He
testified that he did not have his headlamps on high beam, but was
not following another vehicle and does not recall that any vehicle
was approaching him.
Contrary to the representation in the majority opinion, he did
not testify that the moose with which he collided entered the
highway 5 to 8 feet in front of him. He testified that when he
first observed the moose it was already in his lane of travel and
5 to 8 feet away.
He acknowledged that from the high seating position in the RV
that he was driving he had a good field of vision. Yet, in spite
of that field of vision and the 350 feet at which his headlamps
should have illuminated the roadway and the adjoining areas, he had
no idea where the moose came from until it was 5 to 8 feet in front
of him. In fact, he never did apply his brakes.
Only one of two situations could have occurred prior to Lynds'
collision with the moose. Either the moose was in his lane of
travel all along and he should have been aware of its presence at
a distance of 350 feet away and been able to make some effort to
avoid it, or it approached the highway from an area he was
obligated to observe but which he evidently did not observe. In
either event, he failed to comply with his obligation under Montana
law, as set forth in our Payne decision, to observe the roadway
ahead of him and see that which was in plain view.
Furthermore, when Lynds stopped his vehicle 300 to 600 feet
ahead of where his collision occurred, he had an obligation to do
what he could to warn approaching motorists of the hazard he had
created. He states in his testimony that he did so by activating
the flashing warning signals on his vehicle. However, Murdock, who
struck the same moose shortly after Lynds' collision, stated that
even though the motor home was parked on the highway prior to her
collision, she did not see it because there were no flashing
lights. She testified that if she had seen flashing lights she
would have slowed her vehicle.
For similar reasons, there were issues of fact regarding
Murdock's negligence. She testified that as she left the home
where she and Edith White had been visiting, she doesn't recall
whether her headlights were on high or low beam, but acknowledged
that she saw no oncoming traffic, and therefore, there was no
reason not to have them on high beam.
From the time she turned onto the highway until she collided
with the moose, she had not accelerated to more than 25 or 3 0 miles
an hour. When she first saw the moose, it was straddling the
center lane of the highway and blocking about half of her lane of
travel. However, she testified that she did not see the moose
until she was nearly two car lengths away. The highway was newly
paved and had wide shoulders and there was ample room for her to
avoid the moose. However, she swerved too late to completely avoid
it, and as a result, rolled her vehicle. Obviously, the moose did
not jump out in front of her, it was lying prone on the highway.
Had her headlights been on high beam, she should have been able to
see it for a distance of 350 feet. However, even on low beam, had
she been keeping the lookout required by law, she should have seen
it a distance of 100 feet away, not two car lengths, or
approximately 20 feet away, as she testified.
This testimony raises several issues of fact that should have
been decided by a jury. (1) Were Lynds or Murdock keeping a proper
lookout as required by law? (2) Had they been keeping a proper
lookout, at what point should they have observed the hazard ahead
of them on the roadway? (3) Finally, when Lynds and Murdock did
observe a hazard ahead of them on the roadway, did they act
reasonably or negligently in response to that hazard?
The majority opinion never reaches these issues because it
turns the rules of summary judgment upside down. It takes the
testimony of the parties moving for summary judgment and construes
it in the manner most favorable to them. The majority also
completely ignores all necessary inferences from the testimony
given by defendants. The majority simply disposes of these issues
by concluding that under Payne there is only a presumption of
negligence when the object struck is in plain view, and that there
is no evidence that the moose was in plain view in this case. That
conclusion defies logic. If both defendants' headlights were
operating as required by law, and if the moose was located where
they first described it, why wasn't it in plain view earlier than
when they first observed it? It is simply impossible that it was
not.
The majority inappropriately refers to the fact that
defendants were not ticketed. However, that observation is neither
correct nor relevant. Lynds was ticketed because three passengers
in his RV did not have seatbelts on. Perhaps that explains his
reluctance to apply his brakes before colliding with the moose.
However, whether he was or was not ticketed for any violation is
irrelevant to whether or not he was negligent.
The majority also relies on the highway patrol officer's
testimony that Lynds could not have avoided hitting the moose under
the circumstances of this case. However, that testimony was
incompetent for the purposes for which it was offered or accepted
by the majority. The patrolman was not at the scene of the
accident and did not observe its manner of occurrence. He did not
know where the moose came from before appearing in Lynds' lane of
travel and acknowledged that depending on its route to where it was
struck, Lynds might have been able to observe the animal
substantially in advance of his collision with it.
I also dissent from the majority's conclusion that the
District Court correctly dismissed Donald and Edith White's claim
against the State of Montana by summary judgment. This part of the
majority opinion is incorrect for two reasons.
First, the majority discusses whether the State breached a
duty of due care by its failure to erect a warning sign in advance
of the area where this accident occurred. Contrary to the
representations of the majority opinion, there was ample evidence
that the State had such a duty. Based on prior vehicle collisions
with moose in this area, the Highway Department had determined that
a hazard existed as early as 1987, and had first erected warning
signs at that time. Even though a slough which was one of the
attractions for moose in the area had been eliminated by road
reconstruction in 1991, the Highway Department contract for that
construction required that the contractor re-erect the signs as
part of the highway project. The fact that the.signs were stolen
did not relieve the Highway Department of the duty to maintain its
highway by putting them back up again. Section 61-8-203, MCA,
requires that the State warn motorists of known hazards. Darrell
Daw, the Field Maintenance Supervisor forthe Highway Department in
the area where the accident occurred, testified that frequent moose
crossings were a known hazard, even after reconstruction of this
stretch of highway.
Most importantly, however, the District Court did not decide,
and the State on appeal does not argue, that it had no duty to
erect warning signs. The District Court concluded, based simply
upon Lynds' and Murdockls testimony that they would not have slowed
down because of warning signs, that there was no causal
relationship between the State's failure to erect the signs and the
collisions which resulted in Edith White's injuries. However, the
opinions of the District Court and the majority of this Court
ignore significant other testimony given by both defendants. For
example, Lynds testified that when he sees deer crossing signs it
makes him more alert and he is more inclined to watch what is
happening on the road ahead of him. When asked if he would have
driven any differently had he seen signs warning him that moose
crossed the highway in the area where this collision occurred, he
testified: "1 probably would have driven a little bit more
defensively, yes, but it wasnltthere." He also testified that if
he had known there was a possibility of moose crossing in the area,
and if there had not been a car coming toward him, his headlights
would have been on high beam at the time of the accident, rather
than low beam.
This testimony, when considered in combination with the legal
requirements for headlamps on vehicles, the broad range of vision
available in the recreational vehicle, and the broad range of
illumination that would have occurred from high beam, are direct
evidence that the collision which led directly to Edith White's
injuries could have been avoided had an appropriate warning been
given to Lynds.
Likewise, Murdock testified that if she had seen moose warning
signs that evening they would definitely have made an impression on
her and she would have been more alert for the hazards that moose
present. Perhaps in her case, because of the low speed at which
she was already traveling, she would not have been going any slower
because of warning signs. However, had Lynds been adequately
warned there would not, in all likelihood, have been a dead moose
on the highway for Murdock to collide with.
None of these facts are referred to in the District Court
opinion or the majority's opinion. Considering these facts it is
impossible to conclude that there are not at least inferences from
the testimony which create factual issues regarding the subject of
causation.
Under our laws pertaining to the respective responsibilities
of courts and juries, the majority has no business substituting its
judgment regarding the merits of plaintiffs' claim for that of the
jury. However, that is what they have done in this case. For
these reasons, I dissent from the majority opinion.
Justice William E. Hunt, Sr., joins in the foregoing dissent.
w
Justice.