No. 93-551
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
RICHARD C. BOSSARD,
Plaintiff and Appellant,
-v-
JERALD J. JOHNSON,
Defendant and Respondent.
APPEAL FROM: District court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Bohyer, Phillips & Williams, Missoula,
Montana
For Respondent:
Bradley J. Luck, Garlington, Lohn & Robinson,
Missoula, Montana
f :;,
Submitted on Briefs: March 17, 1994
f,:
d ~ ! > ! 2 1994 Decided: June 2, 1994
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a grant of summary judgment t .
c
defendant by the Fourth ~ u d i c i a l~istrictCourt, Missoula County.
We affirm,
We consider the following issue on appeal:
Did the ~istrictCourt err by granting summary judgment to
defendant and not granting partial summary judgment to plaintiff on
the issue of liability?
Plaintiff Richard Bossard (Bossard) and Jerald Johnson
(Johnson) were friends who had been in the construction business
together. Bossard is also a realtor who sold Johnson the propert;,
which is involved in this action.
The property bought by Johnson contains a house and a storage
shed. On the day of the accident, Johnson and Bossard were*
unloading 80 to 100 pound modified stove boards and placing them i !
the shed.
When the men were finished with this task, they exited the
front sliding door and shut it. During this closing, the roller on
one end of the door came out of its U-shaped track because there
were no "stops9* the end of its tracking slot. Bossard testifiee
at
by deposition that when the door rolled off the end of the track,
that end of the door dropped to the ground. The roller for the
other end of the door remained in the track.
Neither Bossard nor Johnson were injured by the door's fall.
In his deposition Bossard testified that he alone may have lifted
t h e door o r that he and Johnson may have lifted the door in order
to place it back on the track. Bossard testified that the initial
attempt to lift the door was not successful. During the second
successful lift of the door which placed the roller back in its
slot, he testified he felt pain in his arm. Bossard later learned
that the pain was caused by a ruptured right biceps tendon. After
the injury an embolism formed which caused serious impairment to
the use of his right arm.
Bossard filed this negligence action on March 23, 1993,
seeking to recover damages for his injuries. Johnson filed a
motion for summary judgment on July 1, 1993. On July 12, 1993,
Bossard filed a cross-motion for partial summary judgment on the
issue of Johnson's liability.
The District Court entered its opinion and order on September
10, 1993, granting Johnson's motion for summary judgment and
denying Bossard's motion for partial summary judgment. Bossard
appeals the court's grant of summary judgment to Johnson and its
denial of his own motion for partial summary judgment.
Did the District Court err by granting summary judgment to
defendant and not granting partial summary judgment to plaintiff on
the issue of liability?
In order for summary judgment to issue, the movant must
demonstrate there are no genuine issues of material fact and that
he is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P. If movant meets this burden, the burden then shifts to
the party opposing summary judgment to demonstrate genuine issue of
material fact. Richland National Bank and Trust v. Swenson (1991),
249 Mont. 410, 816 P.2d 1045.
Bossard contends that he was injured on Johnson's property and
that Johnson is liable for those injuries. Bossard testified that
after the door slipped from the track, it came to rest on the
ground in a precarious position. While Bossard does not identify
any person or property which was in danger of injury, he contends
that the "rescue doctrine" allowed him to place the door back on
its track, and then to recover from Johnson because he was injured
trying to remove the danger. Bossard also argues that Johnson knew
about the lack of "stops" on the track, but negligently failed to
put in stops or to warn him of the danger. Finally, Bossard
contends that because of the contradiction in statements when
Johnson's first affidavit is compared to his second affidavit,
there is a question of material fact which precludes summary
judgment.
Johnson responds by contending that the lqrescue
doctrine" is
not applicable to the facts in this case. Johnson further contends
that he had no legal duty to Bossard and that a negligence action
is inappropriate. He contends that as a landowner, he had no duty
to warn Bossard about the door because the door was not a hidden or
lurking danger. In addition Johnson contends that the action of
lifting the door back on its track does not represent a foreseeable
danger as each of the men had just finished lifting objects of the
same weight. Finally Johnson contends there is no issue of
material fact when his two affidavits are compared.
We will first discuss the "rescue doctrine." In Kiamas v.
Mon-Kota (1982), 196 Mont. 357, 639 P.2d 1155, this Court
emphasized the necessity of an actual danger of injury to person or
property and a definite emergency before the rescue doctrine could
be applied, stating:
It may be noted that both Justice Cardozo and Professor
Prosser emphasize that danger of injury or damage to
person or property is the element which invites rescue.
"The emergency begets the man."
Kiamas, 196 Mont. at 361, 639 P.2d at 1158. In Kiamas, the
plaintiff was injured while attempting to help the Mon-Kota drivers
change the wheel spacing on its tractors. This Court further
stated the following with regard to the absence of an emergency:
The possibility of harm was eliminated by Mon-Rota
stopping its tractors and the driversv agreement to
change the wheel spacing so there would be no further
damage to the Kiamas crops or lands. Not only is there
an absence of an emergency described above, there is a
total absence of need for action to prevent harm.
Kiamas, 196 Mont. at 363, 639 P.2d at 1159. In the present case,
the District Court stated:
In this instance, the door came off its track, and one
end rested on the ground. No immediate danger resulted
from the door coming off its track.
As the door sat, it did not represent a threat of injury to either
of the men present nor to the property itself. As in Kiamas, we
here conclude that no danger of injury or damage to person or
property existed. We conclude that because no emergency existed,
there was no need for action to prevent harm so the rescue doctrine
is not applicable to the facts of the present case.
With regard to Bossardvsclaim of negligence, he argues that
because he was injured on Johnsonvs property, Johnson is
responsible for his injury. Landowners are not insurers against
all accidents and injuries to others on their land. Buskirk v.
Nelson (1991), 250 Mont. 92, 818 P.2d 375. A landowner has a duty
to those on his property to use ordinary care under the
circumstances. Limberhand v. Big Ditch Company (1985), 218 Mont.
132, 706 P.2d 491. In order to recover from the landowner, the
injured person must prove that he was injured due to the negligent
act or omission of the landowner.
The District Court determined that it had not been presented
with evidence which demonstrated that any act or omission by
Johnson was the proximate cause of Bossard's injury.
In Bickler v. Racquet Club Heights Associates (1993), 258
Mont. 19, 850 P.2d 967, we defined proximate cause as follows:
In Montana, proximate cause is an act or omission
which, "in a natural and continuous sequence, unbroken by
any new, independent cause, produces injury, and without
which the injury would not have occurred." . . .
The
phrase "without which the injury would not have occurred"
incorporates the "but forw test.
Bickler, 258 Mont. at 23, 850 P.2d at 970.
Bossard contends that Johnson did not fix the stops or warn of
the lack of stops and that his failure to act or warn was the
proximate cause of Bossard's injury. Johnson agrees that he did
not fix the stops and that he did not tell Bossard of the lack of
stops. However, Johnson contends that Bossard's injuries flow from
Bossard's own decision to lift the door back on its track.
In considering this aspect, the District Court stated:
While the Defendant [Johnson] knew that the door could
come of [off] the track, it was not reasonably
foreseeable that the Plaintiff [Bossard] would injure
himself by attempting to secure the door. There is a
missing link in the chain of causation as presented by
the Plaintiff. The falling door did not directly
precipitate the Plaintiff's injuries. It was the
...
Plaintiff's actions which directly resulted in his
injuries,
Here the event which produced the injury was Bossard's attempt
to lift the door back on its track. Bossard testified that he did
not believe such an attempt would injure him. Further, the record
is clear that Johnson did not foresee that Bossard's attempts would
end in any injury as Bossard had just completed the successful move
of objects as heavy as the door.
We conclude that Bossard's conduct in lifting the door
constituted an independent cause, which broke the continuous
sequence required under Bickler to establish proximate cause. We
further conclude that because of the absence of proximate cause,
Bossard is unable to prove that Johnson was negligent.
Bossard finally contends that the contradictory statements as
to the necessity of replacing the door as set forth in Johnson's
two affidavits preclude summary judgment because the affidavits
create an issue of material fact. We note here that Bossard's
deposition testimony establishes that he is not sure whether
Johnson helped him with the door or not. This inability to state
whether both men or only Bossard lifted the door is mirrored in
Johnson's conflicting affidavits. The first affidavit states that
both men helped putthe door back, Johnson's second affidavit says
only Bossard made the attempt. Yet, this conflict of facts is not
important.
The dissent characterizes the major question posed by the two
7
affidavits as one involving the need to replace the door. Whether
a need existed is only material to resolution of whether reliance
can be placed on the rescue doctrine. While the dissent argues
that it is a material question of fact as to whether both men
agreed that the door had to be replaced, the only material question
is whether an emergency existed. The evidence from both men is
consistent that no one present at the scene was threatened with
injury.
What is in conflict is whether Johnson believed a threat
existed to the 'next person who came upon the door." The rescue
doctrine is inappropriate if the only person with any potential to
be injured is a possible unknown future person. The "next person
to come upon the door1'--may never come along. The rescue doctrine
is not rooted in future possibilities, but in an immediate need for
action. If the facts portrayed consistently by both men showed
that Bossardts actions were required to alleviate the threat of
harm, then the rescue doctrine would be applicable. Both men
presented consistent evidence that neither of them was injured by
the falling door and that no one else was present. Both men also
testified consistently that neither of them believed that replacing
the door would harm them. These are the facts that are material
and they are not in dispute.
The dissent states that Johnson's shift in his second
affidavit away from his belief in the need to protect some future
person presents a material question of fact for the trier of fact
because it puts the emergency nature of the door replacement at
issue. However, what is not certain by reading the two affidavits
concerns only Johnson's wavering "belief1'that some person in the
future may be injured. The question of Johnson's "belief" as to
the possibility of harm to a person not present at the scene is not
material to resolution of whether Johnson was negligent or whether
the rescue doctrine applied. A material fact must contribute to a
resolution of the case. State v. DeMers (1981), 628 P.2d 676, 38
St.Rep. 877.
The only question that is material here is whether something
Johnson did caused damage or, in the case of application of the
rescue doctrine, whether something Johnson did caused an emergency
situation that Bossard was forced to attempt to eliminate.
Johnson's beliefs concerning a future possibility of harm to
someone who might never show up do not represent anything that is
material to resolution of these questions.
We hold that the District Court did not err in granting
summary judgment to defendant and in refusing to grant partial
summary judgment to plaintiff.
Af finned.
We Concur:
[f-
/ L a C '
Chief Justice
. U
Justices
I respectfully dissent. This case should not be decided on
summary judgment; there are material disputed facts that should be
resolved by a jury.
In a personal injury case we must start from the basic premise
that issues of negligence are not ordinarily susceptible to summary
adjudication, but are better determined at trial. Dillard v, Doe
(1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018. It is only when
reasonable minds could reach but one conclusion that questions of
fact may be determined as a matter of law. Brohman v. State
(19881, 230 Mont. 198, 202, 749 P.2d 67, 70.
In the instant case we need go no further in determining that
there are material facts at issue than to Johnson's affidavits.
While our opinion focuses on the conflict in the affidavits
regarding whether Bossard lifted the door alone or with the
assistance of Johnson, that is not the major difference at all.
The substantive difference between the two affidavits derives from
the fact that Johnson changes his whole story about the imminency
of the peril from his first affidavit to hie second. In his
December 10, 1992, affidavit, Johnson states at paragraph 10:
At the time the sliding door fell off the track and
Richard was injured, we both felt it was necessary to
replace the door on the track. After the door fell off
the track, it was not in a steady position, and we were
both concerned that if we left the door as it sat, there
would be a risk of injury to the next person who came
upon the door and tried to move it. We were also
concerned that leaving the door sitting on the ground
with only one wheel sitting in the track might further
damage the door, the track or the rollers. For those
reasons, Richard and I attempted to replace the door on
the track.
In his June 29, 1993, affidavit, Johnson had a-much different
view of those crucial facts, however. He states at paragraph 5:
On May 25, 1991, after one end of the door slipped
off the track there was no immediate need to replace it
upon the track. It certainly needed to be replaced in
due time to avoid the possible bending of the track or
the very remote possibility of it falling. There was no
emergency need to act in replacing the door.
In the two affidavits Johnson's position goes from concern
that the door, hanging from one roller in an unsteady position,
would injure the next person who tried to move it, to no more
concern than that at some indeterminate point in the future,
because of a "remote possibility" of the door falling, that it
would have to be replaced. In his first affidavit the door would
likely injure the next person who came in contact with it; in his
second affidavit the door could, with little risk, hang on one
roller until Johnson got around to fixing it. That is the major
difference.
Bossard's deposition testimony clearly supports the statements
in Johnson's first affidavit -- i.e. that the door was not in a
safe position and that it should not be left hanging from the one
roller:
Q: (Attorney Luck) What do you mean when you say you
thought in your own mind it was precarious?
A: (Bossard) I thought it could fall off and the door
could be torn, damaged, the runner might get damaged if
a breeze, a wind, or if somebody came by and it fell on
them it could kill them or hurt them.
While the rescue doctrine may not be rooted in "future
possibilities," a fair reading of Johnson's first affidavit and
Bossardlsdeposition testimony clearly indicate that both men were
concerned that the door was not stable and could likely fall and
seriously injure the next person who came in contact with it. Our
opinion points out that the "'next person to come alongv may never
come a10ng.~' Aside from the absurdity of that statement, it was
for the jury to make that determination.
It is undisputed that Johnson knew about the defective door,
that Bossard did not, that the defect was hidden and that Johnson
failed to warn Bossard that the door would fall off its track if it
were pushed too far.
Bossard filed his complaint on the theory that he was injured
because Johnson negligently maintained his property by failing to
repair a door known by Johnson to be defective, by failing to warn
Bossard of that defect known only to Johnson, thereby creating a
danger to persons and property which invited the urescue" by
Bossard when the door fell off its track. Johnson's first
affidavit and Bossardvsdeposition testimony support that theory,
and Bossard argues that he was entitled to partial summary judgment
on the issue of liability on that basis, without more.
Even disregarding Johnson's second, contradictory affidavit,
given Johnson's first affidavit and Bossard's deposition testimony
I believe that there remain issues of fact to be decided by the
jury concerning the urgency of the situation and the imminency of
the peril after the door fell and as to the application of the
"rescue doctrine" to this case.
Furthermore, I disagree with the Court's conclusion that
Johnson had no duty to warn Bossard. We cite to Limberhand v. Big
Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491, for the rule that a
landowner has a duty to those on his property to use ordinary care
under the circumstances, regardless of whether the injured party is
a guest, invitee or trespasser. We also pointed out in that case
that where a condition on the landowner's property presents It. .. a
peculiar danger in the nature of hidden peril or trap for the
unwary ...," a fact issue arises for the jury and that,
[i]t would follow that the court would then instruct the
jury that the duty of providing warnings ...
for the
unwary would be measured by the landowner's duty to
exercise "ordinary care or skill in the management of his
propertyt1pursuant to section 27-1-701, MCA.
Limberhand, 706 P.2d at 497.
Here it is undisputed that Johnson was aware of the defective
condition of the door, that he needed to repair it, that it would
fall off its track if pushed too far, and that the defect was not
apparent. It is also undisputed that Bossard was unaware of that
danger and that Johnson did nothing to make Bossard aware of the
condition of the door. Under the facts here and our prior case
law, I cannot conclude that Johnson had no duty to Bossard. To the
contrary, Johnson had a duty to use ordinary care in maintaining
his property, and he had a duty to warn Bossard of the dangerous
condition of the door. Whether those duties were breached by
Johnson in this case was for the jury to decide.
Finally, I disagree with our conclusion that Johnson s conduct
was not the proximate cause of Bossard's injury. Suffice it to say
that it is axiomatic that questions of causation in a negligence
case are for the finder of fact to decide. See for example,
Sizemore v. Montana Power Company (1990), 246 Mont. 37, 803 P.2d
629, and Thayer v. Hicks (1990),243 Mont. 138, 793 P.2d 784.
Accordingly, I would reverse the grant of summary judgment for
Johnson and would remand this
Justice William E. Hunt, Sr. and Justice Terry N. Trieweiler concur
in the foregoing dissent.
I
June 2, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John E. Bohyer, Esq.
Phillips & Williams, P.C.
Ste. 104, Central Square, 201 W. Main
Missoula, MT 59802
Bradley J. Luck, Esq.
Garlington, Lohn & Robinson
P.O. Box 7909, 199 W. P i e
Missoula, MT 59807-7909
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Depu