No. 96-086
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
MAXINE RYAN,
Plaintiff and Respondent,
v.
CITY OF BOZEMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Philip F. Walsh; Walsh & McKenna,
Bozeman, Montana
For Respondent:
Rienne H. McElyea; Berg, Lilly, Andriolo &
Tollefsen, Bozeman, Montana
Submitted on Briefs: October 17, 1996
Decided: November 26, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Maxine Ryan (Ryan) filed suit against the City of Bozeman
(City) alleging that a City employee negligently drove a City
vehicle such that it collided with Ryan's vehicle at the
intersection of Cottonwood and Montana Streets. A jury returned a
verdict that Ryan and the City were each 50% negligent and found
damages in the amount of $37,000. The court granted Ryan's motions
for directed verdict and for judgment notwithstanding the verdict
(JNOV) on the issue of liability and granted a new trial on the
issue of damages. The City appealed from the grant of a new trial
(Cause No. 96-086) and filed a petition for writ of supervisory
control (Cause No. 96-263) with regard to the grant of a JNOV since
the grant of a JNOV is not subject to appeal under Rule 1,
M.R.App.P. In its petition for the writ, the City asked that the
two issues be combined for purposes of briefing; Ryan did not
oppose the motion. Given the posture of this case and in the
interests of judicial economy, we granted the writ and ordered that
both the granting of the JNOV and the granting of the new trial be
combined for briefing in Cause No. 96-086. We reverse and remand
for a new trial.
This suit arises out of a collision at the uncontrolled
intersection of Montana Street and Cottonwood Street in the City of
Bozeman. Lindsey Korell, a summer employee for the City was
driving east on Cottonwood in a City-owned pickup truck. She
collided with Ryan who was traveling north on Montana and entered
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the intersection on Korell's right. At the time of the accident,
there was a hedge of at least six feet in height on the southwest
corner of the intersection. The hedge ran adjacent to Cottonwood
Street for approximately 20-30 feet in such a manner that it
obstructed the view of both drivers as they entered the
intersection. The City vehicle hit Ryan's automobile on the
driver's side door and pushed it into a telephone pole. Ryan
suffered injuries as a result of the collision.
Standard of Review
The standard of review in appeals from a judgment
notwithstanding the verdict made pursuant to Rule 50 (b) ,
M.R.Civ.P., is the same as that for review of a motion for a
directed verdict, and a directed verdict may be granted only where
it appears as a matter of law that a party could not prevail upon
any view of the evidence including the legitimate inferences to be
drawn therefrom. Wilkerson v. School District (1985), 216 Mont.
203, 211, 700 P.2d 617, 622. Motions for directed verdict or for
a JNOV are proper only when there is a complete absence of any
evidence to warrant submission to a jury. Jacques v. Montana Nat.
Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. The courts
will exercise the greatest self-restraint in interfering with the
constitutionally mandated processes of jury decision. Unless there
is a complete absence of any credible evidence in support of the
verdict, a JNOV motion is not properly granted. Barmeyer v.
Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597
(overruled on other grounds). Rulings on the admissibility of
evidence are within the discretion of the trial court. Cooper v.
Rosston (19881, 232 Mont. 186, 189-90, 756 P.2d 1125, 1127. Absent
an abuse of discretion this Court will not reverse a district
court's rulings on the admissibility of evidence. Glacier National
Bank v. Challinor (1992), 253 Mont. 412, 416, 833 P.2d 1046, 1049.
Discussion
I Did Ryan properly plead a cause of action for
negligence regarding the City's failure to enforce the
street vision triangle ordinance?
In granting respondent Ryan's motion for a directed verdict
and a JNOV, the court found that the corner lot where the
intersection occurred contained a hedge between six and ten feet
tall in the street vision triangle. The court reasoned that the
City of Bozeman had an affirmative duty to enforce the Bozeman
Municipal Code Section 18.50.080, which requires that no hedge
obstructions be permitted within the street vision triangle, and
that the City's failure to require that the hedge be trimmed was
the sole proximate cause of the collision and of Ryan's injuries.
On appeal, the City contends that the trial court erred in
allowing Ryan to introduce evidence as to the City's failure to
enforce the ordinance and in granting a directed verdict on that
basis. It is the City's assertion that the only negligence alleged
by Ryan was the negligence of the City employee, Lindsey Korell,
who was driving the City vehicle at the time of the accident; that
there were no allegations that the drivers' views were obstructed
by the hedge or that the City was negligent for failing to require
that the hedge be trimmed.
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A plaintiff must allege a cause of action in a complaint or
other pleading with sufficient specificity to apprise a defendant
of the nature of the claim. A district court does not have
jurisdiction to grant relief outside of the issues presented by the
pleadings unless the parties stipulate that other questions be
considered or the pleadings are amended to conform to the proof.
Old Fashion Baptist Church v. Montana Dep't of Revenue (1983), 206
Mont. 451, 457, 671 P.2d 625, 628. A judgment must be based upon
a verdict and must be within the issues presented to the court.
Old Fashion BaDtiSt Church, 671 P.2d at 628 (citing National Surety
Corp. v. Kruse (1948), 121 Mont. 202, 205-206, 192 P.2d 317, 319).
In reviewing Ryan's complaint, we determine that the City is
correct. The only allegation of negligence against the City of
Bozeman in the entire complaint is that its employee, Lindsey
Korell, "negligently drove a City vehicle into plaintiff's
vehicle." The parties also prepared and filed a pre-trial order
which superseded the allegations in the complaint. In the pre-
trial order, Ryan's "Contentions," in their entirety, are as
follows:
The automobile collision was a result of the
negligence of Lindsey Korell in failing to yield the
right of way to Maxine Ryan, in driving at a rate of
speed that was too fast for the circumstances, and in
failing to keep a proper lookout and to take proper
evasive steps to avoid the accident. As a result of the
negligence of Lindsey Korell and the ensuing collision,
Maxine Ryan has sustained serious physical injuries
resulting in past and future medical expenses, lost wages
and lost earning capacity, pain and suffering, and loss
of enjoyment of her established way of life. Because
Lindsey Korell was an employee of the City of Bozeman and
was acting within the scope of her employment, the City
of Bozeman is liable for her negligence.
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Although the pre-trial order section on "Determination of legal
issues in advance of trial" does make mention of a possible motion
in limine to be filed by the City as to whether the City of Bozeman
could advise the jury that it had no legal responsibility for
trimming the hedge, there were no affirmative allegations by Ryan
that the hedge obstructed the view or that the City was negligent
in failing to require that the hedge be trimmed. In concluding
that the City's failure to comply with the ordinance constituted
negligence, the court ignored the fact that neither the complaint
nor the pre-trial order alleged any negligence by the City related
to the height of the hedge. Furthermore, the City objected to the
introduction of any evidence related to the height of the hedge for
the reason that Ryan had not contended that the height of the hedge
was a basis for a claim of negligence. In allowing Ryan to pursue
a claim of negligence based upon the height of the hedge, the
District Court faulted the City for not following through and
filing a motion in limine on that issue. However, as the City
contends, it is not a defendant's burden to file motions in limine
in order to defeat unpled claims. Rather, the burden is on the
plaintiff to adequately plead a cause of action. In Rambur v.
Diehl Lumber Co. (1963), 142 Mont. 175, 382 P.2d 552, we adopted
the proposition that it is sufficient if the complaint concisely
states facts upon which relief can be granted upon any legally
sustainable basis.
This court agrees that plaintiffs' pleading should
be so viewed. Yet a complaint must state something more
than facts which, at the most, would breed only a
suspicion that plaintiffs have a right to relief.
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Liberality does not go so far as to excuse omission of
that which is material and necessary in order to entitle
relief.
Rambur, 382 P.2d at 554 (citations omitted).
In the present case, Ryan did not plead any facts as to the
drivers' views being obstructed nor any facts as to the height of
the hedge. Accordingly, her complaint and contentions in the pre-
trial order did not even "breed a suspicion" that she was entitled
to relief on any theory other than that the driver of the City
vehicle was negligent in failing to yield the right of way and in
exceeding the speed limit.
In McJunkin v. Kaufman &Broad Homes Systems (1987), 229 Mont.
432, 748 P.2d 910, we upheld the trial court's refusal to submit to
the jury an unpleaded claim of breach of an express warranty
against the seller. While recognizing that amendment to pleadings
should be liberally allowed, we held that leave to amend under Rule
15(b), M.R.Civ.P., cannot be granted arbitrarily or perfunctorily.
McJunkin, 748 P.2d at 913-14. Noting that McJunkins had two and
one-half years to amend their complaint and that the pretrial order
specifically stated that the express warranty claim applied only to
K & B and not the seller, we held that the court did not abuse its
discretion in refusing to submit the issue to the jury. McJunkin,
748 P.2d at 919.
In the present case, the City correctly points out that Ryan
did not move to amend her pleading to conform to the evidence under
Rule 15(b), M.R.Civ.P. Rule 15(b), M.R.Civ.P., states:
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
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treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party
at any time, even after judgment; but failure to so amend
does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the
party's action or defense upon the merits. The court may
grant a continuance to enable the objecting party to meet
such evidence.
Under Rule 15(b), M.R.Civ.P., pleadings can be amended to
conform to the evidence when the issues have been tried by express
or implied consent of the parties or when there has been a motion
made and granted to conform the pleadings to the evidence. Here,
neither circumstance pertains. Having objected to the admission of
the evidence as to the height of the hedge, it cannot be said that
the City impliedly consented to that issue being tried. &
Glacier National Bank, 833 P.2d at 1049 (no implied or express
consent in light of repeated objections to evidence). Further,
Ryan did not request that the pleadings be amended. Rather, the
court ruled that the issue had been generally pled; blaming the
City for not having narrowed the issues through a motion in limine.
Although pleadings are to be liberally construed and amendments
liberally allowed, as we stated in Rambur, 382 P.2d at 554,
"[lliberality does not go so far as to excuse omission of that
which is material and necessary in order to entitle relief."
We conclude that the allegations in the complaint and the pre-
trial order were insufficient to state a cause of action for
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negligence arising out of the height of the hedge or the City's
failure to have the hedge trimmed. Accordingly, we hold that the
court abused its discretion in admitting evidence as to the height
of the hedge and the requirements of Bozeman Municipal Code Section
18.50.080. The court further compounded this error when, based
upon that same evidence as to the height of the hedge, it ruled
that the City's failure to enforce the City Code was negligence per
se and such negligence was the sole cause of Ryan's damages and
granted a JNOV and directed verdict against the City on the issue
of liability.
II Did the trial court err in determining that Ryan was
not negligent as a matter of law and that contributory
negligence was not applicable under the facts of the
case?
In granting the directed verdict and a JNOV, the court held
that it had committed err in submitting the question of comparative
negligence to the jury. In so ruling, the court stated:
As a matter of fact, I find that there is no credible
evidence that the plaintiff committed any acts of
negligence which were [the] proximate cause of the
accident in this matter, nor any acts of negligence which
contributed in any way to her injuries. . I will make
a specific finding of no negligence on the part of
plaintiff that would justify a comparative negligence
disposition of the case either by the Court or the jury,
and I order a new trial in this matter on the issue of
damages alone.
In the subsequent written order, the court held that, even if there
were any negligence by Ryan, such negligence was not a proximate
cause of the accident and her damages.
The City contends that the court's determination that Ryan was
not negligent is contrary to the evidence. The speed limit on
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Cottonwood and Montana Streets in Bozeman is 25 m.p.h. Ryan's
expert determined that she was going at least 22 m.p.h. at the
point of impact. The City's expert concluded that she was
traveling between 28 m.p.h. and 37 m.p.h. just before impact. Thus
there was testimony before the jury from which it could conclude
that Ryan was exceeding the 25 m.p.h. speed limit. Despite this
testimony, the court, in effect, held, as a matter of law, that the
speed of Ryan's vehicle was totally irrelevant to the question of
causation. This conclusion is in error. If she were exceeding the
speed limit, then there was credible evidence from which the jury
could determine that she was negligent. If she were negligent, it
was the jury's prerogative, as fact finder, to determine whether
that negligence contributed to her injuries. It was clear error
for the court to preempt the jury's determination in that regard.
The court's order granting the directed verdict states that
even if Ryan were negligent, her negligence was not a proximate
cause of the collision, and, further, contributory negligence is
not applicable under the facts of this case. Although it is not
apparent what the court meant when it said that contributory
negligence was not applicable under the facts, we can only assume
that it concluded that Ryan's ordinary negligence (if any) could
not be compared with what the court determined was the City's
negligence per se for violating the City Ordinance. Such a
conclusion is without support. Since Ryan had not pled a cause of
action with regard to the hedge, there was no basis for the court's
finding that the City was negligent per se. Even assuming,
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argue&o, that the City violated the ordinance, violation of an
ordinance or traffic statute does not preclude comparison of such
negligence with the ordinary negligence of the plaintiff. In Hart-
Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116, the trial
court granted the plaintiff's motion for a directed verdict in an
intersection collision in which the defendant had rear ended the
plaintiff. On appeal, the defendant argued that, regardless of
whether she was guilty of negligence per se for following too
closely in violation of § 61-8-329, MCA, she was entitled to have
the jury consider her claim that plaintiff was contributorily
negligent in stopping in front of her. Hart-Anderson, 781 P.2d at
1117. Relying on our decision in Reed v. Little (1984), 209 Mont.
199, 206, 680 P.2d 937, 940, we held that the conflicting evidence
as to whether plaintiff stopped in front of the defendant supported
a claim of contributory negligence. In light of this conflicting
evidence, we stated:
It is not appropriate for the court to weigh conflicting
evidence; rather, that is the function of the trier of
fact, in this case, the jury. As in Reed, it was
possible for the jurors to find that plaintiff came to an
abrupt stop in front of defendant and was contributorily
negligent. We conclude that reasonable men might differ
in drawing conclusions from the evidence. Thus a
directed verdict in favor of plaintiff was not
appropriate. We remand this case to the District Court.
. .
Hart-Anderson, 781 P.2d at 1118
As in Hart-Anderson, there was testimony before the jury from
which it could determine that Ryan was contributorily negligent.
Regardless of whether the trial judge found the evidence credible
or not, it was the jury's prerogative to weigh that evidence.
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For the above reasons, we conclude that the court abused its
discretion in allowing the issue of the City's alleged negligence
in failing to enforce the street vision ordinance to go to the jury
and in granting the directed verdict and judgment notwithstanding
the verdict. We reverse and remand for a new trial on both
liability and damages.
We concur:
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