Craig v. Schell

No

No. 97-101

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 40

GLENNA CRAIG,

Plaintiff, Respondent, and Cross-Appellant,

v.

F.F. SCHELL, as the Personal Representative of the

ESTATE OF CHARLES MOSEMAN, Deceased,

Defendant, Appellant, and Cross-Respondent.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

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The Honorable John Christensen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert J. Emmons, Emmons & Sullivan; Great Falls, Montana

For Respondent:

Torger Oaas, Attorney at Law; Lewistown, Montana

Submitted on Briefs: June 18, 1998

Decided: March 11, 1999

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

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¶I. F.F. Schell, Personal Representative of the Estate of Charles Moseman, appeals
from the order of the Tenth Judicial District Court, Fergus County, which granted in
part Glenna Craig's motion for a new trial. Craig cross-appeals from the District
Court's order which denied in part her motion for a new trial and its prior order
which denied her motion for partial summary judgment on the issue of liability. We
affirm in part and reverse in part.

¶II. Craig raises the following issues on cross-appeal:

¶III. 1. Did the District Court err when it denied Craig's motion for partial summary
judgment on the issue of liability?

¶IV. 2. Did the District Court abuse its discretion when it denied Craig's motion for a
new trial based on jury misconduct?

¶V. Schell raises the following issue on direct appeal:

¶VI. 3. Did the District Court abuse its discretion when it granted Craig's motion for
a new trial on the basis of defense counsel's comments in closing argument?

BACKGROUND

¶VII. This case arose from a vehicle accident which occurred at approximately 6 p.
m. on November 26, 1993, on Highway 236 between the towns of Hilger and
Winifred, Montana. Craig was proceeding in the northbound lane and the Mosemans
were in the southbound lane. As the Craig and Moseman vehicles approached each
other, a deer appeared on the road between the vehicles. Moseman's vehicle swerved
to the far right side of the road toward the barrow pit, then veered abruptly to the
left. The vehicle went into a broadside skid or "yaw" and Moseman lost control of his
vehicle. At some point during these events, the left front portion of Moseman's
vehicle hit the deer. The Moseman vehicle continued in its yaw across the centerline
of the highway into Craig's lane of travel and collided with her vehicle. Moseman
and his wife died as a result of the accident and Craig was injured.

¶VIII. Craig filed a complaint against Schell, in his capacity as personal
representative of Moseman's estate, alleging that Moseman had been negligent in the
operation of his vehicle, his negligence caused the accident, and she suffered injuries

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as a result. Craig subsequently moved for partial summary judgment on the issue of
liability and asserted that all drivers have a statutory duty to stay on the right half of
a roadway when driving. She further maintained that the undisputed facts of the case
were that Moseman swerved into her lane of travel and thereby breached his
statutory duty and caused the collision. The District Court denied Craig's motion
and the action proceeded to a jury trial. The jury returned a verdict in favor of
Schell and found that Moseman had not been negligent in the operation of his vehicle.

¶IX. Craig timely moved for a new trial pursuant to Rule 59, M.R.Civ.P., and § 25-
11-102, MCA, on three bases: jury misconduct, improper closing argument by
Schell's counsel, and insufficient evidence to support the verdict. The District Court
granted Craig's motion for a new trial on the basis of improper comments of Schell's
counsel in closing argument and denied it on the remaining bases. Craig also filed a
Rule 50, M.R.Civ.P., motion for judgment as a matter of law on the issue of
Moseman's liability, which the court denied. Schell appeals from the District Court's
order which granted a new trial, and Craig cross-appeals from the orders which
denied a new trial on the basis of jury misconduct and denied her motion for partial
summary judgment on the issue of liability.

ISSUE 1

¶X. Did the District Court err when it denied Craig's motion for partial summary
judgment on the issue of liability?

¶XI. We review a district court's decision to grant or deny a summary judgment
motion using the same Rule 56, M.R.Civ.P., criteria as the district court. See S.M. v.
R.B. (1993), 261 Mont. 522, 526, 862 P.2d 1166, 1168. Summary judgment is
appropriate when there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P.; Dillard v. Doe
(1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018. If the moving party meets the initial
burden of establishing the absence of genuine issues of material fact and entitlement
to judgment as a matter of law, the party opposing the motion must come forward
with evidence that demonstrates that a genuine issue of material fact exists which
precludes summary judgment. See Dillard, 251 Mont. at 382, 824 P.2d at 1018.

¶XII. Negligence actions usually involve questions of fact regarding breach of duty
and causation; as a result, they are not ordinarily susceptible to summary judgment

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and are usually better resolved at trial. See S.M., 261 Mont. at 526, 862 P.2d at 1168;
Dillard, 251 Mont. at 382, 824 P.2d at 1018. A question of fact in a negligence case
may be determined as a matter of law only where reasonable minds could reach but
one conclusion as to whether a duty was breached or whether a breach of a duty
caused an accident. See Dillard, 251 Mont. at 382, 824 P.2d at 1019.

¶XIII. Craig moved for summary judgment on the issue of liability and contended
that no issues of material fact existed regarding how the accident occurred or
whether Moseman breached his statutory duty to drive on the right side of the road.
The District Court denied the motion, and concluded that there were genuine issues
of material fact as to whether Moseman acted as a reasonable and prudent driver
under the circumstances at the time of the accident and, as a result, that the issue of
whether Moseman was negligent was a question for the jury. Craig asserts that the
District Court erred.

¶XIV. Craig first argues that the evidence she provided in support of her motion
establishes that the presence of Moseman's vehicle in her lane of travel, in violation
of § 61-8-321, MCA, resulted from his voluntary act of over-correcting his vehicle
when it went off the side of the road, which caused the vehicle to skid to the left. She
contends that because Moseman's act of over-correcting was voluntary, his violation
of § 61-8-321, MCA, was negligence as a matter of law.

¶XV. Subject to exceptions not at issue here, a driver has a duty to drive on the right
half of a roadway. See § 61-8-321, MCA. It is undisputed in this case that Moseman
violated § 61-8-321, MCA, when his vehicle skidded over the centerline of the
highway and collided with Craig's vehicle.

¶XVI. The concept of negligence per se and its applicability in this state has had a
somewhat confusing history. The theory behind the rule is that as between two
drivers--one who has been free from fault and violated no law, and one who has
violated a law upon which the other depended--fault should, as a matter of public
policy, be attributed to that person who violated the law. It is a useful concept.
Insurance adjusters understand it and rely on it when resolving claims. As a result,
litigation is avoided in most instances and injured parties receive prompt payment of
their medical expenses and property damages. As with any rule of law, however, it
has not developed without an exception. A brief review of how this Court has
recently treated the concept is helpful.

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¶XVII. In 1971, this Court adopted the involuntary action rule, an exception to
negligence per se, in Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 492
P.2d 926. In that case, the operator of a water truck lost control of the truck when its
air brakes unexpectedly failed, through no fault of his own. The plaintiff argued that
the operator was negligent per se by reason of the violation of a motor vehicle statute.
On appeal, we held that a violation of a motor vehicle statute in an emergency due to
circumstances beyond a driver's control is an exception to the rule that the driver is
negligent per se by reason of that violation.

¶XVIII. The very next day, however, we decided Farris v. Clark (1971), 158 Mont. 33,
487 P.2d 1307, in which we affirmed the grant of summary judgment in favor of a
plaintiff whose vehicle was struck from the rear by the defendant when attempting to
pass. The defendant claimed that a power steering failure in her decedent son's
vehicle should have excused him of liability. See Farris, 158 Mont. at 37-38, 487 P.2d
at 1309. Without mentioning the involuntary action rule from our decision in
Duchesneau, we concluded that the district court properly granted summary
judgment to the plaintiff and noted that the true cause of the accident was the
decedent's failure to pass at a safe distance or drive at a speed commensurate with
the highway conditions. See Farris, 158 Mont. at 38, 487 P.2d at 1313.

¶XIX. A few years later, in Custer Broadcasting Corp. v. Brewer (1974), 163 Mont.
519, 518 P.2d 257, we reaffirmed our decision in Farris and reversed a district court's
refusal to grant a directed verdict in favor of the plaintiff. In that case, a driver's
vision was impaired by swirling snow caused by an oncoming passing motorist. The
defendant testified that his visibility was reduced to zero, he slowed, and never again
saw the plaintiff's vehicle until he struck it from the rear. Embracing the negligence
per se rule, we stated that "[t]his Court has long held that violation of a statute
concerned with highway traffic is negligence as a matter of law. Farris should have
controlled the court's decision in considering plaintiff's motion for a directed
verdict." Custer, 163 Mont. at 522, 518 P.2d at 259.

¶XX. Shortly after our decision in Custer, however, the application of the doctrine of
negligence per se became somewhat blurred. Without mentioning either Custer or
Farris, in Lyndes v. Scofield (1979), 180 Mont. 177, 589 P.2d 1000, we relied on the
Duchesneau involuntary action rule and overruled a district court's order granting a
new trial. Specifically we held that:

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It is well established that involuntary violation of a statute in an emergency due to
circumstances beyond the actor's control does not constitute negligence per se.
Duchesneau v. Silver Bow County (1969) [sic], 158 Mont. 369, 377, 492 P.2d 926, 930.
Rather, Scofield's presence in the incorrect lane is only prima facie evidence of negligence
which may be rebutted. McGinnis v. Phillips (1922), 62 Mont. 223, 228, 205 P. 215, 216.

Lyndes, 180 Mont. at 185, 589 P.2d at 1004.

¶XXI. In Lyndes, a motorist failed to observe and avoid a chuckhole in the road
before her. Her car struck the chuckhole, slid out of control, and collided with an
automobile driven by the plaintiff. See Lyndes, 180 Mont. at 179, 589 P.2d at 1001.
We held that, under the circumstances of that case, the motorist's presence in the
incorrect lane was merely prima facie evidence of negligence which she was entitled
to rebut. See Lyndes, 180 Mont. at 185, 589 P.2d at 1004.

¶XXII. Factually, it is hard to reconcile the decisions in Lyndes, Custer, and Farris.
The actions of the defendant in Lyndes when encountering an unexpected chuckhole
seem no less voluntary than the actions of the defendant in Custer who encountered
blinding, swirling snow. One might further argue that the situation in Farris is more
analogous to Duchesneau since the defendant in Farris contended that a loss of power
steering played a role in the collision. The defendant in Lyndes, however, was not
faced with an unexpected brake failure or similar emergency which was beyond her
control as was the defendant in Duchesneau. In fact, no one can seriously dispute that
a chuckhole is a fairly predictable hazard when driving Montana roads during the
winter. Yet, in Lyndes, we stated that the defendant's conduct should be evaluated by
a jury, even though in Custer and Farris we concluded that the defendants were
negligent as a matter of law.

¶XXIII. Recently, in the case of Cameron v. Mercer, 1998 MT 134, 960 P.2d 302,
however, we again recognized the rationale of Lyndes and affirmed the district
court's denial of the plaintiff's motion for a new trial. In that case, Cameron was
driving westbound on Highway 10, a two-lane highway west of Missoula. Mercer, the
defendant, was driving eastbound on Highway 10. It was dark, both drivers were
using their headlights, and neither were speeding. As the vehicles approached each
other, Mercer drove over the fog line, onto the shoulder of the road, and into the
gravel. As he attempted to drive back onto the road, he skidded in a sideways "yaw"

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into Cameron's lane of travel where the collision occurred.

¶XXIV. After his case-in-chief, Cameron moved for a directed verdict on the issue of
liability, alleging that the defendant violated several traffic statutes and, therefore,
was negligent as a matter of law. The district court denied the motion. At trial,
Mercer's sister testified that her brother told the investigating officer that he swerved
to avoid some headlights in his lane and that after he swerved to avoid the oncoming
car he saw a small furry animal running across the roadway. Upon completion of the
case, the jury returned a defense verdict. Acknowledging Lyndes, we affirmed the
district court's decision to deny the directed verdict motion, and noted:

In this case, the parties presented conflicting theories as to the cause of the accident . . . .
Mercer's theory was that any statutory violations were involuntary; that is, that he was
forced to swerve off of the roadway by an oncoming car and that he did everything he
could to keep control of his vehicle and avoid an accident.

Cameron, ¶ 4.

¶XXV. Justice Trieweiler specially concurred in Cameron and was joined by Justices
Regnier and Hunt. The concurring Justices affirmed the jury's verdict based on the
instructions that were given, but noted that the adequacy of the instructions was not
raised on appeal. See Cameron, ¶ 31 (Trieweiler, J., concurring). The concurrence
emphasized, however, that this Court has repeatedly held that the violation of a
statute enacted for the safety of the public, including one which regulates the
operation of motor vehicles on the public highways, is negligence per se. See
Cameron, ¶ 21 (Trieweiler, J., concurring) (citing Kudrna v. Comet Corp. (1977), 175
Mont. 29, 38-39, 572 P.2d 183, 188-89). Although the concurring Justices recognized
that this Court has held that an involuntary violation of a statute in an emergency
does not constitute negligence per se, citing Lyndes, they urged that this exception
should only be applied in the most extreme situations. See Cameron, ¶ 30 (Trieweiler,
J., concurring).

¶XXVI. In this case, Craig argues that the District Court misapplied Lyndes when it
concluded that there were factual issues regarding whether Moseman acted as a
reasonable and prudent driver under the circumstances. Craig does not ask us to
overrule Lyndes, but instead attempts to distinguish the facts in that case from those

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in the case at hand. For example, Craig argues Moseman's act of over-correcting his
vehicle was a voluntary one and, thus, not subject to our holding in Lyndes.

¶XXVII. Presently it is very difficult indeed for district courts, attorneys, and
insurance adjusters in Montana to sort out the concepts of negligence per se and its
exception in the setting of many motor vehicle accidents. Our holding in Lyndes
certainly stands for the principle that the doctrine of negligence per se should not be
applied in situations in which a motorist violates a motor vehicle statute when his or
her acts are involuntary and due to circumstances beyond the motorist's control.
However, as we will discuss later, there are certain situations where a motorist's
conduct is characterized as "involuntary" yet such conduct is the direct result of
hazards that every motorist must anticipate.

¶XXVIII. We also appreciate, as the dissent emphatically points out, that neither
party has asked us to overrule Lyndes. However, in our de novo review of a summary
judgment motion, we cannot ignore the validity of the case upon which both parties
and the District Court rely and its fundamental application to the facts presented.
Furthermore, it serves no purpose to allow confusion to permeate an area of the law
which affects practically every Montanan.

¶XXIX. Upon further review, therefore, we conclude that Lyndes should be
overruled because it involved a situation in which the driver's conduct of crossing the
center line should not have been characterized as "involuntary" or due to
circumstances beyond the driver's control and, therefore, the doctrine of negligence
per se was directly applicable. This is the same situation presented to us in this case.
Drivers of motor vehicles must anticipate certain obstacles, as well as adverse driving
conditions. By not applying the doctrine of negligence per se in situations as we are
presented with here, some motorists and their insurance carriers may improperly be
relieved of responsibility, resulting in innocent injured parties and their families
going uncompensated. In Lyndes, we improperly labeled the driver's conduct as
"involuntary" and beyond her control and, therefore, concluded that the violation of
a motor vehicle statute did not constitute negligence per se. Thus, Lyndes is overruled
to the extent that it holds that a party who violates a motor vehicle statute due to his
or her own conduct may avoid application of the negligence per se doctrine for that
violation. The concept that the violation of a motor vehicle statute constitutes
negligence per se is an essential one if this Court is to provide consistency in the area
of automobile negligence law. It is for these reasons that we now emphasize, as did

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Justice Trieweiler in his special concurrence in Cameron, that it is only under
extremely limited circumstances that the violation of a motor vehicle statute will not
constitute negligence as a matter of law. Upon reflection, Duchesneau was properly
decided because the defendant in that case clearly was reacting to an unexpected
emergency over which he had no control (sudden brake failure); however, such
hazards as were encountered by the defendants in Custer (swirling snow), Lyndes
(chuckhole), Cameron (small furry animal), and this case (deer), are the types of
hazards that are not uncommon on Montana roads and which drivers must
anticipate.

¶XXX. It is also helpful in our discussion to address this Court's recent decisions
regarding a different, but related, concept in automobile negligence law, the sudden
emergency doctrine. The sudden emergency doctrine is stated as "[o]ne who, in a
sudden emergency, acts according to his best judgment, or who, because of want of
time in which to form a judgment, omits to act in the most judicious manner, is not
chargeable with negligence. Such . . . act or omission . . . may be called a mistake, but
not carelessness." Peabody v. Northern Pacific Railway Co. (1927), 80 Mont. 492, 497,
261 P. 261, 262. In Kudrna v. Comet Corp. (1977), 175 Mont. 29, 572 P.2d 183, we
pointed out that the sudden emergency doctrine rarely should be applied in ordinary
automobile accident negligence cases. Specifically, we observed that the doctrine is
qualified by the requirement that people anticipate and be prepared for some
emergencies when engaged in an activity where emergencies are likely to arise, and
that any driver "'must be prepared for the sudden appearance of obstacles in the
highway.'" Kudrna, 175 Mont. at 43, 572 P.2d at 191 (quoting Erickson v. Perrett
(1976), 169 Mont. 167, 174, 545 P.2d 1074, 1079).

¶XXXI. Moreover, we again addressed the application of the sudden emergency
doctrine in Eslinger v. Ringsby Truck Lines, Inc. (1981), 195 Mont. 292, 636 P.2d 254.
There, we reiterated the Kudrna principle that the doctrine should not be used in
ordinary automobile accident cases and quoted that portion of Kudrna which
emphasized that some emergencies must be anticipated and drivers must be
prepared for the sudden appearance of obstacles on the highway. See Eslinger, 195
Mont. at 299-300, 636 P.2d at 258. Finally, in the case of Simonson v. White (1986),
220 Mont. 14, 25, 713 P.2d 983, 989, we stated that a sudden emergency instruction
should never be given in an automobile accident case. We have similarly put to rest
the defenses of the "unavoidable accident" and "the mere fact of an injury." Helmke
v. Goff (1979), 182 Mont. 494, 500, 597 P.2d 1131, 1134; Graham v. Rolandson (1967),

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150 Mont. 270, 289, 435 P.2d 263, 273.

¶XXXII. In the present case, it is undisputed that Moseman encountered a deer
running across his path of travel. He first swerved to the right to avoid the deer, and
then over-corrected, causing his vehicle to enter Craig's lane of travel, and the
collision ensued. Anyone who drives motor vehicles in rural Montana must anticipate
wildlife unexpectedly running across the road, just as one must anticipate chuckholes
and black ice. These hazards, in most instances, can be avoided when drivers proceed
in a careful and prudent manner. However, if one drives too fast for the conditions,
or fails to keep a proper lookout, such hazards may result in serious accidents.

¶XXXIII. In the final analysis, we conclude that we have wrongly characterized
certain conduct as "involuntary" when dealing with the concept of negligence per se.
Indeed, our treatment of the concept in Lyndes collides with the principle set forth in
Kudrna, Eslinger, Simonson, and Graham; that is, drivers must be prepared to deal
with the appearances of sudden obstacles or certain emergencies on the highway. A
driver should not be able to avoid the application of the negligence per se doctrine
because he or she instinctively or, what we have labeled until now as "involuntarily,"
reacts to certain obstacles which should be anticipated, such as black ice, animals
running on the highway, or a chuckhole in the road. Drivers constantly face such
hazards and must be prepared to deal with them safely and not jeopardize other
motorists or pedestrians. When a driver violates a traffic statute because he or she
"reacted" to such a hazard and injures another party who has complied with the
traffic law, the violator should be found negligent as a matter of law. Allowing such
cases to go to the jury results in anomalies, such as what has occurred here.

¶XXXIV. We therefore conclude that the circumstances under which a driver may
violate a motor vehicle statute and not be considered negligent as a matter of law are
quite rare. Certainly, if the defendant's presence on the wrong side of the road is
caused by the plaintiff's prior negligence, the exception should apply. For example, in
Palmer by Diacon v. Farmers Insurance Exchange (1988), 233 Mont. 515, 761 P.2d
401, we affirmed the use of an instruction which set forth several motor vehicle
statutes and then stated:

If you find that the unidentified truck driver or David Palmer violated one of the statutes
just read to you, you will find that such violation was negligence unless on behalf of such
party its [sic] is proven by a preponderance of the evidence that he did what might

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reasonably be expected of a person or [sic] ordinary prudence, acting under similar
circumstances, who desired to comply with the law. In order to sustain such burden of
proof, such party must prove by a preponderance of the evidence that he was faced with
circumstances which prevented compliance or justified noncompliance with the statute.

Palmer, 233 Mont. at 525-26, 761 P.2d at 408 (alterations in original). The defendant
argued on appeal that the instruction was improper because it amounted to a "sudden
emergency" instruction which was banned in Simonson. We correctly pointed out that the
instruction was proper under the circumstances because "[i]t requires the jury to decide not
whether a sudden emergency erupted but whether either driver in this case was negligent
forcing the other to take protective measures." Palmer, 233 Mont. at 526, 761 P.2d at 408.
See also Shannon v. Hulett (1983), 205 Mont. 345, 668 P.2d 228. There may be other
situations in which a driver may involuntarily violate a traffic safety statute and not be
negligent as a matter of law, but we shall address those situations on another day.

¶XXXV. Based on the foregoing, we hold the District Court erred when it denied
Craig's motion for partial summary judgment on the issue of liability.

ISSUE 2

¶XXXVI. Did the District Court abuse its discretion when it denied Craig's motion
for a new trial based on jury misconduct?

¶XXXVII. As her second issue on cross-appeal, Craig contends that the District
Court abused its discretion by not granting her motion for a new trial on the basis of
jury misconduct. Since we have concluded that the District Court erred when it
denied Craig's motion for partial summary judgment on the issue of liability, there is
no need to address this issue.

ISSUE 3

¶XXXVIII. Did the District Court abuse its discretion when it granted Craig's
motion for a new trial on the basis of defense counsel's comments in closing
argument?

¶XXXIX. Craig moved for a new trial on several grounds. Since we have granted
Craig a new trial on her cross-appeal, the question of whether the District Court

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abused its discretion by granting Craig's motion for a new trial need not be
addressed. However, anticipating the second trial in this matter, it is appropriate
that we address one aspect of Craig's motion to avoid error on retrial.

¶XL. Craig argued, in part, that a new trial was warranted because one of Schell's
attorneys improperly attempted to discuss the contents of Craig's original statement
of damages during closing argument. Craig urges that these statements were in
disregard of the court's earlier determination that the statement was not relevant to
the proceedings.

¶XLI. During pretrial proceedings, Schell requested and received from Craig a
statement which outlined the specific types and amounts of damages she would be
requesting at trial. In the pretrial order, however, Craig listed damage amounts less
than those in her earlier statement of damages. When Schell's counsel cross-
examined Craig at trial, he attempted to elicit testimony from her regarding the
discrepancies between her original statement of damages and the pretrial order.
Craig's attorney objected and, after an unreported side bar conference, defense
counsel moved onto a different line of questioning. In its order on the motion for a
new trial, the District Court stated that it had been unequivocally clear to counsel
during the side bar that Craig's original statement of damages had been superseded
by the pretrial order and, therefore, was irrelevant.

¶XLII. In closing argument, Schell's counsel again attempted to raise the issue of
Craig's original statement of damages in an apparent effort to attack both Craig's
and her attorney's credibility by implying that they had inflated or lied about the
amount of her damages. Craig's attorney objected that the statement of damages was
not in evidence. The District Court sustained the objection, but defense counsel
continued on the same subject.

¶XLIII. The District Court subsequently determined that Craig was entitled to a new
trial based upon defense counsel's persistent questioning regarding the original
statement of damages. Schell asserts that the court's determination is incorrect
because the statement of damages is a pleading, amounts to a judicial admission, and
may be presented to the jury without being admitted in evidence. Schell further
contends that at the unreported side bar conference during trial his attorney was led
to believe that he could use the statement of damages in his closing argument, even
though he could not cross-examine Craig about it. Without the benefit of a transcript

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of the side bar, we are unable to evaluate Schell's contention.

¶XLIV. Rule 5(c) of the Uniform District Court Rules requires a pretrial order to
include a statement that the pretrial order supersedes the pleadings and governs the
subsequent course of trial. Moreover, the Advisory Commission Notes to this Rule
expressly state that "[t]he pre-trial order is intended to supersede the pleadings and
to state the issues to be tried. It is not intended that parties be held to or examined
concerning claims and other matters contained in prior pleadings." Rule 16(e), M.R.
Civ.P., also explicitly provides that the pretrial order controls the subsequent course
of the action and our cases so holding are legion. See, e.g., State ex rel. State
Compensation Mut. Ins. Fund v. Berg (1996), 279 Mont. 161, 179-80, 927 P.2d 975,
986; Zimmerman v. Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342; Naftco
Leasing Ltd. Partnership 301 v. Finalco, Inc. (1992), 254 Mont. 89, 93-95, 835 P.2d
728, 731-32; Workman v. McIntyre Const. Co. (1980), 190 Mont. 5, 11-12, 617 P.2d
1281, 1285. Therefore, contrary to Schell's assertions, and without regard to whether
it technically was a pleading when provided to Schell, Craig's original statement of
damages was superseded by the damage claims in the pretrial order by operation of
law according to Rule 16(e), M.R.Civ.P., and pursuant to the express statement in the
pretrial order, required by Rule 5, Unif.D.Ct.R., that the order superseded the
pleadings. As a result, the original statement of damages and evidence relating
thereto were irrelevant and inadmissible and, indeed, no such evidence was admitted.

¶XLV. We conclude that the District Court properly granted Craig a new trial. On
retrial, defense counsel is limited to cross-examining the plaintiff on the damage
claims alleged in the pretrial order.

¶XLVI. Affirmed in part and reversed in part.

/S/ JIM REGNIER

We Concur:

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/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

Justice Karla M. Gray, dissenting.

¶47. I respectfully dissent from the Court's opinion. It is my view that, in its
eagerness to clarify negligence per se, the Lyndes "involuntary action" rule and the
"sudden emergency" doctrine in automobile accident cases, the Court ignores the
arguments raised and briefed by the parties, departs from our proper role, and
reverses the District Court in derogation of our longstanding rule that we will not
overturn a trial court's decision on the basis of arguments not presented to that
court. I cannot agree.

¶48. Craig moved for partial summary judgment in the District Court on the issue of
liability, asserting that Moseman had been negligent per se by violating § 61-8-321,
MCA, when his vehicle crossed over the center line of the highway and collided with
her vehicle. The thrust of Craig's motion was that no genuine issue of material fact
existed as to Moseman's voluntary violation of the statute requiring a driver to drive
on the right half of a roadway and, as a result, that the Lyndes involuntary action
rule--under which an involuntary violation of the statute is only prima facie evidence
of negligence--did not prevent Moseman's statutory violation from being negligence
per se. Craig did not argue in the District Court that Lyndes should be overruled; she
contended only that her evidence established Moseman's voluntary overcorrection of
his vehicle, thereby making the Lyndes exception to negligence per se inapplicable.
The District Court determined that Craig did not establish the absence of genuine
issues of material fact regarding the voluntariness of Moseman's actions or that his

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conduct was not that of a reasonable and prudent driver, and denied Craig's motion
for summary judgment on liability on that basis. On appeal, Craig contends only that
the District Court misapplied Lyndes and Kudrna. That, then, is the issue before us.

¶49. Rather than address Craig's actual arguments, however, and in its desire to
correct what it considers an improperly expanded and misapplied rule of law, the
Court raises--and resolves--its own issue regarding the continued viability of the
Lyndes rule. In my view, this is an unwarranted departure from our proper role.

¶50. This Court's duty is to decide cases based on the issues and arguments raised by
the parties. Indeed, our system of appellate review is premised on providing parties
with the opportunity to argue their positions and challenge the positions and legal
authority propounded by their opponents, following which this Court can make a
reasoned decision based on the issues and arguments raised by counsel.

While the temptation is often great to decide a case on the basis of the argument that
"should have been made," but was not, in blind-siding an issue we run the very real risk of
substituting advocacy for neutrality.

State v. Zabawa (1996), 279 Mont. 307, 318, 928 P.2d 151, 158 (Nelson, J., concurring).
Furthermore, to raise and determine issues sua sponte is unfair to litigants who find their
cases resolved on unforeseen grounds and to district courts which find their decisions
overturned on bases they never had an opportunity to address. Thus, while I do not
disagree that our cases on negligence per se, the involuntary action rule and the sudden
emergency doctrine are somewhat confusing and in need of clarification, a sweeping
decision on those subjects should await a case presenting the arguments.

¶51. In addition, it is my view that the Court's reliance on, and adoption of, the views
set forth in Justice Trieweiler's special concurring opinion in Cameron is entirely
inappropriate here. The traditional use of special concurrences and dissents--which
do not reflect the Court's opinion on the legal issues of the case--is by parties in
future cases to urge a different dispositive analysis of the case from that in currently
controlling precedent. Such a use is entirely proper. It is quite another thing, in my
view, for the Court itself to simply bootstrap itself into new controlling precedent by
using concurring or dissenting views from previous cases which have not been
advanced by any party. The short-term effect of such an approach is to cut both the

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litigating parties and the district courts out of the case entirely. The long-term
consequence, I fear, is that the Court will become an internal debating society which
will seize on concurring or dissenting opinions which did not garner the votes of the
majority of the Court when written, and use them to create new law whenever it
desires to do so, even in the absence of any request by a party--in either the trial
court or this Court. This strikes me as an unwise approach in the present case, and a
dangerous precedent for future cases.

¶52. Moreover, to the extent the Court shares the concerns and philosophy expressed
in the Cameron concurrence, I agree that it should say so; indeed, I would join in
such a statement. The Court should then be willing, however, as Justice Trieweiler
was in Cameron, to exercise judicial restraint and await a case raising the
impropriety of the Lyndes involuntary action rule, rather than being willing to
reverse a district court on an issue never raised. Deference to the parties and the
arguments raised, to the District Court, and to the importance of stare decisis in
maintaining stability and consistency in the law require no less.

¶53. Finally, with regard to the Court's approach to the present case, I strenuously
disagree with the Court's suggestion that our de novo summary judgment review
somehow authorizes this Court to change the very nature of a case on appeal in order
to "clarify" a confusing area of the law or for any other purpose. De novo review
does not--and must not--provide this Court with inherent authority to change the
basis on which a summary judgment issue was raised and supported by evidence in
the trial court and, having changed the entire basis of the summary judgment issue,
to reverse a trial court on a theory never presented there or here.

¶54. Nor does the Court explain how such a new view of the scope of our de novo
summary judgment review will work in the future. Will we continue to apply to the
litigating parties our long-established rule that an issue not raised in the trial court
cannot be raised on appeal, while taking it upon ourselves to raise and resolve any
issue we might see in the case and think should have been raised? Notwithstanding
that we are, in fact, the Court, how can we justify such a position to either litigating
parties or district courts? And where will it end? Will we research areas of the law in
which we do not like--or find confusing--existing precedent, wait for a case
presenting the subject matter generally, and then see if we can "sell" each other on a
new approach, without caring that the parties are not part of that process? The
upshot of such an approach, I suggest, is the issuance of opinions by the Court on

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matters and in cases which are not, in fact, before us in any proper sense of the
phrase. Suffice it to say that I find the Court's newly created authority disturbing.

¶55. Not to belabor the point, but in summary, the Court has clarified three entire
areas of the law--and overruled Lyndes to do so--without the benefit of any briefing
from any party. Indeed, it has done so, in the present case, by ignoring Craig's
arguments, the basis for the District Court's ruling and, ultimately, the jury's
verdict. I cannot agree.

¶56. As stated above, the issue before us is whether the District Court erred in
denying Craig's motion for summary judgment on liability by determining that
genuine issues of material fact existed regarding Moseman's negligence which
required resolution by a jury. It is my view that the following analysis, which
addresses the arguments actually raised by Craig and decided by the District Court,
establishes that the District Court did not err in denying her motion for summary
judgment.

¶57. Craig's first argument is that the evidence she provided in support of her
motion establishes that the presence of Moseman's vehicle in her lane of travel, in
violation of § 61-8-321, MCA, resulted from his voluntary act of overcorrecting his
vehicle when it went off the side of the road, causing the vehicle to skid to the left.
She contends that, because she established the absence of genuine issues of material
fact that Moseman's alleged act of overcorrecting was voluntary, his violation of § 61-
8-321, MCA, was negligence as a matter of law and the Lyndes involuntary action
rule is inapplicable.

¶58. With regard to her contention that she established Moseman's voluntary
violation of the statute, Craig relies primarily on the deposition of Highway Patrol
Officer Kelly Mantooth (Mantooth), who responded to--and subsequently
investigated--the accident. She contends that Mantooth's deposition testimony
establishes that, when Moseman realized his vehicle was veering off the right side of
the road, he turned his steering wheel too hard to the left, thereby overcorrecting and
sending the vehicle into an uncontrollable broadside skid into her lane of traffic.
Craig further contends that Mantooth's deposition testimony establishes that
Moseman's action of overcorrecting was a voluntary act. The portions of Mantooth's
deposition on which Craig relies do not support her contention, however. Mantooth
stated, in response to various hypothetical scenarios presented by Craig's attorney,

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that the referenced scenario was a possible explanation of how the accident occurred.
He further testified, however, that a number of other possible explanations existed
for what happened and he could not say with any certainty which explanation was
correct. Therefore, Mantooth's deposition testimony does not establish the absence of
genuine issues of material fact regarding whether Moseman's abrupt left turn and
skid into Craig's traffic lane was a voluntary act.

¶59. Nor does the other evidence Craig presented in support of her motion for
summary judgment establish that Moseman's actions were voluntary. Craig's
deposition testimony was that the events of the accident occurred so quickly that she
either did not see or does not remember precisely what happened. She testified that
she saw the deer in the road and the next thing she knew was that Moseman's vehicle
collided with her vehicle. She had no recollection of how Moseman's vehicle ended up
in her lane and no personal knowledge of the voluntariness of any of Moseman's
actions.

¶60. Craig also relied on the reports of her accident reconstruction expert, Harry
Townes (Townes), and Schell's accident reconstruction expert, John Jurist (Jurist).
Townes' report indicates that Moseman's vehicle went into a broadside skid across
the road into Craig's traffic lane, but does not address what might have caused the
skid or whether Moseman did so by voluntarily overcorrecting his vehicle. Jurist's
report, while concluding that Moseman drove off the right side of the highway and
then overcorrected his vehicle in an attempt to return to the road, states that such a
maneuver probably was instinctive and that, at that point, Moseman had lost control
of his vehicle. Neither of the reports establishes that the presence of Moseman's
vehicle in Craig's traffic lane was the result of a voluntary action on Moseman's part.

¶61. I would conclude that Craig failed to meet her initial burden on summary
judgment of establishing the absence of genuine issues of material fact regarding
Moseman voluntarily overcorrecting his vehicle, thereby causing it to skid into her
lane of traffic. On that basis, I would hold that the District Court correctly
determined that Craig was not entitled to summary judgment on the issue of liability.

¶62. Craig also argues that the District Court misapplied the relevant case law in
concluding that there were factual issues regarding whether Moseman acted as a
reasonable and prudent driver under the circumstances. She relies on Kudrna for
the proposition that all drivers have a duty to anticipate and be prepared for the

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sudden appearance of obstacles in the highway, and argues thereunder that
encountering a deer on the highway is not an emergency as a matter of law. In my
view, Craig misreads Kudrna.

¶63. There, an accident occurred when the driver of a truck owned by the Comet
Corporation (Comet), belatedly realizing that a truck in front of him was stalled in
the traffic lane, pulled into the oncoming traffic lane to pass the stalled truck in an
attempt to avoid colliding with it. As the Comet truck was moving back into its lane
of travel, an oncoming van struck the rear of the truck's trailer, resulting in the
death of two of the van's occupants. A wrongful death and survivorship action was
brought against both truck drivers and their employers. The jury returned a defense
verdict and the plaintiffs appealed. Kudrna, 175 Mont. at 33-34, 572 P.2d at 185-86.

¶64. The plaintiffs argued that the district court should have directed verdicts of
liability against Comet and its driver because the driver's passing of the stalled truck
violated several motor vehicle statutes and constituted negligence as a matter of law.
Comet responded that the sudden emergency created by the presence of the stalled
truck on the highway excused any statutory violations by its driver. Kudrna, 175
Mont. at 37-38, 572 P.2d at 188. We concluded that the sudden emergency doctrine
did not apply because the emergency with which the Comet driver was faced resulted
from his own failure to timely see that which was in plain sight--a stalled truck ahead
of him on the highway--and that the stalled truck did not suddenly appear in front of
the Comet truck. Kudrna, 175 Mont. at 41, 572 P.2d at 189-90. On that basis, and in
light of the other evidence presented at trial, we held that Comet and its driver were
negligent as a matter of law and that the district court should have granted directed
verdicts against them. Kudrna, 175 Mont. at 47, 572 P.2d at 193.

¶65. We emphasized in Kudrna that the sudden emergency doctrine rarely should be
applied in ordinary automobile accident negligence cases. Specifically, we observed
that the doctrine is qualified by the requirement that people anticipate and be
prepared for some emergencies when engaged in an activity where emergencies are
likely to arise, and that any driver " 'must be prepared for the sudden appearance of
obstacles in the highway. . . .' " Kudrna, 175 Mont. at 43, 572 P.2d at 191 (quoting
Erickson v. Perrett (1976), 169 Mont. 167, 174, 545 P.2d 1074, 1079). We did not
conclude, as Craig appears to assert, that there are no circumstances in which the
sudden appearance of an obstacle in the roadway could render reasonable a driver's
subsequent actions in attempting to avoid the obstacle.

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¶66. Moreover, we addressed the application of the sudden emergency doctrine again
in Eslinger. There, we reiterated the Kudrna principle that the doctrine should not
be used in ordinary automobile accident cases and quoted that portion of Kudrna
which emphasized that some emergencies must be anticipated and drivers must be
prepared for the sudden appearance of obstacles on the highway. Eslinger, 195 Mont.
at 299-300, 636 P.2d at 258. We also clarified, however, that a sudden emergency
situation is encompassed within the general standard of conduct to be applied in any
negligence action--that of a reasonable person under the circumstances as they would
appear to one using proper care; the emergency is merely one of the circumstances to
be considered. Eslinger, 195 Mont. at 302, 636 P.2d at 260.

¶67. Thus, while Craig correctly asserts that drivers generally must be prepared for
the sudden appearance of obstacles in the highway, the question of whether a driver
faced with the sudden appearance of such an obstacle reacted appropriately under
the circumstances still must be analyzed in terms of the reasonable person negligence
standard. As a result, the question in the present case--as the District Court
recognized--was whether Moseman acted reasonably under all the circumstances
when faced with the sudden appearance of a deer on the road in front of his vehicle.
This was clearly a factual question to be answered by the jury.

¶68. I would conclude that the question of whether Moseman acted in a reasonable
and prudent manner was properly left to the jury. Thus, on that basis, as well as the
Lyndes rule basis, I would affirm the District Court's denial of Craig's motion for
summary judgment on the issue of liability. I dissent from the Court's failure to do so.

¶69. Finally, because I would affirm the District Court's denial of Craig's summary
judgment motion, I would fully address the issue of whether the District Court
abused its discretion in granting Craig a new trial on the basis of improper comment
by defense counsel in closing arguments. On that issue, I would conclude that defense
counsel made three improper comments in closing arguments which prejudiced
Craig's right to a fair trial. As a result, I would affirm the District Court's grant of a
new trial on all issues.

/S/ KARLA M. GRAY

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