No. 00-379
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 215
DONALD L. SCHUFF and MARY JO SCHUFF,
husband and wife,
Plaintiffs and Appellants,
v.
ROBERT L. JACKSON,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
William J. Gregoire, Jerry W. Schuster, Smith, Walsh, Clarke & Gregoire,
Great Falls, Montana
For Respondent:
E. Lee LeVeque, Conklin, Nybo, LeVeque & Lanning, P.C., Great Falls,
Montana
Submitted on Briefs: February 7, 2002
Decided: September 24, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Plaintiffs, Donald and Mary Jo Schuff, brought this action
in the District Court for the Eighth Judicial District in Cascade
County to recover damages from the Defendant, Robert L. Jackson,
based on his alleged negligent operation of a boat in which Schuffs
were passengers. They alleged that they were injured as a result
of Jackson's negligence. Following a trial, the jury returned a
verdict for Jackson. During and following trial, Schuffs moved for
judgment as a matter of law and following trial they moved for a
new trial. Those motions were denied. Schuffs appeal from the
denial of those motions. We affirm in part, reverse in part, and
remand for a new trial.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court err when it denied Schuffs' motions
for judgment as a matter of law?
¶4 2. Did the District Court abuse its discretion when it denied
Schuffs' motion for a new trial based on their contention that
Jackson impermissibly interjected the defenses of "unavoidable
accident" and "assumption of risk"?
¶5 3. Did the District Court abuse its discretion when it denied
Schuffs' motion for a new trial based on their contention that the
District Court erred when it refused to give several of Schuffs'
proposed jury instructions?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On July 28, 1996, Donald and Mary Jo Schuff were invited by
Robert Jackson and his wife to accompany them on a boat ride on the
2
Missouri River in Jackson's twenty-one foot competition ski boat.
Schuffs accepted the Jacksons' invitation and at about 2:00 p.m.
that day, they launched the boat from Broadwater Bay, south of
Great Falls, Montana. After launch, Jackson operated the boat
southward or upstream with the intention of taking Schuffs to a
large sand bar located further upstream. To get to the sand bar,
Jackson had to navigate past an underwater rock formation which
extended from the west bank of the Missouri River, approximately
three-fourths of a mile south of White Bear Island Marina. Jackson
knew the location of the rock formation and understood that the
rock formation was dangerous to boaters. As an experienced boater
on the Missouri River, Jackson had navigated his boat through the
area on approximately forty prior occasions.
¶7 To safely negotiate the area where the rock formation is
located, boat operators must navigate through a narrow channel
between a hidden sandbar on one side and the underwater rock
outcropping on the other. The channel is approximately twenty to
twenty-five feet wide. On the day of the accident, Jackson saw
rippling water over the formation as he approached from about 100
yards away, and was aware that the rippling water indicated either
shallow water or an obstruction. Based on his knowledge of the
area and its inherent risk, Jackson ensured that all of his
passengers were safely seated. He then successfully navigated two
of the three rock outcroppings before colliding with the third.
¶8 Jackson's boat collided with the rock formation at a speed of
between 28 and 32 miles per hour. Jackson acknowledged that he
3
could have slowed the speed of the boat as he approached the rock
formation and admitted he miscalculated its location. However, he
also testified that it would have been dangerous for him to
navigate the channel at a slower speed because more of the boat
would have been in the water, the boat would have been less
maneuverable, and that at a slow speed, the river current could
more easily move the boat out of position. Therefore, he believed
that the proper way to travel through the channel was "on plane,"
so that as little of the boat as possible was in the water.
Jackson navigated the boat on the day of the accident in the same
manner he had on previous occasions.
¶9 As a result of the collision, Mary Jo was thrown from her seat
into Donald. She sustained a closed head injury and Donald
suffered minor injuries. Schuffs alleged that Jackson's negligence
caused their injuries.
¶10 The trial in this matter began on March 6, 2000. On March 8,
2000, Jackson presented the testimony of three witnesses, Mike
Mooney, Steve Knudson, and Larry Houck, all of whom had extensive
boating experience in the area of the river where the collision
occurred. Schuffs did not object to the testimony, however, and on
March 9, 2000, they filed a motion to strike the testimony based on
their contention that the witnesses impermissibly interjected the
defenses of "unavoidable accident" and "assumption of risk."
Schuffs also requested that the District Court submit curative
instructions to the jury based on the witnesses' testimony. After
listening to oral argument on the issue, the District Court denied
4
Schuffs' motion. Schuffs' also filed a motion for judgment as a
matter of law on the issue of liability. That motion was also
denied.
¶11 On that same day, the District Court also refused to give
several of Schuffs' proposed jury instructions, including
Subparagraph 2 of Proposed Jury Instruction No. 15, as well as
Proposed Jury Instructions numbered 21, 22, and 24.
¶12 The jury returned a verdict in favor of Jackson, finding he
was not negligent in the operation of his boat on the date of the
collision. After entry of judgment, Schuffs filed a renewed motion
for judgment as a matter of law on the issue of liability or, in
the alternative, a motion for a new trial pursuant to Rules 50(b)
and 59(a), M.R.Civ.P. The District Court denied both motions on
May 22, 2000, and on June 9, 2000. Schuffs appealed the District
Court's denial of those motions.
STANDARD OF REVIEW
¶13 A motion for a directed verdict or judgment as a matter of law
may only be granted where it appears as a matter of law that a
party cannot prevail upon any view of the evidence including the
legitimate inferences therefrom. Ryan v. City of Bozeman (1996),
279 Mont. 507, 510, 928 P.2d 228, 229. That standard of review
adheres to the principle that courts should exercise the greatest
self-restraint in interfering with the constitutionally mandated
processes of a jury decision. Ryan, 279 Mont. at 510, 928 P.2d at
230. Only if there is a complete absence of any credible evidence
in support of the verdict will a motion for judgment as a matter of
5
law be upheld. Ryan, 279 Mont. at 510, 928 P.2d at 230. On appeal
from denial of such a motion, we review the evidence in a light
most favorable to the prevailing party. Barrett v. Larsen (1993),
256 Mont. 330, 335, 846 P.2d 1012, 1016.
¶14 The decision to grant or deny a new trial is within the sound
discretion of the trial judge and will not be disturbed absent a
showing of manifest abuse of discretion. Baxter v. Archie Cochrane
Motors, Inc. (1995), 271 Mont. 286, 287-88, 895 P.2d 631, 632. A
new trial may be granted for any of the reasons set forth in § 25-
11-102, MCA, which materially affect the substantial rights of the
aggrieved party, including errors in the application of the law.
Baxter, 271 Mont. at 288, 895 P.2d at 632.
DISCUSSION
ISSUE 1
¶15 Did the District Court err when it denied Schuffs' motions for
judgment as a matter of law?
¶16 According to Schuffs, Jackson knew the rock formation existed,
knew it should be avoided when the water was shallow, knew it was
dangerous to boaters if hit, and acknowledged that he made a
mistake and committed an error in judgment or miscalculation which
caused him to hit the formation. Based on those undisputed facts
and the common law and statutory duties imposed upon Jackson as a
boat operator, Schuffs contend that Jackson was negligent as a
matter of law, and that the District Court erred when it denied
their motion for judgment as a matter of law. Schuffs rely on
6
Craig v. Schell, 1999 MT 40, 293 Mont. 323, 975 P.2d 820, as
authority for their argument.
¶17 Jackson responds that the appropriate test to determine
whether he was negligent was not whether he made a mistake when he
collided with the rock formation, but whether his conduct on July
28, 1996, conformed to that of an ordinarily prudent boater
operating under the same or similar circumstances. According to
Jackson, there was substantial evidence to support the jury's
finding that he was operating his boat at the time of the accident
in accordance with the duties imposed upon him both at common law
and by statute. Therefore, Jackson contends that the District
Court did not err when it denied Schuffs' renewed motions.
¶18 After review of the record and the instructions submitted to
the jury, we conclude that there was sufficient evidence to support
the jury's verdict. The jury was instructed by the District Court
as follows:
Instruction 9
Every person is responsible for injury to the person
of another, caused by his negligence.
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A person
is negligent if he fails to act as an ordinarily prudent
person would act under the circumstances.
. . . .
Instruction 11
If you find that the defendant violated the
following law, then the defendant is negligent. You
should then determine whether that negligence was a cause
of the plaintiffs' injuries.
A person may not operate a motorboat in a reckless
or negligent manner so as to endanger the life,
limb, or property of a person by engaging in
7
maneuvers that unreasonably or unnecessarily
endanger life, limb, or property.
Therefore, whether Jackson breached his duty as an ordinarily
prudent boat operator depended on whether he used reasonable care
and whether he operated his boat in a manner which would endanger
the life, limb, or property of others by engaging in unreasonable
or unnecessary maneuvers.
¶19 The fact that Jackson admitted error during the operation of
his boat does not establish negligence per se. The relevant
inquiry is whether there was sufficient evidence for the jury to
find that Jackson did not breach his legal duty as a boat operator.
We conclude that the jury's verdict which found that Jackson was
not negligent was supported by substantial evidence.
¶20 First, based on Jackson's testimony, it was clear that
Jackson had intimate knowledge of the river where the collision
occurred, was aware of the presence of the underwater hazard, and
had taken the precautions he thought necessary as he approached the
area. He was an experienced boater on the Missouri River, and had
safely negotiated his way through the hazard on approximately forty
prior occasions. As Jackson approached the hazard on the day of
the collision, he proceeded in the same manner he had on previous
successful trips through the channel. There was no evidence that
his behavior was out of the ordinary, or that he engaged in any
unreasonable or unnecessary maneuvers.
¶21 Jackson's testimony was bolstered by three defense witnesses,
Mike Mooney, Steve Knudson, and Larry Houck, all of whom had
extensive experience as boaters in the area of the Missouri River
8
where the collision occurred. All three witnesses testified that
although the general area of the obstruction is known to persons
familiar with the area, because it is underwater, the exact
location of the rock formation is not known and that there is
always some degree of guesswork required of everyone navigating the
area, even experienced boaters. Furthermore, each witness
testified of his belief that the safest way to travel through the
channel was "on plane," so that as little of the boat as possible
was in the water. There was evidence that the speed of Jackson's
boat, between 28 and 32 miles per hour, was no faster than the
minimum speed necessary to get his boat "on plane."
¶22 Schuffs did not present evidence which contradicted the
testimony of Jackson's three witnesses. Based on the evidence
presented, there was sufficient evidence to support the jury's
finding that Jackson was operating his boat in a manner consistent
with other ordinarily prudent boaters under the same circumstances.
¶23 Schuffs' contention that the District Court erred is primarily
based on this Court's holding in Craig. However, reliance on Craig
is misplaced. In Craig, we held that a driver of a motor vehicle
who violates a traffic statute because he or she is reacting to a
hazard which should have been anticipated and injures another party
as a result should be found negligent as a matter of law. ¶ 33.
In that case, the defendant was driving his car when a deer
unexpectedly ran onto the highway. He swerved to avoid the deer,
crossed the centerline in violation of § 61-8-231, MCA, and
collided with a car in the oncoming lane of traffic. It was
9
undisputed that statutory law had been violated. The issue was
whether the violation was excusable under the circumstances. Here,
the basic issue submitted to the jury was whether, as a matter of
fact, statutory law had been violated. It found that it had not
been.
¶24 We conclude there was sufficient evidence to support the
jury's verdict that Jackson was acting as an ordinarily prudent
boat operator on the date of the accident. Therefore, the District
Court did not err when it denied Schuffs' motions for judgment as a
matter of law.
10
ISSUE 2
¶25 Did the District Court abuse its discretion when it denied
Schuffs' motion for a new trial based on their contention that
Jackson impermissibly interjected the defenses of "unavoidable
accident" and "assumption of risk"?
¶26 Schuffs next contend that the District Court should have
granted their motion for a new trial based on testimony by Jackson
and three of his witnesses to the effect that the accident was
unavoidable and that Schuffs had assumed the risk of being on the
river. According to Schuffs, neither of those defenses were pled
and neither are permissible under Montana law. Because evidence
was offered in support of those defenses, Schuffs contend they were
prejudiced and that their motion for a new trial should have been
granted.
¶27 Jackson responds that he did not raise the defenses of
"unavoidable accident" or "assumption of risk," and did not
introduce evidence or testimony to that effect. Jackson points out
that those defenses were not included in any pretrial pleadings,
the final pretrial order, or in Jackson's proposed jury
instructions. Finally, Jackson contends that the testimony of the
three witnesses now complained of was not objected to at trial, and
that much of the testimony now complained of was actually elicited
by Schuffs' counsel on cross-examination. Therefore, according to
Jackson, Schuffs waived their right to claim error on appeal.
¶28 The basis for Schuffs' alleged prejudice was primarily the
testimony of witnesses Mooney, Knudson, and Houck. Schuffs contend
11
that all three witnesses told the jury that the accident was
unavoidable, and that witness Houck's testimony in particular was
replete with statements about the inherent risks of boating on the
Missouri River.
¶29 We have not actually held that evidence could not be offered
that a person assumed the risk of injury. Nor have we held that a
witness cannot testify that an accident was unavoidable. We have
held the assumption of risk is merely a form of contributory
negligence and should be considered as such. See Mead v. M.S.B.,
Inc. (1994), 264 Mont. 465, 477, 872 P.2d 782, 790. And we have
held that juries should not be instructed that some accidents are
unavoidable. See Graham v. Rolandson (1967), 150 Mont. 270, 287,
435 P.2d 263, 272. However, here, contributory negligence was
never alleged. In fact, it was agreed that Schuffs were not
negligent. Moreover, the jury was not instructed to consider
either contributory negligence or the concept of an unavoidable
accident.
¶30 Finally, all three witnesses testified at trial without
objection. We have previously held that in order to preserve an
objection to the admission of evidence for purposes of appeal, the
complaining party must make a timely objection or motion to strike
and state the specific grounds for its objection. Kizer v.
Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234. To
be timely, the objection must be made as soon as the grounds for
the objection are apparent. Kizer, 251 Mont. at 207, 824 P.2d at
234. Failure to make a timely objection constitutes a waiver of
12
the right to claim error on appeal. Kizer, 251 Mont. at 207, 824
P.2d at 234.
¶31 Although Schuffs moved to strike the testimony of Jackson's
witnesses and requested curative instructions to the jury, that
motion and request were not made until the day after the witnesses
actually testified and was untimely.
¶32 For this combination of reasons, we conclude that the District
Court did not abuse its discretion when it denied Schuffs' motion
for a new trial based on evidence which purportedly interjected
"unavoidable risk" and "assumption of risk" into the trial.
ISSUE 3
¶33 Did the District Court abuse its discretion when it denied
Schuffs' motion for a new trial based on their contention that the
District Court erred when it refused to give several of Schuffs'
proposed jury instructions?
¶34 Schuffs contend that the District Court erred when it refused
to give their Proposed Jury Instructions numbered 21, 22, 24, and
Subparagraph 2 of Proposed Jury Instruction No. 15. Schuffs'
proposed curative instructions regarded the defenses of
"unavoidable accident" and "assumption of risk" (Nos. 21 and 24),
an instruction to inform the jury of the higher degree of care
required in the face of a known danger (No. 22), and an instruction
regarding the statutory duty imposed on boat operators by § 23-2-
523(4), MCA (No. 15). Based on our resolution of Issue 2, we need
not address Schuffs' claim with regard to Proposed Jury
Instructions numbered 21 and 24.
13
¶35 Proposed Jury Instruction No. 22 was patterned after § 298 of
the Restatement of Torts (1965), adopted by this Court in Estate of
Strever v. Cline (1996), 278 Mont. 165, 174, 924 P.2d 666, 671, and
pertains to the higher degree of care required of individuals in
the face of a known danger. Proposed Jury Instruction No. 22
stated:
The care required of the defendant is always
reasonable care. This standard never varies but the care
which it is reasonable to require of the defendant varies
with the danger involved in his act, and is proportionate
to it. The greater the danger, the greater the care
which must be exercised.
Schuffs contend that because the channel with the rock formation
was potentially dangerous and Jackson understood that danger, the
jury should have been informed of the higher degree of care
required of Jackson in his effort to safely negotiate the channel.
¶36 Jackson, on the other hand, claims that the jury was properly
instructed as to the degree of care required of a defendant in a
negligence action by Instruction No. 9, which stated:
Every person is responsible for injury to the person
of another, caused by his negligence.
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A person
is negligent if he fails to act as an ordinarily prudent
person would act under the circumstances.
Instruction No. 9 is the standard Montana Pattern Jury Instruction.
Jackson contends that Instruction No. 9 was sufficient to
establish Jackson's duty of care. We conclude that Instruction No.
9 was an incomplete statement of Jackson's duty under the
circumstances.
¶37 While the given instruction expresses the general duty of care
required of individuals in negligence actions, it fails to inform
14
the jury of a possible greater duty of care in situations where
danger is greater, as was the case here. Jackson's knowledge of
the rock formation's existence and its potential danger increased
the duty of care imposed on him, and the jury should have been
informed of that as a matter of law. Because they were not, we
conclude that the District Court abused its discretion when it
failed to grant Schuffs a new trial.
¶38 Similarly, the jury should have been instructed on the duty
imposed on Jackson by § 23-2-523(4), MCA, not to operate his boat
at a speed greater than would permit him to bring it to a stop
within the assured clear distance. The speed at which Jackson
navigated the channel was an issue in this case, and the District
Court's failure to inform the jury of the statutory duty imposed on
boaters with regard to speed was reversible error. Section 23-2-
523(4), MCA, provides in relevant part:
A person may not operate or knowingly permit a
person to operate a motorboat or vessel at a rate of
speed greater than will permit the person, in the
exercise of reasonable care, to bring the vessel to a
stop within the assured clear distance ahead.
Subparagraph 2 of the Schuffs' Proposed Jury Instruction No. 15
stated:
If you find that the defendant violated any of the
following laws, then the defendant is negligent. You
should then determine whether that negligence was a cause
of the plaintiff's injury.
. . . .
2. A person may not operate a motorboat or vessel
at a rate of speed greater and [sic] will permit the
person, in the exercise of reasonable care, to bring the
vessel to a stop within the assured clear distance ahead.
15
Schuffs' Proposed Jury Instruction No. 15 included a duty imposed
on Jackson as a boater about which the jury was never informed. It
is the duty of the district court to instruct the jurors fully and
correctly on all applicable laws. Billings Leasing Co. v. Payne
(1978), 176 Mont. 217, 225, 577 P.2d 386, 391. In Billings
Leasing, we cited Wright & Miller, Federal Practice and Procedure,
Civil § 2556, for the controlling rule:
It is the inescapable duty of the trial judge to instruct
the jurors, fully and correctly, on the applicable law of
the case, and to guide, direct, and assist them toward an
intelligent understanding of the legal and factual issues
involved in their search for truth.
176 Mont. at 225, 577 P.2d at 391.
¶39 Here, the District Court inadequately instructed the jury
regarding the higher degree of care imposed on Jackson based on his
knowledge of the rock formation and the statutory duty imposed on
Jackson by § 23-2-523(4), MCA. We conclude that its failure to do
so was prejudicial error and that its refusal to grant a new trial
on that basis was an abuse of discretion.
¶40 Accordingly, we affirm in part, reverse in part the judgment
of the District Court, and remand for a new trial.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
16
Justice Jim Regnier dissenting and concurring.
¶41 I agree that the District Court did not err when it denied
Schuffs' motion for judgment as a matter of law. I also agree the
District Court correctly denied Schuffs' motion for a new trial
based on their contention that Jackson impermissibly interjected
the defenses of "unavoidable accident" and "assumption of risk."
As the majority notes, the testimony was admitted without
objection. However, on the record presented to us, in my view it
was error for the District Court not to give curative instructions
regarding the defenses of "unavoidable accident" and "assumption of
risk." (Numbers 21 and 24.)
¶42 Jackson did not disclose in either his pleadings or the
pretrial order that he was going to rely on the defenses of
"unavoidable accident" and "assumption of risk." Yet Jackson's
three witnesses, Mooney, Knudson and Houck, essentially testified
that the accident was unavoidable. Further, Houck testified at
length about the inherent risks associated with boating on the
Missouri River and stated that passengers assume the risk of an
accident when boating in an area of the rock formation in question.
When Schuffs realized the import of this testimony, they filed a
motion to strike the testimony in question. Although I do not
believe the trial judge committed error by failing to grant a new
trial based upon Jackson's interjection of these defenses, I
believe the trial court was obligated to instruct the jury, as
requested, on the impact of the "unavoidable accident" and
"assumption of risk" testimony.
17
¶43 We have rejected the "unavoidable accident" defense in
Montana. Craig, ¶ 31. Similarly, we no longer recognize
"assumption of risk" as a stand alone defense. Abernathy v. Eline
Oil Field Services, Inc. (1982), 200 Mont. 205, 211, 650 P.2d
772,775-76. Although Schuffs did not object at the time the
testimony came in, they did later move to strike the testimony and
ultimately requested the judge to provide curative instructions.
With this record, in my view, the District Court further erred in
denying their motion for a new trial for failing to give
instructions Numbers 21 and 24.
/S/ JIM REGNIER
18
Justice Patricia O. Cotter, dissenting,
¶44 I dissent from the Court’s disposition of Issue 1. I would reverse and remand with
instructions to the District Court to enter judgment for plaintiffs on liability as a matter of
law, and for a new trial on the issues of causation (if appropriate) and damages only. I would
therefore not reach Issues 2 and 3.
¶45 The Court’s primary mistake in resolving Issue 1 is that it focuses on whether there
was sufficient evidence to support the verdict. Schuffs asked the District Court and this
Court on appeal to determine that Jackson was negligent as a matter of law. The Court
acknowledges as much in ¶ ¶ 15 and 16. However, instead of addressing this question, the
Court analyzes whether the jury had before it sufficient evidence to conclude that the statute
had been violated. See ¶ 23, herein. The Court thus fails to answer the question of whether
Jackson was negligent as a matter of law, an affirmative answer to which would obviate the
necessity of weighing the sufficiency of the evidence. As we said in Craig v. Schell, upon
reversing a defense verdict and concluding that the defendant was negligent as a matter of
law, “[a]llowing such cases to go to the jury results in anomalies, such as what has occurred
here." Craig, ¶ 33. I think the jury’s verdict here was an anomaly, and that this Court has
perpetuated it by failing to address and answer the actual question presented.
¶46 I now turn to the question of whether the District Court erred in failing to grant
judgment as a matter of law. It is undisputed, and this Court found, that Jackson knew that
the rock formation he was approaching was dangerous to boaters. See ¶ 6, herein. It is
further undisputed that Jackson saw rippling water as he approached the sand bar from 100
19
yards away, and knew that this indicated either shallow water or an obstruction. See ¶ 7,
herein. Armed with this knowledge, Jackson chose to operate his boat at a speed of 28-32
miles per hour through the dangerous rock formation area. See ¶ 8, herein. Further, although
the Court did not so find, one has to assume that Jackson realized that the risk of injury to his
passengers in a collision at 28-32 miles per hour was significantly greater than it would have
been at 3-5 miles per hour.
¶47 Section 23-2-523(1)(a), MCA, prohibits a person from operating a motorboat “in a
reckless or negligent manner . . . by engaging in maneuvers that unreasonably or
unnecessarily endanger life, limb, or property . . . .” The District Court properly instructed
the jury that violation of this statute constitutes negligence. See Instruction 11, set forth at ¶
18, herein. The undisputed facts establish that Jackson violated this statute. He intentionally
“engaged in a maneuver” at a high speed virtually guaranteed to cause injury in the event of
an impact with a known, anticipated hazard. Moreover, in light of Jackson’s concession that
he could have slowed the speed of the boat as he approached the rock formation but chose
not to do so, there is no question that he acted “unreasonably and unnecessarily.” Sure, the
boat may have been less maneuverable at slow speeds, but the prospect of injury at such
speeds would have been slim to none. In sum, Jackson’s own admissions prove the statutory
violation, and establish his negligence as a matter of law.
¶48 The fact that Jackson had successfully maneuvered through the rock formation at high
speeds on previous occasions, which the Court finds significant, is of absolutely no
consequence to the statutory violation analysis. He was simply lucky on those occasions. By
20
focusing on the previous success of Jackson’s conduct instead of its recklessness, the Court
misses the point. Jackson was negligent and violated the law each time he proceeded to drive
his boat through an obvious hazard at an excessive speed. The difference is that, this time, he
actually harmed the “life and limb” of his passengers.
¶49 In Craig v. Schell, we concluded that a driver who violates a traffic statute because he
or she reacts to an unanticipated hazard, and injures another person as a result, should be
found negligent as a matter of law. Craig, ¶ 33. The statutory violation here is as clear here
as it was in Craig. However, unlike the situation in Craig, the hazard here was anticipated
and Jackson’s conduct in the face of it was informed and intentional. I would therefore
conclude that Jackson violated the safe boat operation statute, and was negligent as a matter
of law. I would reverse the District Court and remand for the entry of a directed verdict in
favor of the plaintiffs. I dissent from the Court’s failure to do so.
/S/ PATRICIA COTTER
21