No. 00-764
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 94
SHERRIE M. ABRAHAM, f/k/a SHERRIE M. HUNT,
Plaintiff and Appellant,
v.
JACK I. NELSON, d/b/a JACK NELSON
GENERAL CONSTRUCTION,
Defendant, Respondent and
Cross-Appellant,
v.
PHASE 4 COBBLESTONE TOWNHOMES
OWNERS ASSOCIATION, INC.,
Third Party Defendant, Respondent
and Cross-Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
Honorable John S. Henson, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Edward A. Murphy, Datsopoulos, MacDonald & Lind, Missoula, Montana
For Respondents:
Stephen M. Frankino, Hughes, Kellner, Sullivan & Alke, Helena,
Montana (Nelson)
Paul Sharkey, Sharkey & Northcutt, PLLP, Missoula, Montana
(Owners Association)
Submitted on Briefs: April 19, 2001
Decided: May 9, 2002
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Sherrie M. Abraham (Abraham) appeals from an order of the
Fourth Judicial District Court, Missoula County, granting summary
judgment against her and for Respondent, Jack I. Nelson (Nelson).
Nelson cross-appeals from the District Court’s dismissal of its
third party claim against Phase 4 Cobblestone Townhomes Owners
Association, Inc. (Association), and the Association cross-appeals
the District Court’s decision to decline to rule on the
Association’s summary judgment motion. We affirm.
¶2 Abraham contends that the District Court erred in granting
summary judgment in favor of Nelson and against Abraham. On cross-
appeal, Nelson and the Association raise the District Court’s
failure to grant their respective motions for summary judgment.
BACKGROUND
¶3 On or about November 29, 1994, Abraham agreed to purchase a
residence in Missoula, Montana, from defendant Nelson. The
residence was located in a development known as Phase 4 Cobblestone
Townhomes, of which Nelson, d/b/a Jack Nelson General Construction,
was both the developer and general contractor. Sometime in 1997
the basement of Abraham’s townhome flooded. On April 20, 1998,
Abraham filed a Complaint against Nelson alleging that he
negligently designed and built the residence, breaching implied
warranties of quality workmanship, good construction and
habitability, and causing the basement to flood during the 1997
spring snow melt. Specifically, Abraham alleged that Nelson
contoured the land around her home so as to move water towards her
townhome instead of away from it, and failed to install a drain
tile or other system to move water away from the foundation.
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¶4 On June 1, 1999, Nelson filed a third-party Complaint against
the Association, alleging that the Association had, among other
duties, the duty of snow removal and the installation and
maintenance of underground drainways and sprinkler systems. Nelson
alleged that water accumulation near Abraham’s residence may have
been the product of too many sprinkler heads placed within a small
area near Abraham’s townhome, causing excessive accumulation of
water near the foundation of her home. Nelson further alleged that
the Association or its agents plowed a large amount of snow into a
mound near Abraham’s townhome in 1997 which either caused or
contributed to the water accumulation resulting from the sprinkler
system, thereby causing damage to Abraham’s basement.
¶5 After completion of discovery, the Association filed a motion
for summary judgment contending that Nelson presented no evidence
that the Association breached any duty or caused any damages to
Abraham’s townhome. Nelson filed a motion for summary judgment
contending that Abraham had presented no specific date when the
water damage occurred and presented no evidence as to the cause of
the water damage or any evidence linking negligence attributable to
Nelson to the water damage. Nelson argued Abraham could not prove
what caused the water damage, and therefore, could not sustain the
element of causation.
¶6 After hearing the motions, the District Court entered its
Opinion and Order on June 15, 2000, granting summary judgment in
favor of Nelson and against Abraham, finding that Abraham’s
Complaint was deficient and that Abraham did not meet the causation
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element for a negligence claim to lie. The District Court found
that there was no expert testimony which might illustrate how the
water damage occurred nor testimony illustrating how Nelson’s
design and construction facilitated or caused the water damage.
The District Court also entered judgment dismissing Nelson’s third
party complaint against the Association, declining to rule on the
Association’s motion for summary judgment.
¶7 Abraham appeals and requests this Court to remand this matter
for trial. Nelson cross-appeals the dismissal of his third party
complaint against the Association to protect his interest should
this Court reverse the District Court’s grant of summary judgment
in his favor. For the same reason, the Association appeals that
portion of the District Court’s order declining to rule on its
motion for summary judgment against Nelson.
¶8 Did the District Court err in granting summary judgment in
favor of Nelson and against Abraham?
¶9 This Court reviews an order granting summary judgment de novo.
Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶
21, 993 P.2d 11, ¶ 21 (citations omitted). We use the same
standards used by the trial court: first, whether issues of
material fact exist and, if not, whether the moving party is
entitled to judgment as a matter of law. Rule 56, M.R.Civ.P.;
Winslow v. Montana Rail Link, Inc., 2000 MT 292, ¶ 38, 302 Mont.
289, ¶ 38, 16 P.3d 992, ¶ 38.
¶10 The burden is first on the movant to demonstrate that no
genuine issue of material fact exists. Once this has been
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accomplished, the burden then shifts to the non-moving party to
prove that a genuine issue does exist. Having determined that a
genuine issue of fact does not exist, the court must then determine
whether the moving party is entitled to judgment as a matter of
law. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900
P.2d 901, 903.
DISCUSSION
¶11 A negligence action requires proof of four elements: (1)
existence of a duty; (2) breach of the duty; (3) causation; and (4)
damages. If the plaintiff fails to offer proof of one of these
elements, the action in negligence fails and summary judgment in
favor of the defendant is proper. Gentry v. Douglas Hereford
Ranch, Inc., 1998 MT 182, ¶ 23, 290 Mont. 126, ¶ 23, 962 P.2d 1205,
¶ 23. In Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 916
P.2d 122, this Court held that “[i]n those cases which do not
involve issues of intervening cause, proof of causation is
satisfied by proof that a party’s conduct was a cause-in-fact of
the damage alleged.” Busta, 276 Mont. at 371, 916 P.2d at 139. As
Abraham’s allegations of negligence in this case do not involve an
issue of intervening cause, proof of the element of causation is
satisfied by proof that Nelson’s conduct was a cause-in-fact of the
damage alleged.
¶12 To satisfy his burden as the movant for summary judgment,
Nelson first presented deposition testimony from Abraham which, he
argued, exhibited a discrepancy between her Complaint and her
testimony as to the date of the flooding. Abraham’s Complaint
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states that the damage occurred in the spring of 1997. Nelson
noted that Abraham’s deposition testimony reflects an August 1997
flood.
¶13 Second, Nelson relied on Abraham’s testimony in her deposition
that she did not know what may have actually caused the flooding in
her basement, and further, that she likely did not discover the
flood damage for up to three days after it occurred because she was
not living in the townhome at the time.
¶14 Abraham countered Nelson’s motion for summary judgment with an
affidavit, reaffirming that the time frame in the Complaint was the
correct time frame–that the flooding at issue did indeed occur in
April or early May of 1997, shortly after remodeling work had been
completed on her basement, rather than in August of 1997. Abraham
stated in her affidavit that the flooding occurred shortly after
the remodeling work was completed on her basement. She included
with her affidavit a Missoula Building Inspection Department
inspection record which showed that the remodeling project received
its final approval on April 21, 1997. Abraham also stated in her
affidavit that the Missoula area received a lot of snow in the
winter of 1996-97, and that her subdivision receives substantially
less sunlight than other areas of the Missoula Valley, thereby
slowing down the rate of snow melt and creating saturated ground in
late April of 1997.
¶15 In this response, Abraham provided no evidence to supplement
her deposition testimony that she did not know the actual cause of
the flooding in her basement or the exact date that it may have
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occurred. Rather, Abraham argued that the lack of knowledge she
demonstrated in her deposition testimony, in addition to other
evidence, at the very least indicated an existence of a genuine
issue of material fact as to the exact date that the flooding
occurred, thereby making summary judgment inappropriate.
¶16 On appeal Abraham also argues that the District Court erred in
granting summary judgment because Nelson admitted his own
negligence in his deposition testimony. During discovery, Abraham
elicited deposition testimony from Nelson that he had lowered the
elevation of some townhomes, including Abraham’s, anywhere from one
to two feet lower than the engineers had planned in their original
drawings. According to Nelson, these particular townhomes were
lowered either to the benchmark set by engineers or maybe even
Comment [COMMENT1]: Plainti
slightly under. His deposition testimony reflects that prior to ff principle brief, Trans.
p. 61-62
lowering the foundations, he consulted with at least two engineers
involved with the construction of the townhomes and each would have
preferred, for drainage purposes, that the foundations of the
townhomes remain approximately one foot above their established
benchmark.
¶17 Nelson also testified to building a trench on the north side
of the townhome to carry water away. The centerline of the trench
was approximately three to four feet from the side of the house and
six to eight inches above an impermeable layer of Visquine.
Abraham argues that the distance of the trench from the foundation
and its depth above the impermeable layer was too shallow to
properly drain the area on the north side of the townhome. It is
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the combination of lowering of the foundation of Abraham’s townhome
and the alleged shallowness of the drainage trench that Abraham
attributes to Nelson as foreseeable negligence from which one could
reasonably infer that there was a drainage problem and that an
accumulation of melting snow might possibly breach the foundation
wall of the townhome.
¶18 Abraham asserts that this evidence demonstrates a breach of
duty on the part of Nelson which creates a genuine issue of
material fact as to whether the acts of Nelson, in fact, caused the
damage to Abraham’s townhome.
¶19 As in the District Court, Nelson contends that Abraham
presented no evidence proving that, but for the actions of Nelson,
Abraham’s basement would not have flooded. Specifically, Nelson
contends that, although Abraham argues that his lowering of the
units and the depth of the drainage trench must have somehow caused
the flood damage during an April snow melt, Abraham failed to
present evidence establishing that Nelson’s actions were the cause-
in-fact of the water damage.
¶20 This Court’s holding in Gentry v. Douglas Hereford Ranch,
Inc., 1998 MT 182, 290 Mont. 126, 962 P.2d 1205, is informative in
the current matter. In Gentry a personal representative brought a
wrongful death and a survival action to recover damages sustained
by Barbara Gentry, who was struck in the head by a bullet when
Brent Bacon stumbled and accidentally discharged his rifle when
attempting to walk up two sets of stairs. Gentry, ¶ 9.
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¶21 Gentry alleged that the defendant was negligent for failing to
maintain the stairs to the deck in a reasonably safe condition.
Gentry contended that the bottom stair was unstable and that the
area leading to it was cluttered with various debris, thereby
causing Bacon to stumble. Gentry, ¶ 12. The defendants filed for
summary judgment based on Bacon’s testimony that he was unable to
attribute his fall to the condition of the stair or to any clutter
near it. Bacon repeatedly gave testimony that he did not remember
whether he tripped out of clumsiness or whether he missed a step or
even whether he may have tripped just prior to reaching the steps.
Gentry, ¶¶ 27-29.
¶22 Based on Bacon’s testimony, we stated that the most that could
be inferred was that Bacon fell when he was about to ascend the
stairs, whereas the specific cause of his fall would still require
speculation. Gentry, ¶ 32. Because Gentry offered no evidence to
prove that a condition of the property caused Bacon to stumble and
fall prior to discharging his rifle, we stated that in the context
of summary judgment proceedings, neither suspicion nor speculation
is sufficient to defeat a motion for summary judgment. “A
suspicion, regardless of how particularized it may be, is not
sufficient to sustain an action or to defeat a motion for summary
judgment. Unsupported conclusory or speculative statements do not
raise a genuine issue of material fact. The trial court has no
duty to anticipate possible proof.” Gentry ¶ 32 (citing Gates v.
Life of Mont. Ins. Co. (1982), 196 Mont. 178, 182, 638 P.2d 1063,
1066).
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¶23 This Court’s previous decision in Krone v. McCann (1982), 196
Mont. 260, 638 P.2d 397 (overruled on other grounds), although
using the now defunct “proximate cause” language, is also
informative. In Krone the plaintiff sought damages for injuries
sustained while walking on the defendant’s property. However, the
plaintiff was unable to identify what caused her to stumble. In
affirming the district court’s grant of summary judgment, we
stated:
[T]he fact is undisputed that the appellant cannot
describe what caused her injury. She does not know if it
was merely a mound of dirt or an old corral pole.
In an action for negligence, a plaintiff must produce
evidence from which it can be reasonably inferred that
negligent conduct on the part of the defendant or its
agents was the proximate cause of the plaintiff’s
injuries. . . Here, the appellant simply does not know
exactly what caused her injury. As noted above, the
respondents cannot be the insurers of the appellant and
held liable for her injury merely because an accident
happened on their land.
Krone, 196 Mont. at 266, 638 P.2d at 400-01 (emphasis supplied).
¶24 Initially we conclude that Nelson met his burden as the movant
on summary judgment of demonstrating that no material question of
fact existed regarding the element of causation when he presented
Abraham’s deposition testimony that she simply did not know the
cause of the flooding. Upon meeting this burden, it then became
incumbent upon Abraham to provide facts to prove the element of
causation, thereby creating a question of fact which may be deemed
material.
¶25 In response, Abraham presented the deposition testimony of
Nelson to demonstrate Nelson’s potential negligence, or breach of
legal duty, in lowering the foundation of Abraham’s townhome and
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placing too shallow of a trench on the north side. However,
Abraham presented no evidence that Nelson’s potential negligence
did, in fact, cause the flooding to Abraham’s basement. Rather,
Abraham argues that her evidence regarding Nelson’s ostensible
breach of duty is sufficient for a fact-finder to infer cause-in-
fact. From the above facts, the most that could be inferred is
that there may possibly have been a drainage problem on the north
side of Abraham’s townhome, but the reason and cause-in-fact of the
damage to her basement would still require speculation. Abraham
herself testified that she did not know what actually caused the
damage to her basement and the above facts are insufficient to
establish a cause. Once Nelson met his burden, it became incumbent
upon Abraham to offer material facts of a substantial nature to
prove that the flooding was indeed the result of snow melt and that
the snow melt would not have caused the flooding to her basement
but for negligence on the part of Nelson. Fang v. Bock, 2001 MT
116, ¶ 13, 305 Mont. 322, ¶ 13, 28 P.3d 456, ¶ 13.
¶26 Essentially, Abraham argues on appeal that it is precisely the
lack of evidence regarding the element of causation that creates
the material question of fact, making summary judgment
inappropriate. Abraham’s argument misapprehends the fundamental
nature of summary judgment. Once a movant for summary judgment
satisfies the burden that no material question of fact exists, the
non-moving party cannot merely point to lack of evidence as the
factor creating a material question. As we stated in Gentry, a
suspicion, regardless of how particularized, is insufficient to
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sustain an action or to defeat a motion for summary judgment.
Unsupported conclusory or speculative statements do not raise a
genuine issue of material fact. Gentry, ¶ 32 (citing Gates v. Life
of Mont. Ins. Co. (1982), 196 Mont. 178, 182, 638 P.2d 1063, 1066).
¶27 Nor can Abraham argue that because evidence of breach of duty
may be strong, the fact-finder needs no proof of causation, but is
free to infer such a link. In a negligence action, such as the
instant matter, the plaintiff cannot rest upon evidence of the
defendant’s negligence, but must provide evidence that the
defendant’s negligence is the cause-in-fact of the plaintiff’s
injury. Gentry, ¶ 25. Like the plaintiffs in Krone and Gentry,
Abraham simply does not know what caused the flood damage to her
townhome, but rests upon evidence of Nelson’s negligence, providing
no evidence linking Nelson’s negligence to her flood damage.
Gentry, ¶¶ 27-31; Krone, 196 Mont. at 266, 638 P.2d at 400-01.
Abraham urges the fact-finder to freely infer such a causal link.
However, Nelson cannot be held liable simply because damage did
indeed occur to Abraham’s property.
¶28 Viewing the facts in a light most favorable to Abraham, we
conclude that Abraham failed to submit facts of a substantial
nature to create a material question of fact upon which the
District Court could determine whether Nelson’s lowering of the
foundation and placement of the trench was a cause-in-fact of the
flooding in Abraham’s townhome. Summary judgment was therefore
appropriate.
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¶29 The decision of the District Court is affirmed. Because we
conclude that summary judgment was properly entered for Nelson
against Abraham, we need not address the cross-appeals of Nelson
and the Association.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
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