No. 12416
I N THE SUPREME C U T OF THE STATE O M N A A
OR F OTN
1973
KENNETH DEAN RAUH,
P l a i n t i f f and A p p e l l a n t ,
-vs -
MARY JANE JENSEN ,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l District,
Honorable John B. McClernan, Judge p r e s i d i n g ,
Counsel o f Record :
For Appellant :
William A. B r o l i n argued, Anaconda, Montana
Jack M. Scanlon, Anaconda, Montana
Joseph C. Connors, Anaconda, Montana.
For Respondent:
Henningsen, P u r c e l l and Genzberger, B u t t e , Montana
James E, P u r c e l l argued, B u t t e , Montana
Submitted: February 26, 1973
Decided :
#I\R 8 1975
Filed :
RM 8
I
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This appeal was filed as a result of a collision be-
tween the Konda motorbike driven by appellant and an unoccupied
parked automobile owned by respondent. A summary judgment was
granted in favor of respondent in the district court of Silver
Bow County and this appeal followed.
On July 24, 1971, appellant was driving his Model 90
Honda motorcycle north on Excelsior Street in Butte, Montana,
and was executing a lefthand turn to enter Gold Street. An
automobile that was apparently parked on the south side of Gold
Street entered the intersection and forced appellant to swerve
to his right to avoid a collision, Respondent's automobile was
parked four to five feet from the intersection and had what is
commonly known as "spinner hubcaps" on the wheels. Appellant's
right foot and ankle collided with the "spinner hubcap" on re-
spondent's automobile, resulting in the damages to appellant
that are the subject of this action.
Two issues are presented to this Court for review.
First, was respondent negligent in parking her automobile in
violation of the parking regulations of the Butte city ordinances
and was this negligence the proximate cause of the accident?
The second issue was whether or not respondent was negligent
in maintaining and in failing to remove the "spinner" hubcaps
on her automobile which, according to appellant, were recogniz-
ably dangerous instruments and the proximate cause of the injuries
he sustained. We will discuss these two issues separately.
First, in order to determine if the parking of respond-
ent's vehicle was the proximate cause of the accident one must
inquire as to the purpose of the ordinance. Appellant's main
argument,at the time of argument on the motion for summary judgment,
was that respondent parked by a fire hydrant. No mention of
a violation of an ordinance prohibiting parking "within 20
feet of a crosswalk at an intersection" was proffered. We will
discuss the fire hydrant situation first. What is the purpose
of prohibiting the parking of vehicles within a certain distance
of a fire hydrant? Obviously the purpose of such a mandate is
to permit access to the hydrant in the event it is needed for
water to extinguish a blaze. If the respondent was parked near
the fire hydrant involved, a causal relationship between that
conduct and the injury must exist. DeVerniero v. Eby, 159 Mont.
146, 496 P.2d 290, 29 St.Rep. 273. Additionally, appellant can-
not rely solely on the fact that respondent violated the statute
or ordinance about parking near a fire hydrant. The laws of
Montana provide that negligence cannot be predicated upon failure
to perform a statutory duty unless the duty required by statute
is an efficient or proximate cause of the injury. Joki v. McBride,
150 Mont. 378, 436 P.2d 78. -
Appellant contends the Joki case was
overruled in St. ex rel. Great Falls Nat. Bk. v. District Court,
154 Mont. 336, 463 P.2d 326, but as the opinion therein states,
we overruled any dictum in Joki which suggested " * * * that a
landowner not in control of the work owes an absolute, nondelegable
statutory duty to a scaffold worker or others, a violation of
which by anyone renders him liable to the injured workman".
Clearly this did not overrule the holding in Jpki as
hereinbefore expressed. No relationship exists between the duty
not to park near the fire hydrant and the injury of appellant,
nor is the purpose of the ordinance related to the accident or
injury to appellant.
Another attempt by appellant to establish liability was
based on the fact that respondent was parked within 20 feet of
the crosswalk at the intersection. Again, we are talking about
the violation of an ordinance and again the rules which have
been pointed out with regard to the fire hydrant situation
apply. If no relationship exists between the act and the injury
there is no recovery. Also, if no violation of the purpose of
the statute or ordinance exists there can be no recovery. The
purpose of the statute in regard to the crosswalk was to keep
the view of motorists and pedestrians free from obstruction.
This contention is supported by the obstructed view case of
Sztaba v. Great Northern Ry., 147 Mont. 185, 411 P.2d 379. This
Court in Sztaba stated that a causal relationship must exist be-
tween the act and the injury in an obstructed view situation. In
the present case no causal relationship exists between where the
respondent's automobile was parked and the fact that appellant
was injured when he struck the parked vehicle.
The second issue to be disposed of is whether or not
respondent was negligent in maintaining and in failing to remove
the "spinner" hubcaps on her automobile which, according to appel-
$ant, were recognizably dangerous instruments and the proximate
cause of the injuries he sustained. Appellant contends that had
not respondent's automobile had "spinner" hubcaps that protruded
out and contained blades thereon, his right ankle would not have
collided with the hubcap. Appellant relies heavily on the decision
of Passwaters v. General Motors Corporation, 454 F.2d 1270 (8th
Cir. 1972). This case stands for the proposition that if an
automobile manufacturer builds an automobile, the vehicle cannot
be negligently designed, and that in Iowa strict liability has
been adopted and makes the manufacturer liable if all other facets
of strict liability are proven. Montana has not adopted such a
strict liability as law in this jurisdiction.
In order to completely understand and analyze the prob-
lem one must start with appellant's original charge: defendant
(respondent) violated section 211, Federal Motor Vehicle Safety
Standards. The Vehicle Safety Standards are the result of the
National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C.A.,
55 1381-1426. In particular, 5 1391 of the Act defines the terms
used in the Act, and nowhere is the term "owner" used or is a
duty placed on the owner to protect others. The law is designed
to protect the general public from kisdesign by automobile man-
ufacturers, distributors or dealers. The standard which respond-
ent allegedly violated prohibits the use of wheel nuts, wheel
discs and hubcaps incorporating winged projections. What the
federal law says is that the automobile manufacturers may not
put negligently-designed autos and automobile equipment on the
market for sale and use by the public.
No duty is placed on the respondent to protect the
appellant. If no duty exists, no breach can exist; consequently,
no liability. If respondent had the type of hubcaps suggested,
appellant might have a claim against the manufacturer, distributor
or dealer of the automobile in question, but that is not before us.
We hold that the dis
the motion for a summary judg
Chief Justice