No. 13818
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
STANLEY J. FOLDA, Personal Representative
of the Estate of May Magdalena Folda,
deceased,
Plaintiff and Appellant,
THE CITY OF BOZEMAN, THE V.F.W. CLUB and
THE FRATERNAL ORDER OF EAGLES NO. 326,
Defendants and Respondents.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Bennett and Bennett, Bozeman, Montana
For Respondent :
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Landoe, Gary and Planalp, Bozeman, Montana
Anderson, Symmes, Brown, Gerbase, Cebull and Jones,
Billings, Montana
Submitted on briefs: April 17, 1978
Decided: JUL 2 6 1978
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Mr. J u s t i c e John C . H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.
P l a i n t i f f a p p e a l s from a j u r y v e r d i c t i n f a v o r of d e f e n -
d a n t V.F.W. Club and from o r d e r s of t h e D i s t r i c t C o u r t g r a n t i n g
d i r e c t e d v e r d i c t s i n f a v o r of d e f e n d a n t s C i t y of Bozeman & The
F r a t e r n a l Order of E a g l e s No. 326 ( E a g l e s ) i n p l a i n t i f f ' s s u i t
f o r t h e d e a t h of h i s d a u g h t e r .
I n t h e e a r l y morning h o u r s of J u n e 7 , 1975, Mary F o l d a ,
aged 1 7 , and h e r f r i e n d , Cindy W i l l i a m s , drowned i n Bozeman
Creek, w i t h i n t h e C i t y of Bozeman, Montana.
E a r l i e r i n t h e e v e n i n g Cindy had p i c k e d up Mary a t h e r
p a r e n t s ' home i n B e l g r a d e and had d r i v e n i n t o Bozeman. Friends
of Mary saw h e r i n t h e Arcade Bar sometime between 8:00 and 9:00
p.m. and l a t e r on a t t h e b a r r u n by The F r a t e r n a l Order of E a g l e s
No. 326 . About 1 0 ~ 3 0 r 1 1 : O O p.m.
o Randy S h o r t and h i s f i a n c e ,
E i l e e n Richey, came i n t o t h e V.F.W. Club and saw Mary t h e r e d r i n k -
ing t e q u i l l a s with beer chasers.
Mary s t a y e d a t t h e V.F.W. continuing t o d r i n k u n t i l about
l s O O o r 1:30 a.m. By t h e n s h e w a s i n an e x t r e m e l y i n t o x i c a t e d
c o n d i t i o n and u n a b l e t o l e a v e t h e b a r on h e r own. With t h e h e l p
of Cindy and two o t h e r a c q u a i n t a n c e s , S h e r r y P i e r c e and Pam B a r n e s ,
Mary l e f t t h e V.F.W. t h r o u g h i t s r e a r d o o r and headed t h r o u g h
t h e back a l l e y f o r a p u b l i c p a r k i n g l o t some 100 f e e t away.
The V.F.W. was l o c a t e d a b o u t 30 f e e t n o r t h of t h e a l l e y .
To t h e e a s t of t h e V.F.W. and s o u t h of t h e a l l e y was t h e p a r k i n g
l o t t o which Mary was headed. The p a r k i n g l o t , which was used
by p a t r o n s of s e v e r a l b a r s and o t h e r b u s i n e s s e s i n t h e a r e a , was
owned by t h e E a g l e s and t h e C i t y of Bozeman. The p o r t i o n immed-
i a t e l y a d j a c e n t t o t h e a l l e y was owned by t h e E a g l e s and t h e
p o r t i o n s o u t h of t h a t was owned by t h e C i t y . The p a r k i n g l o t
was b o r d e r e d t h e e n t i r e l e n g t h of i t s w e s t s i d e by Bozeman Creek,
which a t t h a t t i m e of t h e y e a r was i n f l o o d s t a g e . The a l l e y
crossed Bozeman Creek by means of a bridge.
When Mary reached the parking lot, she ran for the
creek. Cindy and the others pulled her out and Pam then brought
Cindy's car to the parking lot. After the girls put Mary into
the back seat of Cindy's car, Cindy assured Sherry and Pam
that she could get Mary to her apartment all right.
When Sherry and Pam left, Cindy was sitting in the front
seat of her car and Mary was in the back seat. Approximately
twenty minutes later Mary ended up in the creek again. Cindy
apparently went after her to try and save her, but was unable
to do so. Both girls drowned. Mary's body was recovered a few
days later several miles downstream. No witness appeared at
trial who saw what happened between the time Mary was in Cindy's
car and the time she drowned nor were any eyewitnesses to the
incident identified at trial.
On December 19, 1975, Stanley J. Folda, Mary's father
and the personal representative of her estate, filed suit against
the City of Bozeman (City) and the V.F.W. Club. In an amended
complaint he added the Eagles as a party defendant. The father
alleged in his amended complaint: that defendant V.F.W. Club
negligently permitted Mary Folda to leave the Club in an intox-
icated condition through an entrance located in a position such
that Mary fell into Bozeman Creek while it was in flood stage;
that defendant City failed to maintain conditions sufficient to
protect Mary from inadvertently stepping into Bozeman Creek at
the parking lot; and that defendant Eagles negligently maintained
its portion of the parking lot in such a condition that persons
entitled to occupy it were readily exposed to the hazards exist-
ing in connection with Bozeman Creek. He sought damages against
each of the defendants for the loss to Mary's heirs of her com-
fort, advice, and society and for Mary's personal loss including
pain and suffering. The pretrial order added an additional
claim against defendant V.F.W. alleging that it negligently
sold and served intoxicating liquor to Mary in violation of
section 4-3-306 (1)(a), R.C.M. 1947.
After plaintiff and defendants had rested their cases,
defendant City and defendant Eagles moved for directed verdicts
in their favor on the following grounds: (1) Plaintiff failed
to prove that Mary Folda entered Bozeman Creek from land that
either defendant owned; (2) neither defendant had a duty to fence,
barricade or otherwise cover Bozeman Creek where it bordered the
parking lot; (3) Mary Folda was contributorily negligent; and
(4) Mary Folda assumed the risk of Bozeman Creek. The District
Court granted these motions, but denied a subsequent motion for
a directed verdict by defendant V.F.W. Club. The jury rendered
its verdict in favor of defendant V.F.W. Club.
Plaintiff raises three issues on appeal:
1. Error in excluding certain testimony;
2. Error in granting directed verdicts for defendants
City and Eagles; and
3. Sufficiency of the evidence to support the jury ver-
dict in favor of defendant V.F.W. Club.
Plaintiff's first issue for review relates to the Dis-
trict Court's sustaining objections to questions by plaintiff's
counsel to two witnesses concerning the approximate location at
which the deceased Mary Folda entered Bozeman Creek. In the
agreed facts in the pretrial order, the parties stipulated that
Mary Folda drowned in Bozeman Creek where it runs along the west
side of the parking lot in question. Through his questions to
plaintiff, Stanley Folda, and to Officer James Stanley, one of
the investigating officers, plaintiff's counsel attempted to
establish whether Mary Folda entered the creek from land owned
by the Eagles or land owned by the City. Because neither Stanley
Folda or Officer Stanley had observed Mary Folda enter the
creek, the District Court sustained defendants' objections to
these questions on the grounds of hearsay.
Plaintiff contends that the District Court improperly
sustained objections to these questions and that Folda's and
Stanley's testimony as to the approximate location where Mary
Folda entered Bozeman Creek was admissible under either the
"present sense impression" exception to the hearsay rule, cit-
ing Sellers v. Montana-Dakota Power Co. (1935), 99 Mont. 39,
55-6, 41 P.2d 44, or the "res gestae" rule, citing State v. New-
man (1973), 162 Mont. 450, 457-58, 513 P.2d 258. We disagree.
Testimony as to present sense impressions of a declarant
is allowed as an exception to the hearsay rule upon the principle
that the declarations were made while the mind of the declarant
was laboring under the excitement aroused by the incident before
there was time to reflect and fabricate, and hence the solemnity
of an oath is not necessary to give the declaration probative
value. Sellers, 99 Mont. 56. The statutory basis of the res
gestae rule is section 93-401-7, R.C.M. 1947:
"Where, also, the declaration, act, or omission
forms part of a transaction, which is itself
the fact in dispute, or evidence of that fact,
such declaration, act or omission is evidence,
as part of the transaction."
Res gestae statements must be spontaneous and substantially con-
temporaneous with the injury causing event. Mewman, 162 Mont. 458.
Here we are dealing with testimony from people who were
not present at the time of the accident and who attempted to
testify to the approximate location where Mary Folda entered
Bozeman Creek based upon what they heard from other persons.
Stanley Folda's knowledge of where his daughter entered the creek
was based upon what the Bozeman police had told him. He was not
even certain though which police officer told him the alleged
location where his daughter entered the creek. Officer Stanley
was not an eye witness to the accident, but received his in-
formation concerning the accident from other people who allegedly
saw it. These other people were never identified nor were they
produced at trial. In light of these facts we find the cases
plaintiff cites inapplicable. We do not know who made the state-
ments upon which Stanley Folda and Officer Stanley rely, nor do
we know when or under what circumstances they were made. We see
no way to insure their veracity.
Plaintiff argues that we should adopt the position of
Dean McCormick, who advocated admitting complete officers' investi-
gative reports as an exception to the hearsay rule. McCormick,
Can the Courts Make Wider Use of Reports of Official Investigations?
42 Iowa L.Rev. 363 (1957). McCormick advocated admitting these
records because of time and reliability factors. The investigat-
ing officer usually comes on the scene as early as it is feasible
to get there and interviews witnesses before they have been swayed
by the parties. Additionally, the witnesses often have only a
dim recollection of the event by the time of trial. McCormick,
42 Iowa L.Rev. at 364-65.
Plaintiff's reliance upon McCormickls position is mis-
placed. Officer Stanley's investigative report was introduced
at trial without objection. It contained no statements from
alleged eyewitnesses to the incident as to where Mary Folda
entered Bozeman Creek. Any written statements that may have been
made by eyewitnesses were never presented at trial. For these
reasons we conclude the District Court was correct in sustain-
ing objections to this testimony by Stanley Folda and Officer
Stanley.
Plaintiff's second issue for review relates to the
directed verdicts which the District Court granted in favor of
defendants City and Eagles. Plaintiff argues that the City and
the Eagles as owners of the parking lot owed a duty to the public
and to Mary Folda to prevent "easy access" into Bozeman Creek.
He contends that they had a duty either to place barricades or
to provide warning of a dangerous place adjoining the parking
lot. Consequently, he concludes the District Court erred in
granting directed verdicts in favor of these defendants.
Defendants City and Eagles argue that there is neither
a statute nor a city ordinance which imposes such a duty upon
them; that a landowner's duty is simply to warn of hidden or
lurking dangers; and that the landowner is not an insurer against
all accidents, citing Dunham v. Southside National Bank (1976),
169 Mont. 466, 548 P.2d 1383; and Uhl v. Abrahams (1972), 160
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Mont. I?
&, 503 P.2d 26. They conclude the District Court properly
granted them directed verdicts. We agree.
The landowner is entitled to assume that an invitee will
see and observe that which would be obvious through reasonably
expected use of an ordinary person's senses. There is no duty
to give the invitee notice of an obvious danger. Demaree v.
Safeway Stores, Inc. (1973), 162 Mont. 47, 52, 508 ~ . 2 d
570,
574. Bozeman Creek is a natural stream which runs through the
City of Bozeman. At the time of the accident the creek was in
flood stage and almost overflowing. The danger of the creek at
this time of year was an obvious one. Accordingly, defendants
City and Eagles were under no duty to warn Mary Folda of this
danger.
Plaintiff argues that we should follow the rulings of
this Court in Tiddy v. City of Butte (1937), 104 Mont. 202, 210,
65 P.2d 605, and Ledbetter v. City of Great Falls (1949), 123
Mont. 270, 275, 213 P.2d 246, that a city has a duty to keep its
public streets and walks in a reasonably safe condition for travel
and that this duty extends to dangerous conditions near the
sidewalks. In Tiddy the plaintiff stumbled over a defect in a
sidewalk one night and fell into an excavation adjoining the
sidewalk. No warning or barricade was posted at that point.
The defendant city was held liable. In Ledbetter the plaintiff
was seriously injured when he fell into an excavation one night
which had been dug by a licensee of the city working on a water
main. The excavation was not barricaded nor were there any
warning lights. This Court overruled the defendant city's de-
murrer to plaintiff's complaint.
Because Tiddy and -
Ledbetter dealt with the duties a city
owes to the public to keep its streets and sidewalks in safe
condition, we hold that they are not applicable to defendant
Eagles, a private landowner. Additionally, because those cases
concern defects or obstructions which are caused by a city and
which rendered a sidewalk or street unsafe, they are distinguish-
able from the instant situation. Here we are not dealing with
a defect or obstruction, but with a natural condition which con-
stituted an open and obvious danger. The City had no duty to
warn Mary Folda of such a danger.
Plaintiff urges us to adopt the position of the Califor-
nia courts which hold that under certain circumstances a natural
condition may, nevertheless constitute a dangerous or defective
condition permitting the imposition of liability, citing Hawk
v. City of Newport Beach (1956), 46 Cal.2d 213, 293 P.2d 48 and
Knight v. Kaiser Company (Dist. Ct. of App. 1956), 305 P.2d 248.
These cases are distinguishable. The Hawk decision was based
upon a statute which imposed liability upon a local agency for
injuries to persons or property resulting from the dangerous or
defective condition of public property if the legislative body
had notice of the condition and failed to act upon it within a
reasonable time. Hawk, 293 P.2d 49. Plaintiff has not shown
that Montana has such a statute. In Knight the plaintiff sued
the defendant upon a theory of attractive nuisance when defen-
dant's sand pile, upon which young children often played, caved
in and asphyxiated plaintiff's 10 year old child. The appellate
court held plaintiff's complaint stated a cause of action against
defendant. The Supreme Court of California reversed the appel-
late court holding that a sand pile did not constitute an attrac-
tive nuisance. Knight v. Kaiser Company (1957), 48 Cal.2d 778,
312 P.2d 1089.
We hold that under the undisputed facts in this case the
District Court properly granted directed verdicts to defendants
City and Eagles.
Plaintiff's final issue for review relates to the suffi-
ciency of the evidence to support the jury verdict in favor of
defendant V.F.W. Club. Plaintiff contends that by V.F.W.'s
serving liquor to Mary Folda, a minor, and by its continuing to
serve her liquor while she was in an intoxicated condition, de-
fendant V.F.W. violated sections 4-6-103 and 104, R.C.M. 1947;
that in so violating these statutes defendant V.F.W. was negli-
gent per se; and that Mary Folda entered Bozeman Creek and there-
by drowned because of her intoxicated condition. Plaintiff argues
that defendant V.F.W. should be held liable on this basis and
that there is no evidence to show that Mary Folda was contribu-
torily negligent.
Defendant V.F.W. counters that the evidence is sufficient
to support the jury's verdict under two approaches: (1) that
defendant V.F.W. was not negligent, or (2) that Mary Folda was
contributorily negligent. In our view the evidence supports a
finding that Mary Folda was contributorily negligent and there-
fore holds that plaintiff is precluded from recovering against
any of the defendants.
At the time of this accident the rule that contributory
negligence precluded any recovery against a defendant was still
in effect. See Dunham v. Southside National Bank (1976), 169
Mont. 466, 548 P.2d 1383. The evidence shows that Mary Folda
began drinking early in the evening of June 6, 1975; that she
went to the Arcade Bar and the Eagles Bar before ending up at
the V.F.W. Club; that Mary Folda was extremely intoxicated by
10:30 or 11:OO p.m. when Sandy Short and Eileen Richey arrived
at the V.F.W.; that she continued to drink until she left the
V.F.W. between 1:00 and 1:30 a.m.; that she could not leave the
V.F.W. under her own power; that on the way to the parking lot
she ran into Bozeman Creek once and had to be pulled out by her
friends; that she was then placed in the back seat of a car;
and that someway (which was never explained at trial) she ended
up in the creek again 20 minutes after her first entry and was
thereby drowned. Voluntary intoxication will not excuse the
degree of care that a person must take for his or her own safety.
. k -.
Biddle v. Mazzocco (1955), 204 Or. 547, 284 P.2d-3-69, 469. We
think the evidence supports a conclusion that Mary Folda volun-
tarily became intoxicated, that she disregarded her duty to use
due care for her own safety, and that this was a proximate cause
of her death.
Judgment affirmed.
We concur
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Mr. Chief Justice Frank I. Haswell deeming himself disqualified
did not narticipate in this cause.