Oberson v. U.S. Dep. of Agric., Forest Ser.

• Decision Date: 07 November 2007
• Docket Number: No. OP 06-0232.,OP 06-0232.
• Citation: 171 P.3d 715,2007 MT 293
• Parties: Lori OBERSON, Legal Guardian for Brian Musselman, an incapacitated person; Kimberlee Musselman, individually and as the Natural Mother of Devon Musselman, a minor, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, Defendant.
• Court: Montana Supreme Court

171 P.3d 715

2007 MT 293

Lori OBERSON, Legal Guardian for Brian Musselman, an incapacitated person; Kimberlee Musselman, individually and as the Natural Mother of Devon Musselman, a minor, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, Defendant.

No. OP 06-0232.

Supreme Court of Montana.

Argued April 20, 2007.

Submitted May 1, 2007.

Decided November 7, 2007.

For Plaintiffs: Andrew D. Huppert (argued), Attorney at Law, Missoula, Montana, Tom L. Lewis and J. David Slovak, Lewis, Slovak & Kovacich, Great Falls, Montana.

For Defendant: H. Thomas Byron, III (argued), Peter D. Keisler, U.S. Dept. of Justice, Civil Division, Washington, D.C., William W. Mercer, U.S. Attorney for the District of Montana, Victoria Laeder Francis, U.S. Attorney's Office, Billings, Montana.

For Amicus Montana Fish, Wildlife & Parks: Robert N. Lane, Chief Counsel, Fish, Wildlife & Parks, Helena, Montana.

For Amicus Montana Trial Lawyers Association: Michael G. Eiselein, Lynaugh, Fitzgerald, Eiselein & Grubbs, Billings, Montana, Lawrence A. Anderson, Attorney at Law, Great Falls, Montana.

For Amicus Montana Defense Trial Lawyers Association: Mikel L. Moore (argued), Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Lori Oberson, as legal guardian for Brian Musselman (Musselman), and others, (collectively Oberson), brought an action in the United States District Court for the District of Montana under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, alleging that the United States Forest Service (Forest Service) negligently had failed to correct or warn of a dangerous condition on the snowmobile trail where Brian Musselman was injured. Oberson and the Forest Service cross-appealed to the United States Court of Appeals for the Ninth Circuit from the judgment of the District Court following a bench trial.

¶ 2 The Ninth Circuit certified three questions of law to this Court pursuant to Rule 44(c) of the Montana Rules of Appellate Procedure. We accepted the following three questions in our order dated April 5, 2006:

¶ 3 Does the gross negligence standard of care in the snowmobile liability statute, Mont.Code Ann. § 23-2-653 (1996), violate the Montana equal protection clause, Mont. Const. art. II, § 4?

¶ 4 If the snowmobile liability statute's gross negligence standard is unconstitutional, does the recreational use statute's willful or wanton misconduct standard of care, Mont. Code Ann. § 70-16-302(1) (1996), apply in its place?

¶ 5 If neither the snowmobile liability statute nor the recreational use statute provide an applicable standard of care, does the ordinary care standard, Mont.Code Ann. § 27-1-701, apply?

FACTUAL AND PROCEDURAL HISTORY

¶ 6 In February 1996 Musselman, Patrick Kalahar (Kalahar), Tim Johnson (Johnson), and Jamie Leinberger (Leinberger) were riding their snowmobiles at night on the Big Sky Trail, a trail maintained by the Forest Service on Forest Service land, outside West Yellowstone, Montana. The group came upon a sudden, unmarked, steep decline in the trail. Musselman reached the decline first and safely negotiated the hill, but stopped his snowmobile after Johnson had wrecked. Musselman dismounted from his snowmobile and began to walk across the trail when Kalahar and Leinberger roared over the hill at approximately 55 mph. One of their two snowmobiles struck Musselman in the head, causing him catastrophic brain injuries.

¶ 7 Oberson brought suit in federal court against the Forest Service under the FTCA. She alleged that the Forest Service negligently had failed to correct or warn of the danger posed by the hill where Musselman was injured, and that its negligence was the proximate cause of Musselman's injuries. The Forest Service filed a third-party complaint against Leinberger, Kalahar, and Johnson, alleging that their negligence had caused Musselman's injuries. Kalahar settled and the court entered a default judgment against Johnson. The case proceeded to trial against the Forest Service with Leinberger as the sole third-party defendant.

¶ 8 The Forest Service argued in pre-trial proceedings that it was immune to liability in light of the fact that its decision not to mark the hazardous hill was "discretionary" within the meaning of 28 U.S.C. § 2680(a). It also argued that §§ 23-2-651, 653-54, MCA (1995) (the snowmobile liability statute), relieved it from a duty to warn of the hazardous hill because "a snowmobile area operator has no duty to eliminate, alter, control, or lessen the risk inherent in the sport of snow-mobiling," § 23-2-653(3), MCA. The court rejected both affirmative defenses. The court concluded with respect to the latter that the hill at issue was not one of the risks "inherent in the sport of snowmobiling."

¶ 9 The District Court looked next to Montana negligence law to determine the substantive law governing Oberson's FTCA claim. The court refused the Forest Service's invitation to apply the "gross negligence" standard found in the snowmobile liability statute in light of the fact that this Court in Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226 (1988), had found a similar provision relating to ski area operators to violate the Equal Protection Clause of the Montana Constitution.

¶ 10 The court also barred the Forest Service from arguing that the "willful or wanton" conduct standard found in §§ 70-16-301, 302, MCA (1995) (recreational use statute) applied in place of the "gross negligence" provision in the snowmobile liability statute. The court concluded that the more specific snowmobile liability statute had preempted the willful or wanton standard in the recreational use statute. The court determined, in the absence of any other governing statute, that it would apply the catch-all "ordinary care" standard found at § 27-1-701, MCA. The court applied the ordinary care standard to apportion 40% of the responsibility for Musselman's damages to the Forest Service, 10% to Musselman, and 50% to Kalahar and Leinberger jointly.

¶ 11 The Forest Service appealed the District Court's determination of negligence and its refusal to apply the discretionary function exception of the FTCA. Oberson cross-appealed from the court's liability allocation of 50% to Kalahar and Leinberger. The Ninth Circuit affirmed the District Court "in all respects except that [it left] for future resolution the determinative question of the appropriate standard of care pending the disposition "of this request for certification."

DISCUSSION

¶ 12 Does the gross negligence standard of care in the snowmobile liability statute, Mont.Code Ann. § 23-2-653 (1996), violate the Montana equal protection clause, Mont. Const. art. II, § 4?

¶ 13 Oberson challenges the provisions in the snowmobile liability statute that apply a gross negligence standard of care to snowmobile area operators. The statute provides, in relevant part, that a "snowmobile area operator is liable for death or injury to a snowmobiler or other person or property only for an act or omission that constitutes gross negligence." Section 23-2-653(2), MCA (1995). It also provides that a "snowmobile area operator who attempts to eliminate, alter, control, or lessen the risk inherent in the sport of snowmobiling is liable only for an act or omission that constitutes gross negligence." Section 23-2-653(3), MCA (1995).

¶ 14 We presume that "all statutes are constitutional, and we attempt to construe them in a manner that avoids unconstitutional interpretation." State v. Trull, 2006 MT 119, ¶ 30, 332 Mont. 233, ¶ 30, 136 P.3d 551, ¶ 30. This Court requires a party challenging a statute to prove, beyond a reasonable doubt, that the statute is unconstitutional. Trull, ¶ 30.

¶ 15 Oberson contends that this Court's decision in Brewer requires us to hold that the snowmobile liability statute's gross negligence provisions violate equal protection. This Court in Brewer held that various provisions in §§ 23-2-731 through 737, MCA (1995) (the skier responsibility statutes), violated the "constitutional guarantee of equal protection." Brewer, 234 Mont. at 116, 762 P.2d at 231. The Court summarized the unconstitutional provisions as "prohibit[ing] the skier from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator." Brewer, 234 Mont. at 114, 762 P.2d at 230.

¶ 16 The Court determined that the skier responsibility statutes sought to "protect[] the ski industry from frivolous lawsuits and liability over which the operator has no control." Brewer, 234 Mont. at 113, 762 P.2d at 229. The Court held that "there is no rational relationship between this purpose and requiring that skiers assume all risks for injuries regardless of the cause and regardless of the presence of negligence or intentional conduct on the part of the ski area operator." Brewer, 234 Mont. at 115, 762 P.2d at 230. The Court held that these provisions were "needlessly over broad [, going] . . . far beyond the stated purposes of the statutes. . . ." The Court concluded that the provisions could not "pass even a minimum rationality test." Brewer, 234 Mont. at 115, 762 P.2d at 230.

¶ 17 The snowmobile liability statute's statement of purpose closely mirrors the skier responsibility statute's statement of purpose that this Court analyzed in Brewer. Compare § 23-2-651, MCA (1995) with § 23-2-731, MCA (1979). The snowmobile liability statute's purpose is stated fairly as "protecting [snowmobile area operators] from frivolous lawsuits and liability over which the operator has no control." Brewer, 234 Mont. at 113, 762 P.2d at 229. Its gross negligence standard of care bears no rational relationship to this purpose for the same reasons we described in Brewer. The statute relieves snowmobile area operators of liability for their "negligen[t] or intentional conduct" that is, by...