Abraham v. Nelson, 00-764.

• Citation: 2002 MT 94,46 P.3d 628,309 Mont. 366
• Decision Date: 09 May 2002
• Docket Number: No. 00-764.,00-764.
• Parties: 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.
• Court: United States State Supreme Court of Montana

46 P.3d 628

309 Mont. 366

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.

No. 00-764.

Supreme Court of Montana.

Submitted on Briefs April 19, 2001.

Decided May 9, 2002.

Edward A. Murphy, Datsopoulos, MacDonald & Lind, Missoula, Montana, for Appellant.

Stephen M. Frankino, Hughes, Kellner, Sullivan & Alke, Helena, Montana, for Respondent Nelson.

Paul Sharkey, Sharkey & Northcutt, PLLP, Missoula, Montana, for Respondent Owners Association.

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.

¶ 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 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 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 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 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 slightly under. His deposition testimony reflects that prior to 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...