Ambrogini v. Todd

Decision Date15 April 1982
Docket NumberNo. 81-266,81-266
Citation197 Mont. 111,642 P.2d 1013
CourtMontana Supreme Court
PartiesJames V. AMBROGINI and Robert D. Flint, Plaintiffs and Appellants, v. Sonny TODD, The State of Montana and Montana State Department of Highways, Defendants and Respondents.
Gregory O. Morgan, Bozeman, for plaintiffs and appellants

Landoe, Brown, Planalp, Kommers & Lineberger, Bozeman, J. Daniel Hoven, Helena, for defendants and respondents.

MORRISON, Justice.

The plaintiffs, James Ambrogini and Robert Flint, appeal from summary judgment entered by the Sixth Judicial District Court in favor of both defendants, Sonny Todd and the Montana Department of Highways.

On May 3, 1979, Flint was driving a truck owned by Ambrogini when it collided with two angus heifer calves on Highway 10. The calves were owned by Todd. In November of 1979, the plaintiffs filed separate actions against defendant Todd alleging that Todd's negligence had caused the collision.

The complaints were amended in April, 1980, to include the State of Montana and the Montana Department of Highways as defendants. These claims have since been consolidated.

The facts are undisputed. In 1936, the State of Montana acquired a highway right-of-way easement from the prior owners of the Todd ranch. The State paid the prior owners $323.75 to construct a fence along Highway 10. A fence was constructed and a stock gate installed at the lane entrance. Through the years, the fence has been maintained by the owners of what is now known as the Todd ranch.

Todd sells cattle and horses. The stock gate at the lane entrance was a nuisance to his customers. Todd did not wish to replace the stock gate with a cattle guard due to hazards posed to horses. Therefore, he removed the stock gate and lined the entire one hundred yard long lane with a mesh fence topped with barbed wire and wooden posts. Todd also installed a gate leading from the lane into the parking lot and turn-around area used by his customers. Todd testified that since the entire land and lane were fenced, he felt there to be no need to install a stock controlling device at the highway entrance to the lane. In fact, the lane was fenced in order to avoid the necessity of having a stock controlling device at the lane entrance.

On the night of May 2, 1979, approximately 50 head of angus heifers were contained in their pen on the Todd ranch. The pen was enclosed by mesh fence very similar to that described as lining the lane. The cattle, some of which were in heat, broke through this fence and entered a shelter belt area surrounded by four-strand barbed wire fence. After grazing in the shelter area for some time, the cattle crawled through that fence without disturbing it and entered the parking lot and turn-around area used by Todd's customers for loading and unloading stock. The gate leading from that area to the lane was open. The calves walked through the open gate, down the lane and onto Highway 10.

The truck driven by Flint collided with two of the heifers while they were on the highway. The truck went into the borrow pit and upset. Flint was injured.

On January 12, 1981, defendant Montana Department of Highways moved for summary judgment pursuant to Rule 56 of the Montana Rules of Civil Procedure. On March 10, 1981, after considering the briefs, depositions, stipulations and arguments of the parties, the court granted summary judgment for the following reasons:

(1) the State had no statutory duty to erect a cattle guard, gate or stock control device at the Highway 10 entrance to Todd's lane;

(2) the failure to construct such a device resulted in no unreasonable risk of harm to the travelling public; and

(3) the lack of a stock control device at the entry way to the ranch was not, as a matter of law, the proximate cause of the accident.

Defendant Sonny Todd moved for summary judgment on March 23, 1981. The court granted his motion on May 6, 1981, for the following reasons:

(1) Section 60-7-201, MCA, imposes liability on a livestock owner only for negligent conduct which results in his livestock occupying a highway and causing injury;

(2) there was no evidence presented at trial showing defendant's fence to be constructed or maintained in a negligent manner; and

(3) the ranch owner, as a matter of law, had no duty to anticipate that the cattle would escape through two fence lines and enter a turn-around area, therefore, making it necessary for Todd to either keep the gate between the area and the lane shut when not in use or construct a stock control device at the entrance to the lane.

The issues presented to this Court on appeal are:

(1) Did the defendant, Montana Department of Highways, have a duty to require and maintain a cattle guard or gate at the ranch entrance?

(2) Did the defendant, Sonny Todd, have a legal duty to construct and maintain a (3) Is there sufficient evidence upon which reasonable men could conclude that Todd was negligent in either maintaining or constructing the fence through which the cattle passed?

fence to prevent livestock from entering the highway?

We uphold summary judgment for the Montana Department of Highways and reverse summary judgment for the defendant, Sonny Todd. We remand this case for a determination of whether or not Todd was negligent for not constructing a stock control device at the lane entrance or keeping the gate from the lane to the turn-around area shut at all times during which it was not in use. If the trier of fact finds Todd negligent, it must then determine whether his negligence was the proximate cause of the collision on May 3, 1979.

Briefs, depositions and testimony at hearings established several undisputed, pertinent facts. The Todd ranch is located off Highway 10 approximately 6.5 miles east of Big Timber. This is an open range area. Highway 10 is classified by the Montana Department of Highways as being part of the federal-aid primary system. It is not a controlled access highway. The section of the highway near the Todd ranch was constructed prior to July 1, 1969, and has not been reconstructed since that date. This section has never been designated a "high-hazard area" pursuant to section 60-7-102(2), Montana Code Annotated.

The above facts are relevant to sections 60-7-101 through 60-7-103, MCA, governing when the Montana Department of Highways is responsible for the fencing of highways, as well as to sections 60-7-201 through 60-7-203, MCA, governing when a rancher is liable for damages caused by the presence of his cattle on a highway. These statutes are controlling in this situation and we focus on them as the basis for this decision.


Section 60-7-101, MCA, and its legislative history indicate that the 1974 legislature intended to increase the safety of the motorist travelling through the ranching areas of Montana. Section 60-7-103, MCA, delegates the responsibility for the motorists' safety to the Montana Department of Highways. It states:

"60-7-103. Department to fence right-of-way through open range. (1) The department shall fence the right-of-way of any part of the state highway system that is constructed or reconstructed after July 1, 1969, through open range where livestock present a hazard to the safety of the motorist. Where a fence is constructed, adequate stock gates or stock passes, as necessary, shall be provided to make land on either side of the highway usable for livestock purposes.

"(2) The department shall erect a fence in every high-hazard area as promptly as possible, and the cost of such construction is an expenditure for the enforcement of federal-aid highway safety programs. Gates, stock underpasses, water facilities, and cattle guards may be installed where necessary to make the land on either side of the highway usable for livestock purposes or where a public right-of-way intersects the state highway."

Section 60-7-102(1) and (2), MCA, defines "open range" and "high-hazard area" as follows:

"(1) 'Open range' means those areas of the state where livestock is raised and maintained in sufficient numbers as to constitute a significant part of the local or county economy and where such animals graze and move about generally unrestrained by fences.

"(2) A 'high-hazard area' is a segment of the primary highway system passing through open range where livestock moves on or across the highway often enough, in enough numbers, and with enough ease of access that such animals create a significant traffic safety hazard. Evidence bearing on whether animals on the highway pose a significant hazard includes, without limitation, past accident Since the passage of section 60-7-103, MCA, the Montana Department of Highways is obligated to fence any right-of-way constructed or reconstructed after July 1, 1969, through a hazardous open range area. In addition, the Department must also fence any existing right-of-way which it classifies as being in an open range area containing a sufficient number of roaming livestock to constitute a significant traffic safety hazard. These fences must include stock gates, stock passes and cattle guards wherever necessary.

records, the opinions of persons qualified by experience to evaluate the relative safety of road conditions, and the terrain around the road."

The instant situation is not covered by these statutes. Depositions of two employees of the Department of Highways establish that no construction or reconstruction has been completed on the relevant highway section since July 1, 1969. In addition, the Montana Department of Highways has not classified this segment of highways as a "high-hazard area." Therefore, pursuant to section 60-7-103, MCA, the Department of Highways has no statutory duty to construct a fence and thus no duty to construct a stock control device.

Plaintiffs also rely on section 81-4-103, MCA, as a...

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