Bickler v. Racquet Club Heights Associates

• Decision Date: 13 May 1993
• Docket Number: No. 92-198,92-198
• Citation: 258 Mont. 19,850 P.2d 967
• Parties: Irene BICKLER, individually and as personal representative of the Estate of Bucky Robert Bickler, deceased, and Victor Bickler, individually, Plaintiffs and Appellants, v. THE RACQUET CLUB HEIGHTS ASSOCIATES, a co-partnership consisting of Walter Francke, M.D., Willard D. Johnson, and Orval Graham, Defendants and Respondents.
• Court: Montana Supreme Court

Page 967

850 P.2d 967

258 Mont. 19

Irene BICKLER, individually and as personal representative of the Estate of Bucky Robert Bickler, deceased, and Victor Bickler, individually, Plaintiffs and Appellants, v. THE RACQUET CLUB HEIGHTS ASSOCIATES, a co-partnership

consisting of Walter Francke, M.D., Willard D.

Johnson, and Orval Graham, Defendants

and Respondents.

No. 92-198.

Supreme Court of Montana.

Submitted on Briefs Jan. 7, 1993.

Decided April 15, 1993.

Order Changing Opinion on and Otherwise Denying

Clarification and Rehearing May 13, 1993.

William P. Fitzgerald, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings, for plaintiffs and appellants.

Ward Swanser, Moulton, Bellingham, Longo & Mather, Billings, for defendants and respondents.

WEBER, Justice.

Plaintiffs Irene Bickler and Victor Bickler appeal the December 22, 1988 order of the District Court of the Thirteenth Judicial District, Yellowstone County, Montana, granting summary judgment in favor of defendant Racquet Club Heights Associates. We affirm.

The issues presented for our review are:

1. Did the District Court err in concluding that acts or omissions of Racquet Club Heights Associates were not the proximate cause of a motorcycle car collision which killed Bucky Bickler, the son of plaintiffs Irene Bickler and Victor Bickler?

2. Did Racquet Club Heights Associates owe a duty to Bucky Bickler as a member of the traveling public to maintain trees on property belonging to the City of Billings?

3. Are sanctions appropriate against the appellants and their attorney for bringing a frivolous appeal?

Plaintiffs Irene and Victor Bickler (Bicklers) brought this action to recover damages for the wrongful death of their son, Bucky Bickler (Bickler). Bucky Bickler died shortly after 1:00 a.m. on August 3, 1983, when his motorcycle collided with Nadine Evensen's (Evensen) car within the intersection of Rimrock Road and Arlene Street in Billings, Montana.

Rimrock Road is a through street running east and west in Billings. Arlene Street intersects Rimrock Road from the south. Zimmerman Trail connects with Rimrock Road from the north at the same intersection. Both Zimmerman Trail and Arlene Street are controlled by stop signs at this intersection. Bickler was traveling west on Rimrock Road with Fred Farr as his passenger. Evensen was traveling north on Arlene Street. Her deposition testimony establishes that she stopped for the stop sign on Arlene Street. She did not see the Bickler motorcycle. She proceeded into the intersection intending to execute a left turn in order to proceed west on Rimrock Road. Evensen pulled out in front of the Bickler motorcycle. The motorcycle struck the right rear passenger panel and wheel of Evensen's car. Both Bickler and Farr were propelled by the force of the collision into the air and landed on the street in front of Evensen's car. Bickler died at the scene of the accident. Farr died later at a Billings hospital.

Evensen testified she did not see the oncoming Bickler motorcycle. Accident reconstruction experts testified by deposition for both Evensen and the Bicklers. Such testimony indicated that in order to adequately perceive oncoming traffic on Rimrock Road, a driver must stop at a location several feet in front of or to the north of the stop sign itself. Evensen testified that when she stopped at the stop sign on Arlene Street, she looked to the left and to the right and could see clearly in both directions. According to the expert testimony, this suggested that she had stopped at a location in front of the stop sign where her vision was not obstructed by trees located on the right of way. Evensen's testimony indicated she stopped only once. Evensen testified that her vision was not obstructed or impaired but that she did not see the Bickler motorcycle approaching from the east.

The City of Billings owns a right of way approximately twenty feet in width abutting Rimrock Road to the south at the point Arlene Street intersects. Several Lombardy poplar trees grow on the city right of way near the southeast corner of the intersection of Rimrock Road and Arlene Street. The trees are located within an area described as the clear vision zone by the Billings City ordinances. Testimony of the reconstruction experts established that the poplar trees may obstruct the vision of a driver approaching Rimrock Road on Arlene Street as the driver looks to the east.

Racquet Club Heights Associates (RCH) owns property adjacent to the southern edge of the described city right of way. The RCH strip extends approximately twenty feet south of the City right of way. This area is designated as part of the RCH subdivision's "common area." The subdivision covenants place responsibility for maintenance of the "common areas" in the subdivision on RCH. Billings ordinances also place responsibility on a corner lot owner for maintenance of vegetation growing on City boulevards.

Bicklers argue that Evensen stopped within three feet in front of the stop sign and at that point, she could not have seen vehicles on Rimrock Road approaching from the east. Because she testified that she had stopped only once at the sign, Bicklers further contend that she would have entered the intersection without a clear view of oncoming traffic.

RCH points out that Evensen's testimony was that at the point she stopped her car, she could see Rimrock Road clearly enough to make out the lights from a Kwik-Way store located one block to the east. RCH also points out that police records establish that Bickler's blood alcohol content at the time of his death was 2.0, twice the legal driving limit. The record on summary judgment does not establish whether or not the motorcycle headlights were on at the time of the accident. As necessary, we will provide additional facts.

I.

Did the District Court err in concluding that acts or omissions of Racquet Club Heights Associates were not the proximate cause of a motorcycle car collision which killed the plaintiffs' son?

The District Court reached the following conclusion in granting summary judgment to RCH:

Defendants Racquet Club and City have argued their acts or omissions in this case were not the actual or proximate cause of plaintiffs' injuries. Plaintiffs have the burden of proving by specific facts that these defendants' acts or omissions actually caused the accident or, alternatively, that but for these defendants' acts or omissions, the accident would not have occurred. Plaintiffs have failed to carry these burdens, and thus summary judgment for Racquet Club and City is appropriate.

We note that the case has been settled and dismissed as to the defendant City.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court's summary judgment ruling using the same standard of review as the trial court. Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. Summary judgment is proper if a plaintiff fails to establish an element material to his negligence action. Dvorak v. Matador Service Inc. (1986), 223 Mont. 98, 107, 727 P.2d 1306, 1311. The showing of proximate cause is a necessary element for such actions. Thus, the pivotal question is whether plaintiffs here satisfied a showing of proximate cause.

In its analysis the District Court quoted from this Court's analysis of cause in fact and proximate cause in Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772. In Young, we stated:

Liability, in any cause of action, attaches if the plaintiff can prove first that defendant's act is a cause in fact of injury and then that the injury is the direct or indirect result, proximately caused by the negligent act. Causation in fact has been determined by the use of the "but for" test ... and in rare circumstances under a substantial factor examination. Prosser and Keeton, The Law of Torts, Section 41, pp. 264-268 (5th ed., 1984). In Montana, the distinction...