Big Man v. State

Citation38 St.Rep. 362,192 Mont. 29,626 P.2d 235
Decision Date23 April 1981
Docket NumberNo. 80-265,80-265
PartiesLois Jefferson BIG MAN, Personally and as Personal Representative of the Estate of Daniel Big Man, Deceased, Plaintiff and Appellant, v. The STATE of Montana, and Eunice Irene Case, Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Holmstrom, Dunaway & West, P. C., Jock B. West argued, Billings, for appellant.

Moulton, Bellingham, Longo & Mather, Corinne Courtney argued, Billings, Crowley, Haughey, Hanson, Toole & Dietrich, Cynthia Ford argued, Billings, for respondents.

DALY, Justice.

This is an appeal from a summary judgment entered against the plaintiff in favor of both defendants by the District Court of the Thirteenth Judicial District, in and for the County of Big Horn.

Daniel Big Man, a five-year-old pedestrian, was struck by a car driven by Eunice Case. The accident occurred on or near the south end of a bridge that crosses the Little Big Horn River, 18 miles south of Hardin, Montana, on Interstate 90 (I-90). The site of the accident abuts a "swimming hole" frequently used by children in the area. The children had access to the swimming hole through an opening in a fence which runs from the interstate boundary fence to a concrete abutment located at the south end of the bridge. Daniel died as a result of the injuries sustained in the accident.

Plaintiff brought suit against the State of Montana for negligence in the construction and maintenance of the highway fence and against Eunice Case for negligence in the operation of her vehicle. Defendants contend that Daniel darted from behind the bridge abutment so quickly that Case could not avoid hitting him.

After some discovery was pursued, defendants moved for summary judgment. The court granted judgment in their favor.

Plaintiff presents the following issues to this Court for review:

1. Did the District Court err in finding no genuine issue as to any material fact and thereby err in granting the summary judgment?

2. Did the state have a legal duty to erect and maintain the fence along the interstate where the accident occurred so as to prevent access by pedestrians?

A party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those principles which entitle him to a judgment as a matter of law. Reaves v. Reinbold (1980), Mont., 615 P.2d 896, 37 St.Rep. 1500; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613.

As to defendant Case, the plaintiff contends there are issues of fact yet to be resolved. Case concedes that the submitted record reveals that there are genuine issues of fact but contends that they are not material in light of those principles which entitle her to a judgment as a matter of law.

The District Court could properly grant summary judgment to Case only on a finding that, on the submitted record, she exercised proper due care in proceeding down the highway and was unable to avoid the collision with the decedent.

In support of this finding, Case presented her own affidavit and the affidavit of her husband, Clarence Case, who was a passenger in the car at the time of the accident. These affidavits established the following facts:

1. The accident occurred at 2:30 p. m. in the southbound lane of a limited access four-lane interstate highway. The speed limit was 55 miles per hour.

2. Eunice Case was driving at approximately 40 miles per hour.

3. The decedent was first seen by Clarence Case, a passenger in defendant's car, as they approached the south end of the bridge.

4. The decedent darted from behind a three-foot-high bridge abutment on the righthand side of the roadway directly into the highway.

5. The decedent appeared approximately three feet from the bridge abutment.

6. The decedent tried to stop, but ran into the right front fender of the vehicle.

7. The decedent appeared and ran into the side of the car without warning and without time for the defendant to take any action to avoid the collision.

8. The decedent was the only child who ran out from behind the bridge abutment at the time of the accident.

In response to Case's allegations, plaintiff presented affidavits which established that at the time of the accident, there were other children on the bridge or standing on the interstate roadbed near the highway. The affidavits also indicated that the point of impact appeared to be 21.1 feet from the end of the bridge abutment.

Issues of fact in dispute include whether there were other children on the bridge or roadway at the time of the accident; whether the point of impact was 3 feet or 21 feet from the end of the bridge abutment and whether Case's vehicle was traveling at a reasonable rate of speed. These facts being in dispute, the issue becomes whether they are material to a final determination in this matter and, thus, preclude any summary judgment.

Section 61-8-504, MCA, provides:

"... every driver shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child ... upon a roadway."

If children were present on the bridge or standing on the roadbed and readily visible to Case, she was under a duty to exercise precaution to avoid any collision and to sound her horn when such action became necessary.

Case failed to make use of her horn as she approached the bridge but still contends she exercised due care in driving her car. Case then concludes that the fact that children may have been on the bridge or roadbed adjacent to the interstate is of no concern for the collision with the decedent still remained unavoidable.

In support of this position, defendant cites Autio v. Miller (1932), 92 Mont. 150, 11 P.2d 1039, for the following proposition:

"While the driver of an automobile is required to be vigilant, he is not bound to anticipate that a child will suddenly dart from the side of the street or suddenly run across the street, in front of his car." 11 P.2d at 1042.

See also Annot., 65 A.L.R. 192 (1930); Annot., 113 A.L.R. 528 (1938); 60A C.J.S. Motor Vehicles, § 396(2) at 777.

It should be noted, however, that the court in Autio also stated that if the driver of an automobile "is not vigilant, if he does not keep a lookout, the jury may say he was negligent." In providing a lookout, the court indicated that the "driver must look 'not only straight ahead, but laterally ahead' " and that a "person is presumed to see that which he could see by looking."

In viewing the presented affidavits and the inferences arising therefrom, in a light most favorable to the party opposing the motion for summary judgment, this Court must acknowledge that children were present on the bridge or roadway and readily viewable by the defendant. Children being present, Case was under a duty to exercise all proper precaution to avoid any collision.

A determination of negligence is always dependent upon an examination of the surrounding circumstances. McCusker v Roberts (1969), 152 Mont. 513, 452 P.2d 408; Jackson v. William Dingwall Co. (1965), 145 Mont. 127, 399 P.2d 236. The submitted record fails to fully describe the location and actions of the children but affording the plaintiff all reasonable inferences which may be drawn from the offered proof, it could be found upon further examination at trial that a failure to sound the car horn and/or reduce the car's speed to less than 40 miles per hour was in violation of a duty of reasonable care and precaution. This being the case, the trial court improperly granted Case a summary judgment.

As to the disputed fact of whether the collision occurred 3 or 21 feet from the bridge abutment, this controversy bears on the issue of whether Case had time to avoid the decedent as he ran onto the highway. Plaintiff submits that, if the decedent was 21.1 feet down the road from the bridge, Case in the exercise of due care would have been able to see him prior to impact and thereby avoid the accident.

There appears to be no dispute that the decedent darted suddenly out into the roadway from underneath the bridge and from behind a bridge abutment. The dispute is whether the defendant was 3.0 feet or 21.1 feet from the bridge when he appeared in the view of defendant.

The discrepancy in this instance is 18.1 feet, but the defendant contends it is of little significance in that when traveling at a speed of 40 miles per hour, this distance is covered in less than a second. What defendant fails to acknowledge, however, is that under the given circumstances, 40 miles per hour may have been excessive and had she been driving at a more reasonable speed the distance could have allowed adequate time to avoid the collision.

In viewing the evidence and inferences arising therefrom in a light most favorable to the plaintiff, we are not able to conclude, as a matter of law, that defendant properly exercised her duty. Consequently, the summary judgment was improperly granted.

This determination agrees with this Court's holding that ordinarily issues of negligence are not susceptible of summary adjudication. Hogen v. Great Northern Railway Co. (1969), 153 Mont. 309, 456 P.2d 51. It is felt that the Court should be extremely cautious in reviewing grants of summary judgment in this area for the issues involved in a determination of negligence are better resolved at trial. McAlpine v. Dahl (1978), Mont., 585 P.2d 1307, 35 St.Rep. 1561; see also Lyndes v. Scofield (1979), Mont., 589 P.2d 1000, 36 St.Rep. 185; Slagsvold v. Johnson (1975), 168 Mont. 490, 544 P.2d 442; Dean v. First National Bank of Great Falls (1969), 152 Mont. 474, 452 P.2d 402.

In regard to the second issue on appeal the plaintiff contends that an issue of fact yet to be resolved is whether the State of Montana as a defendant failed to properly upkeep the fence...

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