Birky v. Johnson

Decision Date22 April 1986
Docket NumberNo. 85-280,85-280
PartiesKristina BIRKY, Plaintiff and Appellant, v. Diane JOHNSON and Commercial Union Insurance Company, Steven Siderius and National Farmers Union Insurance Company, Defendants and Respondents.
CourtMontana Supreme Court

Astle & Astle, David L. Astle, Kalispell, for plaintiff and appellant.

Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn, Kalispell, for Johnson.

Hash, Jellison, O'Brien & Bartlett, Kenneth E. O'Brien, Kalispell, for Siderius.

S.Y. Larrick, Kalispell, for Nat'l Farmers Union Ins.

Garlington, Lohn & Robinson, Wm. Evan Jones, Missoula, for Commercial Union Ins.

SHEEHY, Justice.

Appellant, Kristina Birky, appeals from the order of the District Court, Eleventh Judicial District, County of Flathead, granting the motion for summary judgment of respondent, Steven Siderius. The District Court certified its order for appeal by order dated July 12, 1985.

This action arises out of a multiple vehicle collision. The basic facts established by the pleadings, depositions and affidavits disclose the following: On May 8, 1982, Birky was driving her vehicle west on U.S. Highway No. 2. She was followed by a vehicle driven by Siderius. As the Birky and Siderius vehicles approached the intersection of U.S. Highway No. 2 and LaSalle Road they were traveling at a speed of approximately 35 to 40 miles an hour and the Siderius vehicle was approximately four to five car lengths behind the Birky vehicle.

As Birky and Siderius approached the intersection, a vehicle driven by Diane Johnson pulled out of the Snappy's Sports Center parking lot and crossed the west bound traffic lanes directly in front of the Birky vehicle. Birky applied her brakes and left 33 feet of skid marks before striking the Johnson vehicle. The Siderius vehicle pulled to the left into the left turn bay in an effort to avoid the collision. When the Johnson and Birky vehicles collided, however, the rear of the Birky vehicle swung also to the left, and the rear of the Birky vehicle and the side of the Siderius vehicle collided.

The investigating patrolmen and Birky all agreed that if the Johnson vehicle had not pulled in front of the Birky vehicle, no accident would have occurred. Both of the Highway Patrolmen were also of the opinion that the proximate cause of the accident was the action of Johnson in failing to yield the right of way, and no actions of Siderius were a proximate cause of the accident. Further, after the accident, Johnson acknowledged that the accident was her fault, and she received a citation for failure to yield the right of way. No citations were issued to Siderius. Two eyewitnesses to the collision were also of the opinion that Siderius had done everything to avoid the accident and that Siderius was not at fault.

It was Birky's opinion that Siderius couldn't have been cautious or he wouldn't have struck her. Birky, however, agreed that since she didn't see the Siderius vehicle that eyewitnesses would be in a much better position to judge the conduct of Siderius.

The record also indicates that neither the Siderius vehicle nor the Birky vehicle were speeding.

Birky raises only one issue on appeal: whether the District Court erred in granting summary judgment to Siderius on the issue of negligence.

The purpose of summary judgment procedure is to encourage judicial economy by eliminating unnecessary trials, and it is proper under Rule 56(c), M.R.Civ.P., only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510; Reaves v. Reinbold (Mont.1980), 615 P.2d 896, 898, 37 St.Rep. 1500, 1502.

It is well established that a party moving for summary judgment has the burden of showing a complete absence of any genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law. Cereck, 195 Mont. at 411, 637 P.2d at 511; Reaves, 615 P.2d at 898, 37 St.Rep. at 1502; Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. Cereck, 195 Mont. at 411, 637 P.2d at 511; Reaves, 615 P.2d at 898, 37 St.Rep. at 1502; Mally v. Asanovich (1967), 149 Mont. 99, 105, 423 P.2d 294, 297.

When a duty is imposed upon the defendant and the plaintiff's...

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2 cases
  • Brohman v. State, 87-232
    • United States
    • Montana Supreme Court
    • 19 January 1988
    ...of summary judgment on negligence when it is clear that a party has breached a duty and caused an accident. Birky v. Johnson (Mont.1986), 716 P.2d 198, 43 St.Rep. 488. In this case, we are dealing with a suit by Brohman against the State for injuries she suffered. For Brohman to recover, sh......
  • Medders v. Joyes
    • United States
    • Montana Supreme Court
    • 9 August 1988 where "it is clear that a party has breached a duty and caused an accident." Brohman, 749 P.2d at 69 (citing Birky v. Johnson (Mont.1986), 716 P.2d 198, 43 St.Rep. 488). We find the reasoning in Brohman to be applicable to the instant The District Court concluded that the Medders' evid......

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