Brohman v. State, 87-232

• Citation: 45 St.Rep. 139,749 P.2d 67,230 Mont. 198
• Decision Date: 19 January 1988
• Docket Number: No. 87-232,87-232
• Parties: Patricia BROHMAN, Plaintiff and Appellant, v. STATE of Montana, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 67

749 P.2d 67

230 Mont. 198

Patricia BROHMAN, Plaintiff and Appellant, v. STATE of Montana, Defendant and Respondent.

No. 87-232.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1987.

Decided Jan. 19, 1988.

P. Keith Keller, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, for plaintiff and appellant.

John Maynard, Dept. of Admin., Helena, for defendant and respondent.

GULBRANDSON, Justice.

This is an appeal of an order of the First Judicial District, Lewis and Clark County, granting the defendant/respondent State of Montana (State) a motion for summary judgment against the plaintiff/appellant, Patricia Brohman (Brohman). The District Court ruled as a matter of law that appellant's negligence exceeded that on the part of the State. It is from this ruling that Brohman appeals.

We affirm.

On January 21, 1984, at about 8:10 p.m., Brohman was driving east from Missoula, Montana to Helena, Montana on Highway 12. She was accompanied by her husband, two daughters and one son. The roads were intermittently snow packed. Approximately two miles west of Elliston, Brohman attempted to pass a slower moving truck driven by Jason Newton. At this point in the highway, a hump in the roadway existed disallowing sight from either the west or east side. As Brohman pulled into the passing lane, another car, driven by Sean Kane who was accompanied by three other Carroll College students, was cresting this hump from the opposite direction. Neither Brohman nor Kane could react and a head-on collision resulted. All parties suffered varying degrees of injury and two of the passengers in Kane's car died.

The hump in the road is not noticeable from a distance. A driver in either direction can see vehicles if they are far enough away but lose sight once the vehicle is closer to the hump. The highway runs parallel to a railroad track that is completely flat. Although the highway is marked with a double stripe indicating a no-passing zone, there were no signs indicating a no-passing zone and on the night of the accident the stripes were covered with snow and ice. The investigating highway patrolman, Bernard Barton, testified in deposition that he had to dig through the packed snow to find the highway striping.

At the time of the accident, Brohman's visibility was obscured by blowing snow. Barton stated that on his way to the accident scene he passed the ambulance but could do so only because he had radio communication with the ambulance driver.

Brohman could not remember events leading to the accident or the accident itself. She did, however, testify that she had traveled this stretch of highway frequently.

This action is a result of the Brohman-Kane accident. The underlying claims in this case were originally filed in Federal District Court where the estates of the two deceased victims sued Brohman and the Shaklee Corporation (Shaklee) because of diversity of citizenship. Brohman worked for Shaklee, was driving a leased vehicle that she and her husband received through their participation with Shaklee, and was returning from a Shaklee meeting in Missoula when the accident occurred.

Brohman attempted to join the State in the Federal cases as a third-party defendant but the Federal District Court denied the motion on March 7, 1986 on grounds that the presence of the State as a third party defendant would destroy diversity of citizenship. On March 13, 1986, the Federal District Court granted motions for partial summary judgment against Brohman and Shaklee on the issue of liability.

This suit was filed in State District Court on January 29, 1986 alleging the State's negligence caused the accident because of careless and reckless design, construction or supervision. The State moved for partial summary judgment on grounds that Brohman was collaterally estopped from denying liability because the Federal District Court had ruled she was negligent as a matter of law. The State then moved for partial summary judgment on grounds that Brohman's negligence exceeded any negligence on the part of the State. Both motions were granted and final judgment against Brohman was entered.

On this appeal, Brohman relies on the report of her expert, Donald Reichmuth, an engineer, who concluded that the stretch of highway was dangerous. Reichmuth based this conclusion on a "deficient stopping sight distance for 55 mph and [a] blind spot in the passing sight distances from both east and west." He stated that the posted speed should be 45 or 40 mph and no passing signs should augment the no-passing zone pavement markings.

The only issue we have before us is whether the District Court erred in granting the State's motion for summary judgment.

Summary judgment may be granted pursuant to Rule 56, M.R.Civ.P., when there is no genuine dispute over material facts and the moving party is entitled to a judgment as a matter of law. The initial burden of proof is upon the party moving for summary judgment. The moving party must demonstrate that no genuine issue of material fact exists. Then, the party opposing the motion must come forward with substantial evidence that raises a genuine issue of material fact.

Hendrickson v. Neiman (1983), 204 Mont. 367, 370, 665 P.2d 219, 221.

Brohman contends the general rule disallows disposal of negligence cases with a summary judgment motion.

Ordinarily, issues of negligence are not susceptible to summary judgment and are better determined at trial. Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1982), Mont., 640 P.2d 453, 458, 39 St.Rep. 305, 310. Liability should not be adjudicated upon a motion for summary judgment where factual issues concerning negligence and causation are presented. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 492 P.2d 926, 931.

Hendrickson, supra, 665 P.2d at 222.

However, we have in the past affirmed the granting 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, she would have to prove that the negligence on the part of the State exceeded any negligence on her part in causing the collision. Section 27-1-702, MCA. Section 61-8-325(1) and (2)(a), MCA defines the applicable duty for Brohman under the circumstances of this case:

(1) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.

(2) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

(a) when approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.

* * * The State has the duty to provide and maintain safe highways for the citizens of the state of Montana. State v. District Court of the Fourteenth Judicial District (1977), 175 Mont. 63, 67, 572 P.2d 201, 203. Brohman argues that the State failed to properly warn her of the no-passing zone because the double striping was covered with snow and there were no no-passing signs in the area. Brohman contends therefore, that the State breached its obligation under Sec. 61-8-203, MCA:

The department of highways shall place and maintain traffic-control devices, conforming to its manual and specifications, upon all state highways it considers necessary to indicate and to carry out this chapter and chapter 9 or to regulate, warn, or guide traffic.

From its plain language, this statute shows the State of Montana is required to place a sign where "[i]t considers necessary ..." In the case of no-passing zones, the duty on the part of the State is discretionary.

The department of highways may determine those portions of a highway where overtaking and passing or driving to the left of the roadway would be especially hazardous, and it may by appropriate signs or markings on the roadway indicate the beginning and end of these zones. When the signs or markings are in place and clearly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions of those signs. (Emphasis added.)

Section 61-8-326, MCA.

No evidence was presented at the District Court level that any accidents had occurred at this particular spot on Highway 12 prior to the Brohman accident. Patrolman Barton stated he had no knowledge of any subsequent accidents.

The District Court in its memorandum and order granting the motion for summary judgment stated:

Normally, negligence is a question of fact. In certain cases, however, where reasonable minds cannot differ, the cause of an accident may be a question of law for the Court to determine ... thus, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law.

Citing, Hartley v. State (1985), 103 Wash.2d 768, 698 P.2d 77, 81, see also, Prosser and Keeton, The Law of Torts, pp. 238, 319-320 (5th Ed., 1984).

The District Court determined reasonable minds could not differ that Brohman's negligence exceeded that of the State. The District Court concluded, because of the unusual nature of the case, summary judgment was appropriate:

It is true that because of the peculiarly exclusive nature of the concept of negligence, it is the rare personal injury case which may be properly...