Dubiel v. Montana Dep't of Transp.

• Decision Date: 14 February 2012
• Docket Number: No. DA 11–0354.,DA 11–0354.
• Parties: Keevy DUBIEL, individually and as Personal Representative of the Estate of Jerome Dubiel, Deceased, The Estate of Jerome Dubiel, and Keevy Dubiel as Guardian for Isabella Dubiel, Cashel Coleman–Dubiel, minor children of Jerome Dubiel, Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF TRANSPORTATION, State of Montana, Does 1–10, Defendants and Appellees.
• Court: Montana Supreme Court

2012 MT 35

272 P.3d 66

364 Mont. 175

Keevy DUBIEL, individually and as Personal Representative of the Estate of Jerome Dubiel, Deceased, The Estate of Jerome Dubiel, and Keevy Dubiel as Guardian for Isabella Dubiel, Cashel Coleman–Dubiel, minor children of Jerome Dubiel, Plaintiffs and Appellants,

v.MONTANA DEPARTMENT OF TRANSPORTATION, State of Montana, Does 1–10, Defendants and Appellees.

No. DA 11–0354.

Supreme Court of Montana.

Submitted on Briefs Jan. 4, 2012.Decided Feb. 14, 2012.

For Appellants: Torrance L. Coburn, Tipp & Buley, P.C., Missoula, Montana.

For Appellees: Dana L. Christensen, Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana. Pamela Snyder–Varns, Special Assistant Attorney General, Risk Management & Tort Defense Division, Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[364 Mont. 176] ¶ 1 Jerome Dubiel (Jerome) was killed while traveling north on Montana Highway 35 in December 2008. He was traveling during a “high wind” event that had caused numerous trees to blow down along this stretch of highway. While stopped temporarily by a Montana Department of Transportation (MDT or the Department) field maintenance employee who was clearing highway debris, a tree fell on Dubiel's car inflicting a fatal injury. Keevy, Jerome's wife (hereinafter referred to as Dubiel), sued MDT claiming it had negligently failed to close the highway prior to her husband's death. Several months into the proceeding, MDT moved for summary judgment and the District Court granted its motion. Dubiel appeals. We affirm.

ISSUE

¶ 2 A restatement of the issue on appeal is whether the District Court erred in granting MDT's motion for summary judgment on the ground that Dubiel could not prove the applicable standard of care and breach thereof without expert testimony.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On December 13, 2008, Jerome Dubiel was traveling from Polson to Big Fork, Montana, along MT Highway 35. The wind had been blowing strongly for at least two hours and numerous trees had blown down along this route. MDT staff was on site at multiple locations working to clear the road of trees and downed power and cable lines and to evaluate conditions. While he was stopped on MT Highway 35 awaiting road clearance, a tree fell on Jerome's vehicle inflicting injuries from which Jerome later died. Shortly after Jerome's accident, MDT closed MT Highway 35 due to weather and road conditions. MDT asserts it did not know of Jerome's accident at the time it closed the highway.

¶ 4 In May 2010, Jerome's wife Keevy brought a negligence and wrongful death action against MDT on behalf of herself, Jerome's estate, and the couple's two minor children. She alleged MDT should have closed the road earlier to ensure the safety of those traveling the highway. She claimed MDT's failure to do so constituted negligence and resulted in the wrongful death of her husband. While she retained an economic expert to establish Jerome's lost earnings, estimated earning capacity and other economic factors, Dubiel did not retain an expert to establish MDT's standard of care (SOC) regarding highway safety under the circumstances leading to Jerome's death.

¶ 5 In February 2011, MDT served an expert witness disclosure in which it identified four expert witnesses it intended to call at trial. One expert was Thomas Root who spent 35 years working for the Washington Department of Transportation. On March 14, 2011, Root submitted an affidavit prepared after he had reviewed MDT's road closing policies and procedures and the road and weather conditions along MT Highway 35 on the morning of December 13, 2008. He explained that a number of factors must be considered and weighed by a state department of transportation before ordering a roadway to be closed, including but not limited to public safety and safety of department personnel, traffic flows and the ability of alternate routes to absorb the diverted traffic, and the nature of the weather condition or event giving rise to the closure determination. Root opined that the MDT “Maintenance crews, Maintenance Superintendent, and Maintenance Bureau Chief all acted timely and responsibly in assessing the situation involving extreme wind conditions on Highway 35 on the morning of December 13, 2008, and in making the appropriate decision to close the road.”

¶ 6 In May 2011, following the deadline for expert witness disclosure, MDT moved for summary judgment arguing that because Dubiel did not intend to call an expert witness to testify as to MDT's SOC, she could not prove her negligence claim. Dubiel countered that MDT's own policies and procedures addressing road closures set forth the appropriate SOC and an expert witness was therefore not required. She opined that no specialized knowledge was required to understand the standard and determine that it had been breached.

¶ 7 The District Court agreed with MDT:

Expert testimony is required in this case to establish the standard of conduct to which MDT is required to conform in closing a road, and to assist the trier of fact in determining whether MDT deviated from that standard in closing Montana Highway 35 on December 13, 2008. An unassisted lay juror could not identify the factors a highway maintenance official must consider when making the decision to close a road. The factors that go into closing a road or keeping it open are not obvious to lay persons, who are not versed in highway maintenance methods.

¶ 8 The court continued that an average juror could not determine the “particular combination of driving and road conditions” on the morning of the accident without an “expert to provide the complete picture of what highway maintenance officials must consider in closing a road.” Otherwise, the “jurors' perspective on the issue of negligence would be overly simplistic and one-dimensional.” Relying on Dayberry v. City of East Helena, 2003 MT 321, ¶ 17, 318 Mont. 301, 80 P.3d 1218, the court held that because MDT's policies on road closure do not define a particular standard of conduct, Dubiel needed an expert witness to establish the SOC and whether the standard had been breached on the morning of her husband's death. Because Dubiel had no expert, she could not make out a prima facie case of negligence and MDT was entitled to summary judgment as a matter of law.

¶ 9 Dubiel appeals.

STANDARD OF REVIEW

¶ 10 We review summary judgment rulings de novo. Applying the same M.R. Civ. P. 56 criteria as the district court, we determine whether the moving party has established both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. We review a district court's conclusions of law for correctness. We review a district court's findings of fact to determine whether they are clearly erroneous. LaMere v. Farmers Ins. Exch., 2011 MT 272, ¶ 13, 362 Mont. 379, 265 P.3d 617.

DISCUSSION

¶ 11 Did the District Court err in granting MDT's motion for summary judgment on the ground that Dubiel could not prove the applicable standard of care and breach thereof without expert testimony?

¶ 12 Dubiel is asserting a claim of negligence against MDT. To succeed on her claim, Dubiel must prove that MDT owed her a duty, that it failed to live up to that duty, and that the failure caused her damages. Western Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 22, 359 Mont. 34, 249 P.3d 35 (The four elements of a negligence claim are duty, breach of duty, causation, and damages.). It is well established that if a plaintiff fails to offer proof of any one of the elements of a negligence claim, the negligence action fails and summary judgment in favor of the defendant is proper. Peterson v. Eichhorn, 2008 MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615; Hinkle ex rel. Hinkle v....