Dubiel v. Montana Dep't of Transp., No. DA 11–0354.

• Docket Nº: No. DA 11–0354.
• Citation: 272 P.3d 66, 2012 MT 35, 364 Mont. 175
• Case Date: February 14, 2012
• Court: United States State Supreme Court of Montana

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.

[272 P.3d 67]

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.

[272 P.3d 68]

[364 Mont. 177] 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 [364 Mont. 178] 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...