Fisher v. Swift Transp. Co., Inc.

• Decision Date: 01 April 2008
• Docket Number: No. DA 06-0766.,DA 06-0766.
• Citation: 2008 MT 105,342 Mont. 335,181 P.3d 601
• Court: Montana Supreme Court
• Parties: Wade FISHER, Plaintiff and Appellant, v. SWIFT TRANSPORTATION CO., INC., and J & D Truck Repair, Inc., Defendants, Appellees and Cross-Appellants.

181 P.3d 601

2008 MT 105

342 Mont. 335

Wade FISHER, Plaintiff and Appellant, v. SWIFT TRANSPORTATION CO., INC., and J & D Truck Repair, Inc., Defendants, Appellees and Cross-Appellants.

No. DA 06-0766.

Supreme Court of Montana.

Submitted on Briefs October 3, 2007.

Decided April 1, 2008.

For Appellant: James G. Hunt and Michael L. Fanning, Hunt Law Firm, Helena, Montana.

For Appellees: John F. Haffey and Robert J. Phillips, Phillips Boyher & Hedger, P.C., Missoula, Montana (Swift), Dan L. Spoon, Spoon Gordon, PC, Missoula, Montana (J & D).

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Officer Wade Fisher ("Fisher") appeals the District Court's partial grant of summary judgment in favor of Swift Transportation Company ("Swift"). Swift cross-appeals the District Court's partial denial of its summary judgment motion. We affirm in part, and reverse and remand in part.

¶ 2 We restate the issues as follows:

¶ 3 I. Did the District Court err by partially denying Swift's motion for summary judgment, and concluding that Swift owed Fisher a duty of care as a matter of law?

¶ 4 II. Did the District Court err in partially granting summary judgment to Swift on the issue of causation, and concluding that Fisher's injury was unforeseeable as a matter of law?

BACKGROUND

¶ 5 An unseasonably severe storm hit the Sieben Flats area on April 28, 2004. Wade Fisher, an officer with the Montana State Highway Patrol, was called to respond to an accident on Interstate 15. The storm had created white-out conditions on the highway. Many motorists were forced to stop their vehicles in the middle of the highway, due to the slick, snow-packed roads, high winds, and extremely poor visibility.

¶ 6 Fisher approached the accident scene near mile marker 213 in the southbound lane. Michael Mlekush, a deputy from the Lewis and Clark County Sheriff's office, was already on the scene. Fisher parked his car diagonally across the highway lanes, parallel to Mlekush's car, but staggered a fair distance behind it to increase visibility of the accident scene. Both cars had their emergency lights flashing to warn oncoming traffic.

¶ 7 Fisher proceeded to investigate the crash, which was caused by a Pepsi semi-truck that had side-swiped two passenger vehicles parked on the side of the highway. About twenty minutes later, another semi-truck (owned and operated by Swift) approached the accident scene. Mlekush watched as the trailer slowly slid into Fisher's car. The semi's trailer struck Fisher's vehicle, as well as a passenger car parked behind it. Fisher could not investigate this second accident, since it involved his own patrol car. He called in Sergeant Larry Irwin to respond to the Swift accident.

¶ 8 J & D Truck Repair Inc. ("J & D") was called to the scene to remove the wreckage from the second accident. Irwin directed the J & D employees to get the Swift trailer away from the two cars it had impacted. The J & D employees positioned the wrecker in the passing southbound lane next to the Swift truck. They rigged the winch line from the wrecker to the Swift trailer, and winched the line. Then they lifted the Swift trailer away from the two cars, and set it about four or five feet away from Fisher's patrol car. Without alerting anyone else, the J & D employees unhooked the winch line from the Swift truck.

¶ 9 During the winch operation, Fisher was seated in the passenger side of his car, completing his paperwork for the first accident involving the Pepsi truck. Once the trailer was lifted and after the winch was unhooked, one of the J & D employees directed Fisher to back his car out and away from the accident scene. Fisher got out of his vehicle, and walked around to the driver's side to inspect the damage. At that moment, the Swift trailer slid back across the ice towards Fisher's car, and pinned him between the trailer and the car.

¶ 10 The J & D wrecker team quickly re-attached the winch, and managed to pull the trailer away from the car within several minutes. Fisher was freed and carried to the side of the road, where he waited for an ambulance. He was treated at a nearby hospital for crush-type injuries and released later that day.

¶ 11 Fisher brought suit against Swift and J & D to recover for damages he sustained as a result of their alleged negligence. Swift moved for summary judgment, arguing that it owed no duty to Fisher, and that its driver's conduct was not the cause of Fisher's injuries. The District Court partially granted and partially denied Swift's motion for summary judgment. The District Court rejected Swift's argument that it owed no duty to Fisher and found that Fisher was a foreseeable plaintiff as a matter of law. However, the court found in favor of Swift on the issue of causation, and held that the injuries that Fisher sustained were unforeseeable as a matter of law. Pursuant to M.R. Civ. P. 54(b), the District Court certified this issue for appellate review. Fisher's claims against J & D remain in the District Court, awaiting trial. Fisher appeals the District Court's partial grant of summary judgment in favor of Swift. Swift cross-appeals the District Court's partial denial of its motion for summary judgment.

STANDARD OF REVIEW

¶ 12 We review a district court's grant of summary judgment de novo. Eklund v. Trost, 2006 MT 333, ¶ 20, 335 Mont. 112, ¶ 20, 151 P.3d 870, ¶ 20. Summary judgment is only appropriate when no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c). The moving party bears the burden of establishing that no genuine issue of material fact exists. Eklund, ¶ 21. Once the moving party meets that burden, then the non-moving party must provide substantial evidence that raises a genuine issue of material fact in order to avoid a grant of summary judgment in favor of the movant. Eklund, ¶ 21. All reasonable inferences will be drawn in favor of the non-moving party. Eklund, ¶ 21. Since negligence actions ordinarily involve questions of fact, they are generally not susceptible to summary judgment. Hinkle v. Shepherd School Dist. # 37, 2004 MT 175, ¶ 23, 322 Mont. 80, ¶ 23, 93 P.3d 1239, ¶ 23.

DISCUSSION

¶ 13 Fisher appeals the District Court's partial grant of summary judgment in favor of Swift, and argues that the District Court erred in concluding that the Swift driver's negligence was not a proximate cause of Fisher's injury, since the injury was unforeseeable as a matter of law. Swift cross-appeals the District Court's partial denial of its summary judgment motion and the District Court's finding that Fisher was a foreseeable plaintiff as a matter of law. To maintain an action in negligence, the plaintiff must prove four essential elements: duty, breach, causation, and damages. Eklund, ¶ 32. Without duty, and a breach of that duty, no negligence can exist. See e.g. Jacobs v. Laurel Volunteer Fire Dept., 2001 MT 98, ¶ 13, 305 Mont. 225, ¶ 13, 26 P.3d 730, ¶ 13. Thus, we will consider Swift's cross-appeal first.

¶ 14 I. Did the District Court err by partially denying Swift's motion for summary judgment, and concluding that Swift owed Fisher a duty of care as a matter of law?

¶ 15 A. Duty

¶ 16 At the most basic level, we all share the common law duty to exercise the level of care that a reasonable and prudent person would under the same circumstances. See e.g. Runkle v. Burlington Northern, 188 Mont. 286, 299, 613 P.2d 982, 990 (1980) (holding that a railroad had a duty to exercise this level of care, even in the absence of statutorily imposed duties). We have long recognized that the common law may impose additional, special duties based upon relationship. For example, a county assumes heightened duties of care with respect to persons in its custody. Prindel v. Ravalli County, 2006 MT 62, ¶ 36, 331 Mont. 338, ¶ 36, 133 P.3d 165, ¶ 36. Duty may also arise by statute; dram shop acts impose heightened duties of care upon tavern owners. Cusenbary v. Mortensen, 1999 MT 221, ¶ 38, 296 Mont. 25, ¶ 38, 987 P.2d 351, ¶ 38.

¶ 17 The existence of a legal duty is a question of law to be determined by the court. Eklund, ¶ 32; Hinkle, ¶ 31; Henricksen v. State, 2004 MT 20, ¶ 21, 319 Mont. 307, ¶ 21, 84 P.3d 38, ¶ 21. In analyzing whether a duty exists, we consider whether the imposition of that duty comports with public policy, and whether the defendant could have foreseen that his conduct could have resulted in an injury to the plaintiff. Henricksen, ¶ 21.

¶ 18 Here, Fisher argues that multiple sections of the Montana Code impose a duty on the Swift truck driver. First, Fisher states, § 61-8-302, MCA, imposes on all drivers the duty to drive "in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the highway." Second, Fisher maintains that § 61-8-303(4), MCA, imposes a duty of care upon all drivers by providing that they "shall operate a vehicle in a careful and prudent manner and at a reduced rate of speed no greater than is reasonable and prudent under the conditions existing at the point of operation, taking into account the amount and character of traffic, visibility, weather, and roadway conditions." Finally, Fisher points to a third statute, § 61-8-346(3), MCA, which he claims imposes a special duty of care upon drivers approaching a "stationary authorized emergency vehicle."

¶ 19 We agree that the above-cited sections of the MCA establish that the Swift driver owed Fisher a duty of care. In Craig v. Schell, we recognized that certain sections of the MCA may give rise to specific duties of care for motor vehicle operators. Craig v. Schell, 1999 MT 40, ¶ 15, 293 Mont. 323, ¶ 15, 975 P.2d 820, ¶ 15. Here, each of these three statutes imposed duties of care upon the Swift driver.

¶ 20 1. Foreseeability

¶ 21 Swift does not dispute that these statutes imposed duties of care upon its driver, but argues that...