Hendrickson v. Neiman, 82-491

Citation665 P.2d 219,40 St.Rep. 909,204 Mont. 367
Decision Date10 June 1983
Docket NumberNo. 82-491,82-491
PartiesLeila HENDRICKSON, Plaintiff and Appellant, v. Paul A. NEIMAN and Havre Distributors, Inc., Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Howard F. Strause, Great Falls, for plaintiff and appellant.

Alexander & Baucus, Great Falls, Bosch, Kuhr, Dugdale, Warner & Kaze, Havre, for defendants and respondents.

HASWELL, Chief Justice.

On November 29, 1982, the District Court of Hill County entered a final order granting summary judgment in favor of defendant Havre Distributors, Inc., pursuant to Rule 54(b), M.R.Civ.P. Plaintiff appeals. We vacate the order and remand.

At approximately 3:00 p.m. on Friday, May 1, 1981, Leila Hendrickson finished working her shift at the Iron Horse Pancake House in Havre, Montana, and attempted to cross First Street at Fourth Avenue in front of the Park Hotel. The hotel sits on the northwest corner of the intersection. We include the following diagram for clarification:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Hendrickson was crossing from the north side of the street to the south side of the street and was on the west side of the intersection. First Street is a two-way street with a parking lane on each side of the street and four lanes of traffic (two lanes for westbound traffic and two lanes for eastbound traffic).

As she started to cross the street in front of the hotel, Hendrickson entered a pedestrian crosswalk but found it at least partially blocked by a beer delivery truck belonging to defendant Havre Distributors, Inc. The rear wheels of the vehicle extended into the crosswalk from the west, and the truck extended even further into the crosswalk. It was also parked one-to-two feet from the curb.

Plaintiff walked out of the crosswalk around the back of the truck and then reentered the crosswalk. No other vehicles were parked between the delivery truck and the intersection. Before proceeding across First Street, she checked in both directions for traffic. Hendrickson continued walking across the street through the outside westbound lane. A vehicle in the outside westbound lane stopped to wait for her. As she entered the inside westbound lane, she was struck by a vehicle driven by defendant Neiman and was thrown onto the hood of his car.

Both of Hendrickson's legs were broken by the impact, and due to complications she has been unable to return to work. Neiman testified in his deposition that he thought the vehicle stopped in the outside lane of traffic was waiting for a break in traffic to proceed around the delivery truck, which extended into the outer traffic lane. He did not see plaintiff until he struck her. His vehicle did not come to a stop for sixty-three feet. Neiman was cited for and pleaded guilty to reckless driving and operation of an unsafe vehicle.

Plaintiff brought suit against Neiman and against Havre Distributors, Inc. She alleged negligence on the part of Havre Distributors, Inc., for parking so as to partially protrude into the outside driving lane and so as to block the crosswalk. She also alleged that Neiman operated his vehicle carelessly and recklessly and failed to keep a proper lookout. After considering the pleadings, answers to interrogatories, depositions and affidavits on file, and the briefs and arguments of counsel, the District Court granted summary judgment to Havre Distributors, Inc. Summary judgment was granted on the basis that there was no genuine issue as to any material fact, that any negligence on the part of Havre Distributors, Inc., was not the proximate cause of Hendrickson's injuries and that "plaintiff was injured as the result of the independent, intervening negligent act of defendant Paul A. Neiman."

Plaintiff presents a single issue on appeal: Did the District Court err in granting summary judgment to Havre Distributors, Inc.?

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. All-State Leasing Co. v. Top Hat Lounge, Inc. (1982), Mont., 649 P.2d 1250, 1251-1252, 39 St.Rep. 425, 428.

Havre Distributors, Inc., argues that the positioning of the delivery truck could not have contributed to the accident. Rather, the company argues that the accident was caused by Neiman's independent, intervening acts. Hendrickson and Neiman both argue that substantial evidence establishes negligence on the part of Havre Distributors, Inc. They argue that Havre Distributors, Inc., owed a statutory duty of care to plaintiff which was breached when the truck was parked more than eighteen inches from the curb and in a crosswalk. Sections 61-8-354 and -355, MCA. Further, plaintiff argues that she falls within the class intended to be protected and...

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9 cases
  • LaTray v. City of Havre
    • United States
    • Montana United States State Supreme Court of Montana
    • 4 Mayo 2000
    ...268 Mont. 347, 350, 886 P.2d 918, 920; Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018; Hendrickson v. Neiman (1983), 204 Mont. 367, 371, 665 P.2d 219, 222; Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1982), 197 Mont. 1, 10, 640 P.2d 453, ¶ 16 The parties in this ca......
  • Kyriss v. State, 83-479
    • United States
    • Montana United States State Supreme Court of Montana
    • 3 Octubre 1985
    ...where we stated that the plaintiff in a tort case must prove a breach of duty as a proximate cause of the injury, and to Hendrickson v. Neiman (Mont.1983), 665 P.2d 219, where we stated that to hold a party negligent per se for a violation of the statute, the violation must constitute a pro......
  • Harrington v. Crystal Bar, Inc., DA 12-0628
    • United States
    • Montana United States State Supreme Court of Montana
    • 30 Julio 2013
    ...1998 MT 118, ¶ 13, 288 Mont. 489, 958 P.2d 709; Brown v. Demaree, 272 Mont. 479, 483, 901 P.2d 567, 570 (1995); Hendrickson v. Neiman, 204 Mont. 367, 371, 665 P.2d 219, 222 (1983) (overruled on other grounds). A cause of action in negligence consists of four elements: duty, breach of duty, ......
  • Thoring v. LaCounte, 86-466
    • United States
    • Montana United States State Supreme Court of Montana
    • 9 Febrero 1987
    ...to go forward. Generally, factual issues relating to negligence are not susceptible to summary judgment. Hendrickson v. Neiman (Mont.1983), 665 P.2d 219, 222, 40 St.Rep. 909, 912. In this case as with Nehring v. LaCounte, factual questions remain to be answered. LaCountes' motion for summar......
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