Jobe v. City of Polson
| Decision Date | 13 July 2004 |
| Docket Number | No. 02-697,02-697 |
| Citation | 322 Mont. 157,2004 MT 183,94 P.3d 743 |
| Court | Montana Supreme Court |
| Parties | ROGER JOBE, Petitioner and Appellant, v. CITY OF POLSON, a political subdivision of the State of Montana, Defendant and Respondent. |
For Appellant: Gary D. Rice, Wold Law Firm, P.C., Polson, Montana.
For Respondent: Jack Jenks, Amy O. Duerk, Phillips & Bohyer, P.C., Missoula, Montana.
¶ 1 Roger Jobe (Jobe) was injured on June 20, 2001, when he fell through a damaged plank on the city dock in Polson. In December 2001, he filed suit against the City of Polson (the City) for negligently maintaining the premises and for failing to warn him of this unsafe condition. Both parties subsequently filed Motions for Summary Judgment. On October 23, 2002, the District Court granted the City's Motion. Jobe appeals. We affirm in part and reverse and remand in part.
¶ 2 We restate the issues on appeal as follows:
¶ 3 1) Did the District Court err in concluding that Jobe presented insufficient evidence for a jury to find that the City's conduct was willful or wanton?
¶ 4 2) Did the District Court err in ruling that Montana's recreational use statute, § 70-16-302, MCA, bars Jobe's negligence claim?
¶ 5 Sometime in April or May 2001, Bill Littlefield, the Superintendent of Parks, inspected the city dock in Polson. He identified several boards on the boat piers that needed replacing and a hole along the retaining wall that needed repair. He also examined the wooden T-shaped fishing dock and found no signs of damaged planks requiring replacement. He reported his findings to the then-mayor, Mike Lies. Lies also inspected the dock the same day he received Littlefield's report and confirmed that no repairs to it were necessary.
¶ 6 On June 20, 2001, seventy-five year old Roger Jobe, his wife and brother were fishing off the city's wooden T-shaped dock as they had done many times before. Jobe's wife testified that as she, her husband and brother-in-law were proceeding down the dock to their desired fishing locations, she saw a hole in the dock's west end. She had not seen the hole two weeks earlier during a previous fishing excursion. She did not tell Jobe. Jobe fished beside his wife, who is confined to a wheelchair, for approximately an hour when he decided to move to the west end of the dock. Jobe, who has sight difficulties, failed to notice the hole in the dock. He fell through it and fractured his left foot.
¶ 7 Jobe did not initially report the incident or the broken plank to the City. The following day, while using his wife's electric wheelchair to get around their home, Jobe experienced another fall that broke his left hip. He testified in his deposition that his doctor speculated that Jobe's fall on the dock could have produced a crack in his hip which then broke with the second fall.
¶ 8 According to Littlefield, a few days before June 27, someone at city hall notified him that a plank on the west end of the wooden dock needed to be replaced. He testified that he "probably" inspected the dock the day he was notified or the following day. During his inspection, he located a plank that was rotten and had a twelve to fourteen-inch long hole in it that was approximately as wide as the plank. He testified that the board "appeared to be more rotten than broken." When specifically asked if the board was broken in addition to being rotten, he answered that he did not recall but that the board was a full intact plank. On June 27, Littlefield purchased replacement boards and he and a co-worker whose identity he was unsure of installed the new board that day or the next. Littlefield testified that while he concluded that the rotten hole in the plank represented a hazard, he did not put any barricades or warnings around the hole between the time he inspected it and the time he repaired it.
¶ 9 In December 2001, Jobe filed suit against the City for failing to adequately maintain the dock and for failing to warn him of a "known" danger. Both parties filed Motions for Summary Judgment. The District Court, in granting the City's Motion, concluded that Jobe presented no evidence to support his claim that the City was aware of the defective board before June 20, 2001, or that the City acted "willfully" or "wantonly." The court further concluded that the Montana Recreational Use Statute, § 70-16-302, MCA, barred Jobe's negligence claims. Jobe appeals.
¶ 10 This Court's standard of review in appeals from summary judgment rulings is de novo. We review a summary judgment order entered pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. In proving that summary judgment is appropriate, the movant must demonstrate that no genuine issues of material fact exist. Once this has been achieved, the burden shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue of fact does exist. If the district court determines that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. This is a legal determination that we review for error. Tvedt v. Farmers Ins. Group of Cos., 2004 MT 125, ¶¶17-18, 321 Mont. 263, ¶¶ 17-18, 91 P.3d 1, ¶¶ 17,18 (citations omitted). Because summary judgment is an extreme remedy which should not be a substitute for a trial on the merits if a material factual controversy exists, all reasonable inferences which can be drawn from the evidence presented should be drawn in favor of the non-moving party. Sherner v. Conoco, Inc., 2000 MT 50, ¶ 9, 298 Mont. 401, ¶ 9, 995 P.2d 990, ¶ 9.
¶ 11 Jobe argues that the City had knowledge of the damaged and dangerous plank before the date of his accident and that it did nothing to warn him of the danger or protect him from it. He asserts that Littlefield, "observed the plank in question more than a week before the accident with a large 12"-14" rotted hole in it."
¶ 12 Conversely, Littlefield stated in his deposition that while he could not remember the precise date, it was a few days before June 27 that he was notified of the damaged board, at which time he inspected it, and noted that it had a large rotted hole in it1. As stated above, he could not recall whether it was broken as well but stated that the board was still attached to the dock on both ends when he inspected it. On June 27 or 28, he purchased the wood and replaced the plank.
¶ 13 Jobe maintains that the affidavit of Loyal Goldeski, another recreational user of the dock, supports his claim that the City knew of the broken plank before Jobe's accident. Goldeski stated that during June 2001, he frequently fished off the west end of the dock, and that sometime during the month of June, he saw the damaged plank. At the time he first saw it, both ends of the board remained attached to the north and south ends of the dock but the plank was broken near the center with one of the pieces angled down toward the water. He further testified that the board remained in this condition for "at least" a week before it was repaired. There was no testimony that Goldeski reported the broken board to the City.
¶ 14 Jobe argued to the District Court and again to this Court that the evidence supports the following chronology of events: Upon notice of a damaged board, Littlefield inspected the dock before June 20 and saw a rotten and dangerous but unbroken board. At some later date, Goldeski saw the plank which by that time had broken through but was still attached at both ends. The plank remained in this dangerous condition for at least one week. On June 20, Jobe fell through the hole created when part of the plank became completely dislodged from the dock. Despite having notice of the rotten board, Littlefield nonetheless waited until June 27 or June 28 to repair the board.
¶ 15 Jobe maintains that if Littlefield had actually inspected the plank a few days before June 27 but after he fell through it on June 20, he would not have found an intact plank but rather the gaping hole left in the board as a result of Jobe's June 20 accident. He deduces, therefore, that if Littlefield's recollection of the condition of the board is accurate, Littlefield had to have inspected it before June 20.
¶ 16 Jobe further argues that the City's conduct was "willful and wanton." He maintains that the City negligently inspected the dock in June 2001, that it discovered the dangerous board before June 20, 2001, and that it did nothing to warn him or protect him from injury. He asserts that such conduct constitutes "willful and wanton misconduct." The question of whether such conduct could be considered willful and wanton is important because this case is controlled by Montana's recreational use statute. Section 70-16-302(1), MCA, provides: (1) A person who uses property, including property owned or leased by a public entity, for recreational purposes, with or without permission, does so without any assurance from the landowner that the property is safe for any purpose if the person does not give a valuable consideration to the landowner in exchange for the recreational use of the property. The landowner owes the person no duty of care with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct . . . . This statute applies because it is undisputed that Jobe was permissively using property owned by the City for recreational purposes without paying any consideration for the privilege.
¶ 17 As correctly observed by the District Court, the term "willfully" is defined by statute. Section 1-1-204(5), MCA, states:
"Willfully," when applied to the intent with which an act is done or omitted, denotes...
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