Larson-Murphy v. Steiner, 98-441.

• Citation: 2000 MT 334,15 P.3d 1205,303 Mont. 96
• Decision Date: 14 December 2000
• Docket Number: No. 98-441.,98-441.
• Parties: Mary LARSON-MURPHY, Plaintiff, Appellant, and Cross-Respondent, v. Edwin and Violet STEINER, Darin Steiner, and August Zancanella, Defendants, Respondents and Cross-Appellants.
• Court: United States State Supreme Court of Montana

15 P.3d 1205

2000 MT 334

303 Mont. 96

Mary LARSON-MURPHY, Plaintiff, Appellant, and Cross-Respondent, v. Edwin and Violet STEINER, Darin Steiner, and August Zancanella, Defendants, Respondents and Cross-Appellants.

No. 98-441.

Supreme Court of Montana.

Heard July 13, 1999.

Submitted September 28, 1999.

Decided December 14, 2000.

Tom L. Lewis, J. David Slovak, Lewis, Huppert & Slovak, Great Falls, MT, For Appellant.

Donald L. Harris, Colette Baumgardner-Davies, Crowley, Haughey, Hanson, Toole & Dietrich, (Steiners); James Walen, Stacey & Walen, Billings, MT (Zancanella), For Respondents. Justice JAMES C. NELSON delivered the Opinion of the Court.

? 1 Mary Larson-Murphy (Larson-Murphy) appeals from a directed verdict judgment entered on May 14, 1998, in favor of Defendants Edwin, Violet, and Darin Steiner (Steiners), by the Thirteenth Judicial District Court, Yellowstone County. Larson-Murphy also appeals the District Court's January 6, 1997 order granting summary judgment in favor of Defendant August Zancanella (Zancanella).

? 2 The Steiners cross-appeal three of the District Court's orders, which denied their motions for summary judgment, respectively on October 29, 1996, and November 19, 1997, and their motion to reconsider, on January 6, 1997.

? 3 We affirm in part, reverse in part, and remand for further proceedings.

ISSUES PRESENTED

? 4 The parties have raised numerous issues on appeal and cross-appeal. We consolidate them for discussion as follows:

1. Did the District Court err in granting summary judgment to Zancanella?

2. Did the District Court err in denying summary judgment to the Steiners?

3. Did the District Court properly grant the Steiners' motion for a directed verdict?

FACTUAL BACKGROUND

? 5 This case involves an accident between a vehicle driven by Larson-Murphy and a black Angus bull owned by the Steiners. Shortly after 11:30 p.m. on May 8, 1993, Larson-Murphy was driving home in a southbound direction on Hoskin Road near Billings, Montana. She crested a slight rise in the highway created by an irrigation ditch culvert, and struck the bull. Upon impact, the bull rolled onto the hood and crashed through the windshield of the vehicle.

? 6 According to trial testimony, the impact with the bull broke virtually every bone in Larson-Murphy's mid-face and jaw, and dislodged her teeth. Bull hair was actually removed from several of the bone fractures. Multiple reconstructive surgeries were required. As a result of the accident, Larson-Murphy's vision was permanently damaged.

? 7 It is undisputed that Larson-Murphy was not at fault. She was driving lawfully at the time of the accident. The investigating highway patrolman calculated Larson-Murphy's speed at approximately 34 miles-per-hour, and stated that speed was not a factor in the collision. He further stated that no motorist could have avoided hitting the bull, which was standing in the middle of the highway, because of the darkness of the night and the slight rise in the highway.

? 8 Hoskin Road is a two-lane, paved county highway that it is neither a state highway nor a part of the federal-aid primary highway system. The undisputed facts indicate that the road sees fairly significant motor vehicle traffic. Also, the accident occurred on a stretch of Hoskin Road lying within a "herd district," as provided pursuant to ?? 81-4-301 through 310, MCA.

? 9 It is apparent from the record that the bull escaped from not one, but two enclosures. It is undisputed that the bull had been placed by the Steiners in a triangular, fenced pasture located roughly 100 yards from Hoskin Road with five heifers for breeding purposes. The Steiners had leased both the triangular pasture and an adjacent pasture from Zancanella. As part of the lease agreement, the Steiners agreed to maintain all of the pasture fences. The Steiners were required to maintain liability insurance under the lease, and it was the understanding of the parties that the Steiners would be responsible for any damage that might be caused by their livestock escaping.

? 10 It is unclear, and therefore in dispute, as to how the bull escaped from the triangular pasture to the other leased pasture which borders Hoskin Road, where it was observed by a neighbor prior to the accident. After the accident, both Darin Steiner and the investigating highway patrolman inspected the fence which enclosed the pasture on the west side of Hoskin Road and found that the fence was intact and that no gates had been left open. There were no signs of broken barbed wire, damaged fence posts, or downed gates.

? 11 During the course of litigation, however, Larson-Murphy contended that the bull may have escaped through a gate in the perimeter fence enclosing the pasture on the west side of Hoskin Road. Larson-Murphy presented evidence that the gate was loose with wide gaps between the wires, and that an irrigation ditch which passed directly beneath the gate created a gap under which an animal could escape from the pasture. The gate in question is located within 100 feet of the accident site.

? 12 Darin Steiner conceded that the perimeter fence had apparently failed to restrain the bull on the night in question, and admitted that the bull was capable of jumping over the fence and thereby obtaining access to the highway. Edwin Steiner also testified that he was aware that it would be dangerous to allow livestock to roam freely in the area, unrestrained by fences. Nevertheless, the Steiners have consistently maintained that the fences and gates on the leased property were well-maintained at the time of the accident.

PROCEDURAL BACKGROUND

? 13 Larson-Murphy filed her complaint with the District Court on April 26, 1995, and generally alleged that the Steiners negligently allowed the black Angus bull to leave their leased premises and occupy the highway right-of-way. Her complaint was later amended and filed on January 5, 1996, to include Zancanella, the owner of the property leased to the Steiners. Likewise, Larson-Murphy alleged that Zancanella, as owner and lessor of the land adjacent to Hoskin Road, was negligent in operating and controlling the premises in a reasonably safe manner.

? 14 The District Court, in its May 8, 1998 Memorandum, concluded that the Hoskin Road area was not open range pursuant to ? 60-7-102(4), MCA, and accordingly "the open range doctrine does not apply in this case." The Steiners claimed that although the leased premises from which the bull escaped were located within a herd district, Hoskin Road, as a matter of law, was open range. The Steiners legal theory maintained that if the highway was within open range, they had no duty to anyone, including motorists, to prevent the bull from wandering onto and occupying the highway, and therefore could not be liable for any damages suffered by Larson-Murphy. Larson-Murphy alleged that the open range doctrine does not apply in herd districts, including the traversing roads, and that the Steiners had a legal duty to maintain a "legal fence" pursuant to state law.

? 15 The court's legal conclusion that the accident did not occur in "open range" followed a series of motions for summary judgment and a motion for reconsideration brought by the respective Defendants. On October 29, 1996, the District Court denied the Defendants' motion for summary judgment, concluding that the Defendants had failed to establish that they lacked a duty to maintain legal fences and keep livestock off Hoskin Road. The court concluded issues of material fact remained in dispute.

? 16 Then, on January 6, 1997, the court granted Defendant Zancanella's motion for summary judgment, pursuant to a "motion to dismiss" and dismissed him from this action. The court concluded he did not own the bull involved with the accident, and was not responsible for maintaining any of the fences in question. At the same time, the court nevertheless denied the Steiners' motion to reconsider, again concluding that the issue of whether the accident occurred in an open range area remained a material issue of fact.

? 17 The Steiners' again moved for summary judgment on October 7, 1997, arguing that although the accident occurred within a herd district, this Court's decision in Williams v. Selstad (1988), 235 Mont. 137, 766 P.2d 247, provided a legal basis for determining that the accident nevertheless occurred in open range. The District Court, on November 19, 1997, determined that it could not, as a matter of law:

[R]ule that this area is open range, and that the open range no-duty law applies to the Defendants in this case. Material issues of fact still exist regarding the status of this area, and the road where the accident occurred. These facts are for a jury to decide.

? 18 Nevertheless, the court entered a directed verdict in favor of the Steiners on May 13, 1998, after the trial had begun on May 11, 1998. This judgment was entered without an accompanying memorandum providing a legal basis for the court's decision.

? 19 Both Larson-Murphy and the Steiners appealed. Due to the controversial nature of the "open range doctrine" law at issue, this Court also accepted numerous amicus curiae briefs.

STANDARD OF REVIEW

? 20 By way of appeal and cross-appeal, both parties challenge the District Court's granting and denying motions for summary judgment during the proceedings below. Our review of the District Court's summary judgment rulings is governed by Rule 56, M.R.Civ.P. Summary judgment is proper only where the record reveals a complete absence of genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Clark v. Eagle Sys., Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997. We scrutinize a trial court's ruling on a summary judgment motion de novo, utilizing the same evaluation as the district court based upon Rule 56, M.R.Civ.P. Dorwart v. Caraway, 1998 MT 191, ? 15, 290 Mont. 196, ? 15, 966 P.2d 1121, ? 15.

? 21...