Looman v. Montana, CV 11-143-M-DWM-JCL

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtJeremiah C. Lynch
Docket NumberCV 11-143-M-DWM-JCL
Decision Date31 January 2013

TRAINING FUND, DAVE LIEDLE, individually, and DOES 3-100, Defendants.

CV 11-143-M-DWM-JCL


DATED: January 31, 2013


This matter is before the Court on the following Fed. R. Civ. P. 56 summary judgment motions: (1) Defendants State of Montana and the Montana Department of Corrections' (State Defendants) motion for summary judgment, or partial summary judgment, as to their alleged negligence and Plaintiff Ron Looman's alleged comparative negligence; (2) Looman's cross-motion for summary judgment as to the State Defendants' alleged negligence; and (3) Defendant International Union of Operating Engineers National Training Fund's (International Union) motion for summary judgment regarding its alleged

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negligence. For the reasons stated, the Court recommends that the International Union's motion be granted, that Looman's motion be denied, and the State Defendants' motion be denied in substantial part.


Plaintiff Ron Looman was an inmate at the Montana State Prison in Deer Lodge, Montana. Defendant Troy McQueary, an employee of the Department of Corrections, supervised Looman in the performance of his inmate job duties.

The International Union is an entity that operates the federal Job Corps and provides, among other things, heavy equipment operator training. The State Defendants permit the International Union to use some of the approximately 3,000 acres of ranch land around the prison to engage in its training activities. It also performs heavy equipment work for the State Defendants. At the time of the subject incident, Defendant Dave Liedle was an employee of the International Union and was a training instructor and heavy equipment operator.

On October 28, 2008, Looman was injured while working on a truck owned by the International Union. He alleges that he was performing work at the direction of both McQueary and Liedle. Looman commenced this action to obtain compensation for those injuries.

Looman invoked federal question jurisdiction by advancing federal civil

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rights claims against all of the Defendants under 42 U.S.C. § 1983. And he invoked the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) by asserting claims under Montana law for negligence, strict liability, violations of the Montana Safety Act, Title 50, Chapter 71, Mont. Code Ann., and liability under the doctrine of res ipsa loquitur.

The Court previously dismissed most of Looman's claims, including all of his section 1983 claims, his strict liability claims against the International Union, and his claims under the Montana Safety Act. The Court dismissed McQueary from this action based upon the immunity afforded him by Mont. Code Ann. § 2-9-305(5). The Court also dismissed Liedle due to Looman's failure to effect timely service of his Second Amended Complaint upon Liedle as required under Fed. R. Civ. P. 4(m).

What remains for disposition against the State Defendants are Looman's claims of: (1) strict liability; and (2) negligence under the doctrine of respondeat superior. Looman's only remaining claim against the International Union is his claim of negligence based, in part, on respondeat superior.


A. Summary Judgment Standards

Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment

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"if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).

A party moving for summary judgment who does not have the burden of persuasion at trial, must produce evidence which either: (1) negates an essential element of the non-moving party's claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

Once the moving party has satisfied its burden, the non-moving party must go beyond the pleadings and designate by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue [of material fact] for trial." Celotex Corp. v. Cattrett, 477 U.S. 317, 324 (1986).

In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and the court must construe all facts in the light most favorable to the non-moving party. Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (citation omitted). When presented with cross-

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motions for summary judgment on the same matters, the court must "evaluate each motion separately, giving the non-moving party the benefit of all reasonable inferences." American Civil Liberties Union of Nevada v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).

B. Application of Montana Law

Because jurisdiction over Looman's claims advanced under Montana law is founded upon the Court's supplemental jurisdiction under 28 U.S.C. § 1367(a), the Court "is bound to apply the law of the forum state to the same extent as if it were exercising its diversity jurisdiction." Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir. 2000).


A. Negligence

"Negligence is the failure to use the degree of care that an ordinarily prudent person would have used under the same circumstance." Barr v. Great Falls International Airport Authority, 107 P.3d 471, 477 (Mont. 2005). The common and statutory law of Montana impose a general duty upon every person to exercise ordinary and reasonable care.

Except as otherwise provided by law, each person is responsible not only for the results of the person's willful acts but also for an injury occasioned to another by the person's want of ordinary care or skill in the management

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of the person's property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.

Mont. Code Ann. § 27-1-701.

A cause of action for negligence requires the plaintiff to prove four essential elements: "(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) the breach was the actual and proximate cause of an injury to the plaintiff, and (4) damages resulted." Peterson v. Eichhorn, 189 P.3d 615, 620-21 (Mont. 2008). Summary judgment in favor of a defendant is appropriate "if a plaintiff fails to offer proof of any one of the elements of a negligence claim[.]" Dubiel v. Montana Department of Transportation, 272 P.3d 66, 69 (Mont. 2012). Thus, to avoid summary judgment "the plaintiff must raise genuine issues of material fact with regard to" each of the four elements. Beehler v. Easter Radiological Associates, P.C., 289 P.3d 131, 136 (Mont. 2012) (citations and quotations omitted).

Claims of negligence, however, "are generally not susceptible to summary judgment adjudication" due to the factual issues that are ordinarily involved. Monroe v. Cogswell Agency, 234 P.3d 79, 86 (Mont. 2010). But "when reasonable minds cannot differ, questions of fact can be determined as a matter of law." Newman v. Lichfield, 272 P.3d 625, 630 (Mont. 2012).

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Both Defendants have acknowledged that their respective employees, McQueary and Liedle, were acting in the course and scope of their employment at the time of the subject incident. Thus, Defendants would be vicariously liable for any negligence on the part of their employees. Mont. Code Ann. § 2-9-102; Denke v. Shoemaker, 198 P.3d 284, 301 (Mont. 2008).

Except where indicated, the material events giving rise to all of Looman's claims of negligence are generally undisputed, and summarized as follows:

During his incarceration, Looman performed jobs as a welder and service truck operator under the supervision of Troy McQueary. He was not, however, a mechanic, and had never received instruction or training in any type of automotive mechanics. McQueary, in contrast, has a bachelor's degree in diesel mechanics from Montana State University-Northern.

On October 28, 2008, Dave Liedle was operating a truck on the Department of Corrections' ranch property when he drove over some rocks and damaged the truck's "dual clamp" air brake canister.

Liedle contacted McQueary requesting his assistance in repairing the damage. McQueary was familiar with, and experienced working on, dual clamp air brake canisters. A dual clamp air brake canister has two distinct ends or sides: the "service side" and the "spring side." See Dkt. 70-8. Each side is contained by

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a separate clamp on the canister.

Upon inspecting the brake canister on Liedle's truck, McQueary saw that the service-side clamp was bent and needed to be replaced. McQueary did not inspect the condition of the spring-side clamp. Dkt. 75-2 at...

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