POOLE EX REL. MEYER v. Poole, 99-343.

• Decision Date: 04 May 2000
• Docket Number: No. 99-343.,99-343.
• Citation: 1 P.3d 936,2000 MT 117,299 Mont. 435
• Parties: Mary POOLE, Guardian and Conservator For minor child, David MEYER, Jr., Plaintiff and Appellant, v. Donald POOLE, Defendant and Respondent.
• Court: Montana Supreme Court

1 P.3d 936

2000 MT 117

299 Mont. 435

Mary POOLE, Guardian and Conservator For minor child, David MEYER, Jr., Plaintiff and Appellant, v. Donald POOLE, Defendant and Respondent.

No. 99-343.

Supreme Court of Montana.

Submitted on Briefs December 9, 1999.

Decided May 4, 2000.

John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana, For Appellant.

Shelton C. Williams and William R. Bieler, Williams & Ranney, Missoula, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Mary Poole, guardian and conservator for minor child David Meyer, Jr. (Mary), appeals from the judgment entered by the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of Donald Poole (Don), dismissing Mary's claims against Don with prejudice, and awarding Don his costs. The sole issue Mary raises on appeal is whether the District Court erred in determining that there were no genuine issues of material fact and that Don was entitled to judgment as a matter of law. We affirm.

BACKGROUND

¶ 2 The following facts are before the Court via deposition testimony and are viewed in the light most favorable to Mary:

¶ 3 Mary and her son from a previous relationship, David Meyer, Jr., who had been born January 30, 1985, began living with Don when David was 18 months old. In 1987 or 1988, Mary and Don married. While Don never adopted David, David uses the name "David Poole" and refers to Don as "Dad." During the marriage, the couple's daughter Jami was born.

¶ 4 In 1992, Mary and Don divorced. After the divorce, David and Jami primarily lived with Mary except for a period of approximately three weeks in August 1995 when they resided with Don because Mary had moved to Billings and then back to Helena. In addition, David and Jami spent several weekends at Don's house. Prior to David's accident, the kids also spent a few hours after school each day at Don's house until Mary could pick them up after work. Don worked the day shift at ASARCO from 6:30 a.m. to 2:30 p.m. and was home when school let out.

¶ 5 On May 15, 1996, David rode the bus to Don's house after school. Shortly after arriving at Don's, David asked Don if he could go over to his friend John Baker's house, which was approximately a block and a half away. David and John had been friends for many years and Don and Mary knew John's parents. On that date, Don gave David permission to go to John's house. While watching television at John's house, a classmate of theirs, Tom Oyen, called and asked if they wanted to come over to his house. John and David left John's house and went over to Tom's house. David did not call Don to let him know that he was going to be at Tom's house.

¶ 6 After arriving at Tom's house, the boys went out in the backyard and were throwing a football around when another classmate of theirs, Kristy Holman, arrived with some gasoline. Tom asked John and David if they wanted to burn a picture of one of their classmates and John and David shrugged their shoulders and went along with it.

¶ 7 Tom poured some of the gas into a small, plastic Hershey cocoa container and placed the picture on a wire. John attempted to light it, but was unsuccessful. Tom got the picture from John and lit it and then dropped a match into the plastic container with the gasoline. The gas ignited and Tom got scared and kicked the container. The burning gasoline splashed onto David's chest and face, starting his clothing on fire. At that point, David stopped, dropped, and rolled, putting out the flames.

¶ 8 Unfortunately, David suffered severe burns requiring extensive treatment at a facility in Salt Lake City, Utah. David continues to require medical treatment and physical therapy for his injuries. In addition, David's future medical care may include plastic surgery.

¶ 9 On September 11, 1998, Mary brought an action against Don alleging that the losses she and David suffered were proximately caused by Don's gross negligence and recklessness and his failure to act as a reasonably prudent person would when supervising an 11-year-old child. Don filed an answer to the complaint denying all the allegations and asserting several affirmative defenses.

¶ 10 After the depositions of Mary, Don, and David had been completed, Don filed a motion for summary judgment. Don alleged, inter alia, that he had no duty to guard against the harm suffered by David because such harm was unforeseeable. Mary opposed Don's motion, alleging that there were material facts in dispute rendering summary judgment improper.

¶ 11 Oral argument concerning Don's motion for summary judgment was held on January 28, 1999. A transcript of the summary judgment hearing has not been provided to this Court. On May 14, 1999, the District Court issued a Memorandum and Order granting Don's motion for summary judgment. In reaching its decision, the District Court concluded that the record did not establish the existence of a duty on the part of Don since the injury to David was unforeseeable, entitling Don to summary judgment.

¶ 12 After its ruling, the District Court entered judgment acknowledging its award of summary judgment to Don, dismissing Mary's claims against Don with prejudice, and awarding Don his costs. Mary appeals from the judgment entered by the District Court.

STANDARD OF REVIEW

¶ 13 Our standard of review in appeals from summary judgment rulings is de novo. See Ruckdaschel v. State Farm Mut. Auto. Ins. (1997), 285 Mont. 395, 398, 948 P.2d 700, 702

(citations omitted). When we review a district court's grant of summary judgment, we apply the same evaluation, based on Rule 56, M.R.Civ.P., as the district court. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined 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. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶ 14 With regard to summary judgment in negligence actions, we have previously stated:

Ordinarily, negligence actions involve questions of fact and are not susceptible to summary judgment. However, when reasonable minds cannot differ, questions of fact can be determined as a matter of law. For example, if the moving party establishes that one element of a cause of action lacks any genuine issue of material fact and the non-moving party does not come forward with proof that a genuine issue does exist, summary judgment is proper.

Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312 (citations omitted).

DISCUSSION

¶ 15 Whether the District Court erred in determining that there were no genuine issues of material fact and that Don was entitled to judgment as a matter of law?

¶ 16 Mary argues that negligence cases typically involve questions of fact and are not susceptible to summary judgment. Mary claims that there is a genuine issue of material fact as to whether Don knew what Mary asked of him as far as supervising the children and whether Don had acted as a reasonably prudent person would have while supervising children. In addition, Mary points out that the District Court, in its Memorandum and Order, stated that it was clear Don owed a duty to David. Mary contends that whether Don breached that duty is a genuine issue of material fact that should have been submitted to a jury.

¶ 17 In response, Don contends that Mary cannot create genuine issues of material fact with conclusory and speculative assertions. Don further contends that the issues of fact raised by Mary...