Ryan v. City of Bozeman

• Citation: 53 St.Rep. 1258,928 P.2d 228,279 Mont. 507
• Decision Date: 26 November 1996
• Docket Number: No. 96-086,96-086
• Parties: Maxine RYAN, Plaintiff and Respondent, v. CITY OF BOZEMAN, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 228

928 P.2d 228

279 Mont. 507

Maxine RYAN, Plaintiff and Respondent, v. CITY OF BOZEMAN, Defendant and Appellant.

No. 96-086.

Supreme Court of Montana.

Submitted on Briefs Oct. 17, 1996.

Decided Nov. 26, 1996.

Philip F. Walsh; Walsh & McKenna, Bozeman, for Defendant and Appellant.

Rienne H. McElyea; Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Plaintiff and Respondent.

LEAPHART, Justice.

Maxine Ryan (Ryan) filed suit against the City of Bozeman (City) alleging that a City employee negligently drove a City vehicle such that it collided with Ryan's vehicle at the intersection of Cottonwood and Montana Streets. A jury returned a verdict that Ryan and the City were each 50% negligent and found damages in the amount of $37,000. The court granted Ryan's motions for directed verdict and for judgment notwithstanding the verdict (JNOV) on the issue of liability and granted a new trial on the issue of damages. The City appealed from the grant of a new trial (Cause No. 96-086) and filed a petition for writ of supervisory control (Cause No. 96-263) with regard to the grant of a JNOV since the grant of a JNOV is not subject to appeal under Rule 1, M.R.App.P. In its petition for the writ, the City asked that the two issues be combined for purposes of briefing; Ryan did not oppose the motion. Given the posture of this case and in the interests of judicial economy, we granted the writ and ordered that both the granting of the JNOV and the granting of the new trial be combined for briefing in Cause No. 96-086. We reverse and remand for a new trial.

This suit arises out of a collision at the uncontrolled intersection of Montana Street and Cottonwood Street in the City of Bozeman. Lindsey Korell, a summer employee for the City was driving east on Cottonwood in a City-owned pickup truck. She collided with Ryan who was traveling north on Montana and entered the intersection on Korell's right. At the time of the accident, there was a hedge of at least six feet in height on the southwest corner of the intersection. The hedge ran adjacent to Cottonwood Street for approximately 20-30 feet in such a manner that it obstructed the view of both drivers as they entered the intersection. The City vehicle hit Ryan's automobile on the driver's side door and pushed it into a telephone pole. Ryan suffered injuries as a result of the collision.

Standard of Review

The standard of review in appeals from a judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.P., is the same as that for review of a motion for a directed verdict, and a directed verdict may be granted only where it appears as a matter of law that a party could not prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Wilkerson v. School District (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. Motions for directed verdict or for a JNOV are proper only when there is a complete absence of any evidence to warrant submission to a jury. Jacques v. Montana Nat. Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a JNOV motion is not properly granted. Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds). Rulings on the admissibility of evidence are within the discretion of the trial court. Cooper v. Rosston (1988), 232 Mont. 186, 189-90, 756 P.2d 1125, 1127. Absent an abuse of discretion this Court will not reverse a district court's rulings on the admissibility of evidence. Glacier National Bank v. Challinor (1992), 253 Mont. 412, 416, 833 P.2d 1046, 1049.

Discussion

I. Did Ryan properly plead a cause of action for negligence regarding the City's failure to enforce the street vision triangle ordinance?

In granting respondent Ryan's motion for a directed verdict and a JNOV, the court found that the corner lot where the intersection occurred contained a hedge between six and ten feet tall in the street vision triangle. The court reasoned that the City of Bozeman had an affirmative duty to enforce the Bozeman Municipal Code Section 18.50.080, which requires that no hedge obstructions be permitted within the street vision triangle, and that the City's failure to require that the hedge be trimmed was the sole proximate cause of the collision and of Ryan's injuries.

On appeal, the City contends that the trial court erred in allowing Ryan to introduce evidence as to the City's failure to enforce the ordinance and in granting a directed verdict on that basis. It is the City's assertion that the only negligence alleged by Ryan was the negligence of the City employee, Lindsey Korell, who was driving the City vehicle at the time of the accident; that there were no allegations that the drivers' views were obstructed by the hedge or that the City was negligent for failing to require that the hedge be trimmed.

A plaintiff must allege a cause of action in a complaint or other pleading with sufficient specificity to apprise a defendant of the nature of the claim. A district court does not have jurisdiction to grant relief outside of the issues presented by the pleadings unless the parties stipulate that other questions be considered or the pleadings are amended to conform to the proof. Old Fashion Baptist Church v. Montana Dep't of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628. A judgment must be based upon a verdict and must be within the issues presented to the court. Old Fashion Baptist Church, 671 P.2d at 628 (citing National Surety Corp. v. Kruse (1948), 121 Mont. 202, 205-206, 192 P.2d 317, 319).

In reviewing Ryan's complaint, we determine that the City is correct. The only allegation of negligence against the City of Bozeman in the entire complaint is that its employee, Lindsey Korell, "negligently drove a City vehicle into plaintiff's vehicle." The parties also prepared and filed a pre-trial order which superseded the allegations in the complaint. In the pre-trial order, Ryan's "Contentions," in their entirety, are as follows:

The automobile collision was a result of the negligence of Lindsey Korell in failing to yield the right of way to Maxine Ryan, in driving at a rate of speed that was too fast for the circumstances, and in failing to keep a proper lookout and to take proper evasive steps to avoid the accident. As a result of the negligence of Lindsey Korell and the ensuing collision, Maxine Ryan has sustained serious physical injuries resulting in past and future medical expenses, lost wages and lost earning capacity, pain and suffering, and loss of enjoyment of her established way of life. Because Lindsey Korell was an employee of the City of Bozeman and was acting within the scope of her employment, the City of Bozeman is liable for her negligence.

Although the pre-trial order section on "Determination of legal issues in advance of trial" does make mention of a possible motion in limine to be filed by the City as to whether the City of Bozeman could advise the jury that it had no legal responsibility for trimming the hedge, there were no affirmative allegations by Ryan that the hedge obstructed the view or that the City was negligent in failing to require that the hedge be trimmed. In concluding that the City's failure to comply with the ordinance constituted negligence, the court ignored the fact that neither the complaint nor the pre-trial order alleged any negligence by the City related to the height of the hedge. Furthermore, the City objected to the introduction of any evidence related to the height of the hedge for the reason that Ryan had not contended that the height of the hedge was a basis for a claim of negligence. In allowing Ryan to pursue a claim of negligence based upon the height of the hedge, the District Court faulted the City for not following through and filing a motion in limine on that issue. However, as the City contends, it is not a defendant's burden to file motions in limine in order to defeat unpled claims. Rather, the burden is on the plaintiff to adequately plead a cause of action. In Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 382 P.2d 552, we adopted the proposition that it is sufficient if the complaint concisely states facts upon which relief can be granted upon any legally sustainable basis.

This court agrees that plaintiffs' pleading should be so viewed. Yet a complaint must state something more than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.

Rambur, 382 P.2d at 554 (citations omitted).

In the present case, Ryan did not plead any facts as to the drivers' views being obstructed nor any facts as to the height of the hedge. Accordingly, her complaint and contentions in the pre-trial order did not even "breed a suspicion" that she was entitled to relief on any theory other than that the driver of the City vehicle was negligent in failing to yield the right of way and in exceeding the speed limit.

In McJunkin v. Kaufman & Broad Home Systems (1987), 229 Mont. 432, 748 P.2d 910, we upheld the trial court's refusal to submit to the jury an unpleaded claim of breach of an express warranty against the seller. While recognizing that amendment to pleadings should be liberally allowed, we held that leave to amend under Rule 15(b), M.R.Civ.P., cannot be granted arbitrarily or perfunctorily. McJunkin, 748 P.2d at 913-14. Noting that McJunkins had two and one-half years to amend their complaint and that the pretrial order...