Schmidt v. Washington Contractors Group, Inc.

• Decision Date: 11 August 1998
• Docket Number: No. 97-444,97-444
• Citation: 290 Mont. 276,964 P.2d 34,1998 MT 194
• Parties: , 1998 MT 194 William B. SCHMIDT, Plaintiff and Appellant, v. WASHINGTON CONTRACTORS GROUP, INC. and Alpine Construction, Inc., Defendants and Respondents.
• Court: Montana Supreme Court

Page 34

964 P.2d 34

290 Mont. 276, 1998 MT 194

William B. SCHMIDT, Plaintiff and Appellant, v. WASHINGTON CONTRACTORS GROUP, INC. and Alpine Construction, Inc., Defendants and Respondents.

No. 97-444.

Supreme Court of Montana.

Submitted on Briefs Feb. 2, 1998.

Decided Aug. 11, 1998.

F.R. Randy Harrison; Harrison Law Office, Missoula, for Plaintiff and Appellant.

Paul C. Meismer; Carey, Meismer & McKeon, Missoula, for Washington Contractors Group, Inc.

Lynn M. Grant; Quane, Smith, Howard & Hull, Missoula, for Alpine Construction, Inc.

NELSON, Justice.

¶1 Plaintiff William Schmidt (Schmidt) was injured during a single vehicle motorcycle accident that occurred on an Interstate 90 ramp under construction at the DeSmet Interchange near Missoula, Montana. Schmidt filed a complaint in negligence in the Fourth Judicial District Court, Missoula County, against Defendant Washington Contractors Group, Inc. (Washington), the general contractor for the "DeSmet Interchange Project," and Defendant Alpine Construction, Inc. (Alpine), the subcontractor hired to control traffic during the construction project. The District Court subsequently entered an opinion and order granting summary judgment in favor of Defendants Washington and Alpine. From this opinion and order, Schmidt appeals. We reverse and remand for further proceedings consistent with this Opinion.

¶2 The sole issue raised on appeal is whether the District Court erred by granting Washington and Alpine summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Highway 93 and Interstate 90 intersect near Missoula, Montana, at a location called the DeSmet Interchange. The Montana Department of Transportation contracted with Washington to work as the general contractor for the DeSmet Interchange Project (the Project). As the general contractor, Washington was responsible for improving the overpass, on-ramps and off-ramps at the DeSmet Interchange during the spring and summer of 1995. Alpine, hired as subcontractor on the Project, was responsible for controlling traffic during the construction project which included posting signs. On August 21, 1995, Schmidt was injured when he crashed his motorcycle while descending a temporary entrance ramp to Interstate 90 at the DeSmet Interchange. While the top-half of this temporary ramp was paved, the bottom-half was only graveled. Additionally, where the ramp interfaced with Interstate 90, an elevation difference of approximately six to eight inches existed and the ramp was repaired almost daily due to wear and tear. Schmidt's accident occurred at the bottom of the temporary ramp where the graveled portion interfaced with the paved interstate and the elevation differential existed.

¶4 On May 30, 1996, Schmidt filed a complaint against both Washington and Alpine for personal injuries resulting from his accident and requested a jury trial in the Fourth Judicial District Court, Missoula County. Schmidt alleged that Alpine was negligent in failing to adequately warn motorists of the elevation differential on the ramp and that Washington was negligent in failing to eliminate or mitigate the danger posed by the elevation differential. Additionally, Schmidt alleged that pursuant to agency law, Washington, as principal to its agent, Alpine, was responsible for Alpine's negligence. Schmidt sought compensatory damages for his personal injuries and punitive damages for Washington's and Alpine's alleged gross negligence. The parties engaged in discovery resulting in a number of affidavits, depositions and answers to interrogatories.

¶5 Prior to trial, Washington and Alpine each filed a motion in limine to exclude evidence of motorcycle accidents on the ramp other than Schmidt's and a motion for summary judgment on Schmidt's entire claim. Additionally, Washington filed a motion for partial summary judgment on the issue of punitive damages. On June 10, 1997, after

briefing and oral argument, the District Court entered an opinion and order granting Washington and Alpine summary judgment, vacating the jury trial and dismissing Schmidt's complaint with prejudice. Explaining that the grant of summary judgment was dispositive, the court declined to address the remaining pending motions. From this opinion and order, Schmidt appeals.

STANDARD OF REVIEW

¶6 Under Rule 56(c), M.R.Civ.P., summary judgment is proper only when the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Four elements comprise a negligence cause of action: (1) duty; (2) breach of duty; (3)causation; and (4) damages. Wiley v. City of Glendive (1995), 272 Mont. 213, 217, 900 P.2d 310, 312. Because issues of negligence ordinarily involve questions of fact, they are generally not susceptible to summary judgment and are properly left for a determination by the trier of fact at trial. Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869. Therefore, only when reasonable minds could not differ may questions of fact be determined as a matter of law. Wiley, 272 Mont. at 216, 900 P.2d at 312.

¶7 The initial burden is on the moving party to demonstrate "a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment." Kolar, 280 Mont. at 266, 929 P.2d at 869. Once the moving party meets this burden, the burden shifts to the non-moving party to establish otherwise. Wiley, 272 Mont. at 216, 900 P.2d at 312. We review a district court's grant of summary judgment de novo, using the same criteria and evaluation as did the district court pursuant to Rule 56(c), M.R.Civ.P. Wiley, 272 Mont. at 216, 900 P.2d at 312.

DISCUSSION

¶8 Did the District Court err by granting Washington and Alpine summary judgment?

¶9 The District Court granted Washington and Alpine summary judgment stating that "[s]ignificant uncontroverted evidence supports the theory that neither Defendant breached its standard of care." The court explained:

Summary judgment in favor of both Washington and Alpine is appropriate. Both Defendants have brought forth credible evidence that they met the applicable standard of care and that if they had a duty to warn, they met that duty. Schmidt cannot bring forth any material evidence in response because he has neither a highway [accident] reconstruction expert or a signage expert.

Additionally, the court also explained that Schmidt failed to introduce evidence disputing the location of warning signs on the temporary ramp as indicated by Alpine's affidavit and logs.

¶10 Schmidt argues that several genuine issues of material fact exist, and, therefore, the District Court erred in granting Washington and Alpine summary judgment. First, Schmidt argues that a material question of fact exists regarding the placement of a "BUMP" warning sign as well as the placement of other traffic signs on the temporary ramp at the time of his accident, and, therefore, whether he was given adequate warning of the danger posed by the elevation differential. Schmidt asserts that Robert Johnson, a witness who worked as the project supervisor for the Montana Department of Transportation, executed two inconsistent affidavits concerning the location of a "BUMP" sign on the ramp. Additionally, he contends that Alpine's discovery responses concerning the permanency of the "BUMP" sign were inconsistent with its own sign log book. Furthermore, Schmidt maintains that Alpine's description of the placement of other traffic signs on the ramp differs from Johnson's sketch depicting the placement of traffic signs on the ramp which he made while observing the accident site on August 22, 1995, the day after Schmidt's accident.

¶11 Second, Schmidt argues that a material question of fact exists concerning whether Washington had notice of the unreasonably dangerous condition of the temporary ramp, and, consequently, whether Washington failed to properly maintain the ramp. Schmidt contends that evidence of three motorcycle accidents, other than his own, within a 72-hour period, raises a genuine issue of fact concerning Washington's knowledge of the unreasonably dangerous condition of the temporary ramp. Furthermore, Schmidt asserts his lack of an accident reconstruction expert is harmless given that his two expert witnesses in motorcycle dynamics were prepared to testify as to the unique problems encountered by motorcycles crossing raised surfaces. Finally, he maintains that he did not need a signage expert to explain common sense ways of preventing accidents.

¶12 Washington and Alpine respond that the District Court properly granted summary judgment in their favor because no genuine issues of material fact exist and they were entitled to summary judgment as a matter of law. First, Alpine argues that no factual dispute exists concerning the placement of the "BUMP" warning sign because Johnson's second affidavit clarified his first affidavit. Furthermore, Alpine contends that even if the discrepancy raises a factual issue, it is immaterial. Alpine explains that due to Schmidt's slow speed on the temporary ramp, even if the "BUMP" sign was placed only 200 feet from the interstate, as Johnson estimated in his first affidavit, this placement still satisfied the guidelines set forth in the Manual of Uniform Traffic Control Devices (MUTCD) and thereby satisfied its duty. Moreover, Alpine argues that the inconsistencies between its discovery responses and its log book concerning whether the "BUMP" sign was permanent or temporary are immaterial to the question of the sign's location on the ramp.

¶13 Relying on Wiley, Washington and Alpine also argue that summary judgment was proper because Schmidt failed to retain a highway signage expert or an expert in...