Simchuk v. Angel Island Community Ass'n

Decision Date25 June 1992
Docket NumberNo. 91-428,91-428
Citation253 Mont. 221,833 P.2d 158
PartiesJohn SIMCHUK, Plaintiff, Appellant and Cross-Respondent, v. ANGEL ISLAND COMMUNITY ASSOCIATION, A Montana Nonprofit Corporation, John/Jane Does I through X, ABC Companies, I through X, Defendants, Respondents and Cross-Appellants. ANGEL ISLAND COMMUNITY ASSOCIATION, Third-Party Plaintiff, v. Barbara J. DOBLER, Third-Party Defendant.
CourtMontana Supreme Court

Michael F. Lamb and Jean E. Faure, Church, Harris, Johnson & Williams, Great Falls, and Ronald Leighton, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, Wash., for plaintiff, appellant and cross-respondent.

Robert J. Emmons, Emmons & Sullivan, Great Falls, for defendants, respondents and cross-appellants.

John R. Gordon, Reep, Spoon & Gordon, Missoula, for third-party defendant.

David R. Paoli, Edwards & Paoli, Billings, for amicus.

HARRISON, Justice.

Appellant, John Simchuk, appeals from the judgment notwithstanding the verdict (JNOV) entered in favor of respondent, Angel Island Community Association(Angel Island), by the Nineteenth Judicial District Court, Lincoln County, Montana.Angel Island cross-appeals the District Court's denial of its motion for JNOV on the issue of negligence.Angel Island also cross-appeals the jury verdict in favor of Barbara Dobler, third-party defendant.We reverse in part and affirm in part.

The parties present the following issues for our review:

1.Did the District Court err in entering judgment in favor of Angel Island, notwithstanding the jury verdict for Simchuk, by ruling that Montana's recreational use statute precludes Simchuk's recovery for Angel Island's negligence?

2.Did the District Court err in denying Angel Island's motion for JNOV on the issue of negligence?

3.Was the evidence insufficient to justify the jury verdict for Simchuk and Dobler?

4.Were the general damages awarded by the jury excessive?

Angel Island is an incorporated homeowner's association governing homes and lots located on Bull Lake, near Libby, Montana.Angel Island requires all members to pay annual dues for the maintenance and use of Angel Island's common facilities.Membership dues entitle association members and their guests the use of these common facilities which include a paved and fenced tennis court exclusively reserved for members and their guests.At the time of the accident, the tennis court was equipped with a basketball hoop and free-standing light standards for night playing.Angel Island retains a caretaker for its premises.

On July 1, 1989, John Simchuk, an invited guest of an association member, John Hunter, was injured on Angel Island's property when one of the light standards on the tennis/basketball court fell on him while he was playing basketball.The light standard struck Simchuk's chest and head causing permanent brain damage.

Simchuk brought a personal injury lawsuit against Angel Island alleging negligence.Angel Island filed a third-party complaint against Barbara Dobler alleging that her negligence caused Simchuk's injuries.The negligence issues were submitted to the jury which found in favor of Simchuk and Dobler.The jury found Angel Island negligent in its installation and maintenance of the light standards, and awarded Simchuk approximately $177,000.Additionally, the jury found Dobler negligence free.

After the jury rendered its verdict, Angel Island moved for a JNOV against Simchuk and Dobler.The District Court granted the motion as against Simchuk on the ground that Montana's recreational use statute, Sec. 70-16-302, MCA, precludes Simchuk's recovery.The District Court denied Angel Island's JNOV motions regarding its negligence and the negligence of Dobler.This appeal arises from the granting and denial of these motions.

I.

Did the District Court err in entering judgment in favor of Angel Island, notwithstanding the jury verdict for Simchuk, by ruling that Montana's recreational use statute precludes Simchuk's recovery for Angel Island's negligence?

The standard of reviewing a district court's grant of a judgment notwithstanding a verdict is well-settled.

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 plaintiff could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it.

Wilkerson v. School Dist. No. 15(1985), 216 Mont. 203, 211, 700 P.2d 617, 622(citation omitted).In the instant case, the District Court submitted the issues to the jury for a factual determination, but entered judgment notwithstanding the jury's verdict on the basis that Simchuk was not entitled to recover as a matter of law because of Montana's recreational use statutes, Secs. 70-16-301 and -302, MCA.

Simchuk maintains that the court erred in applying Montana's recreational use statutes which provide:

Recreational purposes defined."Recreational purposes", as used herein, shall include hunting, fishing, swimming, boating, water skiing, camping, picnicking, pleasure driving, winter sports, hiking, touring or viewing cultural and historical sites and monuments, or other pleasure expeditions.

Restriction on liability of landowner or his agent or tenant.(1) A person who makes recreational use of any property in the possession or under the control of another, with or without permission and without giving a valuable consideration therefor, does so without any assurance from the landowner, his agent, or his tenant that the property is safe for any purpose.The landowner, his agent, or his tenant owes the person no duty of care with respect to the condition of the property, except that the landowner, his agent, or his tenant is liable to such person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct.

Sections 70-16-301 and -302, MCA.

Section 70-16-302, MCA, limits liability, absent willful and wanton misconduct, for a landowner whose property is used for recreational purposes, subject to several exceptions.In granting JNOV for Angel Island, the District Court foundSec. 70-16-302, MCA, applicable and the exceptions inapplicable.The District Court concluded that Simchuk used Angel Island's recreational facilities for recreational purposes without giving valuable consideration and that he failed to submit evidence of any act or omission by Angel Island constituting willful and wanton misconduct.The District Court applied Sec. 70-16-302, MCA, releasing Angel Island from liability even though the jury found Angel Island negligent.Therefore, Simchuk could not recover from Angel Island.

The overall intent of Montana's recreational use statute is to grant a landowner relief from liability to persons gratuitously entering land for recreational purposes.State ex rel. Tucker v. District Court(1970), 155 Mont. 202, 206-07, 468 P.2d 773, 775.However, if the facts indicate that certain exceptions exist, a landowner's limited liability will be destroyed.Simchuk argues that, in this case, the tennis court upon which he received injury was not open to the public and that valuable consideration was paid for his use of the facilities, thereby rendering Sec. 70-16-302, MCA, inapplicable.We agree.

"The only purpose of the recreational use statute is to encourage landowners to make their lands freely available to the public by limiting the landowners' tort liability."Fisher v. United States(D.Mont.1982), 534 F.Supp. 514, 515.After reviewing the legislative history, statutory and case law from other jurisdictions, and the definition of "recreational purposes" in Sec. 70-16-301, MCA, it is evident that the recreational use statute applies to land made available for public use.Therefore, if the land upon which an injury occurs is not available for public use, the landowner does not enjoy the protection of limited liability.In the instant case, Simchuk's injury occurred at a private resort on a private tennis/basketball court.This fact alone destroys the protection Angel Island seeks under Sec. 70-16-302, MCA.

Nevertheless, Simchuk also argues that Sec. 70-16-302, MCA, does not shield Angel Island from liability because valuable consideration was paid to Angel Island for his use of the facility.The clear intent of the recreational use statute is to grant landowners relief from liability to any person gratuitously present for any recreational purpose.State ex rel. Tucker, 155 Mont. at 206-07, 468 P.2d at 775.If the landowner receives an economic benefit, the use of the land is not gratuitous.

[W]here a landowner derives an economic benefit from allowing others to use his land for recreational purposes, the landowner is in a position to post warnings, supervise activities, and otherwise seek to prevent injuries.Such a landowner also has the ability to purchase liability insurance or to self-insure, thereby spreading the cost of accidents over all users of the land.[Footnote omitted.]

Ducey v. United States(9th Cir.1983), 713 F.2d 504, 511.

Angel Island requires members who own, rent, or reside on Angel Island to pay a membership fee which is partially applied to maintenance of the common facilities, including the tennis/basketball court.Angel Island receives an economic benefit for allowing others to use the facilities.This economic benefit provides Angel Island with the ability to spread the risk whether the association member pays the dues or each individual guest pays a fee to use the facilities.

Angel Island argues that the association dues paid by the members do not extend to their guests to destroy Angel Island's protection under the statute.Angel Island argues that in order to retain tort liability, the valuable...

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18 cases
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    • United States
    • Montana Supreme Court
    • March 10, 1998
    ...Care Corp. (1993), 259 Mont. 518, 858 P.2d 3; Greytak v. RegO Co. (1993), 257 Mont. 147, 848 P.2d 483; Simchuk v. Angel Island Community Ass'n (1992), 253 Mont. 221, 833 P.2d 158; Larson v. K-Mart Corp. (1990), 241 Mont. 428, 787 P.2d 361; and Wilkerson v. School Dist. No. 15, Glacier Cty. ......
  • Cechovic v. Hardin & Associates, Inc.
    • United States
    • Montana Supreme Court
    • August 24, 1995
    ...unless the amount awarded is so grossly out of proportion that it shocks the conscience of this Court. Simchuk v. Angel Island Comm. Ass'n (1992), 253 Mont. 221, 230, 833 P.2d 158, 163 (citing Gunning v. General Motors Corp. (1989), 239 Mont. 104, 107, 779 P.2d 64, 66). In Simchuk, we also ......
  • Werre v. David
    • United States
    • Montana Supreme Court
    • April 15, 1996
    ...evidence exist. Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 533, 885 P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass'n (1992), 253 Mont. 221, 833 P.2d 158). Section 27-2-216(1)(b), MCA, provides, in relevant (1) An action based on intentional conduct brought by a......
  • Brockie v. Omo Const., Inc.
    • United States
    • Montana Supreme Court
    • January 18, 1995
    ...evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuck v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158. However, a "jury may not disregard uncontradicted, credible, non-opinion evidence." Putnam v. Pollei (1969), ......
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1 books & journal articles
  • Laws governing recreational access to waters of the Columbia Basin: a survey and analysis.
    • United States
    • Environmental Law Vol. 33 No. 2, March 2003
    • March 22, 2003
    ...Id. [section] 70-16-302(1). (288) Id. [section] 70-16-302(2). (289) Id. [section] 70-16-302(3). (290) Simchuk v. Angel Island Cmty. Ass'n 833 P.2d 158, 161 (Mont. 1992) (holding a landowner could not use the statute to escape liability for an injury that occurred on a tennis court at a priv......