State v. Butte-Silver Bow County

• Decision Date: 01 December 2009
• Docket Number: No. DA 08-0564.,DA 08-0564.
• Citation: 353 Mont. 497,220 P.3d 1115,2009 MT 414
• Parties: STATE of Montana, Appellant and Cross-Appellee, v. BUTTE-SILVER BOW COUNTY, Appellee and Cross-Appellant.
• Court: Montana Supreme Court

220 P.3d 1115

2009 MT 414

353 Mont. 497

STATE of Montana, Appellant and Cross-Appellee, v. BUTTE-SILVER BOW COUNTY, Appellee and Cross-Appellant.

No. DA 08-0564.

Supreme Court of Montana.

Submitted on Briefs August 18, 2009.

Decided December 1, 2009.

For Appellant: Michael R. King, Risk Management & Tort Defense, Helena, Montana, Gary L. Walton, Attorney at Law, Butte, Montana.

For Appellee: Jack Jenks and Carey B. Schmidt, Phillips Law Firm, Missoula, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 The State of Montana (State) appeals from an order of the Second Judicial District Court, Butte-Silver Bow County, allocating damages for negligence in the trip and fall related death of Mina Comer (Comer). Butte-Silver Bow County (County) cross-appeals. We affirm.

¶ 2 We review the following issues on appeal:

¶ 3 Did the District Court properly deny the State's summary judgment motion that the County had the sole duty to maintain the sidewalk?

¶ 4 Did the District Court properly deny the State's summary judgment motion regarding common law indemnity?

¶ 5 Did the District Court properly place the State on the verdict form?

¶ 6 Did the District Court's trial orders and refusal to give the State's proposed jury instructions deprive the State of its fundamental right to a fair trial?

¶ 7 Did the District Court properly dismiss the State's cross-claim without a determination by the jury or the court as to the fact questions underlying the cross-claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 Mina Comer tripped and fell on a sidewalk along Harrison Avenue in Butte on April 26, 2006. Comer died as a result of her injuries. Comer's estate sued Butte-Silver Bow County and the State, alleging that Comer's death had occurred as a result of negligent maintenance of the sidewalk.

¶ 9 Harrison Avenue is a state highway that bisects the flats of Butte from Front Street on the north to Basin Creek Road on the south. The State contracted with the County on two separate occasions in order to receive federal-aid highway funds for the reconstruction of Harrison Avenue. Federal law requires these contracts as prerequisites for the acquisition of federal funds for the construction, or reconstruction, of state highways.

¶ 10 The contracts lay out the respective duties of the State and the County with regard to the construction, regulation, and maintenance of state highways. A clause in both contracts stipulates that "[t]he City-County shall maintain or cause to be maintained the sidewalks bordering the project." Jimmy Johnston, former County Public Works Director, negotiated the two contracts. Johnston testified that during his tenure the County had repaired sidewalks subject to the terms of the contracts.

¶ 11 The sidewalk at the site of Comer's accident lies within the right-of-way for Harrison Avenue. Kevin Brewer, the Maintenance Chief of the Montana Department of Transportation's (Department) Butte District at the time of the accident, testified that the State never had maintained the sidewalks along Harrison Avenue. Brewer further testified that he never had asked anyone from the County to perform sidewalk maintenance along a state highway route, including Harrison Avenue. The State repaired the sidewalk following Comer's accident. Brewer did not bill the County for what he considered a "maintenance repair."

¶ 12 Marty Hanley, a former equipment operator for the Department, plowed snow from the sidewalks along Harrison Avenue two or three times per winter. Hanley testified that on December 9, 2005, while plowing snow at the site where Comer fell, the blade of his grader had raised a corner of the sidewalk. Hanley used the blade to push the sidewalk back into place. Hanley did not break the slab, but he left approximately half an inch of the corner sticking up. Hanley informed his supervisor at the Department of what had happened. After hearing of Comer's accident, Hanley told the current Department supervisor "I know all about that [sidewalk]," to which his supervisor allegedly responded, "I don't want to hear about it."

¶ 13 The State filed two summary judgment motions before trial. The State first argued that the County had the sole duty to maintain the sidewalk, pursuant to the contracts, and thus bore sole liability for any finding of negligence with regard to Comer's accident. The State also sought summary judgment against the County on its common law indemnity claim. The District Court denied the State's motions on the grounds that "material questions of fact" remained both as to the respective maintenance duties of the State and the County, and as to causation.

¶ 14 The County, in turn, sought to exclude evidence of the State's cross-claim for indemnity and contribution. The District Court granted the County's motion with respect to indemnity on the grounds that the State sought common-law indemnity rather than contractual indemnity. The court reasoned that indemnity and contribution presented questions of law for the court to decide. The court emphasized, however, that the State remained free to present the evidence of its own and the County's negligence, the contracts between the State and the County, and the County's alleged breach of those contracts.

¶ 15 The District Court conducted a jury trial in Butte during the week of August 25 2008. The court declined to give the State's proposed Jury Instruction No. 33 on indemnity, and proposed Jury Instruction No. 35 on vicarious liability, again based on its conclusion that these issues presented questions of law for the court.

¶ 16 The jury returned a verdict in favor of Comer's estate. The verdict assessed damages totaling $581,383 to Comer's estate and her representatives individually. The jury apportioned fault at sixty-five percent to the State, thirty percent to the County, and five percent to Comer. The District Court dismissed the State's cross-claim for indemnity as being precluded by its own negligence in light of the jury's apportionment of fault.

STANDARD OF REVIEW

¶ 17 We review de novo a district court's grant or denial of a motion for summary judgment. Fenno v. Mountain West Bank, 2008 MT 267, ¶ 9, 345 Mont. 161, 192 P.3d 224. We apply the same criteria used by the district court under M.R. Civ. P. 56. Hogenson Const. v. Montana State Fund, 2007 MT 267, ¶ 11, 339 Mont. 389, 170 P.3d 471. We review for an abuse of discretion a district court's refusal to give a jury instruction. Whidden v. Nerison, Inc., 1999 MT 110, ¶ 22, 294 Mont. 346, 981 P.2d 271.

DISCUSSION

¶ 18 Did the District Court properly deny the State's summary judgment motion that Butte-Silver Bow had the sole duty to maintain the sidewalk?

¶ 19 The State argues that the two federal-aid highway contracts transferred any legal duty that it may have had to the County. The State relies on the clause in both contracts providing that "[t]he City-County shall maintain or cause to be maintained the sidewalks bordering the project." The State contends that a governing body that contracts to maintain a public right-of-way remains solely responsible for the consequences of its failure to maintain.

¶ 20 The existence of a legal duty presents a question of law to be determined by the court. Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 17, 342 Mont. 335, 181 P.3d 601. Section 60-2-203, MCA, provides that "[t]he department shall maintain all public highways or portions of public highways that it maintained on July 1, 1976." Section 60-2-204, MCA, authorizes the Department to enter into an agreement with a local governing body to maintain portions of public highways. The statute contains the caveat, however, that the Department shall bear the entire cost of maintenance and construction work performed by the local government pursuant to such an agreement. Section 60-2-204, MCA.

¶ 21 This retention of financial responsibility reflects the concept that "[u]nder Montana law, the [S]tate, not the City, has `ownership and control of all city streets,' with local governments as the trustees." Montana-Dakota Utilities Co. v. City of Billings, 2003 MT 332, ¶ 28, 318 Mont. 407, 80 P.3d 1247 (quoting State v. City of Helena, 193 Mont. 441, 444, 632 P.2d 332, 334 (1981)). Other jurisdictions similarly have held that "a municipality is a mere agent of the state as it relates to the maintenance of public highways and other governmental functions." Pullen v. State, 707 A.2d 686, 691 (1998). This Court has held that a municipality has no authority to construct a sidewalk within a state highway right-of-way. Palffy v. Bozeman, 168 Mont. 108, 540 P.2d 955 (1975). The municipality, in turn, also lacks the authority to allocate the costs of such construction to the neighboring property owner. Palffy, 168 Mont. at 112, 540 P.2d at 957.

¶ 22 This Court addressed a similar situation in State ex rel. City of Helena v. District Court, 167 Mont. 157, 536 P.2d 1182 (1975). An injured person filed an action against the State following an accident at an intersection that was part of the state highway system and designated as a federal-aid project. The intersection was located within the city limits, was policed by the city, and the city had performed regular sanding and emergency services. The Court rejected the State's claim that the city had a duty to maintain the intersection.

¶ 23 The Court pointed to the fact that the construction agreement between the State and the city provided that the "[c]ity will not erect any traffic control devices giving preference to `local routes' without the express written permission of the state." State ex rel. City of Helena, 167 Mont. at 160, 536 P.2d at 1184. The State retained ultimate control, and the corresponding responsibility, over the intersection. State ex rel. City of Helena, 167 Mont. at 160, 536 P.2d at 1184. The contracts at issue here contain an identical clause.

¶ 24 Federal law, in the form of 23 U.S.C. § 116(a), further bolsters the...