Vivier v. State Dept. of Transp., 00-442.
| Decision Date | 08 November 2001 |
| Docket Number | No. 00-442.,00-442. |
| Citation | 2001 MT 221,35 P.3d 958,306 Mont. 454 |
| Parties | James Cyr VIVIER and Kim Vivier, husband and wife, and parents of Kelly Vivier, a minor child; Kelly Vivier, individually; James Cyr Vivier and Thomas S. Winsor as conservators of the estate of Kelly Vivier, Plaintiffs and Appellants, v. STATE of Montana DEPARTMENT OF TRANSPORTATION; Lewis and Clark County; and the Lewis and Clark County Commissioners, Defendants and Respondents. |
| Court | Montana Supreme Court |
Thomas S. Winsor, Michael Scott Winsor, Winsor Law Firm, PLLC, Helena, MT, for Appellants.
P. Keith Keller, Charles G. Adams, Keller, Reynolds, Drake, Johnson and Gillespie, P.C., (State of Montana), Allen B. Chronister, Chronister, Moreen & Larson, P.C., Helena, MT, (Lewis and Clark County and Lewis and Clark County Commissioners), for Respondents.
¶ 1 Plaintiffs James Cyr Vivier, et al., ("The Viviers") appeal from the orders granting summary judgment in favor of the Defendants as well as the order denying their motions to alter or amend judgment issued by the First Judicial District Court, Lewis and Clark County. The Viviers raise a number of issues on appeal. We find the following issue dispositive: whether the District Court erred when it concluded that the Viviers failed to produce evidence of causation.
¶ 2 This action arises out of an accident that occurred on September 17, 1995, when a car driven by Lisa Loferski struck Kelly Vivier, a ten-year old girl, as she was riding her bicycle. The accident occurred on York Road in Lewis and Clark County, Montana, approximately one-half mile from the intersection of York Road and Canyon Ferry Road. Both Loferski and Kelly were traveling toward Helena in the west-bound lane of York Road. Loferski had just passed a pickup truck and reentered her lane when she saw Kelly on the right-hand side of the road. Upon seeing Kelly, Loferski moved back towards the left-hand lane to give Kelly room. Loferski stated that she thought Kelly noticed her. Kelly turned her head a little bit and then attempted to cross York Road about ten or twenty feet in front of Loferski's car. Loferski slammed on her brakes and turned her car hard to the left but was unable to avoid hitting Kelly. Kelly sustained serious injuries.
¶ 3 The Viviers filed a complaint against the State Department of Family Services and the Department of Justice on September 16, 1997. The Viviers alleged that Family Services breached their duty of care by failing to provide sufficient safety, guidance, and supervision to Loferski, a minor foster child in the State's permanent care. The Viviers also alleged that the Department of Justice had breached its duty of care by issuing a driver's license to Loferski. The Viviers moved to amend their complaint to add the State Department of Transportation ("DOT") as a party on January 27, 1998, alleging that DOT negligently failed to make the road safe, thereby causing Kelly's injuries. On December 24, 1998, the Viviers further moved to add Lewis and Clark County. On January 8, 1999, the District Court granted summary judgment in favor of the Department of Family Services and the Department of Justice. The Viviers do not appeal from this ruling.
¶ 4 On January 26, 2000, the District Court issued a Memorandum and Order granting summary judgment in favor of Lewis and Clark County. The court concluded that the county did not have a duty with respect to the design and construction of York Road. The court granted summary judgment in favor of DOT on February 23, 2000. The court concluded that DOT did not have a duty to undertake reconstruction of York Road simply because standards of construction had changed since the road was originally constructed. The court also concluded that the Viviers failed to submit evidence tending to show that the accident was caused by a design or construction problem. The Viviers moved the court to reconsider, alter, or amend its orders granting summary judgment in favor of Lewis and Clark County and DOT. The District Court denied both motions by Order dated March 27, 2000. The Viviers appeal.
¶ 5 We review a district court order granting summary judgment de novo applying the same evaluation as the district court pursuant to Rule 56, M.R.Civ.P. 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).
¶ 6 Did the District Court err by granting summary judgment in favor of Lewis and Clark County and DOT?
¶ 7 The District Court concluded that the County did not have a duty with respect to the design and construction of York Road as a matter of law. The District Court also concluded that DOT did not have a duty to undertake reconstruction of York Road and that the Viviers failed to produce evidence tending to show that the accident was caused by a design or construction problem. The court also concluded that all the facts before it showed that the accident was caused by Kelly turning unexpectedly in front of Loferski's vehicle.
¶ 8 The Viviers contend that the District Court's rulings are incorrect. The Viviers argue that the hazardous condition of York Road caused or was a substantial factor contributing to the accident because its condition left Loferski with no way of avoiding the collision without facing the threat of serious injury to herself. The Viviers maintain that the County breached its duty to provide for the orderly development of subdivisions so as to promote traffic safety. The Viviers maintain that DOT breached its duty to provide reasonably safe highways by failing to improve York Road.
¶ 9 Lewis and Clark County argues that it has no duty to reconstruct or upgrade York Road and that its only duty with regard to York Road is to provide adequate maintenance services. The County notes that the Viviers do not contend that the accident was caused by improper maintenance. The County contends that the inescapable conclusion based on the testimony of the investigating officer and Loferski is that the accident occurred because Kelly made a sudden and unsafe turn in front of Loferski's car.
¶ 10 DOT contends that York Road was built according to the guidelines and standards in effect at the time it was designed and built and that it does not have a duty to rebuild the road simply because the standards for highways have changed since the time of original construction. DOT also insists that even if the road had been rebuilt, it would not have prevented this accident because the accident was caused by Kelly darting out in front of Loferski.
¶ 11 A cause of action for negligence has four elements: (1) duty; (2) breach; (3) causation; and (4) damages. Wiley v. City of Glendive (1995), 272 Mont. 213, 217, 900 P.2d 310, 312. Summary judgment is proper 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. Wiley, 272 Mont. at 216, 900 P.2d at 312. ¶ 12 The essence of the Viviers' cause of action is as follows: DOT and Lewis and Clark County had a duty to make improvements to the road such as widening the shoulders and flattening the slope of the borrow pits to make it safer. DOT and the County did not fulfill that duty. Had there been wider shoulders and flatter slopes on the sides of the road, Loferski would have had more room to maneuver and could have avoided Kelly. Thus, the failure of DOT and the County to make improvements to the road caused the accident.
¶ 13 We agree with the District Court that the Viviers have failed to come forward with proof that a genuine issue of fact exists with regard to causation. Regardless of whether DOT or the County had a duty to make improvements to York Road, the evidence before the court showed that the accident happened because Kelly turned unexpectedly in front of Loferski's vehicle before Loferski had a chance to react. The evidence did not show that the condition of the road prevented Loferski from maneuvering to avoid the accident.
¶ 14 On the issue of causation, the Viviers direct our attention to the deposition of Donald Fenton, a highway safety engineer retained by them as an expert witness. The Viviers contend that Fenton testified that the accident probably would not have occurred if there had been wider shoulders and flatter slopes on the sides of York Road so that Loferski could have driven off of the road in relative safety.
¶ 15 We agree with the Defendants, however, that Fenton's deposition does not raise a issue of fact with regard to causation. DOT observes that Fenton did not perform an accident reconstruction and had no relevant knowledge of how the accident occurred except the information provided by Officer Roger Dundas, the investigating highway patrolman. In addition, the following exchange between Fenton and counsel for the County occurred:
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