Whitfield v. Therriault Corp.

• Decision Date: 15 December 1987
• Docket Number: No. 87-237,87-237
• Citation: 745 P.2d 1126,229 Mont. 195,44 St.Rep. 1896
• Parties: Jean M. WHITFIELD; John F. Whitfield; Anne M. Whitfield; Jean M. Whitfield, as Guardian for Steven C. Whitfield, and Carol E. Whitfield; and the Estate of Harold F. Whitfield, Jr., Deceased, Plaintiffs and Appellants, v. THERRIAULT CORP., a Montana corp., a/k/a Therriault Ranch, a/k/a Therriault Creek Ranch; and the State of Montana, Defendants and Respondents. THERRIAULT CORPORATION, a Montana corporation, Defendant and Third-Party Plaintiff, v. The STATE of Montana, Defendant and Third-Party Defendant.
• Court: Montana Supreme Court

Page 1126

745 P.2d 1126

229 Mont. 195

Jean M. WHITFIELD; John F. Whitfield; Anne M. Whitfield;

Jean M. Whitfield, as Guardian for Steven C. Whitfield, and Carol E. Whitfield; and the Estate of Harold F. Whitfield, Jr., Deceased, Plaintiffs and Appellants, v. THERRIAULT CORP., a Montana corp., a/k/a Therriault Ranch, a/k/a Therriault Creek Ranch; and the State of

Montana, Defendants and Respondents.

THERRIAULT CORPORATION, a Montana corporation, Defendant and Third-Party Plaintiff, v. The STATE of Montana, Defendant and Third-Party Defendant.

No. 87-237.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 1987.

Decided Nov. 19, 1987.

Rehearing Denied Dec. 15, 1987.

Warden, Christiansen, Johnson & Berg, Thomas R. Bostock, Kalispell, for plaintiffs and appellants.

Chris D. Tweeten, Agency Legal Services, Helena, and S.Y. Larrick, Kalispell, for defendants and respondents.

WEBER, Justice.

The District Court for the Nineteenth Judicial District, Lincoln County, dismissed plaintiffs' claim for wrongful death against the State of Montana (State), and granted the State summary judgment. Plaintiffs appeal. We affirm.

The issue is whether the District Court erred in granting summary judgment in favor of the State.

Harold F. Whitfield, Jr., died on October 29, 1984, as a result of injuries sustained in an automobile accident which occurred on October 23, 1984. The highway patrol accident report indicates that on the morning of the accident, Mr. Whitfield was traveling north on U.S. Highway 93. At approximately 7:30 a.m., he apparently encountered two horses on the roadway about two miles south of Eureka, Montana. Mr. Whitfield's automobile collided with one of the horses and Mr. Whitfield was fatally injured.

Mr. Whitfield's wife and children brought this wrongful death action against the party alleged responsible for the loose horses, Therriault Corporation (Therriault). Plaintiffs have settled with Therriault, and Therriault is not a party to this appeal. Before settling with plaintiffs, Therriault filed a third party complaint seeking indemnity and contribution from the State. The plaintiffs amended their complaint to add a claim against the State. The claim against the State is based upon a highway department maintenance employee's observation of two horses in the roadway prior to the accident.

Hubert McKenzie, the highway department employee, testified in a deposition that he saw the horses at approximately 5:15 a.m. while checking road conditions from Eureka to Stryker in a highway department dump truck. He said he followed the horses down the road for approximately one-half mile before he was able to pass them as they turned off on an approach road. He did not make any report of the horses being loose, but did note in his logbook that he had seen them. Mr. McKenzie testified that he proceeded to Stryker, turned around and returned to Eureka, arriving at approximately 7:00 a.m. Mr. McKenzie stated that he did not see the horses on his return trip.

Janice Pinson, who lives in a house near the accident scene, testified in a deposition that she observed Mr. McKenzie's encounter with the horses. She stated that she saw a highway department dump truck "chase" the horses between 6:30 a.m. and 7:15 a.m., and that she was not sure of the exact time, but that the sun had not fully risen.

The plaintiffs contend that Mr. McKenzie failed to exercise reasonable care after discovering the horses on Highway 93. They argue that Mr. McKenzie breached a duty owed to Mr. Whitfield by failing to clear the horses from the roadway or to warn oncoming motorists. Plaintiffs also contend that the discrepancy between Mr. McKenzie's testimony and the testimony of Mrs. Pinson as to the time Mr. McKenzie first encountered the horses constitutes a material issue of fact and that summary judgment was improperly granted.

Did the District Court err in granting summary judgment in favor of the State?

Rule 56, M.R.Civ.P., allows a court to enter summary judgment when the pleadings, depositions, and other documents on file, together with any affidavits filed, demonstrate no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. In reviewing a summary judgment, this Court is free to examine the entire case and reach a conclusion in accordance with its...