Yager v. Deane

• Decision Date: 16 July 1993
• Docket Number: No. 92-283,92-283
• Citation: 258 Mont. 453,853 P.2d 1214
• Parties: Elroy C. YAGER and Barbara A. Yager, Plaintiffs and Appellants, v. Rolland DEANE, a/k/a Roland E. Deane, Jr., Defendant and Appellant, and The State of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1214

853 P.2d 1214

258 Mont. 453

Elroy C. YAGER and Barbara A. Yager, Plaintiffs and Appellants, v. Rolland DEANE, a/k/a Roland E. Deane, Jr., Defendant and Appellant and The State of Montana, Defendant and Respondent.

No. 92-283.

Supreme Court of Montana.

Submitted on Briefs Oct. 29, 1992.

Decided May 27, 1993.

Rehearing Denied July 16, 1993.

J. David Penwell, Bozeman, and John L. Weyland, Wayzata, MN, for plaintiffs and appellants, Yagers.

James M. Kommers and Daniel J. Roth, James M. Kommers and Associates, Bozeman, for defendant and appellant Deane.

Allen B. Chronister, Chronister, Driscoll & Moreen, Kelly O'Sullivan, Agency Legal Services Bureau, Helena, for defendant and respondent.

GRAY, Justice.

Plaintiffs Elroy and Barbara Yager and defendant Rolland Deane appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment in favor of the State of Montana. We affirm.

The sole issue on appeal is whether the District Court erred in granting summary judgment on the basis that the State of Montana had no duty to prevent livestock from wandering onto the interstate highway.

The pertinent facts of the case are undisputed. On March 22, 1989, at approximately 1:30 a.m., Elroy Yager (Yager) was driving a semi-tractor and trailer in the westbound lane of Interstate 90 (I-90). Yager's vehicle struck a horse, owned by defendant Rolland Deane (Deane), that had wandered onto the highway near the Jackson Creek interchange east of Bozeman. As a result of the impact, the semi-tractor and trailer went through a guardrail and rolled down an embankment, injuring Yager.

On March 29, 1991, Elroy and Barbara Yager (the Yagers) filed suit against Deane and the State of Montana (the State). They alleged that Deane negligently allowed his horse to wander onto I-90 and that the State negligently maintained a fence and cattleguard, allowing the horse access to I-90. Elroy Yager sought damages for permanent bodily injury, medical expenses and lost wages. Barbara Yager sought damages On April 24, 1992, the District Court granted the State's motion for summary judgment. The District Court determined that actionable negligence could not lie against the State absent a legal duty to erect or maintain a fence or to keep the interstate highway free of livestock. It concluded that no such duty existed. The Yagers and Deane appeal.

                for loss of consortium.   Deane and the State filed cross-claims seeking indemnity and contribution from each other
                

Did the District Court err in granting summary judgment on the basis that the State of Montana had no duty to prevent livestock from wandering onto the interstate highway?

A district court properly grants summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty; the existence of a legal duty is a question of law to be determined by the district court. Nautilus Insurance Co. v. First National Insurance (1992), 254 Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802, 803. The question before us, as it was before the District Court, is whether the State has a legal duty on which appellants can base a negligence claim. We examine, in turn, the sources which appellants contend impose a duty on the State to prevent livestock from wandering onto I-90 where the accident occurred.

Statutory Basis

The District Court considered whether §§ 60-7-103 and 60-5-105(1), MCA, required the State to prevent livestock from wandering onto the highway. Section 60-7-103, MCA, provides:

Department to fence right-of-way through open range. (1) The department shall fence the right-of-way of any part of the state highway system that is constructed or reconstructed after July 1, 1969, through open range where livestock present a hazard to the safety of the motorist. Where a fence is constructed, adequate stock gates or stock passes, as necessary, shall be provided to make land on either side of the highway usable for livestock purposes.

(2) The department shall erect a fence in every high-hazard area as promptly as possible, and the cost of such construction is an expenditure for the enforcement of federal-aid highway safety programs. Gates, stock underpasses, water facilities, and cattle guards may be installed where necessary to make the land on either side of the highway usable for livestock purposes or where a public right-of-way intersects the state highway.

The court determined that the area was not "open range" within the meaning of § 60-7-102(1), MCA, because it lies within a horse herd district. Furthermore, the segment of I-90 where the accident occurred is not a high hazard area as defined in § 60-7-102(2), MCA; the highway is not part of the primary highway system nor has the segment been designated as a high hazard area. As a result, the court determined that § 60-7-103, MCA, did not require the State to erect a fence along the interstate.

Section 60-5-105(1), MCA, provides in pertinent part:

Design of controlled-access facility--entrance and exit restricted. (1) Each highway authority may so design any controlled-access facility and so regulate, restrict, or prohibit access as to best serve the traffic for which the facility is intended.

The District Court determined that this provision was permissive, and therefore, did not impose a duty on the State.

Appellants do not contend that the District Court erred in construing and applying §§ 60-7-103 and 60-5-105(1), MCA. Nor do appellants cite other statutory authority establishing a duty by the State to prevent livestock from wandering onto the interstate.

Deane contends, however, that once the State voluntarily constructs a fence along the highway right-of-way, as a controlled access facility under § 60-5-105(1), MCA, the State is required to exercise ordinary care in its construction and maintenance. The record reflects that the State did not "voluntarily" construct the fence. Rather, the State erected the fence along the interstate highway right-of-way as a precondition for receiving federal funds.

We have previously stated that § 60-5-105(1), MCA, provides that the State may--not shall--restrict or prohibit access. Big Man v. State (1981), 192 Mont. 29, 36, 626 P.2d 235, 239. In Big Man, we determined that the statute's permissive language did not require, or impose a duty on, the State to erect a fence to prevent access by pedestrians to a controlled access highway. While the specific facts on which our determination in Big Man was based are distinguishable, no provision in the statute imposes a duty to erect a fence for any purpose.

Deane cites Stewart v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694, to support his position that once the State constructs a fence under § 60-5-105, MCA, it owes a duty to the motoring public, who rely on the State's construction and maintenance of the fence.

"[W]here a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of negligent failure so to perform it."

Stewart, 55 P.2d at 696, quoting 45 C.J. 650.

Even if the State's construction of the fence could be characterized as a discharge of Deane's duty to prevent the horse from wandering onto the highway, the rationale in Stewart provides no basis for imposing a duty on the State. Deane has not alleged or in any way established that in driving on the highway, Yager relied on the State's construction and maintenance of the fence to prevent livestock from gaining access. We conclude that §§ 60-7-103 and 60-5-105(1), MCA, do not impose a duty on the State to maintain the fence or prevent livestock from wandering onto the highway.

The State's General Duty to Keep Highways Reasonably Safe

The appellants did not assert before the District Court that the State's general duty to keep highways reasonably safe imposed a duty on the State relative to livestock. On appeal, however, they urge us to extend the State's general duty to include a specific duty requiring the State to prevent livestock from wandering onto the highway. Appellants rely on a number of sources for the State's general duty. They contend that the State is required to maintain the fence along the right-of-way under its general duty to keep the highways reasonably safe, citing Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The Yagers also base the State's general duty on its ownership of the right-of-way. They contend that property owners, including governmental entities, have a duty to maintain their property in a reasonably safe condition, relying on Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, and Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. Additionally, Deane relies on State ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201, as a source for the general duty.

While we do not disagree that the State has a general duty to keep highways in a reasonably safe condition, we decline to expand that duty to impose a new duty to prevent livestock from reaching interstate highways. Montana has been, and continues to be, an open range state. See State ex rel. Martin v. Finley (1987), 227 Mont. 242, 738 P.2d 497. Under the open range doctrine, neither the State nor livestock owners have a duty to prevent livestock from wandering onto roadways. However, due to the increase in motor travel and in an effort to protect the motoring public, the Montana legislature...