Lopez v. Butte Silver Bow , 2015 MT 99N ( 2015 )

April 7 2015
DA 14-0548
Case Number: DA 14-0548
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 99N
REGINA LOPEZ and ROBERT LOPEZ,
Plaintiffs and Appellants,
v.
BUTTE SILVER BOW COUNTY,
Defendant and Appellee.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte/Silver Bow, Cause No. DV 12-114
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Jeffrey W. Dahood, Knight & Dahood, Anaconda, Montana
For Appellee:
Emma R. Armstrong; Brendon J. Rohan, Poore, Roth & Robinson,
Butte, Montana
Submitted on Briefs: March 11, 2015
Decided: April 7, 2015
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 On January 15, 2011, Regina and Robert Lopez were traveling by bus through
Butte, bound for Arizona. The bus stopped at the Butte bus depot after dark. Butte Silver
Bow County owns the bus depot. Harrison Avenue, a four-lane street maintained by the
Montana Department of Transportation, separates the bus depot from a supermarket. To
get to the supermarket, Regina began jaywalking across Harrison Avenue, but she was
struck by a vehicle while crossing the second lane. There is a pedestrian crosswalk
approximately one hundred feet from where the accident occurred.
¶3 The Lopezes sued but eventually dismissed their complaint against the driver of
the vehicle that struck Regina. The Lopezes also sued the County for negligence. The
Lopezes allege that the County had a duty to warn them of the dangers of crossing
Harrison Avenue, and that the County breached that duty. The Second Judicial District
Court awarded summary judgment to the County because it concluded that the County
did not owe the Lopezes the claimed duty. The Lopezes appeal.
¶4 We review a District Court’s award of summary judgment de novo. Albert v. City
of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is
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appropriate when the moving party demonstrates an absence of a genuine issue of
material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3);
Albert, ¶ 15.
¶5 Duty is a question of law and is an essential element of a negligence action. Poole
v. Poole, 2000 MT 117, ¶ 19, 299 Mont. 435, 1 P.3d 936. “As a general rule, there is no
duty to protect others against harm from third persons.” Lopez v. Great Falls
Pre-Release Servs., 1999 MT 199, ¶ 24, 295 Mont. 416, 986 P.2d 1081 (citations
omitted). The Lopezes seek to establish a duty through the rule that a landowner may
have a duty to warn others about dangerous conditions on her property. Richardson v.
Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 755-56 (1997). But a
landowner’s duty to warn of dangerous conditions on her property generally is confined
to her own property. See Richardson, 286 Mont. at 321, 950 P.2d at 755-56. The County
was not responsible for Harrison Avenue, which is maintained by the Department of
Transportation in the area where the accident occurred.
¶6 Acknowledging the general rule that an occupier of land does not have a duty of
care “beyond that which he or she possesses or controls,” the Lopezes cite an exception
applicable under circumstances “when an obscured danger exists on land directly
appurtenant to the land owned or occupied and is near a place where invitees enter and
exit the landowner’s or occupier’s property.” 62 Am. Jur. 2d Premises Liability § 12
(1990) (emphasis added). This Court likewise has held that a landowner’s duty of care
may extend to adjacent property in certain circumstances. Limberhand v. Big Ditch Co.,
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218 Mont. 132, 706 P.2d 491 (1985); Piedalue v. Clinton Elementary Sch. Dist. No. 32,
214 Mont. 99, 692 P.2d 20 (1984). The Lopezes do not benefit from this exception. The
danger of jaywalking across a four-lane road after dark is not obscured—it is apparent.
See Willden v. Neuman, 2008 MT 236, ¶ 32, 344 Mont. 407, 189 P.3d 610 (landowner
did not have a duty with regard to an adjacent property where the danger was “an open
and obvious hazard”).
¶7 Because the County did not have a duty to warn the Lopezes about the dangers of
jaywalking across Harrison Avenue, the District Court correctly determined that, as a
matter of law, the County was not negligent.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, this case presents a question controlled by settled principles of negligence law.
The District Court’s interpretation and application of the law were correct. We affirm.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE
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