Not Afraid v. Mumford

December 1 2015
DA 15-0093
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 15-0093
2015 MT 330CYRIL NOT AFRAID, JR.,
Plaintiff and Appellant,
v.
STATE OF MONTANA, COUNTY OF
YELLOWSTONE, CITY OF BILLINGS, et al.,
Defendants and Appellees,
______________________________
YELLOWSTONE COUNTY, and
CITY OF BILLINGS,
Third-Party Plaintiffs,
v.
JEREMY FLATMOUTH,
Third-Party Defendant,
and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV-12-0992
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Edward P. Moriarity, Shandor S. Badaruddin, Moriarity & Badaruddin,
PLLC, Missoula, Montana
For Appellees:
Scott Twito, Yellowstone County Attorney, Ryan Nordlund, Kevin Gillen,
Deputy Yellowstone County Attorneys, Billings, Montana
(for Yellowstone County)
Harlan B. Krogh, Crist, Krogh & Nord, LLC, Billings, Montana
(for City of Billings)
Calvin J. Stacey, Stacey & Funyak, Billings, Montana
(for State of Montana)
Penelope S. Strong, Attorney at Law, Billings, Montana
(for Jeremy Flatmouth)
Submitted on Briefs: October 7, 2015
Decided: December 1, 2015
Filed:
__________________________________________
Clerk
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Justice Beth Baker delivered the Opinion of the Court.
¶1 Cyril Not Afraid Jr. appeals the orders of the Thirteenth Judicial District Court,
Yellowstone County, granting summary judgment to the State of Montana, Yellowstone
County, and the City of Billings (collectively Defendants). We restate the issue on
appeal as follows:
Whether the District Court erred in granting summary judgment to the Defendants
on the ground that Not Afraid failed to produce evidence demonstrating that the
Defendants violated a standard of care.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Not Afraid was severely injured during a single vehicle accident in the early
morning hours of August 18, 2009. The vehicle, driven by Jeremy Flatmouth, was
traveling on Zimmerman Trail in Billings, Montana. Zimmerman Trail is a steep,
winding, narrow road with Jersey-type concrete barriers along the sharp curve where the
accident occurred. Flatmouth, who was intoxicated and speeding, struck the concrete
barriers while navigating the sharp curve—causing the vehicle to go over the barriers and
down a steep hillside. All of the occupants were ejected from the vehicle. One passenger
died and Not Afraid was paralyzed as a result of the accident. Flatmouth was convicted
of felony vehicular homicide.
¶4 Zimmerman Trail was a private road until it was deeded to Yellowstone County
(County) in 1938. In the mid-1980s, the County, or a contractor hired by the County,
installed the concrete barriers along the sharp curve where the accident took place. The
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County transferred its interest in Zimmerman Trail to the City of Billings (City) in 2005.
In November 2005, the State of Montana (State) entered into an agreement with the City
to carry out winter maintenance—such as plowing, sanding, ice control, and emergency
closures—on Zimmerman Trail. This agreement ended in July 2009, approximately one
month before the accident.
¶5 Nearly two years after the accident, Not Afraid retained two accident
reconstruction experts who visited the crash site and reviewed pertinent documents. The
experts’ four-page report estimated that the vehicle was traveling 45 miles per hour when
it first struck the concrete barriers. The posted speed limit on Zimmerman Trail is 25
miles per hour. The experts found that, in June 2011 when they went to the scene, the
concrete barriers were tilted approximately 15 degrees. Based on the concrete barriers’
tilt, the experts concluded that the barriers were improperly installed and therefore, “the
barriers were relatively ineffective in containing higher speed vehicles traveling around
the curve.”
¶6 Not Afraid subsequently filed two complaints—one against City Public Works
Director David Mumford, and one against the State, the County, and the City. The
complaint against Mumford alleged a products liability claim and both complaints
alleged negligence in the concrete barriers’ placement, installation, and maintenance.
The District Court consolidated the cases following Not Afraid’s unopposed motion.
¶7 The City retained its own accident reconstruction expert, who issued a 16-page
report in May 2014. The City’s expert determined that the vehicle was traveling between
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68 and 73 miles per hour when it struck the barriers and that the barriers were tilted
approximately 13 to 14 degrees at the time he inspected the scene in March 2014. The
City’s expert concluded that the barriers tilted as a result of the vehicle’s impact. His
conclusion was based on investigation photographs showing fresh disturbances in the
gravel and staining of the concrete at the base of the barriers, the barriers’ measured
geometry, and literature regarding barrier performance testing.
¶8 On August 6, 2014, the County moved for summary judgment on the ground that
it could not be liable for the condition of Zimmerman Trail because it had transferred
ownership of Zimmerman Trail to the City prior to the accident. On August 15, 2014,
Mumford moved for summary judgment on the grounds that he was immune from Not
Afraid’s tort claims under § 2-9-305(5), MCA, and that he could not be liable under the
product liability claims. On August 18, 2014, the State moved for summary judgment on
the ground that it did not own, maintain, or control Zimmerman Trail, and thus, Not
Afraid established no cognizable theory upon which to seek damages against the State.
On August 28, 2014, the City moved for summary judgment on the ground that Not
Afraid failed to establish that the City breached a duty of care, in part because Not Afraid
failed to establish the barriers’ condition at the time of the accident.
¶9 The District Court issued orders granting Mumford’s and the remaining
Defendants’ motions for summary judgment. Not Afraid appeals only the judgments in
favor of the government entities.
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STANDARD OF REVIEW
¶10 We review an entry of summary judgment de novo. Dubiel v. Mont. Dep’t of
Transp., 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment is
appropriate when the moving party demonstrates the absence of a genuine issue of
material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3);
Dubiel, ¶ 10. If this burden is met, “[t]he burden then shifts to the party opposing
summary judgment to ‘present substantial evidence essential to one or more elements of
its case to raise a genuine issue of material fact,’ or to show why the undisputed facts do
not entitle the moving party to judgment.” Weber v. State, 2015 MT 161, ¶ 12, 379
Mont. 388, 352 P.3d 8 (quoting Dollar Plus Stores, Inc. v. R-Mont. Assocs., L.P., 2009
MT 164, ¶ 27, 350 Mont. 476, 209 P.3d 216). The nonmoving party cannot satisfy its
burden with “mere denial, speculation, or conclusory assertions.” Phelps v. Frampton,
2007 MT 263, ¶ 16, 339 Mont. 330, 170 P.3d 474 (citations omitted).
DISCUSSION
¶11 Whether the District Court erred in granting summary judgment to the Defendants
on the ground that Not Afraid failed to produce evidence demonstrating that the
Defendants violated a standard of care.
¶12 As an initial matter, Not Afraid contends that the District Court improperly
applied the summary judgment standard because the court “wrongfully shifted the burden
of proof to Not Afraid.” Based on our review of the District Court’s orders, we disagree.
The court determined that the Defendants—the moving parties—met their initial burden
by demonstrating the absence of genuine issues of material fact regarding essential
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elements of Not Afraid’s claims. The court then shifted the burden to Not Afraid—the
party opposing summary judgment—to establish with substantial evidence that genuine
issues of material fact did exist regarding those essential elements of his claims. The
court, therefore, correctly applied the summary judgment standard. Weber, ¶ 12.
¶13 Not Afraid asserts negligence claims against all of the Defendants and therefore
must prove four essential elements as to each: “(1) the defendant owed the plaintiff a
legal duty, (2) the defendant breached that duty, (3) the breach was the actual and
proximate cause of an injury to the plaintiff, and (4) damages resulted.” Peterson v.
Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (citations omitted).
Although negligence actions ordinarily are inappropriate for summary judgment, “[i]t is
well established that if a plaintiff fails to offer proof of any one of the elements of a
negligence claim, the negligence action fails and summary judgment in favor of the
defendant is proper.” Dubiel, ¶ 12 (citing Peterson, ¶ 24; Hinkle ex rel. Hinkle v.
Shepherd Sch. Dist. #37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1230).
¶14 In granting the Defendants’ summary judgment motions, the District Court
concluded that Not Afraid failed to offer any proof regarding the standard of care by
which to measure the Defendants’ actions. Observing that Not Afraid did not produce
evidence of any standards applicable to concrete barriers in Montana, the court found that
Not Afraid failed to provide the requisite expert testimony relating to any standards the
Defendants may have violated in the concrete barriers’ maintenance, placement, or
installation. As such, the court held that Not Afraid failed to satisfy his burden of
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establishing with sufficient evidence—as opposed to mere denial, speculation, or
conclusory assertions—that there were issues of material fact regarding the Defendants’
breach of any duties of care.
¶15 Not Afraid claims in general fashion that the Defendants had a duty to properly
maintain, place, and install the barriers on Zimmerman Trail. He asserts that the
Defendants’ breach of those alleged duties resulted in his injuries. He contends that his
experts’ report, crash site photographs, and the County’s Road and Bridge Director’s
deposition testimony provide evidence from which a jury reasonably could infer
negligence in the concrete barriers’ placement, installation, and maintenance. The
Defendants respond that Not Afraid first must establish the standard of care by which to
measure their actions; “in other words, [he] must establish the degree of prudence,
attention, and caution [that the Defendants] must exercise in fulfilling that duty of care.”
Dubiel, ¶ 14 (citing Dalton v. Kalispell Reg’l Hosp., 256 Mont. 243, 247, 846 P.2d 960,
962 (1993)).
¶16 M. R. Evid. 702 provides: “If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert . . . may testify thereto in the form of an opinion or
otherwise.” Based in part on M. R. Evid. 702, we have held that expert testimony is
required to establish the standard of care in cases where professional duties may not be
apparent to a layperson. Dubiel, ¶ 18 (holding that plaintiff was required to present
expert testimony to establish the standard of care applicable to the Montana Department
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of Transportation’s decision-making process for closing a road); Dulaney v. State Farm
Fire & Cas. Ins. Co., 2014 MT 127, ¶ 21, 375 Mont. 117, 324 P.3d 1211 (holding that
plaintiff’s failure to obtain an expert witness resulted in an “insufficiency of proof
regarding [the] duty” of an insurance agent to advise his client on sufficient coverage);
Dayberry v. City of E. Helena, 2003 MT 321, ¶ 21, 318 Mont. 301, 80 P.3d 1218(holding that expert testimony was required to determine whether the depth of a
swimming pool was unreasonably dangerous for the diving board length in a case against
a swimming pool operator).
¶17 We recognized in Dubiel that governmental highway maintenance activities may
be outside the common experience of jurors. Dubiel, ¶¶ 15-18. The County’s Road and
Bridge Director testified that he relied on engineers in making decisions involving Jersey
barriers. The City acknowledges its duty to keep roadways in a reasonably safe condition
for ordinary use; that Flatmouth’s vehicle flipped over the barriers at an excessive rate of
speed, the City argues, does not evidence that the City breached its duty. We agree. Like
in Dubiel, we conclude that the placement, installation, and maintenance of concrete
barriers is “sufficiently beyond the common experiences” of a lay jury. Dubiel, ¶ 17.
Expert testimony would assist the trier of fact in determining whether the Defendants’
placement, installation, and maintenance of those barriers did not keep the roadway
reasonably safe for ordinary or foreseeable use. Not Afraid therefore was required to
produce expert testimony to establish the standard of care by which to measure the
Defendants’ actions.
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¶18 Not Afraid contends that his experts raised sufficient factual issues in this regard
to survive summary judgment. In support of his contention that the County breached its
duty of care by negligently installing the barriers, Not Afraid argues that his experts
“clearly demonstrated that [Not Afraid’s] injuries were caused by the improper
installation of the barriers. . . .” Not Afraid’s experts’ report, however, does not establish
by substantial evidence that a genuine issue of material fact exists regarding the County’s
breach of a duty of care. It simply concludes that the position in which the experts found
the barriers “necessarily reduced the barriers’ ability to hold vehicles to the inside of the
curve.” Not Afraid failed to provide any evidence regarding standards for concrete
barrier installation in Montana or the vehicle speeds that such barriers should be able to
withstand. Moreover, the experts’ finding that the barriers were tipped 15 degrees in
June 2011—nearly two years after the accident—is not sufficient to establish beyond
speculation or conclusory assertion that the barriers were placed and installed improperly
in the 1980s. Finally, Not Afraid’s references to the Road and Bridge Director’s
deposition testimony regarding barrier placement on other County roads is not substantial
evidence of a standard of care.1 Not Afraid has therefore failed to establish “the degree
of prudence, attention, and caution” that the County must have exercised in placing and
installing the concrete barriers twenty-five to thirty years ago. Dubiel, ¶ 14.
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Contrary to Not Afraid’s argument, the witness did not acknowledge erosion of the shoulder,
water build-up, or improper placement of the barriers in the stretch of roadway where the
incident occurred.
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¶19 Not Afraid’s next contention is that the City breached its duty of care by
improperly maintaining the concrete barriers. Not Afraid argues that his experts “clearly
demonstrated that [Not Afraid’s] injuries were caused by the . . . lack of maintenance of
[the] barriers.” Again, however, Not Afraid has offered no evidence regarding standards
for concrete barrier maintenance in Montana. In fact, Not Afraid’s experts did not
mention maintenance at all, let alone standards the City allegedly breached in the
concrete barriers’ maintenance. The experts’ opinions are confined to installation of the
barriers; the report is silent as to any alleged relationship between the City’s maintenance
and Not Afraid’s injuries. Not Afraid has failed to “establish the standard of care by
which to measure” the City’s maintenance of the barriers or what acts or omissions by the
City violated any such standard. Dubiel, ¶ 14. Not Afraid therefore has failed to
establish with substantial evidence that a genuine issue of material fact exists concerning
breach of the City’s duty of care in maintaining the concrete barriers.
¶20 Finally, Not Afraid argues that the State breached its duty of care by improperly
maintaining the concrete barriers. Not Afraid contends that the State had a duty to
maintain the barriers based on the State’s agreement with the City to conduct winter
maintenance on Zimmerman Trail. As Not Afraid concedes, the State’s maintenance
agreement was limited to winter road maintenance and ended “approximately one month
before the wreck occurred.” The agreement did not pertain to maintenance activity
involving the concrete barriers. The State’s expired winter maintenance agreement
cannot be the predicate for the State’s alleged duty to maintain the barriers.
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¶21 Not Afraid’s general assertions that his claim against the State nonetheless is
proper because the Defendants “did not set forth to the court how they provided
maintenance,” and that “one or all of [the Defendants] were providing maintenance” of
Zimmerman Trail do not satisfy his burden of establishing specific facts—as opposed to
speculation or conjecture—regarding breach of any duty of care by the State. Again, Not
Afraid’s experts’ conclusions discuss only installation of the barriers. Not Afraid has
therefore failed to offer proof that the State had a duty to maintain the barriers and that
the State breached its alleged duty.
¶22 In sum, Not Afraid’s summary judgment submissions suffer from “an
insufficiency of proof regarding” breach of the Defendants’ alleged duties to properly
place, install, and maintain the concrete barriers. Dulaney, ¶ 21. Not Afraid has
therefore failed to offer substantial evidence of one of the essential elements of his
negligence claim against each Defendant. Accordingly, the District Court did not err in
granting summary judgment to the Defendants.
CONCLUSION
¶23 The District Court correctly granted summary judgment to each of the Defendants
on the ground that Not Afraid failed to raise an issue of material fact regarding the breach
of their alleged duties of care. Accordingly, we affirm.
/S/ BETH BAKER
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We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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