THE CRASH

About 10:45 p.m. on August 21, 1991, Robert Lynds traveled southbound on U.S. Highway 93 between Darby and Hamilton, Montana. He was driving a rented motor home at 50 to 55 miles per hour on dry road on a clear, dark night. According to the appellate court majority opinion, a moose weighing 800 to 900 pounds walked onto the highway five to eight feet in front of the motor home. Lynds' vehicle struck the moose; Lynds regained full control of the vehicle some 300 to 600 feet down the road and stopped. Since hitting the moose pushed in the radiator of the motor home, steam or smoke filled the vehicle. By the time Lynds helped his family out of the motor home, he saw headlights behind them at a strange angle.

The headlights were from a vehicle driven by Shirley Murdock, who had been traveling on Highway 93 in the opposite direction (northbound) at 25 to 30 miles per hour. She had just exited a private driveway one-tenth of a mile south of the place where Lynds hit the moose. Murdock carried four passengers: her niece, her two children, and Edith White. Murdock testified that by the time she saw the moose lying in her lane, it was about two car lengths ahead of her vehicle. She said she turned to avoid hitting the moose, but the driver's side tires passed over the animal. The vehicle rolled, resulting in White's injuries.

Both motorists said they were driving with low-beam headlights at the time they hit the moose.

LOWER COURT DECISION

Arguing before the District Court, the Whites claimed negligence on the parts of the drivers and the State of Montana was the proximate cause of the crash. Lynds, Murdock, and the State countered that "undisputed material facts show[ed] that both crashes were unavoidable 'acts of God' and that they were not liable as a matter of law." Evidence came before the court as depositions from Lynds, Murdock, Edith White, the investigating highway patrol officer, and Montana Highway Department employees.

The District Court concluded the Whites' evidence was merely "speculative conjecture" and did not raise material questions of fact. The court felt that no evidence showed the drivers failed in their duty to do as any reasonable person would do under the circumstances. Also, the court found no evidence that the State's actions were a proximate cause of the crash and resulting injuries. Consequently, the lower court dismissed the claims and allowed summary judgment for the defendants.

APPELLATE COURT DECISION

The Supreme Court prefaced its review of this case with a question: "Do disputed issues of material fact preclude summary judgment?" As a guideline to answering the question, the court proposed, "Summary judgment is proper 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."

Citing U.S. Fidelity and Guar. Co. v. Camp ((1992), 253 Mont. 64, 68, 831 P.2d 586, 589), the appellate court enumerated four elements required to prove negligence: "(1) existence of a duty; (2) breach of the duty; (3) causation; and (4) damages." Failing one of these elements, the entire claim fails.

Concerning negligence on the parts of Lynds and Murdock, the plaintiffs argued they had presented evidence creating a material question of fact. Whites claimed to have shown that both drivers should have seen the moose sooner and Lynds should have warned Murdock of the danger. In support of their claim, the plaintiffs cited wording from Payne v. Sorenson ((1979), 183 Mont. 323, 326, 599 P.2d 362, 364) which the court recently quoted in Okland v. Wolf ((1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306):

Under Montana law, a motorist has a duty to look not only straight ahead but laterally ahead as well to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he [or she] could see by looking, and he [or she] will not be permitted to escape the penalty of his [or her] negligence by saying that he [or she] did not see that which was in plain view.

Giving reasons why neither Payne nor Okland was an appropriate precedent for the present case, the appellate court concluded that the Whites had not presented evidence supporting their argument that Lynds should have seen the moose sooner. Lynds did not receive a ticket nor did the investigating officer conclude Lynds could have kept from hitting the moose. The evidence did not show Lynds was inattentive in a way that caused him to hit a moose, given the moose appeared directly in front of him on a dark highway.

The appellate court also concluded evidence supported the lower court's judgment that Lynds did not have time to warn Murdock of the danger the moose's body presented. Moreover, testimony revealed that it took a truck to drag the moose off the road. Lynds would not have been able to get the moose out of Murdock's path even if he had had time to do so.

In the case against Murdock, the Supreme Court concluded the plaintiffs' evidence depended on "speculative, fanciful, or conclusory statements" that were insufficient to establish a question of fact (Sprunk v. First Bank System ((1992), 252 Mont. 463, 466, 830 P.2d 103, 105). Since the evidence did not convince the court that Murdock acted other than a reasonable person should have acted under the circumstances, the District Court's summary judgment for Murdock held.

Concerning the final defendant, the State of Montana, the Whites argued the lack of a moose-crossing sign on this section of Highway 93 was causal in the crash. The court responded that the evidence did not show moose crossed the road regularly in this area. Moreover, moose-crossing signs posted near a slough several miles away were repeatedly stolen; therefore, when the State drained the slough and rebuilt the road, it decided not to replace the signs. The court referred to Lynds' testimony that he did not feel passing a moose-crossing sign would have resulted in a change in his driving and, therefore, allowed him to see the moose sooner and avoid the crash. Murdock came onto the highway south of where signs had been posted, so she would not have seen the signs had they still been there. The appellate court agreed with the lower court that the State was not shown negligent.

Finding no evidence to prove any of the defendants negligent, the Supreme Court affirmed the District Court's summary judgments in all three cases.

DISSENTING OPINION

Introducing his dissenting opinion, Justice Trieweiler wrote:

In concluding whether there are issues of material fact, the role of the district court and this Court requires more than simply construing the testimony of the moving party in the manner most favorable to that party. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. (Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615, P.2d 898)

Calling this "a classic example of why issues of negligence are not normally susceptible to summary judgment," Justice Trieweiler referred to Duchesneau v. Silver Bow County ((1971), 158 Mont. 369, 377, 492 P.2d 926, 931). To support his dissenting opinion, he reexamined the White's evidence.

Citing Montana law used in Payne and quoted above, the justice argued that the mere fact that Lynds and Murdock claimed not to have seen a large moose in their path until it was too late to avoid it did not excuse their hitting the animal and, arguably, causing Edith White's injuries. Since Montana law precludes escaping "the penalty of his [or her] negligence by saying that he [or she] did not see that which was in plain view," Trieweiler examined whether the moose should have been "in plain view" of these motorists.

The justice hinged part of his interpretation of the evidence on laws applying to the use of high-beam headlights. According to Montana law, vehicles using roadways between sunset and sunrise must have high-beam headlights that illuminate the road for least 350 feet. Low-beam headlights must illuminate at least 100 feet. The law requires drivers to use high beams unless following or approaching another vehicle (Section 61- 9-221(2), MCA). Lynds and Murdock both testified they remembered driving with low- beam headlights when they hit the moose, although neither remembered seeing approaching or following vehicles.

In Lynds' case, the majority concluded the moose entered the highway five to eight feet in front of the motor home. Trieweiler argued, however, that Lynds' testimony only indicated he did not see the moose until it was five to eight feet away. According to Trieweiler's interpretation:

Only one of two situations could have occurred prior to Lynds' collision with the moose. Either the moose was in his lane of travel all along and he should have been aware of its presence at a distance of 350 feet away and been able to make some effort to avoid it, or it approached the highway from an area he was obligated to observe but which he evidently did not observe. In either event, he failed to comply with his obligation under Montana law, as set forth in our Payne decision, to observe the roadway ahead of him and see that which was in plain view.

Lynds also claimed to have turned on his emergency flashing lights after he hit the moose. Murdock testified that, although she drove by the motor home before she hit the moose, she did not see flashing lights. Further, she said she felt she would have slowed had she seen flashing lights.

Murdock said she did not see the moose until it was about 20 feet in front of her vehicle. Justice Trieweiler felt that if she had been appropriately observant and using her high beams (as the law requires), Murdock should have seen the moose from 350 feet. Even with low beams, she should have seen the moose from 100 feet. On this wide, paved highway, Murdock should have been able to avoid hitting a prone moose that she saw from 100 feet away when she was traveling at 25 to 30 miles per hour.

Given these interpretations, the plaintiffs' evidence raised issues of fact concerning whether Lynds and Murdock were responsibly observant in seeing the moose when they did and whether they were negligent in their driving responses once they did observe the moose.

In addition, Trieweiler countered the majority's conclusion that Lynds' not getting a ticket supported his appeal for summary judgment. The dissenting justice pointed out that the investigating officer did ticket Lynds--for having three passengers in the motor home who were not wearing seatbelts. Moreover, since the investigating officer was not present when the crash happened, Trieweiler rejected relying on his testimony or his decisions regarding citations to learn what happened that night.

Justice Trieweiler also dissented from the majority's affirmation of summary judgment for the State. Testimony established that the Highway Department knew of the moose hazard near this area as far back as 1987; they installed moose-crossing signs at that time. When they reconstructed the highway in 1991 and drained a slough, the contract called for the installation of moose-crossing signs. Trieweiler wrote, "The fact that the signs were stolen did not relieve the Highway Department of the duty to maintain its highway by putting them back up again." The District Court and the majority opinion of the Supreme Court, however, did not take up the question of the State's duty. They granted summary judgment because of their interpretation that testimony showed the presence of moose-crossing signs would not have prevented the crash.

When Trieweiler examined the testimony, he came to a different conclusion. He cited Lynds' testimony that he slows when he sees deer-crossing signs. Lynds testified that had he seen a moose-crossing sign he "probably would have driven a little bit more defensively . . . but it wasn't there." Lynds also said he would have been using high- beam headlights had he seen a moose-crossing sign. Clearly, had Lynds not hit the moose, there would have been no prone moose for Murdock to hit.

Joined by Justice Hunt, Justice Trieweiler summarized:

Considering these facts it is impossible to conclude that there are not at least inferences from the testimony which create factual issues regarding the subject of causation. . . . [T]he majority has no business substituting its judgment regarding the merits of plaintiffs' claim for that of the jury.