362 P.3d 71
Mont.2015Background
- On August 18, 2009, an intoxicated, speeding driver (Jeremy Flatmouth) left Zimmerman Trail in Billings, struck Jersey-type concrete barriers at a sharp curve, the vehicle went over the barriers, one passenger died, and Cyril Not Afraid Jr. was paralyzed. Flatmouth was convicted of felony vehicular homicide.
- Zimmerman Trail was deeded to Yellowstone County in 1938; concrete barriers were installed in the mid-1980s. The County transferred the road to the City of Billings in 2005. The State had a winter-maintenance agreement with the City that ended in July 2009 (about one month before the accident).
- Not Afraid retained accident-reconstruction experts nearly two years after the crash; their report estimated 45 mph at first impact and observed barriers tilted ~15° in June 2011, concluding the barriers were improperly installed and ineffective at higher speeds.
- The City’s expert (inspection in March 2014) estimated impact speed 68–73 mph and measured barrier tilt ~13–14°, concluding the vehicle’s impact caused the tilt (based on fresh disturbances and staining).
- Not Afraid sued the State, County, City, and City Public Works Director (products liability and negligence for barrier placement/installation/maintenance). Defendants moved for summary judgment; the District Court granted judgment for the government defendants. Not Afraid appealed the government-entity judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Not Afraid produced evidence of the applicable standard of care to survive summary judgment on negligence | Not Afraid: experts’ report, photos, and deposition testimony raise factual issues about improper installation/maintenance sufficient to show breach | Defendants: plaintiff must produce expert evidence establishing the standard of care for barrier placement/installation/maintenance; mere photos or lay inference insufficient | Held: Plaintiff failed to produce expert evidence of the applicable standard of care; summary judgment proper |
| County liability for barrier installation (decades earlier) | Not Afraid: County negligently installed barriers in the 1980s causing injuries | County: transferred ownership to City in 2005; also plaintiff must show standard of care in 1980s via expert proof | Held: Plaintiff did not prove the standard of care or that the barriers were improperly installed at the time of installation; speculative evidence insufficient |
| City liability for barrier maintenance | Not Afraid: City failed to maintain barriers, causing the injury | City: City has duty to keep roads reasonably safe but plaintiff must show maintenance-standard breach by expert proof; City’s expert tied tilt to crash | Held: Plaintiff’s experts addressed installation only and offered no maintenance standards; no substantial evidence of maintenance breach |
| State liability based on prior winter-maintenance agreement | Not Afraid: State had a duty because it provided maintenance under an agreement with City | State: agreement limited to winter maintenance, ended about a month before the crash, and did not cover barrier maintenance | Held: Expired, limited winter-maintenance agreement did not create a duty to maintain the barriers; plaintiff offered no evidence the State had such a duty |
Key Cases Cited
- Dubiel v. Mont. Dep’t of Transp., 364 Mont. 175, 272 P.3d 66 (expert testimony required when governmental road decisions are beyond common experience)
- Weber v. State, 379 Mont. 388, 352 P.3d 8 (summary-judgment burden-shifting and requirement for substantial evidence to create genuine factual disputes)
- Dulaney v. State Farm Fire & Cas. Ins. Co., 375 Mont. 117, 324 P.3d 1211 (failure to present an expert can create an insufficiency of proof on duty element)
- Peterson v. Eichhorn, 344 Mont. 540, 189 P.3d 615 (elements of negligence claim)
- Dayberry v. City of E. Helena, 318 Mont. 301, 80 P.3d 1218 (expert testimony required where the relevant standard is not within lay understanding)