*1 106 FAUERSO, E. STEVEN Appellant, Plaintiff COMPANY, Defendant
MARONICK CONSTRUCTION Respondent. No. 82-256. Nov. 1982. Submitted Decided March 1983. Opinion
Dissenting 1983. Rehearing April 14, 1983. Denied P.2d *2 Warden, Christiansen, & Berg, Gary Johnson Kalispell, Christiansen argued and Todd Hammer Kalispell, argued, for plaintiff and appellant.
Boone, Haddon, Missoula, & Karlberg Randy Cox argued, Missoula, respondent. for defendant and
MR. JUSTICE SHEEHY opinion delivered the Court.
Steven E. Fauerso appeals summary judgment granted against him in of favor Maronick Construction District, in the First Judicial Lewis and Clark County.
This action arose out of the collision of a 1979 Pontiac Am, Firebird Trans against in retaining concrete wall the early 15,1980, morning hours of parking in the of lot Helena, the in Deaconess Home Montana. The automobile by was driven Derrickson, party Jeff this action. Passengers in the vehicle were Matt Williams and the plaintiff, who at asleep the time of the in collision was the back plaintiff seat. The in severely injured was the crash and is now described as a quadriplegic. car, Montana, in parties
The Kalispell, all residents of had party. They party come to Helena to attend a left the appellant asleep the automobile and the fell back driver, Derrickson, seat. The drove around Helena for period unknown on point, of time. At some he turned south Street, up Lamborn hill. proceeded Street and Lamborn street, where the collision occurred ter- is a dead-end minates lot of the Deaconess Home where parking concrete wall is Derrickson drove the located. Am into the wall. Trans City of Helena and suit brought against
Fauerso been Company. Maronick had Maronick Construction by of SID a contract for the construction awarded Helena, 23, project The called January of on 1979. City the south end of Lam- curbing on paving and installation terminus, cul-de-sac, which Street, including the born lot for Deaconess Home. con- parking serves as the May in late completed struction had with the last contact in- project 1979. The SID project was on June on or before accepted City Helena spected June action, partial reached a set
In
Court
Fauerso
the District
Helena,
City
party
and that
of his
with the
tlement
claim
of coun
plaintiff’s
by stipulation
action
was dismissed
summary judg
motion,
granted
Court
sel. On
the District
estab
nonliability
rule of
of Maronick
ment
favor
*3
(1932),
Schweiger
in Ulmen
by this Court
lished
Ulmen,
In
this Court stated:
Fauerso provisions also contends that certain of the SID City contract between the impose Helena and Maronick contractual upon duties Maronick of which Fauerso was party effect a third beneficiary. case, deciding
In we do not reach the issues raised by Fauerso on this for appeal the reason that our examina tion of the record from the District Court does not show genuine that a issue of fact upon material exists which the liability of predicated. Maronick to could Fauerso be Rule 56, M.R.Civ.P. single issue of upon fact which Fauerso contends he
may liability pin injuries Fauerso’s on contention took down or removed a “dead-end street” that would have been on situated Derrickson’s side he drove right-hand as Lamborn, on south sign being block half or more north of wall into which Derrickson’s automo- bile collided. pertaining
The evidence to the dead-end street comes from two depositions Court, one taken the District foreman, Maronick’s James Wildish and another McKerrow, M.D., E. Loren resides in a abutting who house project. SID Wildish testified: Okay. So then would downhill or the start uphill uphill start or the Lam- downhill on —did born when you backfilled the west side of the street? *4 Well, in here there started with the laborers here because sign that enough alley wasn’t room between this and this sitting there. “Q. sign you What are about? A. This dead-end talking there. sign? Was there dead-end “Q. What dead-end A. there. Dead end street there? alley, up on On side of the
“Q. was that? A. this Where alley. upper side alley? Oh, I know. Ten feet. A. don’t “Q. How far Ten fifteen feet. your A. I remember. don’t
“Q. How far curb? — — Usually about “Q. And A. sit you particular asking you one, if have a “Q. I am IA. don’t remember. recollection. you say Okay. you sign in where
“Q. Do want to draw Okay. please? a little was, You want to Make a circle. sign? sign, please? A. Now what color was arrow that I don’t remember. A. Kind of what?
“Q. kind was it? What of construction A. It be or metal? would “Q. Construction was it? Wooden metal. specific you No,A. Ibut think recollection?
“Q. Do have a it metal. give you Can me a it from curb?
“Q. And far was how please? A. I know. inches, wouldn’t in feet or distance talking A. No. “Q. Are ten feet? we you anything room “Q. relate it Five feet? Can say example? top, A. I it would would here? This table from the curb. be two or three feet Okay. you specific of that? recollection “Q. Now do have shoveling there. around the remember the laborers Serati, Nelson. Joe Martin “Q. the laborers? A. Who were operator. Joe Serati is loader type post you on which this
“Q. Do remember A. I remember. was located? don’t "... pro- any the construction
“Q. Wildish, time Mr. any signs? ject No.A. did move sign? A. No. “Q. move at all this dead-end Did "... equipment operators any your or some of Could
your people sign? that A. moved No. Why you say do
“Q. A. I that? Because didn’t tell them to.” deposition
Dr. McKerrow testified in to the dead-end street as follows: you any markings, “Q. Are familiar with of the street markings, present that were in that 14th area March and four-way stop sign Well, 15th of 1980? A. there is a house, Winne and Lamborn of our front and behind our marking just house there had been a dead-end street south alley righthand going south. on the side of Lamborn "... night “Q. Was that dead-end there 1980? IA. am not sure exact dates. It was taken Special down when the street was widened and the Im provement all, District in the curbs and street and I previous any believe the any specific fall. I do have recollection of put up
date when it was other than sometime spring, following spring. in the that "... you
“Q. You said that knew that the dead-end during removed course when construction improved; you anyone sign? street was did see remove that actually just just No, A. I did not it see removed. It was —I seeing laying my recall it there on the corner of lots there during the time the curbs and construction — put in. "... were you McKerrow,
“Q. it, Dr. as I understand did not see this anyone? No, I dead-end taken down A. first was away lying aware was when it was there several feet place. originally in where it had been you “Q. So don’t know took it A. who down? No. say specifically
“Q. are down You not able to when it came except you point up knew in time it was at some that you Right. it A. later saw down? long us, Doctor,
“Q. Tell how the interval was between upright in an you having seen the time that last recall you lying first it on the time that saw position and the before, in rela- No, just A. as I had said ground? other than construction, up until the con- think it was tion to the then removed at that time. begun struction down, actually see come “Q. But didn’t Right. down? A. know how it came don’t Right.” who removed it? Nor only evidence testimony is Dr. McKerrow’s any the construction work way record which connects *6 of to the dead-end by Maronick the removal done testimony perusal of his discloses sign. Yet a careful testimony directly is connected specula sign except the merest with the removal of the escape summary may be judgment to tion. Proof sufficient evidence, circumstantial made from drawn from inferences Brandenburger Toyota Motor Sales (1973), 162 Mont. v. only 506, 268, spec the inference is P.2d but not where 513 however, not a suffi is Speculation, ulation or conjecture. issue of material genuine cient raise a basis which to 38, 42, (1976), 550 fact. In Barich v. Ottenstror 170 Mont. 397, 395, P.2d we said: Procedure, 56, Civil
“In of Montana Rules of light Rule a summary judgment on party opposing a motion for present fact must issue material record which reveals no Conclusory speculative a nature. facts of substantial genuine of mate- issue statements are insufficient raise rial fact.” Schlitz Mustang Beverage Company, Joseph Inc.
See 1; 243, 246, Company (1973), 511 P.2d Brewing 162 Mont. (1979), 182 Mont. Gypsum v. Johnson National 1188, P.2d by the summary judgment granted We therefore affirm the to dis- record fails upon the basis that District Court the liabil- upon fact close issue material genuine predicated. ity of Maronick could be HAR- and JUSTICES MR. CHIEF HASWELL JUSTICE RISON, DALY and WEBER concur.
MR. JUSTICES MORRISON and SHEA dissent. MR. MORRISON, JUSTICE dissenting: respectfully dissent. The issue case whether the rule articulated Schwieger (1932), Ulmen v. 92 Mont. 12 P.2d should be adhered to in Montana. That rule is stated cor rectly and, majority in opinion paraphrased, the rule sulates an independent liability contractor occurring after the completed contractor has work and returned con trol to the Summary owner. de judgment granted to fendant because rule was still existence and bound my trial court. In opinion the rule should be discarded and the modern rule developed which allows for the liabil ity of independent contractor continue for reasona period ble of time. In this case continued one year pursuant to the terms contract.
The majority and, evaded the issue raised the parties instead, made following factual determination dispositive: single issue of upon fact which Fauerso he contends
may pin liability for injuries Fauerso’s on Maronick is the *7 contention that through employees, its took down or removed ‘dead-end street’ that would have been situated on right-hand Derrickson’s side as he drove Lamborn, south on half being block or more north into wall which Derrickson’s automo- bile collided.” required defendant,
Plaintiff was not acting to show that contrary, sign. took down the On the specifically imposed obligation contract a far greater 5.11, the defendant. Section Preservation of Private and Property, provided Public in part as follows: for responsible preservation Contractor shall be public of all private and to the property, along adjacent project contemplated contract, including without curbs, . .” limitation, trees, fences, posts, all structures. taken record that was There is evidence whether It makes no difference during down construction. im- The contract removed the defendant. defendant, charging obligation upon the posed an absolute along and preserving signs responsibility defendant with adjacent the project. to factual issue testimony makes a following deposition
The the construc- sign coming during to the down period: tion
Dr. Loren McKerrow: .(the “. when the street was wid- . was taken down sign) put the curbs District Special Improvement ened and the .. and streets and all. initially; it lying where it had been right Was it down
hadn’t been moved? Oh, away originally few from where
“A. I think a feet widen the streets they I think had to move it back to was. ways from where moved in a the curbs it was (McKerrow depo. p. placed.” then the actual curb was 19-24). 11-19; 7, 1. p. viewed in all evidence must be principle that summary against whom to the one light most favorable require sup- to even is well settled granted, too
jugment evidence authority. Here there portive citational down find came jury which a could obli- a contractual period. Defendant assumed construction completion of sign following gation to reestablish the in this defendant failed jury work. The could find that regard. adopt Schwieger, supra,
I Ulmen would overrule go to the rule would allow this case the modern jury. SHEA, dissenting: JUSTICE
MR. of MR. JUSTICE dissent foregoing concur MORRISON, JR. B.
FRANK