*1 HENDRICKSON, LEILA Appellant, and v. PAUL A. NEIMAN and Havre Defend- Respondents. ants No. 82-491.
Submitted on Briefs Feb. 1983. Decided June 1983.
Alexander & Great respondents. Kaze, Havre, Warner & for defendants opinion HASWELL delivered the MR. CHIEF JUSTICE of the Court. *2 County 29, 1982, of Hill the District Court
On November summary judgment granting in favor entered a final order pursuant Distributors, Inc., to Rule of defendant Havre 54(b), appeals. vacate the order We M.R.Civ.P. Plaintiff and remand. Friday, May approximately -p.m. Leila
At 3:00 on working Iron Horse her shift at the Hendrickson finished attempted Havre, Montana, to cross Pancake House of the Park Hotel. at Fourth Avenue front First Street corner of the intersection. The hotel sits on the northwest following diagram for clarification: include the We crossing street Hendrickson was from the north side of the to the side of the street and the west side of south was on two-way intersection. First Street street with parking lane on lanes of each side the street and four (two traffic lanes for lanes for westbound traffic and two traffic). eastbound hotel,
As she started to in front of the cross street pedestrian entered a it at Hendrickson crosswalk but found partially by delivery belonging least blocked a beer truck defendant Havre Inc. The rear wheels of the west, vehicle extended into the crosswalk from the truck extended even further into the crosswalk. It was also parked one-to-two feet from the curb.
Plaintiff walked out of the crosswalk around the back of the truck and then reentered the crosswalk. No other vehi- parked delivery cles were between the truck the inter- proceeding Street, section. Before across First she checked in both directions for traffic. Hendrickson continued walk- ing through across the street A outside westbound lane. *3 stopped vehicle in the outside westbound lane to wait for her. lane, As she entered the inside westbound she was by by struck a vehicle driven defendant Neiman and was thrown onto the hood of his car. by impact, legs
Both of Hendrickson’s broken were the complications and due to she has been unable to return to deposition thought work. Neiman in his testified that he stopped waiting the vehicle the outside lane of traffic was proceed delivery truck, for a break in traffic to around the which extended into the outer traffic lane. He did not see plaintiff until he struck her. His vehicle did not come to a stop sixty-three pleaded for feet. Neiman was cited for and guilty driving operation an unsafe vehicle. to reckless and of brought against against
Plaintiff suit Neiman and Havre alleged negligence part Distributors, of Ha- Inc. She on the protrude parking partially Distributors, Inc., vre for so as to driving into the so as to block the cross- outside lane and operated alleged his vehicle walk. She also that Neiman carelessly recklessly keep proper to a look- and and failed interrogato- out. answers to considering pleadings, After the ries, file, the and depositions and affidavits on briefs counsel, granted of the District Court arguments Distributors, Summary judgment to Havre Inc. judgment issue as granted genuine was on the basis that there was no fact, any part on the of Ha- any negligence material that Distributors, Inc., cause of Hen- proximate vre was not the “plaintiff injured drickson’s was as the re- injuries that act of independent, intervening negligent sult of A. defendant Paul Neiman.” Did the District presents single appeal: issue on to Havre Distrib- granting summary judgment
Court err utors, Inc.?
Summary may pursuant to Rule judgment granted be M.R.Civ.P., dispute when there is no over material genuine to a as a moving party facts and the is entitled upon party proof matter of law. The initial burden of party must moving summary judgment. moving The demonstrate that no issue of material fact exists. genuine Then, the motion must come forward party opposing issue of ma with substantial evidence that raises Hat Leasing Top Lounge, All-State Co. v. Inc. terial fact. 1250, 1251-1252, (1982), St.Rep. 198 Mont. 649 P.2d 425, 428. Distributors, Inc., of the argues positioning
Havre that the accident. delivery truck could not have contributed to the Rather, company that the accident was caused argues by Hendrickson independent, intervening Neiman’s acts. both that substantial evidence estab- argue Neiman Distributors, Inc. part lishes on the Havre They statutory that Havre owed a argue when the truck duty of care to which was breached and in was inches from the curb parked eighteen more than *4 Further, -355, a crosswalk. Sections 61-8-354 and MCA. plaintiff the class intended to be argues that she falls within Inc., member of protected is a and that Havre
371
imposed.
agree.
We
duty
the class
whom a
was
against
however,
upon
reliance
plaintiffs
with
disagree,
We
240-241,
(1979),
234,
City
Billings
v.
182 Mont.
Azure
of
460, 464,
that such a demon
proposition
P.2d
for the
596
Dis
in
to hold Havre
necessary
all that
is
order
stration is
in
tributors,
axiomatic that
order
negligent per se. It is
statute,
per
se for a violation
party negligent
hold a
that such violation constituted
must demonstrate
resulting
and the
proximate
cause of the
received
injury
See, Azure,
464;
240,
at
could have been a cause of the accident since may had she not already have been across the intersection required Alternatively, been to detour the vehicle. around reasonably conclude that if jury she contends that the could protruding driving the beer truck was not into the outer lane, in Neiman would have that the vehicle recognized right purpose, hand lane was other such stopped for some pedestrian. as a evidence the record conflicting There how far into the delivery parked, as to where the truck was extended, it and as to traffic lane and into the crosswalk proximate been a position whether the truck’s could have exists cause of the accident. A issue of material fact here. susceptible not to sum-
Ordinarily, issues of are Brown v. mary and are better determined at trial. Smith, Pierce, Inc. (1982), Fenner & Lynch, Merrill 305, Liability 453, 458, St.Rep. 310. Mont. 640 P.2d upon a motion for adjudicated should not be concerning negligence judgment where factual issues County Bow v. Silver Duchesneau presented. are causation Further, 369, 377, (1971), 492 P.2d 931. 158 Mont. involved, summary judg- where, here, are as two defendants remaining defend- allows the granted ment favor of one for the to shift blame evidence that tends ant to introduce *5 longer party to one no to the action. accident a summary judgment cause re- The is vacated and the proceedings. manded to the District Court for further MR. JUSTICES HARRISON and SHEEHY concur. specially concurring: MORRISON, MR. JUSTICE I concur in the result but not in all that is said in the ma- jority opinion.
Specifically, portion majority I take issue with that of the opinion wherein it stated: is
“Further, where, here, involved, as two defendants are summary judgment granted in favor of one allows the re- maining defendant to introduce evidence that tends to shift longer party blame for the accident to one no a to the action.” summary judgment against
This is no reason the to refuse defendant not at fault. position majority opinion that sum-
The seems to take the mary judgment granted in de- will never be favor of one multiple fendant, defendants, rea- where there are for the remaining son that the defendants can shift blame longer party the accident to one who is no a to the action. remaining course, if in Of those defendants the case at- tempted of whom to shift blame to a defendant favor summary entered, had been could reply by showing then that the court had absolved the ab- par- strategy Nevertheless, the trial of the sent defendant. ties is not relevant to a determination of whether there genuine foreclosing entry issue of material fact of sum- mary only judgment. The this case is determination jury respect If whether a issue exists with to the defendant. jury summary judgment no then should be issue exists remaining granted irrespective defendant ar- of what gues trial. at on
Here there is issue of material fact granting of and causation which forecloses the properly judgment. Therefore, the case is remanded for trial. special joins
MR. JUSTICE in the concurrence of SHEA MR. JUSTICE MORRISON.