delivered the Opinion of the Court.
Thе District Court for the Nineteenth Judicial District, Lincoln County, dismissed plaintiffs’ claim for wrongful death against the State of Montаna (State), and granted the State summary judgment. Plaintiffs appeal. We affirm.
The issue is whether the District Court erred in granting summаry judgment in favor of the State.
Harold F. Whitfield, Jr., died on October 29, 1984, as a result of injuries sustained in an automobile accident which occurred on October 23, 1984. The highway patrol accident report indicates that on the morning оf the accident, Mr. Whitfield was traveling north on U.S. Highway 93. At approximately 7:30 a.m., he apparently encounterеd two horses on the roadway about two miles south of Eureka, Montana. Mr. Whitfield’s automobile collided with one of the horses and Mr. Whitfield was fatally injured.
Mr. Whitfield’s wife and children brought this wrongful death action against the party alleged responsible for the loose horses, Therriault Corporation (Therriault). Plaintiffs have settled with Therriault, and Therriault is not a party to this appeal. Before settling with plaintiffs, Therriault filed a third party complaint seeking indemnity and сontribution from the State. The plaintiffs amended their complaint to add a claim against the State. The claim against the State is based upon a highway department maintenance employee’s observation оf two horses in the roadway prior to the accident.
Hubert McKenzie, the highway department employee, testified in a deposition that he saw the horses at approximately 5:15 a.m. while checking road conditions from Eureka to Stryker in a highway de *197 partment dump truck. He said he followed the horses down the road for approximately one-half mile before he was able to pass them as they turned off on an approach road. He did not make any report of the horses being loose, but did note in his logbook that he had seen them. Mr. MсKenzie testified that he proceeded to Stryker, turned around and returned to Eureka, arriving at approximаtely 7:00 a.m. Mr. McKenzie stated that he did not see the horses on his return trip.
Janice Pinson, who lives in a house near thе accident scene, testified in a deposition that she observed Mr. McKenzie’s encounter with the horses. Shе stated that she saw a highway department dump truck “chase” the horses between 6:30 a.m. and 7:15 a.m., and that she was nоt sure of the exact time, but that the sun had not fully risen.
The plaintiffs contend that Mr. McKenzie failed to exercise reasonable care after discovering the horses on Highway 93. They argue that Mr. McKenzie breached a duty owed to Mr. Whitfield by failing to clear the horses from the roadway or to warn oncoming motorists. Plaintiffs also contеnd that the discrepancy between Mr. McKenzie’s testimony and the testimony of Mrs. Pinson as to the time Mr. McKenzie first encоuntered the horses constitutes a material issue of fact and that summary judgment was improperly granted.
Did the District Cоurt err in granting summary judgment in favor of the State?
Rule 56, M.R.Civ.P., allows a court to enter summary judgment when the pleadings, depositiоns, and other documents on file, together with any affidavits filed, demonstrate no genuine issues of material fact аnd that the moving party is entitled to a judgment as a matter of law. In reviewing a summary judgment, this Court is free to examine the еntire case and reach a conclusion in accordance with its findings.
Shimsky v. Valley Credit Union
(Mont. 1984), [
A claim of negligence must establish a legal duty, breach of that duty, and damages proximately caused by the breach.
Detert v. Lake County
(Mont. 1984), [
Plaintiffs have not cited any authority stating that a Montana highway maintenance employee has a duty to remove live animals from the roadway. In addition, Mr. McKenzie’s uncontradicted deposition testimony is that the horses had turned off onto an acсess road when he last saw them. They were no longer on the roadway. Plaintiffs have cited no authority for their furthеr assertion that Mr. McKenzie had a duty to somehow insure that the horses did not come back onto the highway. We сonclude that the plaintiffs have not shown any duty on the part of Mr. McKenzie to do more than he did.
Plaintiffs contend that the differences in the testimony of Mr. McKenzie and Mrs. Pinson as to the time at which Mr. McKenzie encountered the horses constitutes a material issue of fact prohibiting summary judgment. We disagree. As discussed above, the plaintiffs’ сase fails to establish a duty on the part of Mr. McKenzie. Absent a showing of such a duty, the time at which Mr. McKenzie saw the horses is not a material issue of fact. We conclude that the discrepancy between the time given by Mr. McKenzie and that given by Mrs. Pinson is not a basis to deny summary judgment to the State.
We affirm the lower court’s dismissal of the State from this action.