*1 ELROY C. YAGER and BARBARA A. YAGER, Appellants, Plaintiffs v.
ROLLAND DEANE, a/k/a
ROLAND E. DEANE, JR.,
Appellant,
Defendant
THE STATE OF MONTANA,
Respondent.
Defendant
No. 92-283.
Submitted on Briefs October
1992.
Rehearing
July
Denied
1993.
May 27,
Decided
1993.
St.Rep.
See Bozeman, Penwell, Plaintiffs J. David and Appellants: For (for Yagers); appellants, Wayzata, Minnesota Weyland, John L. Roth, James M. Kommers and Daniel J. James M. Kommers and (for Deane). Associates, appellant Bozeman Chronister, Chronister, For Defendant and Respondent: Allen B. Moreen, Helena; Kelly O’Sullivan, Driscoll & AgencyLegal Services Bureau, Helena.
JUSTICE Opinion GRAYdelivered the of the Court. Elroy
Plaintiffs Yager Barbara and defendant Rolland Deane appeal Eighteenth Court, from an order of the Judicial District Gallatin County, granting summary judgment in favor of the State of Montana. We affirm.
The sole issue on appeal is whether the District Court erred in granting summary judgment on the basis that the State of Montana had no onto the interstate The pertinent facts of the undisputed. 22,1989, case are On March approximately a.m., Elroy Yager (Yager) 1:30 driving a semi- (1-90). tractor and trailer in the westbound lane of Interstate 90 Yager’s horse, vehicle struck a owned defendant Rolland Deane (Deane), that had wandered onto the near the Jackson Creek *3 interchange east ofBozeman. As a impact, result ofthe the semi-trac- tor and trailer went through guardrail and rolled down an embank- ment, injuring Yager. (the 29,1991,
On March Elroy and Yager Yagers) Barbara filed suit (the State). against Deane and the State of Montana They alleged negligently Deane allowed his horse to wander onto 1-90and that negligently cattleguard, a fence and allowing maintained the horse Elroy Yager access 1-90. sought damages permanent for bodily injury, medical expenses wages. and lost Yager sought Barbara damages for loss of consortium. Deane and the State filed cross- seeking indemnity claims and contribution from each other. 24, 1992, On April the District granted Court the State’s motion summary judgment. The District Court determined that action- negligence able could not lie against legal duty absent erect or maintain a fence keep highway or to the interstate free of livestock. It concluded that Yagers no such existed. The appeal. Deane
Did the granting summary District Court err in judgment on the basis that the State of prevent Montana had no livestock from wandering onto the highway? interstate
A district properly grants summary court judgment when genuine there are no moving party issues of material fact and the is 56(c), entitled to judgment as a matter of law. Rule M.R.Civ.R Ordi narily, negligence issues of susceptible are issues of fact not summary adjudication. Brohman v. State 230 Mont. 67, However, 749 P.2d negligence only actionable arises from the legal breach of a duty; legal duty the existence of a a question law to be determined the district court. Nautilus Insurance Co. v. First National 409, 411, 49 Insurance St.Rep. question us, 803. The before itas was before the District Court, legal duty is whether the State has a appellants on which can examine, turn, base a claim. We the sources which appellants contend impose duty prevent on the State to from wandering onto 1-90where the accident occurred. Statutory Basis
The District Court considered whether 60-7-103 and 60-5- §§ 105(1),MCA, required the State to highway. 60-7-103, MCA,
onto the provides: Department right-of-way through open range. (1) The department right-of-way any shall fence the of the part highway system state that is constructed or reconstructed after 1,1969, July through open range present where livestock hazard constructed, safety of the motorist. a fence is ade- Where quate gates passes, necessary, provided stock or stock as shall be to make highway land on either side of the usable for livestock purposes.
(2) department every high-hazard shall erect a fence in area as promptly possible, and the cost of such construction is an expenditure safety for the enforcement of federal-aid Gates, facilities, programs. and cattle underpasses, stock water guards may necessary be installed where to make the land on either purposes side of the usable for livestock where public right-of-way intersects the state range” The court within the “open determined that the area was not *4 MCA, a horse herd meaning 60-7-102(1), it lies within because § accident Furthermore, district. of 1-90 where the segment 60-7-102(2),MCA; high occurred is not a area as defined in § hazard system nor has the part primary highway result, As a the court segment designated high been as a hazard area. 60-7-103, MCA, determined that require did not the State to erect § along a fence the interstate. 60-5-105(1), MCA, provides pertinent part: —
Design of controlled-access facility entrance and exit (1) restricted. Each authority may design any so control- facility restrict, led-access regulate, prohibit so or access as to best serve the traffic facility for which the is intended.
The District Court determined provision that this permissive, therefore, impose duty did not on the State.
Appellants do not contend that the District Court erred in constru- ing and applying 60-5-105(1), 60-7-103 and MCA. appel- §§ Nor do lants cite other statutory authority establishing duty by the State to prevent livestock from wandering onto the interstate. contends, however,
Deane that once the voluntarily State along constructs a fence the highway right-of-way, as a controlled facility 60-5-105(1), MCA, access under § the State is required to ordinary exercise care in its construction and maintenance. The record reflects that the State “voluntarily’ did not construct the fence. Rather, the State erected the fence along the interstate highway right-of-way as a precondition receiving federal funds. previously We have 60-5-105(1), MCA, stated that § — — may not shall prohibit restrict or Big access. Man v. 235, Mont. Man, P.2d 239. In Big determined that the permissive statute’s language require, did not or on, the State to erect a fence to access pedestrians to a controlled access highway. While the specific facts on which our Big determination in Man was based are distinguish
able, provision no imposes the statute a duty to erect a fence for any purpose.
Deane cites Stewart v. Publishing Standard Co. support 55 P.2d position his that once the State constructs 60-5-105, MCA, a fence under § owes a to the motoring public, rely who on the State’s construction and maintenance of the fence. person “[W]here a undertakes to do an act discharge duty by which the conduct may of another be properly regulated and governed, he perform is bound to init such a manner that those rightfully who are led to a course of conduct or action on the faith that the act or duly will be and properly performed shall not suffer injury by loss or reason negligent perform failure so to it.” Stewart, 696, quoting 45 C.J. 650. *5 could be characterized of the fence if the State’s construction
Even
wandering
the horse from
duty
prevent
to
discharge
as a
of Deane’s
in
no basis for
the rationale
Stewart
highway,
onto
any way
alleged or in
duty
the State. Deane has not
imposing a
on
the State’s
highway, Yager relied on
driving
that in
on the
established
livestock from
prevent
of the fence to
and maintenance
construction
60-5-105(1), MCA,
60-7-103
access. We conclude
gaining
§§
prevent
the fence or
the State to maintain
duty
on
impose
do not
highway.
wandering onto
Highways Reasonably
Duty Keep
to
The State’s General
Safe
the District Court
did not assert before
appellants
The
reasonably
duty
imposed
safe
duty
keep highways
to
general
State’s
however, they
us
urge
appeal,
to livestock. On
on the State relative
duty
specific
requiring
include a
general duty to
to extend the State’s
wandering
from
onto
prevent
livestock
the State to
duty.
general
for the State’s
rely on a number of sources
Appellants
along
to maintain the
required
that the State is
They contend
highways
reason-
general duty
keep
to
under its
right-of-way
(1986), 222 Mont.
723 P.2d
safe,
State
ably
citing Buck v.
duty
general
on
owner-
210,
also base the State’s
Yagers
214. The
owners, includ-
They
property
contend that
right-of-way.
ship of
property
maintain their
entities,
duty
have a
to
ing governmental
condition,
v. Town Whitehall
relying on Kaiser
reasonably safe
1341,
Big
v.
Ditch
322,
and Limberhand
(1986),
718 P.2d
221 Mont.
relies on
132,
Additionally, Deane
(1985),
were There, fencing open range. of the governing provisions allowing livestock to owners from sought enjoin others livestock claimed that the wan- plaintiffs beyond property. wander their 45-8-111, pursuant nuisance public constituted a dering § posing their MCA, by interfering enjoyment with the range doctrine driving open condition. We discussed a hazardous *6 liability on statutory exceptions impose and set forth the relating conduct to their live- negligent livestock owners for certain rights-of-way. fence certain We con- require stock and the State to “carefully exceptions crafted” cluded that neither ofthe two owner to restrain open range required to the doctrine the livestock Martin, imposed and that case law no such his livestock result, general public apply declined to P.2d 498-99. As in the duty provided an not impose nuisance statute to additional range provisions. specific open the State’s apply result here. We decline to
We reach the same condition, reasonably in a safe general duty keep to its Limberhand, duty keep to its general and or its articulated Kaiser condition, in Buck and highways reasonably in a safe as enunciated livestock from Byorth, specifically require prevent to the State to highway. legisla- the Montana wandering onto the interstate Where duty of the State relative to livestock on ture has acted to define the duty, an additional the source of which roadways, impose we will not fencing of the statutory provisions governing is extraneous to open range. Buck in misapplied that the District Court
Appellants contend duty duty impose did not on determining general that the State’s acknowledged that the the fence. The court the State to maintain reasonably safe condition duty keep highways to in a general State’s roadway and to the shoulders portions of the paved extended to the reasoned, roadway under Buck. The court of the adjacent parts paved portions or shoulder however, fence was well off that the duty maintain and, therefore, State had no to of the that the District contention disagree appellants’ not with it. We do “adjacent fencing on to argument their Court failed to connect parts” language in Buck. we find no inBuck to basis duty on the State to maintain the fence. Buck, In negotiate the driver failed to a curve in the went offthe left hand of the pavement. attempted side As the driver roadway, to return the to the a bridge vehicle the vehicle collided with concluded that keep highways abutment. We the State’s to reasonably safe condition extended to the shoulders “and the Buck, adjacent parts relying 723 P.2d at this thereof.” on language duty by regard fencing, support the State with to however, appellants recognize fail to that the extension of the State’s general duty in specifically premised Buck on the “common experience may stray that vehicles or swerve from the usual traveled Here, usually portion” roadway. Yager stray Id. did not from the unreasonably path traveled and encounter an unsafe condition on an Thus, adjacent part roadway. language of the the Buck relied on appellants is here. inapplicable
Finally, appellants erroneously assert that the District Court re 195, lied on v. Therriault 229 Mont. Corp. Whitfield 1013, Ambrogini v. Todd P.2d did not support general its determination State’s gaining access require prevent livestock from are, indeed, distinguishable on their facts from the Those cases and, therefore, controlling are the issue of the present case on particular State’s onto the reflect, however, roadway Ambrogini do our here. Whitfield on the State or livestock owners consistent refusal to roadways off is not fencing specifically relative *7 legislature. created the Department Highways
Montana Maintenance Manual of Main Department Highways Section 3.110 of the Montana of tenance Manual provides: highway right way the of has been fenced major portion
The of by the state. The maintenance adjoining either landowner or right way agreement. On Inter- of this fence is detailed of however, maintenance are the highways, the fence and its state fences Department Highways. Highway of responsibility of the and, any safety highway device on the may important be other only a fence not thus, their maintenance. Placement of so are way, keeps also humans and right the limits of the of but outlines inspection animals and rou- away from hazardous areas. Careful neglected. maintenance should not be tine imposed no manual that the maintenance Court ruled The District that violations The court determined State to erect fences. duty on the only after the existence negligence evidence of provide the manual duty has been established. legal of a First, manual. relating to the argument Yagers
The make a dual the State affirmatively imposes a on they argue that the manual (1987), 227 Mont. v. State fence, relying on Townsend maintain the 497, 807 P.2d 1274, and Hash v. State 738 P.2d that holds, any way, infers in or Townsend nor Hash 1363. Neither manual a of the maintenance provisions the maintenance Second, that a violation of Yagers assert ques is a fact negligence and that manual is evidence of basis, and Hash. On this relying again on Townsend jury, tion for the judg granting summary that the District Court erred they argue Yagers' contention support ment. and Hash do Townsend Townsend, negligence. manual are evidence of violations of the 1276; Hash, at 1366. the cases do not P.2d summary present in the case. preclude judgment Hash; a was not at issue in either Townsend The existence of reasonably safe condition general duty keep highways the State’s circumstances, facts cases. Under those applicable to the of those the manual comply ofthe State’s failure to with proof we concluded Here, not established the negligence. appellants have was evidence of along maintain fences legal duty by the State to erect or existence of Thus, gaining access. the interstate duty, to which violations of whether the State breached question addressed, could be negligence properly of the manual as evidence of not arise in this case. simply does duty on does not manual
We conclude legal duty, fence. the existence of the State to maintain the Absent negligently cannot used as evidence the manual be the fence. maintained Agreement
Right-of-Way Purchase the State assumed Yagers’ final contention is that support right-of-way. it purchased maintain the fence when entitled contention, Yagers appended documents this oppos- Fence to their brief Way Agreement Easement and Right Court, to this and to their brief summary judgment in the District ing documents; appended Court did not consider Court. The District maintain the the State assumed nor did it address whether right-of-way. purchased when *8 contend, The Yagers properly documents were before the District Court because they had been obtained from the Department during discovery. when addressing motion for summary judgment, a district court only considers discovery that 56(c), is on file. Rule Yagers M.R.Civ.R The failed to file the docu ments; basis, on that the District Court’s failure to address them or they issue for which appended were appropriate. join was We District in declining Court to address an issue lacking proper support in the record.
Appellants have failed any authority to cite imposing duty on the prevent State to on, livestock from wandering or to erect or maintain along, fence the section ofthe interstate where the accident duty, occurred. Absent a there can be no negligence. We hold that the District Court did not err in granting the State’s summary motion for judgment.
Affirmed. CHIEF TURNAGE, JUSTICE JUSTICES WEBER and McDonough concur.
JUSTICE TRIEWEILER dissenting.
I dissent from the majority opinion. complaint Plaintiffs filed a in they alleged that the State of Montana had duty to maintain fences and cattle guards which were by built the State on property to protect motorists on Interstate alleged livestock. Plaintiffs that the State was negligent by failing to maintain these guards fences and cattle plaintiff Elroy Yager injured as a result of the State’s negligence. The State denied that it was negligent its answer. However, no State, evidence has been by offered affidavit or otherwise, which would plaintiffs’ allegation controvert negligence. The District Court’s order summary judgment, and this Court’s opinion order, affirming that are based simply on the conclusion that State had no to maintain its way own would an injury unreasonable risk of to others. majority’s wrong conclusion is as a matter of law for several reasons.
First, the State has the private property same that all owners have statute in Montana act reasonably in the maintenance of Second, property. duty by State assumed a adopting the Uniform Maintenance required Manual which it erect and maintain subject the fences which were the Finally, this suit. and cattle duty to and maintain build State assumed funding construc- federal guard question accepted when *9 to that 90, agreed it as a condition Interstate tion of in protective question. maintain the devices funding to build and CARE TO EXERCISE ORDINARY DUTY II, 18, provides of the Montana Constitution Article section part that: relevant to a injury suit for immunity shall have no from
The state ... provided by law except may be property, specifically or as person legislature. the by a 2/3 vote of each house of MCA, 2-9-102, provides that: Every governmental entity subject liability is for its torts the acting scope employment of its within of their employees those governmental arising proprietary duties whether out of or or legislature under except specifically provided by function as the II, 18, Article section of the Constitution of the State of Montana. clear, then, prohibited by unless specifically Legislature, It is that the the same that a be private hable to extent individual would hable for defined the common law. Under Montana, statutory obli- previously law of held that common have gations which, breached, a common give rise to duties if form basis of MCA, 27-1-701, provides that: example, law cause action. For § law, by everyone is Except provided responsible as otherwise injury only for the results of his willful acts but also for an by in the ordinary another his want of care or skill occasioned to far latter management property person except of his or so as the willfully ordinary injury upon by brought has want of care himself. Mont. Big Company v. Ditch Limberhand 491, 498-99, that
144-45, 706 imposed we held this statute P.2d management their ordinary use care in the on land owners to risk to who could so as not to create an unreasonable those to our foreseeably by According failure to do so. injured be their authority cited, State previously and the Constitution it cattle that guard the same to maintain fence and had majority opinion it The right-of-way on the that owned. constructed 27-1-701, MCA, why applies imposed fails to discuss § itself. State, government in this but state every person not to private HIGHWAYMAINTENANCE MANUAL pointed As out in majority opinion, the State of Montana’s own provides maintenance manual that it is the State’s respon- sibility fencing to maintain along interstate highways. manual even points why out exactly is important to maintain fences. It “[placement of a only fence not outlines limits of the right way, but keeps away also humans and animals inspection hazardous areas. Careful and routine maintenance should neglected.” not be
However, the majority obligation dismissed the created State’s by concluding own maintenance manual even though comply failure to with the manual negli- maintenance is evidence of gence, any duty. the manual did not create
It is specifically true we have held that “violations of the provided Maintenance Manual of negligence.” evidence Townsend v. Mont. it is *10 a sequitur non that conclude there can be of negligence evidence without a We have that a previously duty prerequisite held is finding negligence. Roy v. 224, 226, Neibauer we held that: It elementary is an of that principle law before a claim for relief against negligence, can be made a defendant for the existence of a shown, duty by plaintiff the defendant the must along be with the of duty resulting injury. breach that and a duty If there has to be a and a of breach before there can be negligence, comply a claim of can failure how with the maintenance negligence, establishing manual be evidence of but no basis for duty? protect accountability In its effort to the State from for its case, this majority’s logically in is opinion inconsistent with the majority’s previous decisions.
DUTY UNDER FEDERAL LAW majority briefly statutory State imposes reviews law which highways, since to fence but concludes that those statutes were occurred, not to the where there applicable area this action was no protect statutory imposed on the State to motorists on this However, I livestock. do not understand obligations of why majority’s is limited to state review law. What rational distinction is there between state statutes which statutes which highways and federal duty? the same brief, that area concedes, appellate
The State of Montana by originally protected fenced and this accident occurred was where to do required Highway Department because brief, that: by In its the State concedes so federal law. fencing, the regarding Interstate permissive
While state law is highways are fenced exclusive reason that these primary if not precondi- government Federal fencing is required funding. complete A discus- receiving construction tion for critical regulations be and would applicable sion of the Federal statutes unnecessary It is sufficient lengthy and is here. complicated with Federal requires comply to note that Federal law states (23 (23 109), U.S.C. 106 and construction design standards for §§ (23 116) 114), U.S.C. of Interstate § U.S.C. and maintenance § inspections approvals compliance. and for insure highways, part are ofthe Federal- The statutes referred to the State’s brief (1958). Act, through A more Aid 23 U.S.C. §§ controlling provisions Daye is found in v. complete explanation of That court Pennsylvania Supp. 344 F. Commonwealth of explained that: 106(a) ap- for the submission the state and provides
Section Secretary Transportation [Secretary] by the States proval United each surveys, plans, proposed and estimates for specifications 109(a) approve project. provides Secretary Section shall needs, they to traffic plans specifications unless are conducive 109(d) safety, durability economy. provides Section subject approval to the ofthe State highway signs location of shall be Secretary. Highway Department with the concurrence 109(e) safety proper be unless provides approved that no funds shall safety approved certain standards protective complying devices with 114(a) Secretaiy by the are installed. Section *11 of supervision shall under the the construction be Secretary. approval the ofthe Department, subject inspection to and 116(a) the duty that the ofthe state to maintain provides it is 116(c) being if the is not highways, and Section that offurther maintained, Secretary may approval the withhold properly projects.
Daye, Supp. 344 F. that these federal statutes Daye principle cites for the The State to construct and maintain duty part the ofthe State not create a on do its and protective However, fences agree devices. I not with do that interpretation Day oí e. The Federal simply District Court found that the statutes in question give did not rise to an independent private cause of action which Pennsylvania’s was in contravention of immu- nity However, statutes. it is clear the duty that statutes a create on the part of the comply State to requirements with federal as a to funding, condition federal and the State concedes that those requirements included and constructing maintaining the fences which subject are the of plaintiffs’ complaint.
Finally, it appears to me that majority opinion the is based on premises. several false 60-7-103, MCA, The Court concluded that § requires fencing right-of-way of the through constructed open range areas was not applicable because the location where this accident occurred was within horse herd district.
majority proceeds justify then upon its decision based conclu- its been, sion be, that “Montana has and range continues to an open “[ujnder They doctrine, state.” hold that the open range neither the State nor duty have a owners roadways.” Why onto does the majority rely on the fact that this is a purposes rejecting herd district for plaintiffs’ claim fence, that the State had a rely then on an inconsistent conclusion that an open range Montana is state when it to declines law common to maintain the State’s fences? Likewise, majority concludes since Legisla- the Montana ture imposed duty particular right-of-way has to fence the where occurred, this accident should not What about by imposed government by duties the federal Department Highways itself? me, State, statute, To this claim simple involves issues. The had property, including guard, to maintain its cattle prevented condition that would have of harm unreasonable risk others, including motorists on the interstate Plaintiffs alleged Elroy that it failed to do Yager injured so as a result that negligent omission. The State has evidence offered no contrary, therefore, summary judgment should have been If statutory duty imposed everyone denied. on in Montana to exercise reasonable care in the of their is not maintenance enough majority, certainly clear creation of a for the then obligations imposed by Highway Department’s own maintenance manual, State, or the made federal pursuant commitment *12 funds, additional create federal statute, in order to obtain duties. If majority opinion. for any justification find
I am at a loss to not a negligence if the State’s negligent, the State was protect should Yager, then our laws injury to Mr. cause of and its negligent, the State was liability. if require justice fairness and simple then Yager, harm to Mr. caused my compre- beyond It is for its conduct. State be accountable Court has lengths that this any go to why court would hension accountability for to avoid effort to allow the State gone to in an omissions. negligent irrelevant, case law prior are reliance on statutes which
By its appears what majority has constructed point, is not on recovery in this denying justification rational glance first to be a understanding is to difficult time that I have a question case. The effort directed? purpose is that justifiable what I would majority opinion. reasons, I dissent from For these Court. judgment of the District reverse the