                             No.   93-198
           IN THE SUPREME COURT OF THE STATE OF MONTANA



IRENE BICKLER, individually and as
personal representative of the Estate
of BUCKY ROBERT BICKLER, deceased, and
VICTOR BICKLER, individually,
               Plaintiffs and Appellants,
     -v-
THE RACQUET CLUB HEIGHTS ASSOCIATES,
a co-partnership consisting of
WALTER FRANCKE, M.D., WILLARD D.
JOHNSON, and ORVAL GRAHAM,
               Defendants and Respondents.




APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Russell K. Fillner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               William P. Fitzgerald, Lynaugh, Fitzgerald, Eiselein
               & Eakin, Billings, Montana

           For Respondent:
               Ward Swanser, Moulton, Bellingham, Longo    &   Mather,
               Billings, Montana


                              Submitted on Briefs:   January 7, 1993
                                            Decided: April 15, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     Plaintiffs Irene Bickler and Victor Bickler appeal the
December 22, 1988 order of the District Court of the Thirteenth
Judicial District, Yellowstone County, Montana, granting summary
judgment in favor of defendant Racquet Club Heights Associates. We
affirm.
     The issues presented for our review are:
     1.     Did the District Court err in concluding that acts or
omissions of Racquet Club Heights Associates were not the proximate
cause of a motorcycle car collision which killed Bucky Bickler, the
son of plaintiffs Irene Bickler and Victor Bickler?
     2.     Did Racquet Club Heights Associates owe a duty to Bucky
Bickler as a member of the traveling public to maintain trees on
property belonging to the City of Billings?
     3.   Are sanctions appropriate against the appellants and their
attorney for bringing a frivolous appeal?
     Plaintiffs Irene and Victor Bickler (Bicklers) brought this
action to recover damages for the wrongful death of their son,
Bucky Bickler (Bickler).     Bucky Bickler died shortly after 1:00
a.m. on August 3, 1983, when his motorcycle collided with Nadine
Evensen's (Evensen) car within the intersection of Rimrock Road and
Arlene Street in Billings, Montana.
     Rimrock Road is a through street running east and west in
Billings.     Arlene Street intersects Rimrock Road from the south.
Zimmerman Trail connects with Rimrock Road from the north at the
same intersection.     Both Zimmerman Trail and Arlene Street are
                                  2
controlled by stop signs at this intersection.          Bickler was
traveling west on Rimrock Road with Fred Farr as his passenger.
Evensen was traveling north on Arlene Street.         Her deposition
testimony establishes that she stopped for the stop sign on Arlene
Street.   She did not see the Bickler motorcycle.      She proceeded
into the intersection intending to execute a left turn in order to
proceed west on Rimrock Road.   Evensen pulled out in front of the
Bickler motorcycle. The motorcycle struck the right rear passenger
panel and wheel of Evensen's car.     Both Bickler and Farr were
propelled by the force of the collision into the air and landed on
the street in front of Evensen's car. Bickler died at the scene of
the accident.   Farr died later at a Billings hospital.
     Evensen testified she did not see the oncoming Bickler
motorcycle.     Accident   reconstruction   experts    testified   by
deposition for both Evensen and the Bicklers.         Such testimony
indicated that in order to adequately perceive oncoming traffic on
Rimrock Road, a driver must stop at a location several feet in
front of or to the north of the stop sign itself.            Evensen
testified that when she stopped at the stop sign on Arlene Street,
she looked to the left and to the right and could see clearly in
both directions. According to the expert testimony, this suggested
that she had stopped at a location in front of the stop sign where
her vision was not obstructed by trees located on the right of way.
Evensen's testimony indicated she stopped only once.         Evensen
testified that her vision was not obstructed or impaired but that
she did not see the Bickler motorcycle approaching from the east.
       The City of Billings owns a right of way approximately twenty
feet in width abutting Rimrock Road to the south at the point
Arlene Street intersects.    Several Lombardy poplar trees grow on
the city right of way near the southeast corner of the intersection
of Rimrock Road and Arlene Street. The trees are located within an
area described as the clear vision zone by the Billings City
ordinances.    Testimony of the reconstruction experts established
that the poplar trees may       obstruct the vision of a driver
approaching Rimrock Road on Arlene Street as the driver looks to
the east.
       Racquet Club Heights Associates (RCH) owns property adjacent
to the southern edge of the described city right of way.     The RCH
strip extends approximately twenty feet south of the City right of
way.    This area is designated as part of the RCH subdivision's
"common area." The subdivision covenants place responsibility for
maintenance of the "common areas" in the subdivision on RCH.
Billings ordinances also place responsibility on a corner lot owner
for maintenance of vegetation growing on City boulevards.
       Bicklers argue that Evensen stopped within three feet in front
of the stop sign and at that point, she could not have seen
vehicles on Rimrock Road approaching from the east.      Because she
testified that she had stopped only once at the sign, Bicklers
further contend that she would have entered the intersection
without a clear view of oncoming traffic.
       RCH points out that Evensen's testimony was that at the point
she stopped her car, she could see Rimrock Road clearly enough to
make out the lights from a Kwik-Way store located one block to the
east.    RCH also points out that police records establish that
Bicklerls blood alcohol content at the time of his death was 2.0,
twice the legal driving limit. The record on summary judgment does
not establish whether or not the motorcycle headlights were on at
the time of the accident. As necessary, we will provide additional
facts.


       Did the District Court err in concluding that acts or
omissions of Racquet Club Heights Associates were not the proximate
cause of a motorcycle car collision which killed the plaintiffs1
son?
       The District Court reached the following conclusion in
granting summary judgment to RCH:
            Defendants Racquet Club and City have argued their
       acts or omissions in this case were not the actual or
       proximate cause of plaintiffs' injuries. Plaintiffs have
       the burden of proving by specific facts that these
       defendants1 acts or omissions actually caused the
       accident or, alternatively, that but for these
       defendants1 acts or omissions, the accident would not
       have occurred. Plaintiffs have failed to carry these
       burdens, and thus summary judgment for Racquet Club and
       City is appropriate.
       We note that the case has been settled and dismissed as to the
defendant City.
       Summary judgment is proper when there is no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law.    Rule 56(c), M.R.Civ.P.   We review a district
courtlssummary judgment ruling using the same standard of review
as the trial court. Higham v. City of Red Lodge (1991), 247 Mont.
400, 402, 807 P.2d 195, 196.      Summary judgment is proper if a
plaintiff fails to establish an element material to his negligence
action. Dvorak v. Matador Service Inc. (1986), 223 Mont. 98, 107,
727 P.2d 1306, 1311. The showing of proximate cause is a necessary
element for such actions.     Thus, the pivotal question is whether
plaintiffs here satisfied a showing of proximate cause.
     In its analysis the District Court quoted from this Court's
analysis of cause in fact and proximate cause in Young v. Flathead
County (1988), 232 Mont. 274, 757 P.2d 772.     In   w,we   stated:
          Liability, in any cause of action, attaches if the
     plaintiff can prove first that defendant's act is a cause
     in fact of injury and then that the injury is the direct
     or indirect result, proximately caused by the negligent
     act. Causation in fact has been determined by the use of
     the "but for" test   ... and in rare circumstances under
     a substantial factor examination. Prosser and Keeton,
     The Law of Torts, Section 41, pp. 264-268 (5th ed.,
     1984). In Montana, the distinction between causation in
     fact and proximate cause, now occasionally referred to as
     legal cause, has not generally been made.       ...
          Under causation in fact, the "but for" test has been
     defined as but for defendant's conduct, the event would
     not have occurred, or, conversely, defendant's conduct is
     not the cause of the event, if the event would have
     occurred without the conduct.      . . . As an uncommon
     alternative to the "but forN test, the "substantial
     factor1' test has been designed to deal with problems
     where application of the "but for1'test would allow each
     of a number of defendants to escape responsibility
     because the conduct of one or more others would have been
     sufficient to produce the same result.     .
                                                .    .
Younq, 757 P.2d at 777.     (Citations omitted.)
     In Montana, proximate cause is an act or omission which, "in
a natural and continuous sequence, unbroken by any new, independent
cause, produces injury, and without which the injury would not have
occurred."   w,757 P.2d       at 777. The phrase "without which the
injury would not have occurredssincorporates the "but forw test.
w,757 P.2d      at 777.
     The District Court concluded the Bicklers failed to factually
establish actual or proximate cause here.    Plaintiffs argue that
there is an issue of fact whether Evensen could see the approaching
motorcycle because of the clump of poplar trees on the City right
of way, and that such issue of fact precluded summary judgment. We
do not agree with that contention.
     Plaintiffs have failed to submit evidence which establishes
that Evensen could not see oncoming vehicles because of the
obstruction of trees at the corner of the intersection. Evensenss
uncontradicted testimony establishes that she stopped at the stop
sign, looked left and right and could see clearly in both
directions, failed to see the Bickler motorcycle, and pulled out
into the intersection in front of the motorcycle.      Plaintiffs'
accident reconstruction expert speculated that if Evensen stopped
her car at the stop sign or within three feet in front of the stop
sign, the trees would have obstructed her vision.      There is no
evidence to precisely establish where Evensen stopped her car.
     The stop sign is located a number of feet south of the south
right of way line of Rimrock Road.      Evensen testified that she
thought she stopped at a point close to the stop sign, but she
could not fix the precise point.     She testified that she stopped
only once, finding it unnecessary to pull further forward in order
to be able to see to her right before proceeding into a turn.
While her testimony does not specify the exact spot where she
stopped, her testimony is unrebutted with regard to her ability to
see to the east.   Evensen further testified she was familiar with
the intersection, having previously driven through it on numerous
occasions.     Plaintiffs have failed to present any evidence for
summary judgment consideration which establishes that Evensen did
not or could not see the Bickler motorcycle because of the tree
obstruction at the southeast corner of the intersection.
     We agree with the conclusion of the District Court that the
plaintiffs have failed to meet their burden of proving by specific
facts that RCH's acts or omissions were the proximate cause of the
accident, or that but for the acts or omissions of RCH, the
accident would not have occurred. We agree with the conclusion of
the District Court that visual obstruction was not established as
a cause in fact of plaintiffs' injuries.
     We hold the District Court correctly granted summary judgment
to the defendant RCH.
                                11.

     Did RCH, as the owner of the corner lot abutting Rimrock Road,
owe a duty to members of the traveling public to maintain a clear
vision zone?
     Because of our holding on Issue I, we conclude it is
unnecessary to address this issue.
                                111.

     Are sanctions appropriate against the Bicklers and their
attorney for bringing a frivolous appeal?
    Rule 32, M.R.App.P.,   allows recovery of damages when this
Court is satisfied from the record and the presentation of an
appeal in a civil case that the appeal was taken without
substantial or reasonable grounds.   This Court has imposed such
sanctions in cases where counsel's actions constitute an abuse of
the judicial system. Where reasonable grounds for appeal exist, no
sanctions will be imposed. Tope v. Taylor (1988), 235 Mont. 124,
768 P.2d 845.

    While sanctions are not imposed, we do emphasize for the
benefit of plaintiffs' counsel that it was not proper practice to
file a fifty-nine page reply brief which included thirty-four pages
of argument on an issue which was only addressed in a very casual
and conclusory fashion in appellantsf initial brief.          This
improperly denied defendant's counsel the opportunity to respond.
     We conclude there were reasonable grounds for an appeal and
deny the request for sanctions.
     Af finned.




       Chief Jus
                                     April 15, 1993

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


William P. Fitzgerald
LYNAUGH, FITZGERALD, EISELEIN & EAKIN
P.O. Box 1729
Billings, MT 59103-1729

Ward Swanser
MOULTON LAW FIRM
Sheraton Plaza, Suite 1900
Billings, MT 59101

                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE QF MONTANA


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