                                                                                         December 27 2012


                                         DA 12-0178

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 314



JESSICA L. TONNER,

              Plaintiff and Appellant,

         v.

HOLLY ANN CIRIAN,

              Defendant and Appellee.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DV 09-37
                      Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      James D. Moore, Attorney at Law; Kalispell, Montana

               For Appellee:

                      Leonard H. Smith; Crowley Fleck PLLP; Billings, Montana



                                                  Submitted on Briefs: October 3, 2012

                                                             Decided: December 27, 2012


Filed:

                      __________________________________________
                                        Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Jessica L. Tonner (Tonner) appeals an order of the Nineteenth Judicial District

Court, Flathead County, granting summary judgment to Holly Ann Cirian (Cirian). The

sole issue on appeal is whether Cirian is entitled to judgment as a matter of law. We

reverse and remand for trial on Tonner’s claim of negligence.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     On March 19, 2007, Tonner was driving her Nissan Titan pickup truck east on

Balsam Street in Libby, Montana. At the same time, Cirian was driving her Hyundai

Elantra north on Washington Avenue, which meets Balsam Street at an uncontrolled

intersection. Cirian approached the intersection from Tonner’s right, and Tonner was to

Cirian’s left. As Tonner was driving through the intersection, the front of Cirian’s car

collided with the rear quarter-panel of the passenger side of Tonner’s truck.

¶3     The collision damaged both vehicles and injured Tonner.            Tonner filed an

amended complaint against Cirian on July 25, 2011, alleging that the “collision was the

direct and proximate result of the negligence of [Cirian].” Tonner contended in part that

Cirian was negligent because she had failed “to maintain a proper lookout for other

vehicles lawfully driving upon said roadway” and because she had failed “to operate her

vehicle in a reasonable and prudent manner, under the circumstances then and there

existing.”

¶4     Cirian moved for summary judgment under M. R. Civ. P. 56(c), contending that

she was not negligent “as a matter of law” because she “approached the intersection to

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the right of Tonner,” and thus Tonner had an absolute “statutory duty to yield the

right-of-way to Cirian” under § 61-8-339, MCA (2007).            Tonner opposed Cirian’s

motion, arguing that “the simple allegation of a right of way violation . . . does not

conclude issues of comparative negligence, which are distinctly factual.” She contended

that “the fact that one driver enjoys the right of way does not absolve the favored driver

of his duty to maintain a proper lookout.” Both parties submitted deposition testimony

and Tonner also attached a signed affidavit to her brief, recounting her recollection of the

collision.

¶5     Each driver testified in her deposition that she was driving at or under the posted

speed limit and was unimpaired. Both admitted, however, that neither saw the other’s car

prior to entering the intersection. Tonner explained in her affidavit that she slowed and

looked down the street to her right before crossing Washington Avenue, but she did not

see Cirian’s car. Cirian, on the other hand, testified in her deposition that she did not

look to her left before entering the intersection. She stated, “I’m pretty sure I was just

looking straight, I mean, but at the last minute I saw her, so I was looking straight instead

of anywhere else.” Cirian later explained that, even if she had looked left, she would

have been unable to see Tonner because “bushes and a fence” rendered that side of the

intersection “very un-visible” to her. With her affidavit in response to Cirian’s motion,

Tonner attached photographs of the intersection taken shortly after the accident,

purporting to demonstrate that Cirian’s view of Balsam Street was not obstructed.




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¶6     The District Court granted Cirian’s motion for summary judgment on February 16,

2012, on the ground that “no genuine issue of material fact exists and that [Cirian] is

entitled to judgment as a matter of law.” The court faulted Tonner for failing to offer

“admissible evidence to support [her] allegations.”      It refused to consider Tonner’s

contention that Cirian had received a traffic citation, noting that she had failed to submit

an affidavit from the investigating officer and that issuance of a traffic citation was not

admissible in the civil case in any event (citing Hart-Anderson v. Hauck, 239 Mont. 444,

449, 781 P.2d 1116, 1119 (1989)). The court also noted the lack of evidence that Cirian

was speeding. The court concluded that, “[a]s a matter of law,” Cirian “was not negligent

nor did she proximately cause the accident, as the collision would not have occurred

without [Tonner’s] violation of the right-of-way statute.”

                               STANDARD OF REVIEW

¶7     We review a district court’s ruling on a motion for summary judgment de novo,

applying the same M. R. Civ. P. 56(c) criteria as the district court. Turner v. Wells Fargo

Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, ___ P.3d ___. Summary judgment is

appropriate only “when the moving party demonstrates both the absence of any genuine

issues of material fact and entitlement to judgment as a matter of law.” Parish v. Morris,

2012 MT 116, ¶ 10, 365 Mont. 171, 278 P.3d 1015.

¶8     The party moving for summary judgment bears the initial burden of “establishing

that no genuine issue of material fact exists.” Fisher v. Swift Transp. Co., 2008 MT 105,

¶ 12, 342 Mont. 335, 181 P.3d 601 (citing Eklund v. Trost, 2006 MT 333, ¶ 21, 335

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Mont. 112, 151 P.3d 870). Once the moving party has met that burden, the non-moving

party “need only submit evidence of sufficient facts to support a genuine issue of material

fact to preclude summary judgment in favor of the movant.”           Meadow Lake Ests.

Homeowners Ass’n v. Shoemaker, 2008 MT 41, ¶ 38, 341 Mont. 345, 178 P.3d 81.

¶9     Summary judgment is “an extreme remedy and should never be substituted for

trial if a material factual controversy exists.” Contreras v. Fitzgerald, 2002 MT 208,

¶ 23, 311 Mont. 257, 54 P.3d 983 (citation omitted).         Because negligence actions

“ordinarily involve questions of fact, they are generally not susceptible to summary

judgment.” Fisher, ¶ 12 (citing Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 23,

322 Mont. 80, 93 P.3d 1239).       In evaluating a motion for summary judgment, the

evidence “must be viewed in the light most favorable to the non-moving party[.]”

Malpeli v. State, 2012 MT 181, ¶ 12, 366 Mont. 69, 285 P.3d 509. A district court’s

conclusion that no genuine issue of material fact exists “is a legal conclusion we review

for correctness.” Turner, ¶ 11.

                                     DISCUSSION

¶10    Is Cirian entitled to judgment as a matter of law?

¶11    The District Court relied on § 61-8-339(1), MCA (2007), in granting summary

judgment to Cirian.     The statute provides, “[w]hen two or more vehicles enter or

approach an intersection from different highways, the driver of the vehicle on the left

shall yield the right-of-way to all vehicles approaching from the right that are close

enough to constitute an immediate hazard.”         Montana’s right-of-way statutes are

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“intended to accord vehicles approaching or entering an intersection the status of favored

and disfavored drivers ‘to facilitate the orderly movement of automobiles.’” Yates v.

Hedges, 178 Mont. 488, 496, 585 P.2d 1290, 1295 (1978) (citation omitted).

¶12    Tonner disputes the District Court’s conclusion that, under the plain language of

§ 61-8-339, MCA (2007), Cirian—the favored driver under the statute—could not be

negligent as a matter of law because Tonner had a statutory duty to yield the right-of-

way. According to Tonner, “the direction in which the parties approach an uncontrolled

intersection is but one factor to consider, even under [§ 61-8-339, MCA (2007)],” and

that, even if Cirian had the right-of-way, she still was “subject to legal duties e.g., to

drive in a careful and prudent manner, to not speed, and to maintain a proper lookout

. . . .” Tonner contends that where “there is active negligence which can be attributed to

both drivers, and an issue of comparative negligence, it cannot be said that reasonable

minds could not differ and summary judgment . . . is inappropriate to resolve those

issues.” (Emphasis added.) Upon de novo review of the record, we agree with Tonner

that the parties presented the District Court with genuine issues of material fact that could

not be resolved on summary judgment.

¶13    In similar cases, we have affirmed judgment as a matter of law only when the

undisputed facts supported but one conclusion—that the cause of the collision was the

disfavored driver’s failure to yield to an approaching vehicle that was so close as to be an

immediate hazard under the right-of-way statute. Roe v. Kornder-Owen, 282 Mont. 287,

292, 937 P.2d 39, 42-43 (1997). While the District Court correctly cited Roe for the

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general proposition that the favored driver at an intersection has the right to rely on the

disfavored driver’s compliance with the right-of-way statute, Roe does not preempt a

factual inquiry into the circumstances of the collision. We clarified in a later case that

our holding in Roe was based on the record in that case:

       In Roe, we essentially concluded, based on the plaintiff’s testimony that the
       defendant's vehicle was only one-half block from the intersection when she
       attempted to cross, that the defendant was so close as to constitute an
       immediate hazard, creating a duty on the plaintiff's part to yield the right-
       of-way. The plaintiff’s failure to comply with this duty constituted
       negligence as a matter of law and made the issue of whether the defendant
       maintained an adequate lookout immaterial. Roe, 282 Mont. at 292, 937
       P.2d at 42. Unlike the defendant in Roe, however, Spinler has not
       presented any evidence regarding the location of her vehicle at the time
       Allen entered the intersection and, as a result, it cannot be determined as a
       matter of law that Allen’s statutory duty to yield ever arose.

Spinler v. Allen, 1999 MT 160, ¶ 22, 295 Mont. 139, 983 P.2d 348.

¶14    Our decision in Spinler demonstrates that summary judgment is not appropriate in

an intersection collision case when the parties dispute material facts with regard to the

disfavored driver’s failure to yield the right-of-way. Even in that situation, where it was

alleged that a disfavored driver violated the right-of-way statute, we held that whether a

favored driver maintained an adequate lookout is a material fact that should be weighed

by the finder of fact. Spinler, ¶¶ 22-26. We noted as much in Roe when we reiterated

that “[a] favored driver cannot ignore obvious dangers by blindly relying on her right-of-

way . . . but instead must maintain a proper lookout and use reasonable care.” Roe, 282

Mont. at 291-92, 937 P.2d at 42. Maintaining a proper lookout requires a driver “to look

not only straight ahead but laterally ahead as well and to see that which is in plain sight.”

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Payne v. Sorenson, 183 Mont. 323, 326, 599 P.2d 362, 364 (1979); see also Autio v.

Miller, 92 Mont. 150, 165, 11 P.2d 1039, 1043 (1932).

¶15    The statute requires vehicles from the left to yield the right-of-way to a vehicle

approaching from the right if it is “close enough to constitute an immediate hazard.”

Section 61-8-339(1), MCA (2007). Similar to the defendant in Spinler, Cirian has not

presented any evidence regarding the location of her vehicle at the time Tonner entered

the intersection that demonstrated that her vehicle posed an immediate hazard to Tonner

as Tonner entered the uncontrolled intersection.       The only testimony in the record

regarding the location of Cirian’s vehicle in relation to Tonner’s is found in Tonner’s

affidavit. In that document, Tonner swore that as she approached the intersection, “she

looked to both her left and right before entering the intersection” and that, although she

was “able to see between a quarter and a half a block to the right,” she “observed no cars

on the intersecting street.” On this record, it cannot be determined that Tonner’s entry

into the uncontrolled intersection constituted negligence as a matter of law such that the

issue whether Cirian maintained an adequate lookout was immaterial. See Spinler, ¶¶ 21-

25.

¶16    Although Cirian cites Marcoff v. Buck, 179 Mont. 295, 297, 587 P.2d 1305, 1307

(1978), in support of her position, that case came before the Court following a trial on the

merits. At the conclusion of a bench trial, the district court in Marcoff found that the

favored driver was negligent and that the right-of-way statute then in effect did not apply

because the disfavored driver had entered the intersection first. Marcoff, 179 Mont. at

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297, 587 P.2d at 1306-07. We reversed the court’s legal conclusion because “the driver

on the left coming into an uncontrolled intersection must yield to the driver on the right.”

Marcoff, 179 Mont. at 297, 587 P.2d at 1307. Our conclusion that the disfavored driver

was negligent was based on our review of the complete trial record, not on a

determination that the facts of the particular incident were immaterial.

¶17    During her deposition, Cirian testified that she was “looking straight ahead instead

of anywhere else,” and even if she had been looking laterally ahead, she would not have

been able to see Tonner’s vehicle because her view to the left was obstructed by “bushes

and a fence.” After Cirian filed her motion for summary judgment, Tonner challenged

Cirian’s recollection of her ability to see laterally ahead to her left by submitting

photographs of the intersection. Those photographs allegedly showed that if Cirian had

been looking laterally ahead to her left, she should have been able to see Tonner’s vehicle

approach the uncontrolled intersection.

¶18    Drawing all reasonable inferences in favor of Tonner, we conclude that a jury

reasonably could find both parties partially responsible for the collision.        Whether

Tonner’s duty to yield the right-of-way arose under § 61-8-339(1), MCA (2007), and

whether Cirian maintained a proper lookout are matters of factual dispute.            These

disputed facts are material because they raise issues of comparative negligence. We have

held that the defense of contributory negligence on a defendant’s part is available to a

plaintiff who is accused of violating a traffic statute; it falls upon “the factfinder to

determine the comparative degree of negligence on the part of plaintiff and defendant.”

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Reed v. Little, 209 Mont. 199, 206, 680 P.2d 937, 940 (1984). Under such an analysis,

“the jury must consider evidence of negligence from violation of a highway traffic

statute, which was a proximate cause of the accident, with other evidence of negligence

on the part of both parties” and the “jury must then weigh or compare the negligence of

both parties in reaching its verdict.” Reed, 209 Mont. at 207, 680 P.2d at 941 (emphasis

added).    We consistently have followed and applied Reed’s analytical construct in

subsequent cases. See Giambra v. Kelsey, 2007 MT 158, ¶¶ 48-51, 338 Mont. 19, 162

P.3d 134; Peterson v. Eichhorn, 2008 MT 250, ¶¶ 31-33, 344 Mont. 540, 189 P.3d 615;

Olson v. Shumaker Trucking & Excavating Constrs., Inc., 2008 MT 378, ¶¶ 67-68, 347

Mont. 1, 196 P.3d 1265; City of Whitefish v. Jentile, 2012 MT 185, ¶¶ 32-33, 366 Mont.

94, 285 P.3d 515.1 Thus, even if Tonner is found to be negligent per se for violating

§ 61-8-339, MCA (2007), the fact finder still must weigh Tonner’s negligence against

any potential negligence of Cirian and compare the negligence of both in reaching its

verdict.




1
 Montana’s adoption of comparative negligence in place of contributory negligence after Reed
was decided does not alter the fact finder’s task in weighing the negligence of both parties. See
Giambra, ¶ 51 and Peterson, ¶¶ 31-32.
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                                        CONCLUSION

¶19    After viewing the evidence in the light most favorable to Tonner, we hold that

Cirian is not entitled to judgment as a matter of law. Notwithstanding the exclusion of

evidence regarding the alleged traffic citation, the deposition and affidavit testimony

established factual issues concerning the parties’ comparative negligence. The District

Court erred by concluding that the issue whether Cirian was maintaining a proper lookout

was not a genuine issue of material fact.

¶20    For the foregoing reasons, the February 16, 2012, order of the Nineteenth Judicial

District Court is reversed and the action is remanded to the court for further proceedings.



                                                        /S/ BETH BAKER


We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE




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