                                                                                    December 1 2015
                                      DA 15-0093

          IN THE SUPREME COURT OF THE STATE OF MONTANA                              Case Number: DA 15-0093



                                      2015 MT 330



CYRIL NOT AFRAID, JR.,

           Plaintiff and Appellant,

     v.

STATE OF MONTANA, COUNTY OF
YELLOWSTONE, CITY OF BILLINGS, et al.,

          Defendants and Appellees,
______________________________

YELLOWSTONE COUNTY, and
CITY OF BILLINGS,

           Third-Party Plaintiffs,

     v.

JEREMY FLATMOUTH,

           Third-Party Defendant,
           and Appellee.


APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and For the County of Yellowstone, Cause No. DV-12-0992
                   Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

            For Appellant:

                   Edward P. Moriarity, Shandor S. Badaruddin, Moriarity & Badaruddin,
                   PLLC, Missoula, Montana

            For Appellees:

                   Scott Twito, Yellowstone County Attorney, Ryan Nordlund, Kevin Gillen,
                   Deputy Yellowstone County Attorneys, Billings, Montana
                   (for Yellowstone County)
         Harlan B. Krogh, Crist, Krogh & Nord, LLC, Billings, Montana
         (for City of Billings)

         Calvin J. Stacey, Stacey & Funyak, Billings, Montana
         (for State of Montana)

         Penelope S. Strong, Attorney at Law, Billings, Montana
         (for Jeremy Flatmouth)



                                     Submitted on Briefs: October 7, 2015
                                                Decided: December 1, 2015


Filed:

         __________________________________________
                           Clerk




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Justice Beth Baker delivered the Opinion of the Court.

¶1    Cyril Not Afraid Jr. appeals the orders of the Thirteenth Judicial District Court,

Yellowstone County, granting summary judgment to the State of Montana, Yellowstone

County, and the City of Billings (collectively Defendants). We restate the issue on

appeal as follows:

      Whether the District Court erred in granting summary judgment to the Defendants
      on the ground that Not Afraid failed to produce evidence demonstrating that the
      Defendants violated a standard of care.

¶2    We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    Not Afraid was severely injured during a single vehicle accident in the early

morning hours of August 18, 2009. The vehicle, driven by Jeremy Flatmouth, was

traveling on Zimmerman Trail in Billings, Montana.        Zimmerman Trail is a steep,

winding, narrow road with Jersey-type concrete barriers along the sharp curve where the

accident occurred. Flatmouth, who was intoxicated and speeding, struck the concrete

barriers while navigating the sharp curve—causing the vehicle to go over the barriers and

down a steep hillside. All of the occupants were ejected from the vehicle. One passenger

died and Not Afraid was paralyzed as a result of the accident. Flatmouth was convicted

of felony vehicular homicide.

¶4    Zimmerman Trail was a private road until it was deeded to Yellowstone County

(County) in 1938. In the mid-1980s, the County, or a contractor hired by the County,

installed the concrete barriers along the sharp curve where the accident took place. The

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County transferred its interest in Zimmerman Trail to the City of Billings (City) in 2005.

In November 2005, the State of Montana (State) entered into an agreement with the City

to carry out winter maintenance—such as plowing, sanding, ice control, and emergency

closures—on Zimmerman Trail. This agreement ended in July 2009, approximately one

month before the accident.

¶5     Nearly two years after the accident, Not Afraid retained two accident

reconstruction experts who visited the crash site and reviewed pertinent documents. The

experts’ four-page report estimated that the vehicle was traveling 45 miles per hour when

it first struck the concrete barriers. The posted speed limit on Zimmerman Trail is 25

miles per hour. The experts found that, in June 2011 when they went to the scene, the

concrete barriers were tilted approximately 15 degrees. Based on the concrete barriers’

tilt, the experts concluded that the barriers were improperly installed and therefore, “the

barriers were relatively ineffective in containing higher speed vehicles traveling around

the curve.”

¶6     Not Afraid subsequently filed two complaints—one against City Public Works

Director David Mumford, and one against the State, the County, and the City. The

complaint against Mumford alleged a products liability claim and both complaints

alleged negligence in the concrete barriers’ placement, installation, and maintenance.

The District Court consolidated the cases following Not Afraid’s unopposed motion.

¶7     The City retained its own accident reconstruction expert, who issued a 16-page

report in May 2014. The City’s expert determined that the vehicle was traveling between

                                         4
68 and 73 miles per hour when it struck the barriers and that the barriers were tilted

approximately 13 to 14 degrees at the time he inspected the scene in March 2014. The

City’s expert concluded that the barriers tilted as a result of the vehicle’s impact. His

conclusion was based on investigation photographs showing fresh disturbances in the

gravel and staining of the concrete at the base of the barriers, the barriers’ measured

geometry, and literature regarding barrier performance testing.

¶8     On August 6, 2014, the County moved for summary judgment on the ground that

it could not be liable for the condition of Zimmerman Trail because it had transferred

ownership of Zimmerman Trail to the City prior to the accident. On August 15, 2014,

Mumford moved for summary judgment on the grounds that he was immune from Not

Afraid’s tort claims under § 2-9-305(5), MCA, and that he could not be liable under the

product liability claims. On August 18, 2014, the State moved for summary judgment on

the ground that it did not own, maintain, or control Zimmerman Trail, and thus, Not

Afraid established no cognizable theory upon which to seek damages against the State.

On August 28, 2014, the City moved for summary judgment on the ground that Not

Afraid failed to establish that the City breached a duty of care, in part because Not Afraid

failed to establish the barriers’ condition at the time of the accident.

¶9     The District Court issued orders granting Mumford’s and the remaining

Defendants’ motions for summary judgment. Not Afraid appeals only the judgments in

favor of the government entities.




                                           5
                              STANDARD OF REVIEW

¶10    We review an entry of summary judgment de novo. Dubiel v. Mont. Dep’t of

Transp., 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66.             Summary judgment is

appropriate when the moving party demonstrates the absence of a genuine issue of

material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3);

Dubiel, ¶ 10. If this burden is met, “[t]he burden then shifts to the party opposing

summary judgment to ‘present substantial evidence essential to one or more elements of

its case to raise a genuine issue of material fact,’ or to show why the undisputed facts do

not entitle the moving party to judgment.” Weber v. State, 2015 MT 161, ¶ 12, 379

Mont. 388, 352 P.3d 8 (quoting Dollar Plus Stores, Inc. v. R-Mont. Assocs., L.P., 2009

MT 164, ¶ 27, 350 Mont. 476, 209 P.3d 216). The nonmoving party cannot satisfy its

burden with “mere denial, speculation, or conclusory assertions.” Phelps v. Frampton,

2007 MT 263, ¶ 16, 339 Mont. 330, 170 P.3d 474 (citations omitted).

                                     DISCUSSION

¶11 Whether the District Court erred in granting summary judgment to the Defendants
on the ground that Not Afraid failed to produce evidence demonstrating that the
Defendants violated a standard of care.

¶12    As an initial matter, Not Afraid contends that the District Court improperly

applied the summary judgment standard because the court “wrongfully shifted the burden

of proof to Not Afraid.” Based on our review of the District Court’s orders, we disagree.

The court determined that the Defendants—the moving parties—met their initial burden

by demonstrating the absence of genuine issues of material fact regarding essential

                                         6
elements of Not Afraid’s claims. The court then shifted the burden to Not Afraid—the

party opposing summary judgment—to establish with substantial evidence that genuine

issues of material fact did exist regarding those essential elements of his claims. The

court, therefore, correctly applied the summary judgment standard. Weber, ¶ 12.

¶13   Not Afraid asserts negligence claims against all of the Defendants and therefore

must prove four essential elements as to each: “(1) the defendant owed the plaintiff a

legal duty, (2) the defendant breached that duty, (3) the breach was the actual and

proximate cause of an injury to the plaintiff, and (4) damages resulted.” Peterson v.

Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (citations omitted).

Although negligence actions ordinarily are inappropriate for summary judgment, “[i]t is

well established that if a plaintiff fails to offer proof of any one of the elements of a

negligence claim, the negligence action fails and summary judgment in favor of the

defendant is proper.” Dubiel, ¶ 12 (citing Peterson, ¶ 24; Hinkle ex rel. Hinkle v.

Shepherd Sch. Dist. #37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1230).

¶14   In granting the Defendants’ summary judgment motions, the District Court

concluded that Not Afraid failed to offer any proof regarding the standard of care by

which to measure the Defendants’ actions. Observing that Not Afraid did not produce

evidence of any standards applicable to concrete barriers in Montana, the court found that

Not Afraid failed to provide the requisite expert testimony relating to any standards the

Defendants may have violated in the concrete barriers’ maintenance, placement, or

installation. As such, the court held that Not Afraid failed to satisfy his burden of

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establishing with sufficient evidence—as opposed to mere denial, speculation, or

conclusory assertions—that there were issues of material fact regarding the Defendants’

breach of any duties of care.

¶15    Not Afraid claims in general fashion that the Defendants had a duty to properly

maintain, place, and install the barriers on Zimmerman Trail.          He asserts that the

Defendants’ breach of those alleged duties resulted in his injuries. He contends that his

experts’ report, crash site photographs, and the County’s Road and Bridge Director’s

deposition testimony provide evidence from which a jury reasonably could infer

negligence in the concrete barriers’ placement, installation, and maintenance.          The

Defendants respond that Not Afraid first must establish the standard of care by which to

measure their actions; “in other words, [he] must establish the degree of prudence,

attention, and caution [that the Defendants] must exercise in fulfilling that duty of care.”

Dubiel, ¶ 14 (citing Dalton v. Kalispell Reg’l Hosp., 256 Mont. 243, 247, 846 P.2d 960,

962 (1993)).

¶16    M. R. Evid. 702 provides: “If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert . . . may testify thereto in the form of an opinion or

otherwise.” Based in part on M. R. Evid. 702, we have held that expert testimony is

required to establish the standard of care in cases where professional duties may not be

apparent to a layperson. Dubiel, ¶ 18 (holding that plaintiff was required to present

expert testimony to establish the standard of care applicable to the Montana Department

                                         8
of Transportation’s decision-making process for closing a road); Dulaney v. State Farm

Fire & Cas. Ins. Co., 2014 MT 127, ¶ 21, 375 Mont. 117, 324 P.3d 1211 (holding that

plaintiff’s failure to obtain an expert witness resulted in an “insufficiency of proof

regarding [the] duty” of an insurance agent to advise his client on sufficient coverage);

Dayberry v. City of E. Helena, 2003 MT 321, ¶ 21, 318 Mont. 301, 80 P.3d 1218

(holding that expert testimony was required to determine whether the depth of a

swimming pool was unreasonably dangerous for the diving board length in a case against

a swimming pool operator).

¶17    We recognized in Dubiel that governmental highway maintenance activities may

be outside the common experience of jurors. Dubiel, ¶¶ 15-18. The County’s Road and

Bridge Director testified that he relied on engineers in making decisions involving Jersey

barriers. The City acknowledges its duty to keep roadways in a reasonably safe condition

for ordinary use; that Flatmouth’s vehicle flipped over the barriers at an excessive rate of

speed, the City argues, does not evidence that the City breached its duty. We agree. Like

in Dubiel, we conclude that the placement, installation, and maintenance of concrete

barriers is “sufficiently beyond the common experiences” of a lay jury. Dubiel, ¶ 17.

Expert testimony would assist the trier of fact in determining whether the Defendants’

placement, installation, and maintenance of those barriers did not keep the roadway

reasonably safe for ordinary or foreseeable use. Not Afraid therefore was required to

produce expert testimony to establish the standard of care by which to measure the

Defendants’ actions.

                                         9
¶18    Not Afraid contends that his experts raised sufficient factual issues in this regard

to survive summary judgment. In support of his contention that the County breached its

duty of care by negligently installing the barriers, Not Afraid argues that his experts

“clearly demonstrated that [Not Afraid’s] injuries were caused by the improper

installation of the barriers. . . .” Not Afraid’s experts’ report, however, does not establish

by substantial evidence that a genuine issue of material fact exists regarding the County’s

breach of a duty of care. It simply concludes that the position in which the experts found

the barriers “necessarily reduced the barriers’ ability to hold vehicles to the inside of the

curve.” Not Afraid failed to provide any evidence regarding standards for concrete

barrier installation in Montana or the vehicle speeds that such barriers should be able to

withstand. Moreover, the experts’ finding that the barriers were tipped 15 degrees in

June 2011—nearly two years after the accident—is not sufficient to establish beyond

speculation or conclusory assertion that the barriers were placed and installed improperly

in the 1980s.    Finally, Not Afraid’s references to the Road and Bridge Director’s

deposition testimony regarding barrier placement on other County roads is not substantial

evidence of a standard of care.1 Not Afraid has therefore failed to establish “the degree

of prudence, attention, and caution” that the County must have exercised in placing and

installing the concrete barriers twenty-five to thirty years ago. Dubiel, ¶ 14.




1
  Contrary to Not Afraid’s argument, the witness did not acknowledge erosion of the shoulder,
water build-up, or improper placement of the barriers in the stretch of roadway where the
incident occurred.
                                          10
¶19    Not Afraid’s next contention is that the City breached its duty of care by

improperly maintaining the concrete barriers. Not Afraid argues that his experts “clearly

demonstrated that [Not Afraid’s] injuries were caused by the . . . lack of maintenance of

[the] barriers.” Again, however, Not Afraid has offered no evidence regarding standards

for concrete barrier maintenance in Montana. In fact, Not Afraid’s experts did not

mention maintenance at all, let alone standards the City allegedly breached in the

concrete barriers’ maintenance. The experts’ opinions are confined to installation of the

barriers; the report is silent as to any alleged relationship between the City’s maintenance

and Not Afraid’s injuries. Not Afraid has failed to “establish the standard of care by

which to measure” the City’s maintenance of the barriers or what acts or omissions by the

City violated any such standard.      Dubiel, ¶ 14. Not Afraid therefore has failed to

establish with substantial evidence that a genuine issue of material fact exists concerning

breach of the City’s duty of care in maintaining the concrete barriers.

¶20    Finally, Not Afraid argues that the State breached its duty of care by improperly

maintaining the concrete barriers. Not Afraid contends that the State had a duty to

maintain the barriers based on the State’s agreement with the City to conduct winter

maintenance on Zimmerman Trail. As Not Afraid concedes, the State’s maintenance

agreement was limited to winter road maintenance and ended “approximately one month

before the wreck occurred.” The agreement did not pertain to maintenance activity

involving the concrete barriers.     The State’s expired winter maintenance agreement

cannot be the predicate for the State’s alleged duty to maintain the barriers.

                                         11
¶21    Not Afraid’s general assertions that his claim against the State nonetheless is

proper because the Defendants “did not set forth to the court how they provided

maintenance,” and that “one or all of [the Defendants] were providing maintenance” of

Zimmerman Trail do not satisfy his burden of establishing specific facts—as opposed to

speculation or conjecture—regarding breach of any duty of care by the State. Again, Not

Afraid’s experts’ conclusions discuss only installation of the barriers. Not Afraid has

therefore failed to offer proof that the State had a duty to maintain the barriers and that

the State breached its alleged duty.

¶22    In sum, Not Afraid’s summary judgment submissions suffer from “an

insufficiency of proof regarding” breach of the Defendants’ alleged duties to properly

place, install, and maintain the concrete barriers.     Dulaney, ¶ 21.     Not Afraid has

therefore failed to offer substantial evidence of one of the essential elements of his

negligence claim against each Defendant. Accordingly, the District Court did not err in

granting summary judgment to the Defendants.

                                       CONCLUSION

¶23    The District Court correctly granted summary judgment to each of the Defendants

on the ground that Not Afraid failed to raise an issue of material fact regarding the breach

of their alleged duties of care. Accordingly, we affirm.



                                                 /S/ BETH BAKER




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We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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