                                                                                        February 14 2012


                                        DA 11-0354

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2012 MT 35



KEEVY DUBIEL, individually and as Personal
Representative of the Estate of Jerome Dubiel,
Deceased, THE ESTATE OF JEROME DUBIEL,
and Keevy Dubiel as Guardian for Isabella
Dubiel, Cashel Coleman-Dubiel, minor children
of Jerome Dubiel,

           Plaintiffs and Appellants,

     v.

MONTANA DEPARTMENT OF TRANSPORTATION,
STATE OF MONTANA, DOES 1-10,

           Defendants and Appellees.



APPEAL FROM:         District Court of the Twentieth Judicial District,
                     In and For the County of Lake, Cause No. DV-10-155
                     Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

             For Appellants:

                     Torrance L. Coburn, Tipp & Buley, P.C., Missoula, Montana

             For Appellees:

                     Dana L. Christensen, Christensen, Moore, Cockrell, Cummings
                     & Axelberg, P.C., Kalispell, Montana

                     Pamela Snyder-Varns, Special Assistant Attorney General, Risk
                     Management & Tort Defense Division, Helena, Montana



                                                 Submitted on Briefs: January 4, 2012

                                                            Decided: February 14, 2012
Filed:

         __________________________________________
                           Clerk




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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Jerome Dubiel (Jerome) was killed while traveling north on Montana Highway 35

in December 2008.      He was traveling during a “high wind” event that had caused

numerous trees to blow down along this stretch of highway. While stopped temporarily

by a Montana Department of Transportation (MDT or the Department) field maintenance

employee who was clearing highway debris, a tree fell on Dubiel’s car inflicting a fatal

injury. Keevy, Jerome’s wife (hereinafter referred to as Dubiel), sued MDT claiming it

had negligently failed to close the highway prior to her husband’s death. Several months

into the proceeding, MDT moved for summary judgment and the District Court granted

its motion. Dubiel appeals. We affirm.

                                          ISSUE

¶2     A restatement of the issue on appeal is whether the District Court erred in granting

MDT’s motion for summary judgment on the ground that Dubiel could not prove the

applicable standard of care and breach thereof without expert testimony.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On December 13, 2008, Jerome Dubiel was traveling from Polson to Big Fork,

Montana, along MT Highway 35. The wind had been blowing strongly for at least two

hours and numerous trees had blown down along this route. MDT staff was on site at

multiple locations working to clear the road of trees and downed power and cable lines

and to evaluate conditions. While he was stopped on MT Highway 35 awaiting road

clearance, a tree fell on Jerome’s vehicle inflicting injuries from which Jerome later died.



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Shortly after Jerome’s accident, MDT closed MT Highway 35 due to weather and road

conditions. MDT asserts it did not know of Jerome’s accident at the time it closed the

highway.

¶4     In May 2010, Jerome’s wife Keevy brought a negligence and wrongful death

action against MDT on behalf of herself, Jerome’s estate, and the couple’s two minor

children. She alleged MDT should have closed the road earlier to ensure the safety of

those traveling the highway. She claimed MDT’s failure to do so constituted negligence

and resulted in the wrongful death of her husband. While she retained an economic

expert to establish Jerome’s lost earnings, estimated earning capacity and other economic

factors, Dubiel did not retain an expert to establish MDT’s standard of care (SOC)

regarding highway safety under the circumstances leading to Jerome’s death.

¶5     In February 2011, MDT served an expert witness disclosure in which it identified

four expert witnesses it intended to call at trial. One expert was Thomas Root who spent

35 years working for the Washington Department of Transportation. On March 14, 2011,

Root submitted an affidavit prepared after he had reviewed MDT’s road closing policies

and procedures and the road and weather conditions along MT Highway 35 on the

morning of December 13, 2008.         He explained that a number of factors must be

considered and weighed by a state department of transportation before ordering a

roadway to be closed, including but not limited to public safety and safety of department

personnel, traffic flows and the ability of alternate routes to absorb the diverted traffic,

and the nature of the weather condition or event giving rise to the closure determination.

Root opined that the MDT “Maintenance crews, Maintenance Superintendent, and


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Maintenance Bureau Chief all acted timely and responsibly in assessing the situation

involving extreme wind conditions on Highway 35 on the morning of December 13,

2008, and in making the appropriate decision to close the road.”

¶6    In May 2011, following the deadline for expert witness disclosure, MDT moved

for summary judgment arguing that because Dubiel did not intend to call an expert

witness to testify as to MDT’s SOC, she could not prove her negligence claim. Dubiel

countered that MDT’s own policies and procedures addressing road closures set forth the

appropriate SOC and an expert witness was therefore not required. She opined that no

specialized knowledge was required to understand the standard and determine that it had

been breached.

¶7    The District Court agreed with MDT:

              Expert testimony is required in this case to establish the standard of
      conduct to which MDT is required to conform in closing a road, and to
      assist the trier of fact in determining whether MDT deviated from that
      standard in closing Montana Highway 35 on December 13, 2008. An
      unassisted lay juror could not identify the factors a highway maintenance
      official must consider when making the decision to close a road. The
      factors that go into closing a road or keeping it open are not obvious to lay
      persons, who are not versed in highway maintenance methods.

¶8    The court continued that an average juror could not determine the “particular

combination of driving and road conditions” on the morning of the accident without an

“expert to provide the complete picture of what highway maintenance officials must

consider in closing a road.”     Otherwise, the “jurors’ perspective on the issue of

negligence would be overly simplistic and one-dimensional.” Relying on Dayberry v.

City of East Helena, 2003 MT 321, ¶ 17, 318 Mont. 301, 80 P.3d 1218, the court held



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that because MDT’s policies on road closure do not define a particular standard of

conduct, Dubiel needed an expert witness to establish the SOC and whether the standard

had been breached on the morning of her husband’s death. Because Dubiel had no

expert, she could not make out a prima facie case of negligence and MDT was entitled to

summary judgment as a matter of law.

¶9     Dubiel appeals.

                               STANDARD OF REVIEW

¶10    We review summary judgment rulings de novo. Applying the same M. R. Civ. P.

56 criteria as the district court, we determine whether the moving party has established

both the absence of any genuine issues of material fact and entitlement to judgment as a

matter of law. We review a district court’s conclusions of law for correctness. We

review a district court’s findings of fact to determine whether they are clearly erroneous.

LaMere v. Farmers Ins. Exch., 2011 MT 272, ¶ 13, 362 Mont. 379, 265 P.3d 617.

                                      DISCUSSION

¶11    Did the District Court err in granting MDT’s motion for summary judgment on the
       ground that Dubiel could not prove the applicable standard of care and breach
       thereof without expert testimony?

¶12    Dubiel is asserting a claim of negligence against MDT. To succeed on her claim,

Dubiel must prove that MDT owed her a duty, that it failed to live up to that duty, and

that the failure caused her damages. Western Sec. Bank v. Eide Bailly LLP, 2010 MT

291, ¶ 22, 359 Mont. 34, 249 P.3d 35 (The four elements of a negligence claim are duty,

breach of duty, causation, and damages.). It 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


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and summary judgment in favor of the defendant is proper. Peterson v. Eichhorn, 2008

MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615; Hinkle ex rel. Hinkle v. Shepherd Sch. Dist.

# 37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1239.

¶13    In this case, Dubiel claims MDT had a duty to close MT Highway 35 under the

extreme wind conditions present on the morning of December 13. She asserts that the

Department breached that duty, and that had MDT closed the road in a timely manner,

her husband would not have been involved in the accident that killed him.

¶14    To determine if a defendant breached a duty of care, a plaintiff must establish the

standard of care by which to measure the defendant’s actions; in other words, she must

establish the degree of prudence, attention, and caution the defendant must exercise in

fulfilling that duty of care. Dalton v. Kalispell Reg’l. Hosp., 256 Mont. 243, 247, 846

P.2d 960, 962 (1993). Dubiel claims that MDT policies and procedures set forth in an

MDT document entitled “Road Closure (MMS 6205)” clearly establish the proper

standard of care. The policy states that MDT “should” close a road “when conditions are

unsafe for normal traffic and when it is hazardous to continue normal maintenance

operations without undue risk to personnel.”         The policy lists eight examples of

conditions that may justify a road closure, including “high winds.” The policy document

further states that the “Director of the [MDT] has delegated responsibility for a closure to

the Area Maintenance Bureau Chiefs. . . . The decision of when to close a highway, how

much of the highway to close and when to open the road to traffic rests with the Area

Maintenance Bureau Chief.” Various MDT employees testified by deposition that they

rely on information provided by field maintenance crews to determine when to close a


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road. Dubiel maintains that a jury does not need an expert to tell it that when high winds

are causing trees to blow over across a road and land on cars, the “conditions are unsafe

for normal traffic” and the road should therefore be closed.

¶15    MDT counters that road closures in Montana are rare because they are very

disruptive.   The Department argues that juries cannot intuitively know the multiple

factors that MDT employees must consider when closing a road; therefore, an expert

must explain the many factors to be considered. For example, in the case of a high wind

event, MDT must consider, among other things: the number of trees downed, the

likelihood of other trees falling, the ability of MDT crews to clear the trees within a

reasonable time, the quantity of traffic that uses the road, the impairment to commerce

and movement of goods if the road is closed, the safety concerns raised by diverting

traffic to other roads and the capacity of the other roads to handle the increased traffic,

and, importantly, the potential for impairment to access to medical services and supplies

and emergency vehicle access in the event of a road closing. MDT asserts these factors

are sufficiently beyond the common experiences of jurors that expert testimony is

necessary to enable them to understand the interrelation of all aspects of a road closure

decision.

¶16    Montana Rules of Evidence 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 by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise.”




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¶17    In Dayberry, we held that expert testimony is required when the issue presented is

sufficiently beyond the common experience of the trier of fact and the expert testimony

will assist the trier of fact in determining the issue or understanding the evidence.

Dayberry, ¶ 19. In Dayberry, a minor child was injured when diving into a public

swimming pool. In the ensuing law suit, Dayberry argued the City of East Helena had a

duty to warn him that the pool was too shallow for diving and that the City’s failure to do

so caused his injuries. Dayberry maintained that an expert witness was not required to

establish the standard of care applicable to the City because neither the pool nor the

diving board met the then-current minimum safety standards. The City countered that an

expert witness was required to establish the proper SOC and because Dayberry did not

present one, summary judgment in favor of the City was appropriate. In affirming the

district court’s entry of summary judgment in favor of the City, we concluded that “a

juror of ordinary training and intelligence would not know whether the City’s pool depth

was inadequate, thereby requiring a warning or prohibition of diving . . . .” Dayberry,

¶ 19. We reflected on the other factors to be considered, as well, such as water depth,

diving board stiffness, diving board height and length. As a result, we held that expert

testimony was required to determine the SOC applicable to swimming pool operators and

to determine the reasonableness of pool design.

¶18    Here, there are numerous interrelated factors that must be considered by MDT in

making a decision to close a road, many of which are not readily apparent to a layman.

These include the factors set forth in ¶ 15, as well as an understanding of the MDT chain

of command and the manner in which decisions are made in a dynamic situation which


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changes minute to minute. While MDT’s policies and procedures present some general

guidelines, they are not sufficient, standing alone, to adequately inform a jury of MDT’s

standard of care and whether it met that standard on the morning of December 13, 2008.

Therefore, Dubiel was obligated to present expert testimony to assist the trier of fact in

making the determination of whether MDT was negligent.

                                    CONCLUSION

¶19   For the foregoing reasons, we affirm the District Court’s granting of summary

judgment to MDT.


                                                /S/ PATRICIA COTTER


We concur:

/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS




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