                                             NO.    85-280

                I N THE SUPREME COURT O THE STATE O MONTANA
                                       F           F

                                                   1986




KRISTINA B I R K Y ,

                   P l a i n t i f f and A p p e l l a n t ,



D I A N E JOHNSON a n d COMMERCIAIl U N I O N
INSURANCE COMPANY, STEVEN SIDERIUS
AND NATIONAL FARMERS U N I O N INSURANCE
COMPANY,
                  Defendants and Respondents.




APPEAL FROM:       D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f F l a t h e a d ,
                   The H o n o r a b l e E . G a r d n e r B r o w n l e e , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                   Astle & Astle;            David L .         A s t L e , K a l i s p e l l , Montana

         For Respondents:

                   Yurphy, R o b i n s o n , H e c k a t h o r n & P h i l l i p s ; I . James
                   H e c k a t h o r n , K a l - i s p e l l , Montana  (Johnson)
                   Hash, J e l l i s o n , O ' B r i e n & R a r t l e t t ; Kenneth E.
                   O ' B r i e n , K a l i s p e l - 1 , Montana     (Siderius)
                   S. Y. I o a r r i c k , K a l i s p e l l , Montana       ( N a t ' l Farmers
                   Union I n s . )
                   G a r l i n g t o n , Jjohn & Robinson; Wm. Evan J o n e s , M i s s o u l a ,
                   Montana           (Commercial Union I n s . )


                                                           -                                -




                                                   S u b m i t t e d on B r i e f s :   Dec.    11, 1985

                                                      Decided:          March 2 0 , 1 9 8 6




                                                   Clerk
1 .  Justice John C. Sheehy delivered the Opinion of the
Court.


      Appellant, Kristina Eirky, appeals from the order 02 the
District    Court,   Eleventh   Judicial     District,    County    of
Flathead,   granting    the   motion   for   summary     judgment   of
respondent, Steven Siderius.       The District Court certified
its order for appeal by order dated July 12, 1985.
      This action arises out of a multiple vehicle collision.
The basic facts established by the pleadings, depositions and
affidavits disclose the following:      On May 8, 1982, Birky was
driving her vehicle west on U.S.        Highway No. 2.       She was
followed by a vehicle driven by Siderius.        A.s the Rirky and
Siderius vehicles approached the intersection of U.S. Highway
No.   2 and LaSalle Road they were tra.veling at a speed of

approximately 35 to 40 miles an hour and the Siderius vehicle
was approximately four to five car lengths behind the Birky
vehicle.
      As Birky and Siderius approached the intersection, a
vehicle driven by Diane Johnson pulled out of the Snappy's
Sports Center parking lot and crossed the west bound traffic
lanes directly in front of the Birky vehicle.          Birky applied
her brakes and left 33 feet of skid marks before striking the
Johnson vehicle.       The Siderius vehicle pulled to the left
into the left turn bay in an effort to avoid the collision.
When the Johnson and Birky vehicles collided, however, the
rear of the Birky vehicle swung also to the left, and the
rear of the Rirky vehicle and          the side of the Siderius
vehicle collided.
      The investigating patrolmen and Birky all agreed that if
the Johnson vehicle had not pulled. in front of the Birky
vehicle,    no   accident would      have   occurred.      Both   of   the
Highway Patrolmen were also of the opinion that the proximate
cause of the accident was the action of Johnson in failing to
yield the right of way, and no actions of Siderius were a
proximate    cause     of    the   accident.    Further,     after     the
accident, Johnson acknowledged          that the accident was her
fault, and she received a citation for failure to yield the
right of way.        No citations were issued to Siderius.             Two
eyewitnesses to the collision were also of the opinion that
Siderius had done everything to avoid the accident and that
Siderius was not at fault.
     It was Birky's opinion that Siderius couldn't have been
cautious or he woul-dn't have struck her.               Bj-rky, however,
agreed that since she didn't see the Siderius vehicle that
eyewitnesses would be in a much better position to judge the
conduct of Siderius.
     The    record     also indicates that neither the Siderius
vehicle nor the Birky vehicle were speeding.
     Birky    raises only      one   issue on appeal: whet-her the
District Court erred in granting summary judgment to Siderius
on the issue of negligence.
     The     purpose    of    summary   judgment   procedure      is   to
encourage judicial economy by eli-ninating unnecessary trials,
and it is proper under Rule 56 (c), M.R.Civ.P.,              only when
there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.               Cereck
v. Albertson's, Inc.         (1981), 195 Mont. 409, 411, 637 P.2d
509, 510; Reaves v. Reinbold (Nont. 1980), 615 P.2d 896, 898,
37 St.Rep. 1500, 1502.

     It is well established that a party moving for summary
iudgment has the burden of showing a complete absence of any
                             CORRECTION

                                                           Date                 3/cg ! 8 6
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EDITORIAL DEPARTMENT
West Publishing Co., P.O. Box 3526, St. Paul, MN 55165

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genuine issue as to all facts deemed material in light of the
substantive principles that entitle that party to a judgment
as a matter of law.              Cereck, 195 Mont. at 411, 637 P.2d at
511; Reaves, 615 P.2d at 898, 37 St.Rep. at 1502; ~arlandv.

Anderson        (1976), 169 Mont.         447, 450, 548 P.2d                613,    ~ l l
reasonable inferences that may he drawn from the offered
proof are to be drawn in favor of the party opposing the
summary judgment.           Cereck, 195 Mont. at 411, 637 P.2d at 511;
Reaves,     615 P.2d        at    898, 37 St.Rep.              at    1502; Mally        v.
Asa.novich (1967), 149 Mont. 99, 105, 423 P.2d 294, 297.
         When   a   duty    is    imposed upon          the defendant and           the
plaintiff's allegations, if proven, would support a finding
of   a    breach    of     the duty, summary judgment is improper.
Cereck, 195 Mont. at 412, 637 P.2d at 511.; Rennick v. Hoover
(1980), 186 Mont. 167, 170, 606 P.2d 1079, 1081.
         In Montana        the   duty     imposed       upon    the     driver     of    a
following vehicle is set forth at                   $   61-8-329 (1), MCA which
provides :
         The driver of a motor vehicle shall. not follow
         another vehicle more closely than is reasonable and
         prudent, having due regard for the speed of such
         vehicles and the traffic upon and the condition of
         the highway.
Zn construing S 61-8-329(l), MCA, this Court has held that
the primary duty of avoiding a collision rests upon the
following       driver.          Custer    Broadcasting             Corp.   v.   Brewer
(1974), 163 Mont. 519, 518 ~ . 2 d
                                 257.
         This Court, however, has never addressed the situation,
as here, where the following vehicle is required to make an
emergency stop when the motorist ahea-d collides unexpectedly
with another motorist.
         In some jurisdictions statutes prescribe the
         distance to be maintained by a motor vehicle from
         the one ahead,.         ..
                             in general language, such as a
       "reasonable and prudent" distance from the vehicle
       ahead, or a reasonable and prudent distance with
       regard to the speed of the other vehicle and the
       traffic upon and condition of the roadway,.               ..
       Generally, then, the law, in effect, requires that
       where   two   motorists   are  operating   vehicles
       proceeding in the same direction, the motorist to
       the rear keep a safe distance behind the motorist
       ahead, so as to avoid collision with the vehicle
       ahead when it is being driven in accordance with
       the law of the road.    It has been said that the
       motorist to the rear must keep such distance from
       the motorist ahead and maintain such observation of
       him that an emergency stop may be safely made,
       although - motorist - - - - -
                 the              to the rear need not
       anticipate an emergency stop required - - when the
       motorist ahexd collides unexpectedly with another
       motorist. (Emphasis added.)
7A Am. Jur.2d      Automobiles    and Highway Traffic S        261    (Rev.
1980).
       In the instant. case, Birky claims that the mere fa.ct
that Siderius rear-ended her is prima facie evidence that
Siderius was following more closely than was reasonable and
prudent     in    breach    of   the   duty   imposed   upon   him   by    5

61-8-3?9(1), MCA.          In light of the above-cited authority, and
the facts about which there is no genuine issue, the claim
made   by   Rirky would       not support a      finding of breach of
Siderius' duty toward her, the granting of summary judgment


                 also raises the issue that,        &&         notice of
appeal was not timely filed.           We, however, .decline to discuss
                                                    J- "k!
                                                     cz -
this    issue,     having    previously    denied    Rir-      motion     to
dismiss this appeal on those grounds by order of this Court
dated September 17, 1985.
       We affirm the District Court.




We Concur:
     I

ief Justice
