                                   No.      95-071
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1996


JAMES R. BURCHARD,
              Plaintiff    and Appellant,
         v.
MINNIE GREGORY, UNITED MATERIALS
OF GREAT FALLS, INC., and John
Does A through E,
              Defendants    and Respondents.



APPEAL FROM:         District  Court of the Eighth Judicial   District,
                     In and for the County of Cascade,
                     The Honorable Thomas M. McKittrick,  Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                      James R. Burchard,      Pro Se, Port Orchard,     Washington
                      J. Mayo Ashley,      Attorney   at Law, Helena,    Montana

              For Respondents:
                      Lon T. Holden; Jardine,    Stephenson, Blewett  &
                      Weaver, Great Falls,    Montana (for Minnie Gregory)
                      Paul R. Haffeman; Cure, Borer          & Davis, Great Falls,
                      Montana (for United Materials          of Great Falls)




                                 Submitted      on Briefs:     September 28, 1995
              /pFi 1 5 'i9Y6                      Decided:     April  15, 1996
Filed:
Justice       Karla       M. Gray delivered                      the Opinion          of the Court.


          Pursuant        to Section             I,      Paragraph       3(c),       Montana Supreme Court
1995 Internal             Operating            Rules,          the following             decision      shall     not be
cited      as precedent            and shall             be published         by its         filing      as a public
document with             the Clerk            of the Supreme Court and by a report                               of its
result        to      Montana      Law Week, State                     Reporter           and West Publishing
Company.
          James Burchard            appeals            from the judgment                 entered      by the Eighth
Judicial           District        Court,            Cascade County,               on its       orders         granting
defendants'            motions          for    summary judgment.                    We affirm.
          The sole        issue         on appeal             is whether          the District          Court      erred
in granting            summary judgment                  in favor        of Minnie          Gregory      and United
Materials           of Great       Falls,             Inc.
          At approximately                11:OO p.m.             on July      12, 1989, appellant                  James
Burchard           (Burchard)           was driving              his    pickup       truck      and fifth-wheel
trailer       eastbound           in the inside                 lane of 10th Avenue South in Great
Falls,       Montana.           His wife         and a young relative                     also were in the cab
of     Burchard's             pickup.         The weather              was rainy           and windy,           and the
portion       of 10th Avenue South on which Burchard                                      was driving          recently
had been            resurfaced            by     United          Materials           of     Great      Falls,       Inc.
(United).               Burchard              lost           control     of        his      vehicle       near        the
intersection            of 38th Street                 and 10th Avenue South.                    The fifth-wheel
trailer        rode      up on the median and Burchard's                                   attempts       to     regain
control        caused          the pickup              and trailer           to     "jackknife,"          coming          to
rest      partially           on the median and partially                         on westbound           10th Avenue


                                                                 2
South.            Minnie          Gregory            (Gregory)          was traveling                    in      the     inside
westbound          lane of traffic                   on 10th Avenue South at the time                                   and her
vehicle         collided          with      Burchard's.
          Great         Falls             Police          Officer             Keith              Kercher              (Kercher)
investigated              the      accident.               Burchard           told         Kercher            that     he lost
control         of his pickup              because various                 fluids          at the accident                 scene
had     seeped          out       of     the       new pavement,                 creating           a slippery                road
surface.                Kercher             observed             gasoline,               oil,           antifreeze             and
transmission              fluid         on the pavement                 from the damaged vehicles                              and
disagreed          with       Burchard's                characterization                   of     the     source         of    the
slippery           road         surface            at     the       scene          of       the         accident.                He
subsequently            performed              skid tests,          however,            in order          to investigate
Burchard's          theory.             Kercher         cited     Burchard           for        careless        driving;        he
did     not cite         Gregory.
         Burchard's             wife       filed        a negligence              action           against           Burchard,
Gregory,        United,           and John Does A through                        E in July           of 1992,           seeking
recovery          for     injuries             she sustained                in     the      accident.                  Burchard
filed      a separate              negligence             action        against            the      other           defendants
that      same month.                  The District             Court      consolidated                 the actions            and
Burchard's          wife        subsequently              settled          her     case.
          Burchard         proceeded            pro se after            his       attorney          was permitted                to
withdraw.           Pursuant             to the court's             scheduling              order,         the plaintiff
and defendant             were required                 to disclose              expert         witnesses             by August

1,      1994,      and        August           15,      1994,       respectively,                   and        to      complete
discovery          by September                 1, 1994.           Trial         was scheduled                  for     October
31, 1994.
          Gregory            and United         filed          motions        for     summary judgment                pursuant
to     Rule        56,            M.R.Civ.P.,             on     September              8,        1994,      and      Burchard
responded.               Following           a hearing            held on October                   7, 1994, the trial
date        apparently                was vacated.                    The District                Court      granted         both
motions           for         summary judgment                   on December                 5,     1994,      and entered
judgments           accordingly.                 Burchard              appeals.
          Did the District                     Court err in                  granting             summary judgment               in
          favor of Gregory                    and United?
          Summary judgment                    is proper           when no genuine                   issues        of material
fact      exist         and the moving party                     is entitled                to judgment            as a matter
of     law.         Rule           56(c),       M.R.Civ.P.                   The party            moving       for      summary
judgment          has the initial                burden of establishing                            both     the absence of
any genuine              issue         of material             fact     and its         entitlement               to judgment
as a matter                  of law.          AgAmerica,               FCB v.         Robson         (1995),         272 Mont.
413, 416-17,                 901 P.2d 100, 102 (citation                             omitted).             When reviewing
an order          granting             summary judgment,                     we apply         the same criteria                  as
the district                 court.         AsAmerica,           901 P.2d at 102 (citation                           omitted).
          Ordinarily,                 negligence           issues        involve            "questions            of fact     not
susceptible                  to    summary adjudication."                             Hatch        v.     State      Dep't       of
Highways          (1994),            269 Mont.        188, 192-93,                  887 P.2d 729, 732 (citation
omitted).               Notwithstanding                   this    general            rule,        a negligence           action
properly          may be resolved                    on a motion                for         summary judgment                under
limited           circumstances.                     If        a moving             defendant            establishes          the
absence        of a genuine                  issue        of material                fact     regarding            any one of
the     four        elements              constituting                 the     negligence               action,        and the
plaintiff               does        not      come forward                    with      proof            establishing          the
existence               of        a genuine          factual            issue         regarding             that      element,
                                                                  4
summary judgment                     in the defendant's                      favor       is     proper.            Hatch,       887
P.2d at 732 (citation                            omitted).           The nonmoving               party's           proof      must
be substantial                and consist              of specific            facts;          reliance         on pleadings
or speculative,                    fanciful         or conclusory                 statements          is insufficient.
Thornton           v.      Songstad             (1994),      263 Mont.            390,        397-98,        868 P.2d 633,
638 (citation                omitted).
         a.        Summary judgment                    in favor         of Minnie              Gregory
         Burchard's                 complaint             alleged          that      he lost               control      of     his
vehicle            and      that      it         came to       rest        partly         on the             raised         median
separating                eastbound             and westbound              10th      Avenue South,                 and partly
"in     the        left      lane          of     westbound           traffic."                His      sole       allegation
against         Gregory        was that             she negligently                 operated         her vehicle             at an
excessive            speed and,                 as a result,           collided          with        his     pickup         in the
left     lane        of westbound                 traffic,       thus        causing           the accident            and his
injuries           and other           damages.              Gregory         moved for           summary judgment.
         Gregory            supported             her motion          with        affidavits           and a drawing            of
the accident                scene from Kercher,                     who had received                    formal        accident
investigation                training              and investigated                  more than               700 accidents
during        his       law enforcement                   career.          According            to Kercher,            Gregory
was travelling                 at      approximately                 the     speed limit                when Burchard's
vehicle            suddenly          appeared           in and obstructed                     her     inside         westbound
lane       of        travel.                    Kercher's        opinion             that        Burchard's                 pickup
obstructed              Gregory's           lane of travel              resulted          from his investigation
and reconstruction                     of the accident                  and was reflected                      on a diagram
showing            Burchard's              pickup      blocking         Gregory's             westbound            lane at the
point         of     impact.               Kercher           stated        that       Gregory              could      not     have

                                                                 5
avoided          the accident                even if         she had been going                    slower,     given        the
sudden obstruction                     of her lane of travel                      by Burchard's              pickup.         In
his     opinion,            the       accident              was caused            by     Burchard's          failure         to
maintain          control            of his      vehicle.
         The District                  Court         concluded             that      Gregory        met her       initial
burden      of establishing                     the absence of any genuine                         issue     of material
fact    with        regard           to Burchard's                 negligence          claim       against     her.       The
court      further          concluded            that        Burchard's           submissions            in opposition
to Gregory's              motion            were insufficient                  to raise         a genuine        issue       of
material           fact         as     to      Gregory's             negligence           or     the     cause    of        the
accident.                On that            basis,          the     District           Court     granted       Gregory's
motion.
        A law enforcement                      officer        with        years      of experience           in accident
investigation               may render               opinions            on whether            a party       was driving
too fast         and on the cause of an automobile                                     accident.         Hart-Anderson
v.     Hauck       (1989),           239 Mont.              444,        448-49,        781 P.2d        1116,     1118-19.
Indeed,          this      has been well-settled                           law in Montana              since     at least
1974.       &           Rude v. Neal              (1974),           165 Mont.          520,     526,     530 P.2d 428,
432.        Moreover,                an experienced                     investigating            officer's        opinion
regarding          the cause of an automobile                               accident       is sufficient          to meet
a moving          party's            initial         burden          of establishing               the     absence       of a
genuine        issue       of    material            fact         on that      element         of an accident-based
negligence              claim.        White v. Murdock                     (1994),      265 Mont.          386, 391, 877
P.2d 474,           477.
         Here,          Kercher's           opinions          that       Gregory was not driving                 too fast
and       that          Burchard               caused         the         accident         were        based      on        his

                                                                    6
investigation                   and      experience.                 Thus,           Kercher's                  opinions            were
sufficient                to     establish            the     absence            of      any         genuine                issue       of
material           fact        regarding        her alleged             negligence             and the cause of the
accident.                See White,           877 P.2d at 477.                        We conclude,                     therefore,
that      Gregory          met her initial                  burden          on summary judgment.
          Gregory          having        met her burden                as the party              moving for                   summary
judgment,           the burden            shifted        to Burchard             to establish                    the existence
of     genuine           issues         of material            fact.           He contends                  that        he raised
several        such issues.
          Burchard             relies      on his           own affidavit                in     contending,                    first,
that      a factual            dispute        exists        regarding           Gregory's                speed at the               time

of     the     accident.                 In     his     affidavit,               he      stated             that        Gregory's
vehicle            was     "negligently                driven          at      the     time          .      .           [and        was1
travelling            at an excessive                  rate     of speed.                      .'I
          Once the party                 moving for            summary judgment                      has satisfied                   its
initial            burden,         the     nonmoving            party          may not           rest             on the            mere
allegations               in its      pleadings.              Rule 56(e),             M.R.Civ.P.                  By affidavit
or as otherwise                  provided       by Rule 56, the nonmoving party's                                            response
"must        set     forth         specific           facts      showing             that      there             is     a genuine
issue        for     trial."             Rule     56(e),         M.R.Civ.P.                 Burchard's                      statement
regarding            Gregory's             speed        simply              reiterates           the             speed-related
allegation            in his          complaint.
          Moreover,                speculative                and            conclusory                   statements                 are
insufficient               to raise        a genuine            issue        of material                 fact;        they      do not
constitute           the substantial                  proof      consisting              of specific                  facts     which
is necessary               to withstand               a properly             supported          motion                for     summary

                                                                 7
judgment.            Thornton,               868 P.2d at 638.                      Here,       Burchard's         affidavit
includes         only            his         own         speculative               and     conclusory             statement
regarding         Gregory's                 speed.            In light           of Kercher's           investigation-
based opinion              that         Gregory          was not driving                 at an excessive               rate      of
speed,      we conclude                   that      Burchard's               affidavit          is     insufficient              to
establish            the     existence                   of     a genuine             issue       of        material          fact
regarding        Gregory's                 alleged            excessive          speed.
         In disclosing                  his witnesses                 and again at the summary judgment
hearing,       Burchard               indicated           that       Ralph Ward (Ward),                 a wrecking          yard
operator        he identified                      as a trial                witness,          estimated          Gregory's
speed at 55 miles                      per       hour,        which        exceeds       the     speed limit            at the
location        of     the            accident.                He submitted              no affidavit              or    other
evidence        from        Ward.                Moreover,            when questioned                  by the      District
Court      about whether                  Ward was qualified                     to give an opinion               regarding
the     speed at which                    Gregory             was driving,            Burchard          responded             that
Ward was not an engineer                            and that              he guessed that              he "can go find
another        guy and see if                    he'll         talk."
        Once the burden on summary judgment                                        has shifted,              the nonmoving
party      must        affirmatively                      respond           by     affidavit           or     other      sworn
testimony            containing                  material                facts      raising          genuine           issues.
Koepplin        v.    Zortman Mining,                         Inc.       (1994),     267 Mont.          53, 58-59,             881
P.2d       1306,        1309              (citation             omitted).                Even        assuming           Ward's
qualifications                   to      offer        an opinion                 regarding           Gregory's          speed,
Burchard's             statements                   about             Ward's         alleged            opinions              were
insufficient               to meet his                burden.              Substantial           evidence         raising            a
genuine        issue        of        material           fact        must be in proper                 form;      a party's

                                                                     8
statements             regarding          anticipated                future        testimony            or         proof        are
insufficient.                Morales           v.     Tuomi        (1985),      214 Mont.              419,         424,        693
P.2d 532,          534-35          (citation          omitted).
          Burchard         argues       on appeal            that        he should       be granted                more time
to find        an expert           to render          an opinion           relating       to Gregory's                     speed.
We disagree.              Rule 56(f),               M.R.Civ.P.,           allows      the nonmoving party                           in
a summary judgment                    proceeding             to request            a continuance                   to obtain
affidavits          or discovery               necessary           to present         facts         in opposition                   to
the motion.               This      salutary          procedure           requires       only         that         the party
satisfy         the court,          via affidavit,              that       sufficient          reasons             exist        why
it    is as yet unable                to present             facts       essential        to support                 its      case
in       opposition           to      summary              judgment.            Rule       56(f),              M.R.Civ.P.
Burchard         did      not avail          himself          of the Rule 56(f)                     procedure.
          In    addition,           Burchard            had more than                two years              between             the
filing         of his complaint                and the summary judgment                       hearing          to acquire
evidence         in support           of his         case or,        at least,          to offer            a reasonable
explanation              of why he was unable                  to do so.              Burchard         conceded               that
he had          retained           an accident               reconstructionist                      and,      indeed,               he
listed         the expert          in his witness             disclosure            statement              filed      on July

29,      1994.           Burchard        did         not     provide          any information                      from       this
expert         and merely           stated          at the summary judgment                         hearing         that        his
expert         "didn't      want to report."
          Gregory          filed       her          motion         for     summary        judgment                 early            in
September          of 1994,          a mere seven weeks before                           the scheduled                     trial.
In addition,              nearly       three         months passed              between         the        time       Gregory
filed      her motion              and the court's                 order      granting         it     on December 5,

                                                               9
1994.           Burchard       did not        submit       expert            or,     indeed,            any support         for
his    opposition             to Gregory's            motion           during         those            three     months and
also     did not request               additional              time     in which to do so.                         For these
reasons,          we deny Burchard's                  request          for         additional            time      to locate
an expert          to establish            the existence               of a genuine                issue         of material
fact       regarding           the      speed        at     which         Gregory                was operating              her
vehicle.
         Burchard             next      contends               that,          notwithstanding                      Kercher's
affidavits           and diagram              establishing              that         his     pickup            was blocking
Gregory's           lane      of     travel         immediately              prior          to     the         accident,       he
raised          a genuine          issue      of material              fact          that        his     pickup       blocked
only     the left-turn               lane of westbound                 traffic,             rather        than Gregory's
lane       of     travel.            He apparently               argues             that      Gregory            caused     the
accident          by negligently              not remaining               in her clear                  lane of travel.
There are two problems                      with     Burchard's               position.
         As set forth              above,      the sole allegation                          of negligence             against
Gregory          contained         in Burchard's            complaint               is that        she was operating
her vehicle             at an excessive               speed.           His contention                    that      Gregory's
negligence           was her failure                to remain            in her own lane                       of travel        is
an attempt              to oppose          summary judgment                   advancing                a new theory            of
negligence.                 Burchard        cites     no authority--and                           we know of           none--
under       which        such a substitution                    of a new cause of                         action       can be
utilized          to raise         a genuine        issue        of material                fact       in opposition            to
a motion          for       summary judgment.                   Burchard             could         have pleaded            this
theory          about Gregory's            negligence            in his original                   complaint,          either
alternatively                or in     addition           to     the      "speeding"               allegation.              &

                                                               10
Rule 8(e) (2),                M.R.Civ.P.              He did not do so.                      He could          have amended
his       complaint           to add such a claim                        as a matter             of right,          under Rule

15(a),        M.R.Civ.P.,              at any time prior                      to the filing               of a responsive
pleading;            he did not do so.                        Nor did Burchard                    seek leave              of court
to     amend his              pleading          at     a later              time,        pursuant         to      Rule      15(a),
M.R.Civ.P.                 To allow           the nonmoving                  party        to add a new theory                       in
opposition              to summary judgment                      after         the moving party                   has met its
initial           burden,        and to raise                 an issue              of    fact     about       that        theory,
would        make every               case a "moving                 target"             and effectively                  preclude
the       use      of      summary judgment                    to        resolve          cases        which        present         no
genuine           factual        issue       for     trial.          While summary adjudication                             cannot
be used as a substitute                              for      a trial               on the merits              of     contested
issues        of fact           (Roe v. Corbin                Water Users'                Ass'n        (1994),        267 Mont.
503,        507,         885     P.2d         419,         421       (citations              omitted)),              it      is     an
appropriate                means of           disposing              of       cases        which        contain           no such
issues.
           The problem            with Burchard's                   related          contention--that                 he raised
a genuine               issue     of        material          fact         regarding             the    location            of     his
pickup          when Gregory                collided          with         it--is         similar.          The location-
related           allegation           in Burchard's                complaint             was that        his pickup              came
to rest,           in part,           "in     the left           lane of westbound                     travel."            Indeed,
Kercher's            evidence           established               that        Gregory            was traveling              in     the
left--that              is,     the inside--westbound                         lane of travel              at the time she
collided           with       Burchard's             vehicle             partially          occupying          that        lane.
           In opposing             summary judgment,                        Burchard         attempted            to raise          an
issue        of     fact       that     his        pickup        came to rest                in the left-turn                     lane

                                                                    11
rather      than     in      the left        lane          of westbound                travel.            This      variance
from     the     allegations          of his           complaint             was advanced                 for      the        first
time     in opposition             to Gregory's               motion            for    summary judgment.                         For
the     reasons      discussed            immediately               above,            Burchard           may not         oppose
summary judgment                 by creating               a moving          target.               On that         basis,             we
decline         to address         these     contentions                  further.
         Finally,          Burchard       contends           that     he established                  a genuine               issue
of material           fact       regarding            whether         Gregory            should          have seen his
pickup      in time to avoid               the accident,                  even if        he were occupying                       her
lane      of     travel.            While          this        contention                arguably               varies           the
allegations           in     Burchard's            complaint               in     a manner            similar            to      the
contentions          discussed        above,          it     is at least               arguably          related          to the
excessive           speed     allegation              in      his         complaint.                In      this      regard,
however,         Burchard         provided         no evidence,                  substantial              or otherwise,
in response          to Kercher's            affidavit               stating           that        Burchard         suddenly
appeared         in Gregory's             lane        of     travel         and that             Gregory           could         not
reasonably          have avoided           the accident.                   We conclude,               therefore,               that
Burchard's          bare contention              is insufficient                      to raise        a genuine               issue
of material          fact.
         Burchard          has failed        to establish                  the existence                 of any genuine
issue      of    material          fact     regarding               any breach                of     duty       by Gregory
which       caused         the     collision               between              the     Gregory           and       Burchard
vehicles.           We hold,        therefore,              that      the District                 Court        did not err
in granting          Gregory's            motion       for        summary judgment.
         b. Summary judgment                     in        favor      of        United        Materials             of        Great
         Falls, Inc.
         A negligence            action      involves              four     elements,              each of which must
                                                             12
be established                 by the plaintiff:                  1) duty;          2) breach           of duty;          3)
causation;            and 4) damages.                   Hatch,       887 P.2d            at    732.       Burchard's
complaint             alleged             negligent        road       construction                 and        negligent
supervision             of     the        road     construction         project           by United            and that
United's            negligence            was a cause of            the accident               and his         damages.
More specifically,                    he alleged           that      he encountered                wet,        slippery
roadway which had recently                           been oiled       and which caused his vehicle
to travel            up over the raised               median.        In addition,               Burchard        alleged
that      there       "appeared           to be" an oily          or otherwise                hazardous        surface,
"as if"         the road had been recently                         oiled      or otherwise               coated       with
a material            which      caused the roadway                 to be hazardous                   and slippery.
He alleged            on information                and belief        that     the roadway               in the area
of     the     accident         had recently             been under            construction               by United.
United         moved for         summary judgment.
          In        support          of      its      motion,        United              submitted            Kercher's
affidavits            stating         that         he investigated            the        scene     and performed
skid      tests        on the             pavement.        The skid            tests          produced          a "drag
factor"         of    .77 which,            in Kercher's           opinion,             demonstrated           that    the
pavement            was less          slippery          than      normal       wet        pavement.             Kercher
further         opined        that        the condition           of the road was not a factor                            in
the      accident        and that            Burchard's           failure          to    control        his     vehicle
caused the accident.
          The District                Court         concluded        that      United           established            the
absence         of     genuine            issues      of material           fact        regarding         Burchard's
allegations             that      the       roadway       was "hazardous                  and slippery"               as a
result         of    any negligence                by United        and that            the     condition         of the

                                                           13
roadway        caused the accident.                       The burden         having        thereby          shifted      to
Burchard,          the       court      concluded             that         Burchard's           submissions              in
opposition           to      United's             motion         were        legally          insufficient               to
establish          a genuine            issue        of     material          fact        regarding           United's
liability.
          Expert     testimony          generally            is required             to establish             both     the
applicable           standard          of     care        and a breach               of      that         standard       in
negligence          actions           against        professionals                and those               involved       in
skilled       trades.         See Newville                v. State         (1994),        267 Mont.          237,     257,
883 P.2d 793, 805 (citations                         omitted).             Burchard        concedes on appeal
that      expert          testimony         is     required          to      establish          the         applicable
standard        of care        and United's                breach      in    this      case,         as well         as to
establish          that     the      condition            of the roadway             caused          the accident.
Because of that              concession,             this     case does not present--and                             we do
not address--the              issue         of whether        expert         testimony          was required             as
a matter        of law regarding                  United's        duty,       any breach             of that         duty,
or the causal             connection          between any breach                    of duty         and Burchard's
accident.           Also      conceding            that      he did         not     present          the     requisite
expert       testimony,           Burchard         contends         that     he should          be allowed            more
time      to obtain         an expert's            opinion        because,           as a pro          se litigant,
he did       not recognize             the necessity              of expert            testimony.
          The record         does not support                 Burchard's             claim      that        he did not
recognize          the need for             expert        testimony          to support             his     negligence
action        against       United.              In disclosing              his     witnesses             on July      29,
1994,        Burchard        listed         the    name of          an accident              reconstructionist
whose report            was to be forthcoming;                    he never provided                       the expert's

                                                            14
opinion          or     report           in       response                  to         United's            Rule            26(b) (4),
M.R.Civ.??.,            request.              Furthermore,                       in     response           to        the     court's
question        as to whether                 he had an expert,                             Burchard          stated         that      he
had paid         an expert           but      that       the expert                   did      not provide                 a report.
Based on this            record,        we are unpersuaded                            by Burchard's              assertion             on
appeal      that       he did        not recognize                      the need for                expert       testimony.
         Burchard        also asserts                 that     he indicated                    his need for more time
to bring         in an expert                 to the District                         Court,         but      that         the     court
refused         to grant         a continuance.                          In essence,                 he argues              that     the
court     abused its           discretion               in failing                to continue               the proceedings
and order          Burchard          to obtain               an expert.
         Burchard        filed       his       complaint                on July             9, 1992.          The scheduling
order      in    this     case was entered                         on January                 24,     1994,          with        a jury
trial      scheduled           for      October          31,        1994.              Burchard's             expert         witness
disclosure            was due by August                        1,         1994,         a discovery                  deadline          of
September           1, 1994,         was established                        and witness               lists          were due by
September          26, 1994.            As noted             above,             Burchard        timely          disclosed            the
name of         his      accident             reconstruction                      expert;            he simply               did     not
provide         any     affidavit,               testimony                  or        report         from       that         expert.
United      filed       its    motion          for      summary             judgment           on September                 8, 1994.
         Burchard        had approximately                         eight          months between                 entry           of the
scheduling            order      and the summary judgment                                   hearing,          not      to mention
the     more than             two years              after         filing             his     complaint,              to     procure
expert      witness           testimony          for         his        claim         against        United.               Moreover,
even      aside         from      his         failure              to      utilize             the     formal              procedure
provided        by Rule 56(f),                M.R.Civ.P.,                  for        requesting           a continuance               of

                                                                   15
the summary judgment                          proceeding,             Burchard            did not make a sufficient
showing          under            the     rule          to     require            the        court        to     exercise             its
discretion              regarding              a continuance                 in      his       favor.           Finally,             even
Burchard's             post-hearing               document,            filed         a month before                  the District
Court's         ruling            and entitled               "Request        Motion           for    Summary Judgment Be
Denied Defendant['ls,"                          was not accompanied                          by any expert                 opinion      as
to      the      applicable                   standard           of         care        in      this          negligent              road
construction                 action       against            United      or any breach                  of such a standard
by United.                  We cannot           conclude,          on the record                     before          us,     that     the
court          abused              its        discretion               in         refusing              to      continue              the
proceedings.
           Notwithstanding                     his       concession                that        expert           testimony             was
needed to             successfully                oppose United's                    motion,            Burchard             advances
other        arguments             relating           to his       action            against           United.              First,      he
contends             that     he presented                   substantial             evidence           that         the road was
oily       and slick              and,        therefore,           that        he raised              a genuine              issue      of
material             fact         as     to     the      cause         of      the        accident.                  In     light       of
Burchard's             concession              that      expert        testimony             was required                  "regarding
the cause of the accident                               most specifically,                      the road surface"                     and
his        failure           to     provide           such       testimony,                we do not                 address         this
contention.
           Burchard           having           failed          to present            expert            affidavit             or other
testimony             he concedes was necessary                               to withstand                   summary judgment
on negligence                 action           against          United,           we conclude                 that        he did      not
establish              the        existence             of     any genuine                   issue       of     material             fact
regarding             a breach           of duty             by United         which          caused the accident                       in

                                                                   16
this     case.          We hold,        therefore,             that        the District              Court        did not err
in granting              United's        motion         for     summary judgment.
         Burchard          also argues,             as to both defendants,                           that        the District
Court      erred        in failing            to consider             the allegations                 in his           complaint
and      affidavits              from      other        witnesses                 which         he      submitted.                 As
discussed           above,            once      the      party             moving         for        summary            judgment
satisfies          its      initial           burden,         the nonmoving                party          cannot          rest     on
the      allegations             in      its     pleadings,                 but     must         come forward                    with
specific          facts       demonstrating              the existence                    of a genuine                  issue      of
material         fact.         Rule 56(e),             M.R.Civ.P.                 Further,           although           Burchard
asserts          that      the        court      did     not      consider               affidavits                from        other
witnesses,              the only        affidavit             Burchard            presented,              other         than      his
own, was that              of Patricia           Bourne.          The District                   Court       addressed            the
Bourne       affidavit,                which      related             to     the     location               of      Burchard's
pickup      at the          time       the accident              occurred            and to the                  condition         of
the      roadway          vis-a-vis             whether          United's                negligence               caused          the
accident.                Because         we have              determined             that,           on      this         record,
Burchard          may not           properly           raise      issues            of     fact         regarding              those
issues      in an effort               to defeat         summary judgment,                       we need not address
the Bourne affidavit                     further.
         Burchard's            final      arguments            are that            the District              Court        did not
consider          his     deposition             and that             he was not                allowed          to     take      the
defendants'               depositions.                  In       addressing                motions               for      summary
judgment,          district           courts     consider             only pleadings                 and discovery                "on
file."           Rule         56(e),      M.R.Civ.P.                   Depositions                are       not        routinely
filed;      if     a party            believes         that      a deposition                   should       be filed,              it
may make an ex parte                        request         that      it     be filed             under         Rule      5(d),
M.R.Civ.P.             Burchard           did not request              that        his     deposition             be filed.
Therefore,            because           the deposition             was not part               of the record,                the
District           Court        did     not err      in failing             to consider             it.
          Burchard              contends          that       the      District              Court          granted          the
defendants'            motions          based on inadequate                  information            and, therefore,
that       summary judgment                  was not          appropriate.                  Burchard             relies       on
Rasmussen v.               Bennett        (1983),          207 Mont.         33, 672 P.2d 278, where we
set aside           a summary judgment                   and returned              the case to the district
court       for     further           consideration          because the district                         court         did not
have        the       depositions            of      all      four         defendants              before          it      and,
therefore,            may not           have been in possession                          of all      the facts.               In
Rasmussen,            the action          was a complicated                  libel        and slander             suit,     the
disputed           facts        were fifteen         years         old by the time                summary judgment
was granted,               and both        counsel         proceeded              under     the belief             that     the
defendants'             depositions              were of       record.               Rasmussen,                672 P.2d       at
279.
          Rasmussen is inapplicable                         here.          The facts          in Burchard's                case
are      neither           as old,        nor     as complicated,                    as those             in    Rasmussen.
Furthermore,               at     the     time     we decided              Rasmussen,             the parties              were
required          by Rule 30(f),             M.R.Civ.P.            (1983),          to file       depositions              with
the court.            As discussed               above,     depositions              are no longer                routinely
filed;       indeed,          a party       seeking         to file         a deposition            must obtain             the
court's           permission            to do so.          Rule 5(d),              M.R.Civ.P.              Burchard         did
not.
           Finally,             Burchard's          argument               that       summary             judgment          was

                                                              18
inappropriate              because      he         "had     not            been     allowed"            to      take      the
defendants'          depositions             is    unsupported               by the           record.            Burchard
could      have deposed           the       defendants                at    any time           after          filing      his
action      in July        of 1992; that            he failed              to do so cannot              be blamed on
the     District       Court.        The record              does not               indicate           that      Burchard
ever      served      a notice          of        intent         to        depose         anyone        from         United.
Moreover,          while      Burchard            served     notice           of        his    intent          to      depose

Gregory        on     September         15,         1994,        after            the     September             1,      1994,
discovery          deadline,       and Gregory              and her counsel                   were available               at
the Cascade County Courthouse                          on the date                 specified,           Burchard          did
not appear.           We conclude           that     a litigant's                 total       failure         to conduct
discovery          cannot      constitute           error        by a district                court.
         Affirmed.




We concur.




                   Justices
                                                            19
Justice         Terry     N. Trieweiler                  dissenting.
          I dissent           from        the     majority's                opinion         in     which          it      clearly
usurps      the      fact-finding                 role        properly            reserved           to     a jury             after
consideration             of and balancing                   all        the evidence             and which blatantly
disregards          those      rules        which         this          Court     has,      in the past,                  applied
to motions          for     summary judgment.
         Only when there               are no issues                    of material           fact        and the moving
party      is      entitled          to     judgment               as      a matter          of      law,        is       summary
judgment          appropriate             pursuant            to Rule            56(c),       M.R.Civ.P.                      Reeves v.

Reinhold (1980),           189 Mont.              284,       287,       615 P.2d 896,               898.

          In the determination                     of whether               there       are issues               of material
fact,      "all         reasonable           inferences                 that      might          be drawn              from       the
offered         evidence       should           be drawn in favor                      of the party              who opposed
summary         judgment."                 Heist v. Eastern Montana College (Mont .                                19 96 ) ,        53

St.     Rep. 162,         163.
         Furthermore,            we have,              for     good reason,                held       that        ordinarily
issues      of      negligence             are         questions            of     fact       not         susceptible               to
summary adjudication.                           Duchesneau Y. Silver Bow County (19'71) , 158 Mont.

369, 377,         492 P.2d 926,                 931.         For the following                    reasons,             this      case
was clearly             not susceptible                  to summary adjudication:
          In the complaint                filed        by Burchard               and prepared              for     him by the
attorney          who represented                 him at that                  time,      Burchard           alleged             that
his     vehicle         went out of control                        while       approaching            an intersection
on 10th Avenue South in Great                             Falls         and that          after      coming to a stop
on the median,             and while            partially            located           in the westbound                   lane of


                                                               20
to establish       Gregory's             negligence.          We held in Payne v. Sorenson                (1979)    ,

183 Mont.      323,    326,        599 P.2d 362,             364, that:
              Under Montana law, a motorist       has a duty to look not
       only straight      ahead but laterally      ahead as well and to
       see that      which is in plain        sight.     Furthermore,   a
       motorist    is presumed to see that which he could see by
       looking,     and he will    not be permitted       to escape the
       penalty   of his negligence    by saying that he did not see
       that which was in plain view.
       Furthermore,          the fact         that     Burchard      may have been placed                      in a
position      of   danger         by his       own negligence               did     not   bar       his     claim
against     Gregory.              Restatement           (Second)       of     Torts       § 479           (1965),
provides      as follows:
       A plaintiff         who has negligently       subjected       himself    to a
       risk of harm from the defendant's               subsequent negligence
       may recover          for harm caused thereby           if,       immediately
       preceding      the harm,
                (a)   the plaintiff        is unable to avoid it by the
       exercise      of reasonable vigilance          and care, and
                (b)   the defendant          is negligent       in failing          to
       utilize      with     reasonable     care and competence his then
       existing      opportunity      to avoid the harm, when he
                       (i)      knows of the plaintiff's            situation     and
               realizes        or has reason        to realize           the   peril
               involved      in it or
                       (ii)      would discover     the situation           and thus
               have reason to realize            the peril,       if he were to
               exercise      the vigilance     which it is then his duty to
               the plaintiff        to exercise.
       We approved           of    the      last     clear     chance doctrine                set     forth        at
5 479 in Lambv.Page               (19691,      153 Mont.        171, 455 P.2d 337.

       Plainly,       pursuant           to the law in Montana,               Burchard's            affidavit
was sufficient          to        raise       an     issue     of    fact         regarding         Gregory's
negligence,        regardless            of any evidence            to the contrary.
       With regard       to defendant              United     Materials,           Burchard         alleged        in
his   complaint       that        that     defendant         had recently           done work at 10th

                                                       22
traffic,         Minnie     Gregory     negligently          collided       with    him and caused
him damage.
           In support       of his allegation         that    Gregory       was negligent        and in
opposition         to her      motion    for     summary judgment,            Burchard        filed    an
affidavit         in which      he stated       the following           relevant     facts:
           10.   That I was proceeding     east on 10th Avenue South at
                 approximately      25 mph and attempted         to brake,
                 because of the traffic     light  changing to amber as I
                 approached the intersection      of 38th Street and 10th
                 Avenue South when my vehicle,      pulling  a fifth-wheel
                 trailer,   jack-knifed   and the two front        wheels of
                 the towing      vehicle  crossed    the raised       median,
                 coming to rest partly    in the left-hand    turn lane of
                 the west bound traffic      on 10th Avenue South;
           11.    That the towing vehicle    came to a full-stop        on the
                  median with its two front      wheels protruding        into
                  the left-hand  turn lane of west-bound        traffic      on
                  10th Avenue South,     leaving   two full      west-bound
                  lanes free for safe traffic;
           12.    That the east bound lanes of 10th Avenue South had
                  an oily   appearing  surface, as if the east bound
                  lanes of 10th Avenue South had been recently   oiled
                  or otherwise   coated with a material   which caused
                  the roadway to be hazardous and slippery.
           13.   That approximatelv      three    (3) minutes      after      the
                 towins vehicle    came to a full       stop on the median
                 with    its  two front    wheels protrudinq        into      the
                 left-hand   turn lane of west-bound traffic           on 10th
                 Avenue South,    leaving    two full      west-bound     lanes
                 free for safe traffic,     a vehicle negligently        driven
                 at the time bv the defendant,              Minnie    Greqorv,
                 traveling    at an excessive      rate    of speed hit         mv
                 stooped towinq vehicle      at or about its riqht          rear
                 wheel . . . .
(Emphasis         added.)
           The facts        a lleged    in     Burchard's       affidavit          were   admissible
pursuant         to Rule 56, M.R.Civ.P.,              and if     believed,         were sufficient




                                                   21
Avenue             South       at        the       scene    of        his        accident         and that           as a result              of
its      negligence,                         the    road      was           left         in     an      oily,        hazardous,             and
slippery             condition                 which       prevented               him for           controlling             his    vehicle

and caused                  the         predicament              in     which            he found          himself           at    the   time

that     he was struck                          by Gregory.                  In     support           of   that      contention             and

in     opposition                   to        United's        motion               for        summary           judgment,          Burchard

produced              his      own affidavit                  testimony                  set    forth           above,       in    addition

to     the         following                 affidavit        testimony                  from     Patricia           Lynn         Bourne:
             6.        That on July   12, 1989 I managed the                                                     Sahara Motel
                       located  at 3460 10th Avenue South in                                                     Great  Falls,
                       Montana;

             7.        That the Sahara Motel       is                                located  on the                 southwest
                       corner  of the intersection                                     of 35th Street                 and 10th
                       Avenue South;

             8.        That on July 12, 1989 I lived      with my husband                                                       Frank
                       Meyers    and my family    at the Sahara    Motel                                                       in an
                       apartment    connected  to the motel;

             9.        That the office         of the motel,        in July of 1989, was
                       a box-like      structure     located     in that portion         of the
                       motel      that    was closest         to     10th     Avenue     South.
                       Except     for a fireplace       chimney      on the north      side of
                       the office,        it was covered         with     windows    or glass
                       doors so that         anyone in the office           had a clear      and
                       unobstructed        view of 10th Avenue South to the east,
                       to the west and except               for    the     chimney,     to the
                       north;
                        .           .    .

             12.       That the construction    company that was resurfacing
                       10th Avenue South in front      of the Sahara Motel with
                       bituminous  asphalt   (black-top)     had completed   its
                       work during  the last  few days;

             13.       That the freshly                       laid          black-top             was oozing             oil       and
                       mixing  with the                     rain;

             14.       That      the                "bleeding"    made                   the   surface               slick         and
                       slippery,                   like    it was black                   ice;


                                                                            23
          15.        That    as a result         of the   slick    and slippery
                     condition     on 10th Avenue South on July 12, 1989 I
                     observed several east bound vehicles        fishtailing       at
                     the traffic      light     located  at the 38th Street
                     intersection.        Most of the fishtailing          occurred
                     when the traffic      light went from Green to Yellow to
                     Red;
          16.        That my husband Frank remarked several times during
                     the day that   . . . he knew that an accident    was
                     going to happen before the day was over;
                     . . . .
          19.        That Frank and I watched the office    T-V set for
                     perhaps a half an hour when we both heard a crash;
                         .   .   .

          22.        That I ran to the pick-up truck and saw that                               there
                     was no fire  in or around the truck;


          24.        That the pick-up      truck    was straddling       the center
                     divider    (or     median)     with     its    front      wheels
                     protruding     into     the   left-hand      turn      lane   of
                     west-bound traffic       on 10th Avenue South:
                     .   .   .   .

          32.        That on July 12, 1989 there were no signs on, at or
                     near 10th Avenue South that       indicated   that the
                     roadway was hazardous,  slippery,    or dangerous;
          33.        That on July          12, 1989 there were no caution signs
                     and no drive          with care signs on, at or near 10th
                     Avenue South          . .   .
          It    is       reasonable       to     infer      from    the   combined        affidavits         of
Burchard         and Bourne             that     when Burchard            attempted       to    bring      his
vehicle         to a stop at the intersection                      of 10th Avenue South and 38th
Street,         he was unable             to     do so and jackknifed              his     vehicle        as a
result         of the hazardous,                slippery        surface    of   the street.             Expert
testimony            was not         required      for     the proposition         that        when a road


                                                           24
contractor                   leaves                  a        street           in          such            a     slippery               and         hazardous

condition               that                people            operating                  their             vehicles               at     less         than           the

lawful           speed            limit            cannot              bring          their            vehicles              to        a safe         stop           and

when no warning                             has been                 provided              that            such        a dangerous                  condition

exists,            the            contractor                        had        acted             negligently.                           The         fact         that
contrary               evidence                    was         offered              in         the         form        of     the         investigating

officer's               opinion                   did        not      eliminate                 the          question             of    fact        which            was

raised           by     Burchard's                           and Bourne's                      affidavits.                    Officer               Kercher's

affidavit,               at            most,         created                 a clear            question               of    fact         regarding                  the

negligence                  of         United.

            The        majority                    concludes                   that            Gregory               satisfied                her          initial

burden           of establishing                              the      absence             of any genuine                         issue         of material

fact      when she submitted                                    the       affidavit                   of       the     investigating                       officer

who arrived                      after            the         collision                  and,         based            on his           investigation,

concluded               that                she      had not                 been        traveling                   too     fast          and        that           the

accident              was         Burchard's                        fault.            The            first           response             that        comes           to

mind        is        that             it      was           impossible                  for         Officer               Kercher             to     estimate

Gregory's               speed                prior             to      her      impact                with           Burchard            because               there

were        no skid               marks            at         the      point          of       impact.                 His    opinion               had to            be

based        solely               on what                    he was told                 by Gregory.

            Second,               it        makes            no difference                      how fast               Gregory            was traveling

prior        to       the         time            at which              she collided                         with      Burchard.                    She had an

obligation,                  pursuant                    to the           law previously                           cited,         to keep            a lookout
for       hazards                 on         the         roadway               and         avoid               them.          If,         as        stated            in

Burchard's                   affidavit,                        he      was      blocking                     the       roadway             for        at       least

three        minutes                   prior            to     the      collision,                    she should                  have        seen         him       and

                                                                                     25
avoided           him.          There             was no indication                           that      the      roadway             was anything

but     straight               and level                  at     the    point            of     impact           or that             her        view     was

obstructed                in        any      other             way.

             The majority                    cavalierly                disregards                    Burchard's               sworn        statement

that         he    blocked                only           the      westbound                   left-hand              turn        lane            and     not

Gregory's            lane            of travel                 based     on the               fact      that      that         contention                was

not     made         in        his        original               complaint.                     There          are       several                problems

with     this        basis            for         the     majority's                conclusion.                   First,             Burchard            did

not      prepare               the        complaint.                    It     was            prepared           by      an          attorney            who

represented                him         at         that         time    but         did        not      represent              him         during         the

summary            judgment                  proceedings.                          At         the       same         time            he     was         also

represented                    by     a second                  attorney            who defended                     him        in        the     action

brought           by his             wife.               The two        actions                were      later         consolidated.                       In

the      answer                to      June              Burchard's                complaint,                  which            was         filed          on

September            28,            1992,          Burchard            specifically                     stated           in     paragraph                two

of     his        second            defense              that:
                      Responding          to    paragraph       II      of     the    complaint,
             defendant        James Burchard           admits    that      he was proceeding
             east on 10th Avenue South at approximately                             10 mph less
             than      the     speed      limit      and attempted           to brake         as he
             approached          the    intersection         at 38th        Street       and 10th
             Avenue       South      when his vehicle,             pulling        a fifth-wheel
             trailer,        jack-knifed         and the two front               wheels     of the
             towing      vehicle      crossed      the raised      median,       coming to rest
             partly      in the left-hand            turn   lane of west-bound             traffic
             on 10th Avenue South.

(Emphasis            added.)                  Therefore,                there            was nothing                 inconsistent                      about

the     position                taken             by Burchard                 in        his      affidavit               and the                position

taken         by Burchard                    in     the        early         pleading                stages       of     this          litigation.




                                                                              26
There       was          no     "new          theory"                 advanced              by      Burchard                 in        opposition                        to
summary           judgment.

          Second,              whether              Burchard's                    wheels                came         to      rest          in        the          left

westbound               lane         or      the        left           westbound                  turn         lane         is      irrelevant.                               A

change       in         the         alleged             location               did        not       constitute                     "a substitution

of      a new cause                  of     action."                   Burchard's                   claim            was that              his         vehicle

came to           rest         at     a place             where           Minnie            Gregory                could          have          avoided                  it

had she kept                   a proper                 lookout              and exercised                         reasonable                   care.               His
point      was that                 whether             his          vehicle          was in the                    westbound                  lane         or the

westbound               turn         lane,         it      had been                  there          for        at        least           three         minutes
prior       to      the         collision                 and there                  was no reason                          Gregory              could              not

have      seen       it        and avoided                     it.        There            was no reason                         for      him         to     amend

his      complaint              to        allege          that          his      wheels             were            in     the      westbound                     turn

lane,      rather              than        the      westbound                  lane.              The purpose                    of the           complaint

was to       give         general             notice                 of the          nature             of his            claim,          not         to     state

with      perfection                      every         fact          which          formed              the        basis           of     that             claim.

The      suggestion                  that         his          affidavit                  filed          in        opposition                   to     summary

judgment           is      somehow unworthy                             of      consideration                        because              it      varied                 in

some insignificant                           detail             from         a general                  complaint                prepared                  for      him

by an attorney                       two years                 earlier,              is     preposterous.                              The suggestion
that        his           affidavit                     alleged                material                   facts             about               which               the

defendants                had not             been previously                             advised             is     not         supported                  by the

record.             The         suggestion                     that        Keith           Kercher,                 a Great               Falls             Police

Officer           who arrived                      at      the          scene         of          the      accident                 sometime                     after

events       had occurred,                         is     in         a better             position                 to state              what         happened



                                                                                27
at the         time        of    the         accident            than         the        actual          participants                     is     strange
indeed.

          The majority                       states         in        their         opinion              that         "Burchard                provided

no    evidence,                  substantial                     or      otherwise,                     in         response              to      Officer

Kercher's              affidavit                 stating                that            Burchard                  suddenly           appeared                 in

Gregory's             lane           of travel             and that            Gregory                 could         not     reasonably                    have

avoided         the        accident."                     The majority's                     statement                     to that            effect          is

incorrect.                 For        the      purpose            of      putting            it         in        context,           I will               again

recite           that                part            of      Burchard's                     affidavit                        which             directly

contradicted                    the         relied         on part                 of     Officer                 Kercher's              affidavit.

Burchard          stated:

          13.         That      auuroximatelv           three     (3) minutes          after        the
                      towinq        vehicle     came to a full           stop on the median
                      with      its       two   front     wheels      orotrudins         into       the
                      left-hand          turn   lane of west-bound            traffic       on 10th
                      Avenue        South,     leaving       two full       west-bound         lanes
                      free for safe traffic,               a vehicle      negligently         driven
                      at the          time    by the       defendant,        Minnie       Greqorv,
                      travelinq           at an excessive          rate     of soeed hit             my
                      stooped        towins     vehicle      at or about        its   right       rear
                      wheel      . . . .

(Emphasis             added.)

          If    Burchard                had been             in        the     left-hand                     westbound              turn         lane         or

the       westbound                   lane           of     travel                 for       three                 minutes            before                the

collision,             he could                not        have suddenly                   appeared                  in Gregory's                 lane         of

travel.

          We      have            never              previously                held           that                expert        testimony                     is

necessary             to        prove         that         a roadway                is     hazardous                  or     that        a motorist

on that          road           is      entitled             to        a warning                  of     a sudden               change               in     the

road's          condition.                       This        is         a poor              case             in      which          to         set         that


                                                                              28
precedent.              It    should         not take             a rocket             scientist        or someone with
an engineering                degree to establish                        that     a roadway on which vehicles
cannot         come to a safe                stop while                 traveling          at a speed equal                  to or
less      than     the allowable                speed is unsafe                        and requires            a warning             by
the     contractor            who creates               that           condition.            However,           without         any
authority           other         than        Burchard's                  concession,               first           made while
proceeding           as a prose litigant,                          the majority               has now made such a

requirement,             and in the process,                           increased          the complexity               and cost
of all         future        litigation              related            to roadway          conditions.
         The majority              opinion            affirming                 summary judgment                in     favor         of
United         Materials         completely            overlooks                the following               proof    submitted
by affidavit:
          1.       Burchard           approached                 the       intersection              where          United      had
done surfacing                work at a speed of about                            25 miles          per hour          (10    miles

per     hour       under        the       speed        limit),             applied          his      brakes,          and lost
control         of his        vehicle.
          2.       The lane on which he lost                                control         had an oily              appearing
surface         which        caused the roadway                         to be hazardous               and slippery.
          3.       United        had completed                    resurfacing              of the area               in the few
days prior          to the accident.
          4.       The freshly               laid      surface            was oozing          oil      which mixed with
the rain.
          5.       The combination                     of        the      oil     and rain           made the           surface
slick      and slippery               like      it     was black                ice.
          6.       No warning             of the roadway's                       condition          was erected.


                                                                   29
              7.           As      a result                  of         the         slick            and slippery                  condition                 of         the

roadway              at      the      scene             of         Burchard's                       accident,            an independent                           third

party,             who resided                     in        the          area,             observed              vehicles                fishtailing                     at

the       same             location            earlier                        in     the        day.             Most        of         the      fishtailing
occurred               when those                  same motorists                              were        trying         to stop               for     the        same

traffic              light          that       caused                    Burchard                   to    apply        his        brakes.

              8.           At      least           one                 resident                in        the      area         remarked                prior              to

Burchard's                      accident            that                an accident                       was going                to         happen         at         the

intersection                       before           the            day was over.

              In      light          of      this              testimony                       and        the      inferences                   that         can          be

drawn          from          it,      the     majority's                            conclusion                  that      summary               judgment                for

United             should           be affirmed                         based         on Burchard's                      failure               to produce                 an

expert             witness              presents                       a new and                inappropriate                      dimension                 to         the

litigation                   of     simple              automobile                         accidents.

              In     Heiatv. EasternMontana College (Mont.                                                 1996),         53 St.               Rep.        162,           we

recently                  held      that       a female                        college               professor               who was hired                        for         a

position               comparable                  to her husband's,                                     but    at less            pay,         was entitled

to        a        trial           on        the          merits                     of        her         claim          that            she          had         been

discriminated                       against               in            the         face       of        uncontroverted                       affidavits                  to

the       contrary                 simply          because                    of      inferences                 which         arose            from       the          pay

discrepancy.                            In    this                     case,          the           plaintiff                has         produced                 sworn

affidavits                      providing                facts                 in     direct               support           of         his      allegations

that          the          defendants                   were             negligent.                        The      District                  Court        ignored

those          affidavits.                         The            majority                  now ignores                   those               affidavits                  in

favor          of          evidence           that                it      finds             more          persuasive.                    Apparently                     the

message              is     that        in Montana                       nonresident                      prose litigants                     who have been

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injured          in    automobile          collisions           are    not     entitled        to   the      same due
process          as college            professors           claiming         gender       discrimination.               I

find      this        Court's         grossly       disparate          treatment          of   these        litigants

inexplicable               on any       other      basis.

          For     these         reasons         I dissent       from     the    majority        opinion.




Justice          William         E.     Hunt,      Sr.,     joins       in     the    foregoing        dissenting
opinion.




                                                             31
Justice        W. William               Leaphart,          specially             concurring       and dissenting.


         I join         in the dissent              of Justice                Trieweiler       with     regard      to the
summary judgment                   granted          to defendant                 Gregory.        While         there       are
discrepancies              between          his     complaint,            his affidavit,               and his      answer
to     his     wife's        complaint,             the        fact      remains        that     Burchard's             sworn
affidavit         raises          a question            of fact         as to where his vehicle                   came to
rest     and,     thus,           a question            as to whether              Gregory       should        and could
have avoided               colliding         with        him.
          I concur         with      the Court            in affirming              the summary judgment                   for
United         Materials            of     Great         Falls.               Officer       Kercher's          affidavit
established             that,        based upon his                    tests      of    the    road      surface,          the
road         was no more slippery                        than         after       a normal       rain.           Burchard
presented          the affidavit                  of Bourne which                 established          that      the road
was oozing           oil     which        was mixing             with     the rain          and that      the surface
was slippery               like     black         ice    and that,             as a result        of the slippery
condition,           Bourne observed                    several         vehicles        fishtailing.             Although
this     affidavit           establishes                that     the road was slippery,                   it     does not
raise        a question            of     fact     with        regard          to whether        United        Materials
was the         cause of that                slippery            condition.                Furthermore,          Bourne's
affidavit          does not              purport         to make any causal                    connection         between
the slippery               condition          and what happened to Burchard's                                 vehicle       as
opposed to other                   vehicles.             That is,         did Burchard           lose     control          due
to     the slippery               condition             or due to his              driving       too     close      to the
median as established                       by Officer                Kercher?
          Secondly,           although            the Bourne affidavit                      establishes          that      the

                                                                 32
road was slippery                    due to rain           and oil,            it     does not refute               the fact
(established                 by Officer        Kercher)          that      the road was no more slippery
than      normal            wet pavement             in a rain           storm.           AS all        drivers           know,
after       or during               a rain     storm,       roads         become "slippery                when wet."
In      light          of     the    fact     that       this         accident          occurred        while        it     was
raining,           Burchard           had to do more than establish                              that     the road was
slippery.               That is,       he had to produce                  testimony           (whether         from a lay
person          or an expert)               to the effect              that,         due to the oil         applied          by
United          Materials,           the road was rendered                     more slippery            than it           would
be from           a mere rain               storm.         The affidavit                of Bourne         does not           do
this.             It        merely     establishes               that      the         road     was     slippery.              A
slippery                condition           can be attributed                       to nature      rather         than      any
negligence              by United           Materials.
          Because Burchard                    did    not        raise      a genuine            issue     of      material
fact      as to whether               the road was more slippery                          than it       would be from
a rain           storm,         summary judgment                   was properly                 granted        to     United
Materials.




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