                                                                                           November 29 2011


                                           DA 11-0164

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2011 MT 299



STYREN FARMS, INC., and RILEY STYREN,

              Plaintiffs and Appellants,

         v.


SHERRY ANN ROOS,

              Defendant and Appellee.



APPEAL FROM:           District Court of the Ninth Judicial District,
                       In and For the County of Pondera, Cause No. DV 07-77
                       Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Dale L. Keil, Keil Law Firm, P.C., Conrad, Montana

                For Appellee:

                       William J. Gregoire, Steven J. Fitzpatrick, Smith, Walsh, Clarke &
                       Gregoire, PLLP, Great Falls, Montana



                                                   Submitted on Briefs: October 12, 2011

                                                              Decided: November 29, 2011



Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1       Plaintiffs Styren Farms, Inc. (the “Farm”) and Riley Styren (“Riley”) (collectively

“Styren”), appeal from various rulings of the Ninth Judicial District Court, Pondera

County, and a subsequent jury verdict finding Defendant Sherry Ann Roos (“Roos”) not

negligent after an automobile collision with Riley. We affirm.

                                               BACKGROUND

¶2       On the morning of May 8, 2006, both Roos and Riley were on their way to school.

Roos was driving, with her younger brother, Brandon, and younger sister, Tamara, from

their home in Conrad, Montana, to school in Power, Montana, an approximately 30

minute drive. The car Roos was driving was owned by her mother, Julia Roos (“Julia”)

and Curtis Stordahl (“Stordahl”). At the time of the collision, Roos was heading east on

Midway Road (part of Highway 91). Riley was driving to school in Conrad. The car

Riley was driving was owned by the Farm. Riley was traveling north on the Brady

Frontage Road (also part of Highway 91). The Brady Frontage Road meets Midway

Road southeast of Conrad, forming a T intersection. There is a stop sign on the Brady

Frontage Road at this intersection. Midway Road does not have a stop sign. See diagram

below.1




1
  The diagram is not drawn to scale, and is for illustrative purposes only. It represents only the T intersection. Just
before the T intersection, Midway Road climbs a hill and curves from southeast to east. The crest of the hill is near
the T intersection in the diagram.
                                                          2
                                     Y
                  Midway Road

                                           X                                     Z
                      Roos                                                              N




                                                           Brady Frontage Road
                                                   Riley
¶3     The parties do not agree on whether Riley stopped at the stop sign before turning

left onto Midway Road toward Conrad. After the collision, at the hospital, Riley told a

sheriff’s deputy that he did not stop at the stop sign. At trial, Riley testified that he did

stop, as did another witness, Ozzy Samsal. Roos and her brother, Brandon, testified that

Riley did not stop.

¶4     The parties do agree that Riley’s vehicle was struck by Roos’ vehicle in the

westbound lane of Midway Road, at the approximate location of the “X” in the above

diagram. Riley’s car ended up facing northwest in the ditch on the north side of Midway

Road, represented by the “Y” in the above diagram. Roos’ car ended up facing east, in

the westbound lane of Midway Road, represented by the “Z” in the above diagram. The

rear driver’s side passenger door and rear quarter panel of Riley’s vehicle were damaged,

and the front end of Roos’ car was damaged.



                                               3
¶5       In October 2007, Styren filed a complaint against Roos, Julia, and Stordahl. The

complaint alleged claims of negligence against Roos, and negligent entrustment and

liability under the family purpose doctrine against Julia and Stordahl. Styren sought

damages for personal injury, property damage, and punitive damages.

¶6       Julia and Stordahl sought summary judgment on the claims against them, which

was granted. The case proceeded to trial on the negligence claim against Roos. The jury

trial began on December 6, 2010. The jury returned its verdict on December 9, 2010,

finding Roos was not negligent. Judgment against Styren was entered on December 17,

2010. Styren filed a motion for a new trial; however, the District Court failed to rule

within 60 days, thus the motion was deemed denied. This timely appeal followed. We

will discuss further facts, as necessary, below.

¶7       We restate the issues as follows:

¶8       Issue One: Did the District Court err when it granted summary judgment to

Julia?

¶9       Issue Two: Did the District Court err when it did not grant a new trial?

                                STANDARDS OF REVIEW

¶10      We review the grant of summary judgment de novo, using the same M. R. Civ. P.

56 criteria used by the district court. PPL Montana, LLC v. State of Montana, 2010 MT

64, ¶ 84, 355 Mont. 402, 229 P.3d 421. Summary judgment is appropriate when the

moving party demonstrates both the absence of any genuine issues of material fact and

entitlement to judgment as a matter of law. PPL, ¶ 84. Once the moving party has met

                                              4
its burden, the non-moving party must present substantial evidence essential to one or

more elements of the case to raise a genuine issue of material fact.           PPL, ¶ 84.

Conclusory statements are insufficient to raise a genuine issue of material fact. PPL,

¶ 84.

¶11     When the basis of a motion for a new trial is insufficiency of the evidence, we

review the denial of the motion de novo. Fish v. Harris, 2008 MT 302, ¶ 8, 345 Mont.

527, 192 P.3d 238; Giambra v. Kelsey, 2007 MT 158, ¶ 27, 338 Mont. 19, 162 P.3d 134

(announcing the de novo standard and overruling a host of cases that stated the standard

of review for a ruling on a motion for a new trial based on insufficiency of the evidence

was for a manifest abuse of discretion). We determine whether there was substantial

evidence to support the verdict. Fish, ¶ 8. Substantial evidence is evidence that a

reasonable mind might accept as adequate to support a conclusion; it may be less than a

preponderance of the evidence, but must be more than a “mere scintilla.” Fish, ¶ 8.

¶12     When the basis of a motion for a new trial is an irregularity in the proceedings or

surprise, we review the denial of the motion for a manifest abuse of discretion. Westmark

International Corp. v. Gold Hill Placers, Inc., 2003 MT 119, ¶¶ 7, 14, 315 Mont. 492, 70

P.3d 731. A manifest abuse of discretion is one that is obvious, evident, or unmistakable.

Benefis Healthcare v. Great Falls Clinic, LLP, 2006 MT 254, ¶ 11, 334 Mont. 86, 146

P.3d 714. The manifest abuse of discretion standard requires that the abuse of discretion

be so significant as to materially affect the substantial rights of the complaining party.

Cooper v. Hanson, 2010 MT 113, ¶ 28, 356 Mont. 309, 234 P.3d 59.

                                             5
                                       DISCUSSION

¶13      Issue One: Did the District Court err when it granted summary judgment to

Julia?

¶14      Julia moved for summary judgment on the only claims against her – negligent

entrustment and vicarious liability via the family purpose doctrine.2 The District Court

granted Julia’s motion, finding “there is no evidence to indicate that Julia Roos should

have known Sherryann was not a competent driver.” Further, the District Court found

“[t]here is similarly no evidence of an agency relationship [regarding the family purpose

doctrine].” In reaching this ruling, the District Court disregarded “[m]ost of the affidavit

of Delbert Styren . . . because no foundation of personal knowledge for the statements is

set forth.”

¶15      Styren argues on appeal that, based upon the “facts” in Delbert Styren’s (Delbert)

affidavit, Julia was negligent in sending Roos and her siblings “down the highway” in her

(Julia’s) car.

         A. Negligent Entrustment

¶16      Generally, a parent is not liable for the tortious acts of his or her child, except

under limited statutory circumstances. Crisafulli v. Bass, 2001 MT 316, ¶ 16, 308 Mont.

40, 38 P.3d 842. That said, a parent can be liable, not for the tortious acts of his or her

child, but for the parent’s own failure to exercise reasonable care. Crisafulli, ¶¶ 22, 27

(emphasis added). In other words, the parent is not liable for the alleged tortious act of

2
 Stordahl also moved for summary judgment and his motion was granted by the District Court.
However, Styren does not challenge that ruling on appeal.
                                              6
the child – negligent entrustment is a standalone tortious act of the parent. For liability to

be imposed under this limited circumstance, the parent must (1) “know that he or she has

the ability to control the child[;]” (2) “the parent understands the necessity for doing

so[;]” and (3) the parent’s failure to exercise reasonable care “under these circumstances

create[s] an unreasonable risk of harm to a third person.” Crisafulli, ¶ 22 (emphasis in

original).

¶17    Negligent entrustment requires more than simply allowing a young person to

operate a vehicle. McGinnis v. Hand, 1999 MT 9, ¶ 29, 293 Mont. 72, 972 P.2d 1126;

Smith v. Babcock, 157 Mont. 81, 88-89, 482 P.2d 1014, 1018 (1971). In McGinnis, we

concluded that even evidence showing that a driver was “underage for driving purposes

or that she was not licensed to drive” would “be insufficient[,]” without more, “to

establish lack of competence” as a reasonable and prudent driver. McGinnis, ¶ 29. In

McGinnis, the plaintiff did not provide any evidence that the driver was not competent, or

that she had a reputation for driving negligently, or that the defendant (for the negligent

entrustment claim) should have known the driver was not competent to drive or would

drive in a manner creating an unreasonable risk to others. McGinnis, ¶ 29. Because the

plaintiff did not meet his burden, summary judgment against him was upheld.

¶18    Similarly, in Smith, we found the record devoid of any indication the minor driver

(16 years old) was incompetent or that Smith (the minor driver’s uncle) should have

“foreseen the accident.” Smith, 157 Mont. at 89, 482 P.2d at 1018. The minor driver was

“duly licensed by the State of Montana to operate a vehicle after fulfilling the various

                                              7
legal requirements, and there is no evidence on the record to indicate he was other than a

competent driver.” Smith, 157 Mont. at 89, 482 P.2d at 1018. Based upon these facts, we

held, as a matter of law, that Smith was not negligent in entrusting his vehicle to his

minor nephew.

¶19    In this case, the undisputed facts compel the same conclusion as in McGinnis and

Smith. There is absolutely no evidence that Julia knew, or should have known, that Roos

was an incompetent driver, or that Julia knew Roos would drive in a manner that created

an unreasonable risk to others. At the time of the collision with Riley, Roos had a valid

Montana driver’s license, had received no traffic citations, and was involved in no

accidents as a driver.

¶20    To refute these facts, Styren relies on Delbert’s affidavit. However, as the District

Court correctly pointed out, nowhere in Delbert’s affidavit does it state Delbert had

personal knowledge of the matters asserted in the affidavit.          Further, it contains

statements that Delbert could not have personal knowledge of, such as:               Julia’s

knowledge about Roos’ thoughts on May 8, 2006, Julia’s knowledge about Roos’ driving

capabilities on May 8, 2006, what time Roos left home for school, and that Roos “was

traveling over the speed limit” on May 8, 2006. Delbert was asked about the basis for his

statements in the affidavit at his deposition. He admitted that he learned some of the

information “through my attorney[,]” that he had no knowledge of Roos’ driver’s training

or driving experience, and that he had never spoken to Julia.




                                             8
¶21    We agree with the District Court that Styren did not meet its burden of proof to

avoid summary judgment. Nothing in Delbert’s affidavit creates a genuine issue of

material fact. The District Court properly granted summary judgment in Julia’s favor on

the negligent entrustment claim.

       B. Family Purpose Doctrine

¶22    The family purpose doctrine holds the owner of a family vehicle liable for the

negligence of a member of the family. Smith, 157 Mont. at 86, 482 P.2d at 1016-17.

This Court has rejected the family purpose doctrine several times; Smith, 157 Mont. at

86, 482 P.2d at 1017; Castle v. Thisted, 139 Mont. 328, 332, 363 P.2d 724, 726 (1961);

Clawson v. Schroeder, 63 Mont. 488, 499, 208 P. 924, 927 (1922); and we reject it again

in this case. Simply because Julia gave Roos permission to use a vehicle titled in Julia’s

name does not make Julia liable for Roos’ alleged negligence. Clawson, 63 Mont. at 499,

208 P. at 927. The only relationship in the present case was one of family – mother and

daughter – and that alone cannot create liability in Julia; there must have been an agency

relationship. Castle, 139 Mont. at 332, 363 P.2d at 726; Clawson, 63 Mont. at 494-95,

208 P. at 926; Smith, 157 Mont. at 86, 482 P.2d at 1017.

¶23    We agree with the District Court that Styren presented no evidence regarding

agency. Again, Delbert’s affidavit will not suffice for the reasons stated in ¶ 20, and bare

allegations that Roos was driving herself and her siblings to school “at the express

request and direction of her mother” cannot defeat Julia’s motion for summary judgment.

PPL, ¶ 84. The cases regarding agency cited by Styren are inapposite. Williams v. State

                                             9
Medical Oxygen & Supply, Inc., 265 Mont. 111, 874 P.2d 1225 (1994), deals with

teenage employees of a company moving mattresses at the request of Cloutier, an officer

and director of that company, using a truck belonging to another of Cloutier’s companies.

Williams has nothing to do with the familial relationship in the present case. Nor does

Vollmer v. Bramlette, 594 F. Supp. 243 (1984) (U.S. Dist. LEXIS 24427), in which the

agency relationship between an employer and employee was not contested.

¶24   In sum, we agree with the District Court that Styren did not meet its burden to

raise genuine issues of material fact in opposition to Julia’s motion for summary

judgment. Julia was entitled to judgment as a matter of law on both the negligent

entrustment and family purpose doctrine claims.

¶25   Issue Two: Did the District Court err when it did not grant a new trial?

¶26   After the jury returned its verdict finding Roos was not negligent, Styren sought a

new trial pursuant to M. R. Civ. P. 59(a) and § 25-11-102, MCA. The bases for the

motion were: (1) an irregularity in the proceedings occurred when Styren was not

allowed to introduce evidence of Trooper Duram’s “improper” investigation, and when

Trooper Duram was not required to give live testimony; (2) an irregularity in the

proceedings and surprise occurred when Roos’ counsel “misstated the evidence[;]” and

(3) there was insufficient evidence to support the jury’s verdict, and the verdict was

against the law. The District Court failed to rule on the motion, and it was deemed

denied pursuant to M. R. Civ. P. 59(d).




                                           10
¶27   M. R. Civ. P. 59(a) provides, in relevant part, “A new trial may be granted to all or

any of the parties and on all or part of the issues for any of the reasons provided by the

statutes of the state of Montana.” Section 25-11-102, MCA, provides:

      Grounds for new trial. The former verdict or other decision may be
      vacated and a new trial granted on the application of the party aggrieved for
      any of the following causes materially affecting the substantial rights of the
      party:
      (1) irregularity in the proceedings of the court, jury, or adverse party or any
      order of the court or abuse of discretion by which either party was
      prevented from having a fair trial;
      (2) misconduct of the jury. Whenever any one or more of the jurors have
      been induced to assent to any general or special verdict or to a finding on
      any question submitted to them by the court by a resort to the determination
      of chance, the misconduct may be proved by the affidavit of any one of the
      jurors.
      (3) accident or surprise that ordinary prudence could not have guarded
      against;
      (4) newly discovered evidence material for the party making the
      application that the party could not, with reasonable diligence, have
      discovered and produced at the trial;
      (5) excessive damages appearing to have been given under the influence of
      passion or prejudice;
      (6) insufficiency of the evidence to justify the verdict or other decision or
      that it is against law;
      (7) error in law occurring at the trial and excepted to by the party making
      the application.

¶28   The arguments Styren makes on appeal are substantially similar, if not identical, to

the arguments made in District Court. We address each argument in turn.

      A. Did the District Court err in its rulings on Trooper Duram’s “improper”
         investigation and the reading of his deposition into evidence?

¶29   A bit of background on this issue is necessary. Trooper Duram was the Montana

Highway Patrol Trooper who investigated the collision between Roos and Riley. His

investigation consisted of taking measurements at the scene, contacting those involved in
                                            11
the collision, and making a drawing of the scene. The end result was his three page

report and a citation issued to Riley for failure to yield. That citation was later dismissed.

¶30    Styren makes two arguments on appeal in relation to Trooper Duram, although

rather inartfully. First, Styren argues it was error to prohibit the admission of the “facts

of [Trooper] Duram’s improper investigation” at trial. This is presumably the report and

related “evidence” gathered by the Montana Highway Patrol (“MHP”) in response to a

complaint made against Trooper Duram by Styren’s counsel. Second, Styren argues it

was improper to read Trooper Duram’s deposition in lieu of his live testimony. We

discuss each argument in turn.

              1. The Montana Highway Patrol Investigation

¶31    Counsel for Styren filed a formal complaint against Trooper Duram in 2009,

alleging his “field notes and sworn testimony are clearly incorrect.”3 Counsel wanted the

“entire investigation” to be “reviewed, corrected, and amends made to the parties who

have improperly relied upon the training, honesty and reputation of the Montana

Highway Patrol.” According to a letter from the MHP, after an investigation, the

complaint was sustained and some undisclosed disciplinary action was taken against

Trooper Duram.

¶32    At the pretrial conference, Roos moved to exclude evidence of the complaint, the

report, and the conclusions of the investigation conducted by the MHP.            The District

3
 There was also a formal complaint made against Roos’ expert, Dr. Lee. The complaint alleged
Dr. Lee was not a licensed private investigator. It is unclear from the record who made this
complaint, and co-counsel for Styren claimed that “As far as I know, that didn’t come out of our
office.”
                                              12
Court ruled that “no mention of [formal complaints] is going to come in.” Further, the

District Court ruled that Styren was:

       entitled to bring up inconsistencies that [Trooper Duram] may have made
       or mistakes he may have made in the investigation. There is to be no
       mention of any complaints or investigation by his – by the [MHP], no
       reference at all. The jury is to make a decision regarding his credibility and
       the valuation of the investigation he conducted, based on the evidence
       that’s presented in this courtroom, and based on witnesses who can testify
       based on their own knowledge, not an investigation that was done
       subsequent by [the MHP].

¶33    Styren called Sergeant Bender (Sgt. Bender) of the MHP to testify. Sgt. Bender

was the person who investigated the complaint against Trooper Duram. He testified to

the various measurements he made at the scene, which differed from Trooper Duram’s

measurements. Sgt. Bender did not testify about the complaint, but did say he was

assigned to re-measure the scene by his captain.

¶34    “[F]actual findings resulting from special investigation of a particular complaint,

case, or incident” are inadmissible hearsay. M. R. Evid. 803(8)(iv); Stevenson v. Felco

Industries, Inc., 2009 MT 299, ¶¶ 29-30, 352 Mont. 303, 216 P.3d 763. Our rulings on

this issue have been “unequivocal.” Stevenson, ¶ 30.

¶35    Styren has cited no authority to support its argument that the District Court erred

in excluding the MHP report or its factual findings. Styren simply alleges it was an

irregularity pursuant to § 25-11-102(1), MCA. However, conclusory allegations of error

do not suffice. It is not our obligation to conduct legal research to support Styren’s

argument. In re J.D.N., 2008 MT 420, ¶ 16, 347 Mont. 368, 199 P.3d 189; M. R. App. P.



                                            13
12(1)(f) (the argument shall contain citation to authorities.) Styren has not met its burden

on appeal to demonstrate that the District Court erred.

              2. Trooper Duram’s Deposition

¶36    Styren alleges the District Court erred when it allowed Trooper Duram’s

deposition to be read into evidence at trial instead of requiring Trooper Duram to be

personally present. Roos argues the District Court correctly concluded that Trooper

Duram was not required to be personally present because he was unable to attend and

testify because of illness.

¶37    M. R. Civ. P. 32(a)(3)(C) provides, in relevant part, that the “deposition of a

witness, whether or not a party, may be used by any party for any purpose if the court

finds: . . . (C) that the witness is unable to attend or testify because of age, illness,

infirmity, or imprisonment[.]” Similarly, M. R. Evid. 804(b)(1) provides, in relevant

part, that if a witness is unavailable, testimony given in a deposition may be used “at the

instance of or against a party with an opportunity to develop the testimony by direct,

cross, or redirect examination, with motive and interest similar to those of the party

against whom now offered[.]” Under that rule, a witness in unavailable when the witness

“is unable to be present or to testify at the hearing because of death or then existing

physical or mental illness or infirmity[.]” M. R. Evid. 804(a)(4).

¶38    The District Court did not require Trooper Duram to be present because, according

to a letter from his doctor, “[Trooper Duram] is unable to sit for long periods of time due

to recent surgical intervention” on his back, and his doctor disqualified him “from

                                            14
appearing in court for at least the next 6 months.” The District Court said “I am, in no

way, going to require [Trooper] Duram to be present against medical advice.”

¶39    Again, Styren has cited no authority to support its argument that the District Court

erred in allowing Trooper Duram’s deposition to be read in lieu of live testimony. For

the same reasons stated in ¶ 35, we conclude Styren has not met its burden on appeal to

demonstrate that the District Court erred.

       B. Should a new trial be granted based upon defense counsel’s misstatement
          during his closing argument?

¶40    Styren argues that defense counsel “misstated the evidence by referencing false

statements in his closing argument.” The statement they argue was false was that Roos’

brother Brandon spoke to Trooper Duram at the hospital and told Trooper Duram that

Riley did not stop at the stop sign. They argue Brandon does not remember speaking to

Trooper Duram at the hospital. This, according to Styren, constitutes surprise.

¶41    Roos argues that, while it is technically true that defense counsel misspoke, the

nature of the mistake cannot constitute surprise. According to Roos, counsel simply

referred to the wrong law enforcement officer in his closing argument – Brandon told a

sheriff’s deputy, rather than Trooper Duram, that Riley did not stop at the stop sign.

¶42    A party seeking a new trial under § 25-11-102(3), MCA, must demonstrate: (1) the

moving party was actually surprised; (2) the facts causing the surprise had a material

bearing on the case; (3) the verdict or decision resulted mainly from these facts; (4) the

surprise did not result from the moving party’s negligence or inattention; (5) the moving

party acted promptly and claimed relief at the earliest opportunity; (6) the moving party
                                             15
used every means reasonably available at the time of the surprise to remedy it; and (7) the

result of a new trial without the surprise would probably be different. Clark v. Bell, 2009

MT 390, ¶ 30, 353 Mont. 331, 220 P.3d 650.

¶43   Styren’s arguments in this regard are wholly without merit. While it is true that

Roos’ counsel said the wrong name, that does not in any way change the content of

Brandon’s statement. Brandon testified in his deposition, which was read to the jury, as

follows:

      Q:    Do you remember a sheriff’s deputy coming?
      A:    Yeah, I remember him showing up.
      Q:    Do you know who it was?
      A:    I can’t remember who it was, no.
      Q:    Do you remember what he asked?
      A:    No.
      Q:    Do you remember what anybody said?
      A:    To the sheriff?
      Q:    Yeah.
      A:    I told him – he asked me what happened, and I told him that the other car
            drove through the stop sign and we were coming down the road and we hit
            him.
      Q:    Did the officer talk to Sherry also?
      A:    I’m pretty sure.
      Q:    Do you remember the highway patrolman?
      A:    No.
      Q:    Do you remember seeing or talking to the highway patrolman?
      A:    No.
      Q:    Have you ever known [Trooper Duram]?
      A:    Huh-uh.
      Q:    Never talked to him, never seen him?
      A:    Nope.

¶44   The surprise argued here is that Roos’ counsel got the name of the law

enforcement official wrong. It is inconceivable that the name of the law enforcement

official had any bearing whatsoever on the verdict. No matter who Brandon made the
                                            16
statement to, Brandon in fact made the statement. That is a point that Styren cannot, and

does not, argue. It strains credulity to argue that the jury would have decided the case

differently had defense counsel said “sheriff’s deputy” versus “Trooper Duram.” Styren

has not met the elements under Clark. We agree with the District Court that a new trial

should not have been granted due to surprise under § 25-11-102(3), MCA.

       C. Was the jury’s verdict legal and supported by substantial evidence?

¶45    Here Styren argues that because the collision occurred in Riley’s lane, there is no

possible way the jury could have found that Roos was not negligent. Further, Styren

argues the jury’s verdict was “against the law” because Roos failed to drive on the right

side of the road in violation of § 61-8-321, MCA (Jury Instruction 25), or made an unsafe

lane change in violation of “Montana law” (Jury Instruction 33).

¶46    Roos argues that Styren ignores facts that were, and still are, in dispute to reach

these conclusions, and that substantial evidence supports the jury’s verdict. Further,

Roos argues that Styren’s reading of Montana law is extreme.

¶47    We agree with Roos and conclude that substantial evidence supports the jury’s

finding that Roos was not negligent, and the verdict was not contrary to Montana law.

While Styren alleges both errors of fact and law, the only real issues are issues of fact.

Styren does not argue that the District Court erred in instructing the jury, but rather that

the jury’s conclusions under certain instructions violated the law. However, whether a

legal duty was breached is a question of fact for the jury to decide. Estate of Strever v.

Cline, 278 Mont. 165, 175, 924 P.2d 666, 672 (1996). Similarly, whether Roos violated

                                            17
the statutes included in Jury Instructions 25 and 33 is also a question of fact left for the

jury.4      See Massee v. Thompson, 2004 MT 121, ¶ 31, 321 Mont. 210, 90 P.3d 394

(discussing evidence presented to the jury regarding sheriff’s failure to comply with

various statutes).

¶48       It was for the jury to decide between two competing sets of facts presented, both

with evidentiary support in the record. Styren presented testimony that Riley stopped at

the stop sign, then proceeded through the intersection and was not blocking Roos’ path of

travel in the eastbound lane of Midway Road. Styren wanted the jury to conclude that

Roos was driving east in Riley’s westbound lane, and therefore she was negligent.

However, Roos presented testimony that Riley did not stop at the stop sign, but rather

proceeded through the intersection where Roos, in an attempt to avoid hitting him,

swerved into the westbound lane because Riley was blocking her path of travel in the

eastbound lane. Roos wanted the jury to believe that Riley caused the collision by

running the stop sign and obstructing her lane. The jury chose to believe Roos’ evidence,

which is precisely the function of a jury. Delaware v. K-Decorators, Inc., 1999 MT 13,

¶ 50, 293 Mont. 97, 973 P.2d 818 (resolving conflicts in the evidence, judging the

credibility of witnesses, and finding the facts are uniquely within the province of the

jury). We find nothing in the record to disturb the jury’s verdict, and we will not

substitute our judgment for that of the jury’s.             Massee, ¶ 62.   There is substantial

evidence to support the jury’s verdict.


4
    It should be noted that this case was not a negligence per se case.
                                                   18
                                   CONCLUSION

¶49   For the reasons stated above, we affirm the District Court.


                                                /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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