                                          DA 06-0468

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 135N


KELLY WATKINS,

              Plaintiff and Appellant,

         v.

BLACKIES FRESNO TAVERN and APRIL PREESHL,

              Defendants and Respondents.


APPEAL FROM:          District Court of the Twelfth Judicial District,
                      In and For the County of Hill, Cause No. DV 04-005
                      Honorable David G. Rice, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Roland B. Durocher; Hartelius, Ferguson, Baker &
                      Durocher, Great Falls, Montana

               For Respondents:

                      Gary M. Zadick, Mary K. Jaraczeski; Ugrin, Alexander,
                      Zadick & Higgins, Great Falls, Montana



                                                  Submitted on Briefs: May 9, 2007

                                                             Decided: June 5, 2007


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Kelly Watkins appeals from the judgment of the Twelfth Judicial District Court, Hill

County, in favor of defendants Blackies Fresno Tavern (Blackies) and Alice Preeshl, after a

bench trial on Watkins’ strict liability and negligence claims relating to injuries she sustained

when Preeshl’s dog bit her ear and forearms in a yard adjoining Blackies. Watkins contends

the District Court erred in denying her pretrial motion in limine to exclude as irrelevant any

evidence regarding whether she had permission to enter the yard, because she asserts the yard

was a public place. Moreover, in relation to her strict liability claim under § 27-1-715, MCA,

Watkins argues the District Court erred in determining the statutory affirmative defense of

provocation applied, upon concluding that—aside from whether Watkins had permission to

be in the yard—Watkins caused the dog to react by playing with the dog, grabbing for a ball

in the dog’s mouth and pulling on the dog’s neck as the dog tried to walk away. Watkins

also asserts that, barring application of § 27-1-715, MCA, the District Court erred in failing

to hold the defendants liable under common law strict liability principles regarding

dangerous or vicious dogs, in light of Preeshl’s knowledge that the dog had bitten a

                                               2
veterinarian approximately four years before the incident involving Watkins.

¶3     With respect to her negligence claim, Watkins argues the District Court erred in

concluding that § 27-1-702, MCA, barred recovery based on the court’s determination that

Watkins was 90% negligent and the defendants were 10% negligent. Finally, Watkins

challenges several of the District Court’s findings and conclusions as irrelevant, not

supported by the record, or otherwise erroneous.

¶4     We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that this appeal is without

merit because substantial credible evidence supports the District Court’s pertinent findings,

credibility determinations are within the province of the finder of fact, and the issues are

clearly controlled by settled Montana law that the District Court correctly interpreted.

¶5     Affirmed.


                                                   /S/ KARLA M. GRAY


We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




                                             3
