No. 96-086 IN THESUPREME

COURTOFTHE 1996 STATEOFMONTANA

MAXINERYAN,

Plaintiff and Respondent,
v. CITY OFBOZEMAN,

Defendant andAppellant.

APPEALFROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable Larry Moran, Judge presiding.

COUNSELOFRECORD:

For Appellant: Philip F. Walsh; Walsh &McKenna, Bozeman, Montana For Respondent: Rienne H. McElyea; Berg, Lilly, Andriolo & Tollefsen, Bozeman, Montana

Filed: Submitted onBriefs: October 17, 1996 Decided: November 26, 1996Justice W.William Leaphart delivered the Opinion of the Court.

Maxine Ryan (Ryan) filed suit against the City of Bozeman (City) alleging that a City employee negligently drove a City vehicle such that it collided with Ryan's vehicle at the intersection of Cottonwood andMontana Streets. Ajury returned a verdict that Ryan andthe City were each 50%negligent and found damagesin the amount of $37,000. Thecourt granted Ryan's motions for directed verdict andfor judgment notwithstanding the verdict (JNOV) on the issue of liability and granted anewtrial onthe issue of damages. TheCity appealed from the grant of anewtrial (Cause No. 96-086) and filed apetition for writ of supervisory control (CauseNo. 96-263) with regard to the grant of aJNOVsince the grant of a JNOV is not subject to appeal under Rule 1, M.R.App.P. In its petition for the writ, the City asked that the two issues be combined for purposes of briefing; Ryan did not oppose the motion. Given the posture of this case and in the interests of judicial economy, wegranted the writ andordered that both the granting of the JNOVandthe granting of the newtrial be combined for briefing in CauseNo. 96-086. Wereverse and remand for anewtrial. This suit arises out of a collision at the uncontrolled intersection of Montana Street andCottonwood Street in the City of Bozeman. Lindsey Korell, a summer employee for the City was driving east on Cottonwood in a City-owned pickup truck. She collided with Ryanwhowastraveling north onMontana and entered

2the intersection onKorell's right. At the time of the accident,

there was ahedge of at least six feet in height onthe southwest
corner of the intersection. Thehedge ran adjacent to Cottonwood Street for approximately 20-30 feet in such a manner that it obstructed the view of both drivers as they entered the intersection. The City vehicle hit Ryan's automobile on the driver's side door and pushed it into a telephone pole. Ryan suffered injuries asaresult of the collision. Standard of Review The standard of review in appeals from a judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.P., is the same as that for review of a motion for a directed verdict, andadirected verdict maybegranted only where it appears as amatter of law that aparty could not prevail upon anyview of the evidence including the legitimate inferences to be drawn therefrom. Wilkerson v. School District (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. Motions for directed verdict or for
a JNOVare proper only when there is a complete absence of any evidence to warrant submission to ajury. Jacques v. Montana Nat. Guard (1982), 199Mont. 493, 504, 649P.2d 1319, 1325. Thecourts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a JNOVmotion is not properly granted. Barmeyer v. Montana PowerCompany(1983), 202Mont. 185, 191, 657P.2d 594, 597 (overruled on other grounds). Rulings on the admissibility ofevidence are within the discretion of the trial court. Cooper v.

Rosston (19881, 232Mont. 186, 189-90, 756P.2d 1125, 1127. Absent
an abuse of discretion this Court will not reverse a district court's rulings onthe admissibility of evidence. Glacier National Bankv. Challinor (1992), 253Mont. 412, 416, 833P.2d 1046, 1049. Discussion I Did Ryan properly plead a cause of action for negligence regarding the City's failure to enforce the street vision triangle ordinance? In granting respondent Ryan's motion for adirected verdict and a JNOV, the court found that the corner lot where the intersection occurred contained ahedge between six and ten feet tall in the street vision triangle. The court reasoned that the City of Bozeman had an affirmative duty to enforce the Bozeman Municipal Code Section 18.50.080, which requires that no hedge obstructions be permitted within the street vision triangle, and that the City's failure to require that the hedge betrimmed was the sole proximate cause of the collision andof Ryan's injuries. Onappeal, the City contends that the trial court erred in allowing Ryan to introduce evidence as to the City's failure to enforce the ordinance and in granting a directed verdict onthat basis. It is the City's assertion that the only negligence alleged by Ryanwas the negligence of the City employee, Lindsey Korell, whowasdriving the City vehicle at the time of the accident; that there were noallegations that the drivers' views were obstructed bythe hedge or that the City wasnegligent for failing to require that the hedge betrimmed.

4Aplaintiff must allege acause of action in a complaint or

other pleading with sufficient specificity to apprise adefendant of the nature of the claim. A district court does not have jurisdiction to grant relief outside of the issues presented bythe pleadings unless the parties stipulate that other questions be considered or the pleadings are amended to conform to the proof. Old Fashion Baptist Church v. Montana Dep't of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628. Ajudgment must bebased upon averdict and must be within the issues presented to the court. Old Fashion BaDtiSt Church, 671P.2d at 628 (citing National Surety Corp. v. Kruse (1948), 121Mont. 202, 205-206, 192P.2d 317, 319). In reviewing Ryan's complaint, wedetermine that the City is correct. The only allegation of negligence against the City of Bozeman in the entire complaint is that its employee, Lindsey Korell, "negligently drove a City vehicle into plaintiff's vehicle." Theparties also prepared and filed apre-trial order which superseded the allegations in the complaint. In the pretrial order, Ryan's "Contentions," in their entirety, are as follows: The automobile collision was a result of the negligence of Lindsey Korell in failing to yield the right of way to Maxine Ryan, in driving at a rate of speed that was too fast for the circumstances, and in failing to keep a proper lookout and to take proper evasive steps to avoid the accident. Asaresult of the negligence of Lindsey Korell andthe ensuing collision, Maxine Ryan has sustained serious physical injuries resulting in past andfuture medical expenses, lost wages and lost earning capacity, pain andsuffering, and loss of enjoyment of her established way of life. Because Lindsey Korell wasanemployee of the City of Bozemanand was acting within the scope of her employment, the City of Bozemanis liable for her negligence. 5Although the pre-trial order section on "Determination of legal

issues in advance of trial" doesmakemention of apossible motion in limine to befiled bythe City asto whether the City of Bozeman could advise the jury that it had no legal responsibility for trimming the hedge, there were noaffirmative allegations by Ryan that the hedge obstructed the view or that the City wasnegligent in failing to require that the hedge be trimmed. In concluding that the City's failure to comply with the ordinance constituted negligence, the court ignored the fact that neither the complaint
nor the pre-trial order alleged anynegligence bythe City related to the height of the hedge. Furthermore, the City objected to the introduction of anyevidence related to the height of the hedgefor the reason that Ryanhadnot contended that the height of the hedge
wasabasis for aclaim of negligence. In allowing Ryanto pursue a claim of negligence based upon the height of the hedge, the District Court faulted the City for not following through and filing a motion in limine on that issue. However, as the City contends, it is not adefendant's burden to file motions in limine in order to defeat unpled claims. Rather, the burden is onthe plaintiff to adequately plead a cause of action. In Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 382 P.2d 552, weadopted the proposition that it is sufficient if the complaint concisely states facts upon which relief can be granted upon any legally sustainable basis.

This court agrees that plaintiffs' pleading should be soviewed. Yet acomplaint must state something more than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. 6Liberality does not go so far as to excuse omission of

that which is material andnecessary in order to entitle relief. Rambur, 382 P.2d at 554 (citations omitted). In the present case, Ryan did not plead any facts as to the drivers' views being obstructed nor any facts as to the height of the hedge. Accordingly, her complaint andcontentions in the pretrial order did not even "breed asuspicion" that shewasentitled to relief on any theory other than that the driver of the City vehicle wasnegligent in failing to yield the right of way and in exceeding the speed limit. In McJunkin v. Kaufman&Broad HomesSystems (1987), 229Mont. 432, 748P.2d 910, weupheld the trial court's refusal to submit to the jury an unpleaded claim of breach of an express warranty against the seller. While recognizing that amendment to pleadings should beliberally allowed, weheld that leave to amendunder Rule 15(b), M.R.Civ.P., cannot begranted arbitrarily or perfunctorily. McJunkin, 748 P.2d at 913-14. Noting that McJunkins had two and one-half years to amendtheir complaint andthat the pretrial order specifically stated that the express warranty claim applied only to K&Bandnot the seller, weheld that the court did not abuse its discretion in refusing to submit the issue to the jury. McJunkin, 748 P.2d at 919. In the present case, the City correctly points out that Ryan did not moveto amendher pleading to conform to the evidence under Rule 15(b), M.R.Civ.P. Rule 15(b), M.R.Civ.P., states:

Whenissues not raised bythe pleadings are tried by express or implied consent of the parties, they shall be 7treated in all respects asif they hadbeenraised in the

pleadings. Such amendment of the pleadings as may be necessary to cause themto conform to the evidence andto raise these issues maybemadeuponmotion of any party at anytime, evenafter judgment; but failure to soamend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues madeby the pleadings, the court mayallow the pleadings to beamendedandshall do sofreely whenthe presentation of the merits of the action will besubserved thereby andthe objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense uponthe merits. Thecourt may grant acontinuance to enable the objecting party to meet such evidence. Under Rule 15(b), M.R.Civ.P., pleadings can be amended to conform to the evidence whenthe issues have beentried by express or implied consent of the parties or whenthere has been amotion madeand granted to conform the pleadings to the evidence. Here, neither circumstance pertains. Having objected to the admission of the evidence asto the height of the hedge, it cannot besaid that the City impliedly consented to that issue being tried. & Glacier National Bank, 833 P.2d at 1049 (no implied or express consent in light of repeated objections to evidence). Further, Ryan did not request that the pleadings be amended. Rather, the court ruled that the issue had been generally pled; blaming the City for not having narrowed the issues through amotion in limine. Although pleadings are to be liberally construed and amendments liberally allowed, as we stated in Rambur, 382 P.2d at 554, "[lliberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief." Weconclude that the allegations in the complaint andthe pretrial order were insufficient to state a cause of action for
8negligence arising out of the height of the hedge or the City's

failure to have the hedge trimmed. Accordingly, wehold that the court abused its discretion in admitting evidence asto the height of the hedgeandthe requirements of BozemanMunicipal CodeSection 18.50.080. The court further compounded this error when, based upon that sameevidence as to the height of the hedge, it ruled that the City's failure to enforce the City Codewasnegligence per se and such negligence was the sole cause of Ryan's damages and granted aJNOVanddirected verdict against the City onthe issue of liability.
II Did the trial court err in determining that Ryanwas not negligent as amatter of law and that contributory negligence was not applicable under the facts of the case? In granting the directed verdict and aJNOV, the court held that it hadcommitted err in submitting the question of comparative negligence to the jury. In soruling, the court stated: As amatter of fact, I find that there is no credible evidence that the plaintiff committed any acts of negligence which were [the] proximate cause of the accident in this matter, nor anyacts of negligence which contributed in anywayto her injuries.

. Iwill make a specific finding of no negligence on the part of plaintiff that would justify a comparative negligence disposition of the case either bythe Court or the jury, and I order anewtrial in this matter onthe issue of damages alone. In the subsequent written order, the court held that, even if there
were any negligence by Ryan, such negligence wasnot aproximate
cause of the accident andher damages. TheCity contends that the court's determination that Ryanwas not negligent is contrary to the evidence. The speed limit on 9Cottonwood and Montana Streets in Bozeman is 25 m.p.h. Ryan's

expert determined that she was going at least 22 m.p.h. at the point of impact. The City's expert concluded that she was traveling between 28m.p.h. and37m.p.h. just before impact. Thus there wastestimony before the jury from which it could conclude that Ryanwas exceeding the 25m.p.h. speed limit. Despite this testimony, the court, in effect, held, asamatter of law, that the speed of Ryan's vehicle wastotally irrelevant to the question of causation. This conclusion is in error. If shewere exceeding the speed limit, then there wascredible evidence from which the jury could determine that shewasnegligent. If shewere negligent, it
was the jury's prerogative, as fact finder, to determine whether that negligence contributed to her injuries. It was clear error for the court to preempt the jury's determination in that regard. The court's order granting the directed verdict states that
even if Ryan were negligent, her negligence was not aproximate
cause of the collision, and, further, contributory negligence is not applicable under the facts of this case. Although it is not apparent what the court meant when it said that contributory negligence wasnot applicable under the facts, wecan only assume that it concluded that Ryan's ordinary negligence (if any) could not be compared with what the court determined was the City's negligence per se for violating the City Ordinance. Such a conclusion is without support. Since Ryanhadnot pled acause of action with regard to the hedge, there wasnobasis for the court's finding that the City was negligent per se. Even assuming,

10argue&o, that the City violated the ordinance, violation of an

ordinance or traffic statute does not preclude comparison of such negligence with the ordinary negligence of the plaintiff. In HartAnderson v. Hauck (1989), 239Mont. 444, 781 P.2d 1116, the trial court granted the plaintiff's motion for adirected verdict in an intersection collision in which the defendant had rear ended the plaintiff. Onappeal, the defendant argued that, regardless of whether she was guilty of negligence per se for following too closely in violation of §61-8-329, MCA,shewasentitled to have the jury consider her claim that plaintiff was contributorily negligent in stopping in front of her. Hart-Anderson, 781P.2d at 1117. Relying onour decision in Reedv. Little (1984), 209Mont. 199, 206, 680P.2d 937, 940, weheld that the conflicting evidence
asto whether plaintiff stopped in front of the defendant supported
aclaim of contributory negligence. In light of this conflicting evidence, westated: It is not appropriate for the court to weigh conflicting evidence; rather, that is the function of the trier of fact, in this case, the jury. As in Reed, it was possible for the jurors to find that plaintiff cameto an abrupt stop in front of defendant andwascontributorily negligent. Weconclude that reasonable menmight differ in drawing conclusions from the evidence. Thus a directed verdict in favor of plaintiff was not appropriate. Weremandthis case to the District Court.

. . Hart-Anderson, 781 P.2d at 1118 Asin Hart-Anderson, there wastestimony before the jury from which it could determine that Ryanwas contributorily negligent. Regardless of whether the trial judge found the evidence credible
or not, it wasthe jury's prerogative to weigh that evidence. 11For the above reasons, we conclude that the court abused its

discretion in allowing the issue of the City's alleged negligence in failing to enforce the street vision ordinance to go to the jury and in granting the directed verdict and judgment notwithstanding the verdict. We reverse and remand for a new trial on both liability and damages.

Weconcur:

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