No. 84-266 

IN THE SUPREME COURT OF THE STATE OF MONTA1.A 

1984 

GONZ and DORIS MORALES, as surviving 

parents of TIMOTHY MORALES, Personal 

Representative of the Estate of 

RAYMOND MORALES, deceased, 

Plaintiffs and Appellants, 

SALLY TUOMI and EDWIN TUOMI, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Lynaugh, Fitzgerald & Hingle, Billings, Montana 

For Respondents: 

Crowley Law Firm; Ronald Lodders, Billings, Montana 

Submitted on Briefs: Oct. 18, 1984 

Decided: January 3, 1985 

8 fi !;I , 1985 

Filed: * 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The surviving parents and. personal representative of 

Raymond. Morales, plaintiffs below, appeal from an order of 

the Thirteenth Judicial District Court, County of 

Yellowstone, granting summary judgment to defendants Sally 

and Edwin Tuomi. We affirm the decision of the District 

Court. 

This case arose from an automobile accident which 

occurred outside of Billings early in the morning on July 2, 

1981. Sally Tuomi, defendant and. respondent, had borrowed 

her father's car and had visited a. couple of Billings 

nightspots, includincj an establishment known as "Gramma's." 

Tuomi and two friends, Linda McAllister and Doreen Crawford, 

met Raymond Morales at Gramma's early in the morning on July 

2, 1981. Apparently, at about the time that the bar was 

closing, Tuomi and Morales decided to travel via backroads to 

Laurel, Montana. McAllister and. Crawford both signed sworn 

affidavits stating that Morales was driving the Tuomi vehicle 

when it left Gramma's. At some point thereafter, the car 

failed to negotiate a sharp right hand turn, left the 

roadway, and ended up in an irrigation ditch. Sally Tuomi 

signed a sworn affidavit stating that Morales was driving at 

the time of the accident. Tuomi managed to escape the 

submerged vehicle, and left for help. When divers with a 

rescue team a-rrived, they discovered the body of Raymond 

Morales behind the steering wheel of Tuomi's automobile. 

They also noted a hole in the windshield on the passenger 

side which might have heen large enough for a person to pass 

through. 
The coroner's lab report listed the cause of Morales' 

death as being asphyxiation following a blunt force head 

injury which lead to unconsciousness. The pathologist who 

conducted the autopsy, Dr. Kenneth Mueller, later stated by 

sworn affidavit that based on his post mortem findings, he 

was unable to determine whether Morales was the driver of or 

passenger in the automobile at the time of the accident. 

On March 10, 1983, the parents and personal 

representative of Raymond Morales filed a wrongful death and 

survivorship action, naming Sally and Ed.win Tuomi as 

defendants. Edwin Tuomi, Sally's father, was the owner of 

the accident vehicle. The complaint alleged that Sally Tuomi 

negligently caused the death of Morales through her careless 

operation of the Tuomi vehicle at the time of the accident. 

On January 4, 1984, the defendants filed a motion for 

summary judgment; briefs were filed and affid-avits submitted 

by both parties. The District Court granted the motion on 

March 3, 1984 in a memorandum order. 

Upon appeal, the only question is whether there is a 

genuine factual issue concerning who was driving the Tuomi 

vehicle at the time of the accident. 

As their first assignment of error, appellants 

maintain that in granting summary judgment the District Court 

incorrectly concluded that the defendants-respondents had 

sustained their burden of demonstrating a complete absence of 

any genuine issue of material fact. In the alternative, 

appellants argue that even if defendants sustained their 

burden, appellants then came forward with sufficient evidence 

to raise a material factual issue, thereby defeating the 

motion. 
The purpose of Rule 56, M.R.Civ.P., is to dispose of 

those actions which fail to raise genuine issues of materialfact, thereby eliminating the burden and expense of an 

unnecessary trial. Van Uden v. Hendricksen (Mont. 1980)~ 615 

P.2d 220, 222, 37 St.Rep. 1431, 1433; Silloway v. Jorgenson 

(1965), 146 Mont. 307, 310, 406 P.2d 167, 169. 

The burden upon the party moving for summary iudgment 

is stated in Rule 56 (c) , M.R.civ.P. : 

"The judgment sought shall be rendered 

forthwith if the pleadings, depositions, 

answers to interrogatories and admissions 

on file, together with the affidavits, if 

any, show that there is no genuine issue 

as to any material fact and that the 

moving party is entitled to a judgment as 

a matter of law." 

To satisfy his burden of proof, the movant must provide 

the court with evidence which clearly indicates what the 

truth is, and which excludes any real doubt as to the 

existence of a genuine issue of material fact. -- Van Uden, 615 

P.2d at 222, 37 St.Rep. at 1433. 

In this case, defendants filed five sworn affidavits 

with their motion for summary judgment relating defen.dantsl 

view of the accident which resulted in the death of R.a.ymond 

Morales. Michael Alexander, a scuba diver on the rescue 

team, stated that when the Tuomi vehicle was located in the 

ditch, Morales was in the driver's seat. Doreen Crawford and 

Linda McAllister, both of whom accompanied Sally Tuomi to 

Gramma's bar on the night of the accident, stated that Ray 

Morales was driving the Tuomi vehicle at the time that it 

left Gramma's. Sally Tuomi, the only eyewitness to the 

accident, stated that Morales was driving the Tuomi vehicle 

when she and Morales left Gramma's; that from the time they 

left Gramma's to the time of the accident they neither 
stopped the car nor changed drivers; and that Morales was 

driving the car at the time of the accident. Defendants' 

counsel, Ronald Lodders, also filed an affidavit, noting that 

an interrogatory had been submitted to plaintiffs inquiring 

as to all facts, documents and witnesses which supported 

plaintiffs' assertion that Sally Tuomi was driving at the 

time of the accident. Ladders noted that in their answer to 

the interrogatory, plaintiffs merely stated that they would 

cal.1 a.n accident reconstruction expert who would use 

testimony to be provided by the divers, the pathologist, a.nd 

a highway patrolman to establish that Tuomi was the driver. 

Lodders' assertions are verified by the record. Plaintiffs 

later attempted to bolster their reply to this interrogatory 

by filing supplemental answers, wherein it was stated that: 

" Dr. Kenneth Mueller, a forensic 

pathologist, will testify that the 

injuries to Raymond Morales were to his 

head and were inconsistent with injuries 

sustained by a driver of the automobile 

involved in such an accident. Mike Blohm 

and Mike Alexander, the divers, k7ill 

testify that to the best of their 

knowledge the only open window was on the 

driver's side of the vehicle, and thus 

the only escape from the vehicle was by 

the driverf s side. We believe that this 

testimony supports the allegation that 

the defendant was driving. . 11 

(Emphasis provided.) 

Plaintiffs' attorney, Thomas Lynauqh, also filed an affidavit 

reiterating his belief that Dr. Mueller and Michael Blohm 

would provide testimony placing Sally Tuomi in the driver's 

seat. 

Defendant then responded by filing the affidavits of 

Dr. Kenneth Mueller and Michael Blohm. Mueller stated that 

he was unable to form an opinion, as a result of his 

examination of Moralesf injuries, as to whether Morales was a 

driver of or a passenger in the Tuomi vehicle at the time of 
the accident. Rlohm stated that when the Tuomi vehicle was 

located in the ditch, the windshield on the passenger side 

had a ho1.e in it which may have been large enough for a 

person to pass through. 

We find that the affidavits filed by defendants clearly 

discharged their burden of proof under Rule 56(c), M.R.Civ.P. 

It then became incumbent upon plaintiffs, as the party 

opposing the motion, to come forward with substantial 

evidence raising a genuine issue of material fact. Rule 

56 (e) , M.R.Civ.P., Riley v. Carl (Mont. 1981.), 622 P.2d 228, 

230, 38 St.Rep. 83, 85. Such evidence must be in proper form 

and conclusions of law will. not suffice; the proffered 

evidence must be material and of a substantial nature, not 

fanciful, frivolous, gauzy or merely suspicious. -- Van Uden, 

615 P.2d at 224, 37 St.Rep. a.t 1435. Furthermore, as with 

any other affiant under Rule 56, an attorney's affidavit "is 

admissible only to prove facts that are within his personal 

knowledge and as to which he is competent to testify; an 

affidavit stating what the attorney believes or intends to 

prove at trial will he disregarded." 10A Wright, Miller and 

Kane, Federal Practice and Procedure S2738 (1983). 

Here the plaintiffs failed to provide the trial court 

with any substantial evidence indicating that it was Tuomi, 

and not Morales, who was driving at the time of the accident. 

Plaintiffs, citing Brown v. Merrill Lynch, Pierce, Fenner & 

Smith, Inc. (Mont. 1982), 640 P.2d 453, 39 St.Rep. 305, 

insist that they are entitled to all reasonable inferences 

which may be drawn from their offered proof ir, defeating 

summary judgment. While we agree with the cited rule, the 

fact is that plaintiffs have simply failed to offer any proof 

which would support an inference in their favor. 
Plaintiffs also argue that because their cause of 

action was based on negligence, summary judgment was 

inappropriate, citing our decisions in Dean v. First ~ational 

Bank of Great Falls (1969), 152 Mont. 474, 452 P.2d 402, and 

Malley v. Asanovich (19671, 149 Mont. 99, 423 P.2d 294. 

However, those cases clearly indicate that summary judgment 

is inappropriate in negligence cases when the contested facts 

actually involve the issue of a negligent breach of a legal 

duty, requiring application of the reasonable man standard. 

Dean, 152 Mont. at 483, 452 P.2d at 407. "[Ilt would be 

wrong to assume that summary judgment is never appropriate in 

negligence actions. A summary judgment motion j.n favor of 

defendant should be granted in those cases in which there is 

no genuine issue as to any fact that is crucial to 

plaintiff's cause of action so that as a ma.tter of law 11e 

cannot recover.'' 10 A. Wright, Miller, and Kane, Federal 

Practice and Procedure S 2729 (1983) . 

Upon review of the offered proof, we can only conclude 

that Raymond Morales was driving the Tuomi vehicle 

immediately prior to the accident which instigated this 

lawsuit, and as a matter of law plaintiffs cannot recover 

upon their complaint alleging negligence. 

Finally, plaintiffs contend that defendants resisted 

the taking of depositions in this case, particularly the 

depositions of Dr. Mueller and the two rescue team divers, 

and thus granting defendant's motion for summary judgment 

"cut off" discovery prematurely. This argument is incorrect 

both substantively and procedurally. Rule 56 (f) , M. R.Civ. P. 

provides that: 

"Should it appear from the affidavits of 

a party opposing the motion that he 

cannot for reasons stat-ed present by 
affidavit facts essential to justify his 

opposition, the court may . . . order a 

continuance to permit affidavits to be 

obtained or depositions to be taken or 

discovery to be had. . . " 

Plaintiffs did not present the required affidavit to the 

court stating reasons why the depositions could not be taken. 

Nor did plaintiffs attempt to exercise their prerogative 

under Rules 30, 31 or 37, M.R.Civ.P. at any time after the 

complaint was filed. Plaintiffs had over a year in which to 

fortify their case through discovery, and for whatever 

reason, they failed to do so. 

The judgment of the District Court is aff 

We concur: 

?,a+& $,%& 

Chief Justice 

Justices 

I concur in the result only.