No. 96-086 

IN THE SUPREME COURT OF THE 

1996 

STATE OF MONTANA 

MAXINE RYAN, 

Plaintiff and Respondent, 

v. 

CITY OF BOZEMAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip F. Walsh; Walsh & McKenna, 

Bozeman, Montana 

For Respondent: 

Rienne H. McElyea; Berg, Lilly, Andriolo & 

Tollefsen, Bozeman, Montana 

Filed: 

Submitted on Briefs: October 17, 1996 

Decided: November 26, 1996 
Justice 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 and Montana Streets. A jury returned a 

verdict that Ryan and the City were each 50% negligent and found 

damages in the amount of $37,000. The court granted Ryan's motions 

for directed verdict and for judgment notwithstanding the verdict 

(JNOV) on the issue of liability and granted a new trial on the 

issue of damages. The City appealed from the grant of a new trial 

(Cause No. 96-086) and filed a petition for writ of supervisory 

control (Cause No. 96-263) with regard to the grant of a JNOV since 

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, we granted the writ and ordered that 

both the granting of the JNOV and the granting of the new trial be 

combined for briefing in Cause No. 96-086. We reverse and remand 

for a new trial. 

This suit arises out of a collision at the uncontrolled 

intersection of Montana Street and Cottonwood 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 Ryan who was traveling north on Montana and entered 

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the intersection on Korell's right. At the time of the accident, 

there was a hedge of at least six feet in height on the southwest 

corner of the intersection. The hedge 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 as a result 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, and a directed verdict may be granted only where 

it appears as a matter of law that a party could not prevail upon 

any view 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 JNOV are proper only when there is a complete absence of any 

evidence to warrant submission to a jury. Jacques v. Montana Nat. 

Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. The courts 

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 JNOV motion is not properly granted. Barmeyer v. 

Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 

(overruled on other grounds). Rulings on the admissibility of 
evidence are within the discretion of the trial court. Cooper v. 

Rosston (19881, 232 Mont. 186, 189-90, 756 P.2d 1125, 1127. Absent 

an abuse of discretion this Court will not reverse a district 

court's rulings on the admissibility of evidence. Glacier National 

Bank v. Challinor (1992), 253 Mont. 412, 416, 833 P.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 a directed verdict 

and a JNOV, the court found that the corner lot where the 

intersection occurred contained a hedge 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 be trimmed was 

the sole proximate cause of the collision and of Ryan's injuries. 

On appeal, 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 on that 

basis. It is the City's assertion that the only negligence alleged 

by Ryan was the negligence of the City employee, Lindsey Korell, 

who was driving the City vehicle at the time of the accident; that 

there were no allegations that the drivers' views were obstructed 

by the hedge or that the City was negligent for failing to require 

that the hedge be trimmed. 

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A plaintiff must allege a cause of action in a complaint or 

other pleading with sufficient specificity to apprise a defendant 

of the nature of the claim. A district court does not have 

jurisdiction to grant relief outside of the issues presented by the 

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. A judgment must be based upon 

a verdict and must be within the issues presented to the court. 

Old Fashion BaDtiSt Church, 671 P.2d at 628 (citing National Surety 

Corp. v. Kruse (1948), 121 Mont. 202, 205-206, 192 P.2d 317, 319). 

In reviewing Ryan's complaint, we determine 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." The parties also prepared and filed a pre-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. As a result of the 

negligence of Lindsey Korell and the ensuing collision, 

Maxine Ryan has sustained serious physical injuries 

resulting in past and future medical expenses, lost wages 

and lost earning capacity, pain and suffering, and loss 

of enjoyment of her established way of life. Because 

Lindsey Korell was an employee of the City of Bozeman and 

was acting within the scope of her employment, the City 

of Bozeman is liable for her negligence. 

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Although the pre-trial order section on "Determination of legal 

issues in advance of trial" does make mention of a possible motion 

in limine to be filed by the City as to whether the City of Bozeman 

could advise the jury that it had no legal responsibility for 

trimming the hedge, there were no affirmative allegations by Ryan 

that the hedge obstructed the view or that the City was negligent 

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 any negligence by the City related 

to the height of the hedge. Furthermore, the City objected to the 

introduction of any evidence related to the height of the hedge for 

the reason that Ryan had not contended that the height of the hedge 

was a basis for a claim of negligence. In allowing Ryan to 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 a defendant's burden to file motions in limine 

in order to defeat unpled claims. Rather, the burden is on the 

plaintiff to adequately plead a cause of action. In Rambur v. 

Diehl Lumber Co. (1963), 142 Mont. 175, 382 P.2d 552, we adopted 

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 so viewed. Yet a complaint must state something more 

than facts which, at the most, would breed only a 

suspicion that plaintiffs have a right to relief. 

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Liberality does not go so far as to excuse omission of 

that which is material and necessary 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 and contentions in the pretrial order did not even "breed a suspicion" that she was entitled 

to relief on any theory other than that the driver of the City 

vehicle was negligent in failing to yield the right of way and in 

exceeding the speed limit. 

In McJunkin v. Kaufman &Broad Homes Systems (1987), 229 Mont. 

432, 748 P.2d 910, we upheld 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 be liberally allowed, we held that leave to amend under Rule 

15(b), M.R.Civ.P., cannot be granted arbitrarily or perfunctorily. 

McJunkin, 748 P.2d at 913-14. Noting that McJunkins had two and 

one-half years to amend their complaint and that the pretrial order 

specifically stated that the express warranty claim applied only to 

K & B and not the seller, we held 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 move to amend her pleading to conform to the evidence under 

Rule 15(b), M.R.Civ.P. Rule 15(b), M.R.Civ.P., states: 

When issues not raised by the pleadings are tried by 

express or implied consent of the parties, they shall be 

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treated in all respects as if they had been raised in the 

pleadings. Such amendment of the pleadings as may be 

necessary to cause them to conform to the evidence and to 

raise these issues may be made upon motion of any party 

at any time, even after judgment; but failure to so amend 

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 made by the pleadings, 

the court may allow the pleadings to be amended and shall 

do so freely when the presentation of the merits of the 

action will be subserved thereby and the 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 upon the merits. The court may 

grant a continuance 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 when the issues have been tried by express 

or implied consent of the parties or when there has been a motion 

made and granted to conform the pleadings to the evidence. Here, 

neither circumstance pertains. Having objected to the admission of 

the evidence as to the height of the hedge, it cannot be said 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 a motion 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." 

We conclude that the allegations in the complaint and the pretrial order were insufficient to state a cause of action for 

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negligence arising out of the height of the hedge or the City's 

failure to have the hedge trimmed. Accordingly, we hold that the 

court abused its discretion in admitting evidence as to the height 

of the hedge and the requirements of Bozeman Municipal Code Section 

18.50.080. The court further compounded this error when, based 

upon that same evidence as to the height of the hedge, it ruled 

that the City's failure to enforce the City Code was negligence per 

se and such negligence was the sole cause of Ryan's damages and 

granted a JNOV and directed verdict against the City on the issue 

of liability. 

II Did the trial court err in determining that Ryan was 

not negligent as a matter of law and that contributory 

negligence was not applicable under the facts of the 

case? 

In granting the directed verdict and a JNOV, the court held 

that it had committed err in submitting the question of comparative 

negligence to the jury. In so ruling, the court stated: 

As a matter 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 any acts of negligence which 

contributed in any way to her injuries. . I will make 

a specific finding of no negligence on the part of 

plaintiff that would justify a comparative negligence 

disposition of the case either by the Court or the jury, 

and I order a new trial in this matter on the issue of 

damages alone. 

In the subsequent written order, the court held that, even if there 

were any negligence by Ryan, such negligence was not a proximate 

cause of the accident and her damages. 

The City contends that the court's determination that Ryan was 

not negligent is contrary to the evidence. The speed limit on 

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Cottonwood 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 28 m.p.h. and 37 m.p.h. just before impact. Thus 

there was testimony before the jury from which it could conclude 

that Ryan was exceeding the 25 m.p.h. speed limit. Despite this 

testimony, the court, in effect, held, as a matter of law, that the 

speed of Ryan's vehicle was totally irrelevant to the question of 

causation. This conclusion is in error. If she were exceeding the 

speed limit, then there was credible evidence from which the jury 

could determine that she was negligent. If she were 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 a proximate 

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 was not applicable under the facts, we can 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 Ryan had not pled a cause of 

action with regard to the hedge, there was no basis for the court's 

finding that the City was negligent per se. Even assuming, 

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argue&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), 239 Mont. 444, 781 P.2d 1116, the trial 

court granted the plaintiff's motion for a directed verdict in an 

intersection collision in which the defendant had rear ended the 

plaintiff. On appeal, 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, she was entitled to have 

the jury consider her claim that plaintiff was contributorily 

negligent in stopping in front of her. Hart-Anderson, 781 P.2d at 

1117. Relying on our decision in Reed v. Little (1984), 209 Mont. 

199, 206, 680 P.2d 937, 940, we held that the conflicting evidence 

as to whether plaintiff stopped in front of the defendant supported 

a claim of contributory negligence. In light of this conflicting 

evidence, we stated: 

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 came to an 

abrupt stop in front of defendant and was contributorily 

negligent. We conclude that reasonable men might differ 

in drawing conclusions from the evidence. Thus a 

directed verdict in favor of plaintiff was not 

appropriate. We remand this case to the District Court. 

. . 

Hart-Anderson, 781 P.2d at 1118 

As in Hart-Anderson, there was testimony before the jury from 

which it could determine that Ryan was contributorily negligent. 

Regardless of whether the trial judge found the evidence credible 

or not, it was the jury's prerogative to weigh that evidence. 

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For 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. 

We concur: 

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