NO. 91-428 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOHN SIMCHUK, 

Plaintiff, Appellant and Cross-Respondent, 

ANGEL ISLAND COMMUNITY ASSOCIATION, A Montana 

Nonprofit Corporation, JOHN/JANE DOES I 

through X, ABC COMPANIES, I through X, 

Defendants, Respondents and Cross-Appellants. 

ANGEL ISLAND COMMUNITY ASSOCIATION, 

Third-Party Plaintiff, 

-vsBARBARA J. DOBLER, 

Third-Party Defendant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant and Cross-Respondent: 

Michael F. Lamb and Jean E. Faure; Church, Harris, 

Johnson & Williams, Great Falls, Montana 

Ronald Leiqhton; Gordon, Thomas, Honeywell, Malanca, 

Peterson & Daheim, Tacoma, Washington 

For Respondents and Cross-Appellants: 

Robert J. Emmons; Emmons & Sullivan, Great Falls, 

Montana. 

For Third-Party Defendant: 

John R. Gordon; Reep, Spoon & Gordon, Missoula, 

Montana. 

For Amicus: 

David R. Paoli; Edwards & Paoli, Billings, Montana. 

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Submitted on Briefs: April 15, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant, John Simchuk, appeals from the judgment 

notwithstanding the verdict (JNOV) entered in favor of respondent, 

Angel Island Community Association (Angel Island), by the 

Nineteenth Judicial District Court, Lincoln County, Montana. Angel 

Island cross-appeals the District Court's denial of its motion for 

JNOV on the issue of negligence. Angel Island also cross-appeals 

the jury verdict in favor of Barbara Dobler, third-party defendant. 

We reverse in part and affirm in part. 

The parties present the following issues for our review: 

1. Did the District Court err in entering judgment in favor 

of Angel Island, notwithstanding the jury verdict for Simchuk, by 

ruling that Montana's recreational use statute precludes Simchuk's 

recovery for Angel Island's negligence? 

2. Did the District Court err in denying Angel Island's 

motion for JNOV on the issue of negligence? 

3. Was the evidence insufficient to justify the jury verdict 

for Simchuk and Dobler? 

4. Were the general damages awarded by the jury excessive? 

Angel Island is an incorporated homeowner's association 

governing homes and lots located on Bull Lake, near Libby, Montana. 

Angel Island requires all members to pay annual dues for the 

maintenance and use of Angel Island's common facilities. 

Membership dues entitle association members and their guests the 

use of these common facilities which include a paved and fenced 

tennis court exclusively reserved for members and their guests. At 

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the time of the accident, the tennis court was equipped with a 

basketball hoop and free-standing light standards for night 

playing. Angel Island retains a caretaker for its premises. 

On July 1, 1989, John Simchuk, an invited guest of an 

association member, John Hunter, was injured on Angel Island's 

property when one of the light standards on the tennis/basketball 

court fell on him while he was playing basketball. The light 

standard struck Simchuk's chest and head causing permanent brain 

damage. 

Simchuk brought a personal injury lawsuit against Angel Island 

alleging negligence. Angel Island filed a third-party complaint 

against Barbara Dobler alleging that her negligence caused 

Simchuk's injuries. The negligence issues were submitted to the 

jury which found in favor of Simchuk and Dobler. The jury found 

Angel Island negligent in its installation and maintenance of the 

light standards, and awarded Simchuk approximately $177,000. 

Additionally, the jury found Dobler negligence free. 

After the jury rendered its verdict, Angel Island moved for a 

JNOV against Simchuk and Dobler. The District Court granted the 

motion as against Simchuk on the ground that Montana's recreational 

use statute, 5 70-16-302, MCA, precludes Simchuk's recovery. The 

District Court denied Angel Island's JNOV motions regarding its 

negligence and the negligence of Dobler. This appeal arises from 

the granting and denial of these motions. 

I. 

Did the District Court err in entering judgment in favor of 
Angel Island, notwithstanding the jury verdict for Simchuk, by 

ruling that Montana's recreational use statute precludes Simchukls 

recovery for Angel Island's negligence? 

The standard of reviewing a district court's grant of a 

judgment notwithstanding a verdict is well-settled. 

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 plaintiff 

could not recover upon any view of the evidence, 

including the legitimate inferences to be drawn from it. 

Wilkerson v. School Dist. No. 15 (1985), 216 Mont. 203, 211, 700 

P.2d 617, 622 (citation omitted). In the instant case, the 

District Court submitted the issues to the jury for a factual 

determination, but entered judgment notwithstanding the jury's 

verdict on the basis that Simchuk was not entitled to recover as a 

matter of law because of Montana's recreational use statutes, 

95 70-16-301 and -302, MCA. 

Simchuk maintains that the court erred in applying Montana's 

recreational use statutes which provide: 

Recreational purposes defined. "Recreational purposes", 

as used herein, shall include hunting, fishing, swimming, 

boating, water skiing, camping, picnicking, pleasure 

driving, winter sports, hiking, touring or viewing 

cultural and historical sites and monuments, or other 

pleasure expeditions. 

Restriction on liability of landowner or his agent or 

tenant. (1) A person who makes recreational use of any 

property in the possession or under the control of 

another, with or without permission and without giving a 

valuable consideration therefor, does so without any 

assurance from the landowner, his agent, or his tenant 

that the property is safe for any purpose. The 

landowner, his agent, or his tenant owes the person no 

duty of care with respect to the condition of the 
property, except that the landowner, his agent, or his 

tenant is liable to such person for any injury to person 

or property for an act or omission that constitutes 

willful or wanton misconduct. 

Sections 70-16-301 and -302, MCA. 

Section 70-16-302, MCA, limits liability, absent willful and 

wanton misconduct, for a landowner whose property is used for 

recreational purposes, subject to several exceptions. In granting 

JNOV for Angel Island, the District Court found 1 70-16-302, MCA, 

applicable and the exceptions inapplicable. The District Court 

concluded that Simchuk used Angel Island's recreational facilities 

for recreational purposes without giving valuable consideration and 

that he failed to submit evidence of any act or omission by Angel 

Island constituting willful and wanton misconduct. The District 

Court applied 5 70-16-302, MCA, releasing Angel Island from 

liability even though the jury found Angel Island negligent. 

Therefore, Simchuk could not recover from Angel Island. 

The overall intent of Montana's recreational use statute is to 

grant a landowner relief from liability to persons gratuitously 

entering land for recreational purposes. State ex rel. Tucker v. 

District Court (l97O), 155 Mont. 202, 206-07, 468 P.2d 773, 775. 

However, if the facts indicate that certain exceptions exist, a 

landowner's limited liability will be destroyed. Simchuk argues 

that, in this case, the tennis court upon which he received injury 

was not open to the public and that valuable consideration was paid 

for his use of the facilities, thereby rendering 5 70-16-302, MCA, 

inapplicable. We agree. 

"The only purpose of the recreational use statute is to 

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encourage landowners to make their lands freely available to the 

public by limiting the landowners tort liability. " Fisher v. 

United States (D. Mont. 1982), 534 F.Supp. 514, 515. After 

reviewing the legislative history, statutory and case law from 

other jurisdictions, and the definition of "recreational purposes" 

in 5 70-16-301, MCA, it is evident that the recreational use 

statute applies to land made available for public use. Therefore, 

if the land upon which an injury occurs is not available for public 

use, the landowner does not enjoy the protection of limited 

liability. In the instant case, Simchuk's injury occurred at a 

private resort on a private tennis/basketball court. This fact 

alone destroys the protection Angel Island seeks under 5 70-16-302, 

MCA. 

Nevertheless, simchuk also argues that 5 70-16-302, MCA, does 

not shield Angel Island from liability because valuable 

consideration was paid to Angel Island for his use of the facility. 

The clear intent of the recreational use statute is to grant 

landowners relief from liability to any person qratuitously present 

for any recreational purpose. State ex. re1 Tucker, 155 Mont. at 

206-07, 468 P.2d at 775. If the landowner receives an economic 

benefit, the use of the land is not gratuitous. 

[Wlhere a landowner derives an economic benefit from 

allowing others to use his land for recreational 

purposes, the landowner is in a position to post 

warnings, supervise activities, and otherwise seek to 

prevent injuries. Such a landowner also has the ability 

to purchase liability insurance or to self-insure, 

thereby spreading the cost of accidents over all users of 

the land. [Footnote omitted.] 

Ducey v. United States (9th Cir. 1983), 713 F.2d 504, 511. 
Angel Island requires members who own, rent, or reside on 

Angel Island to pay a membership fee which is partially applied to 

maintenance of the common facilities, including the 

tennis/basketball court. Angel Island receives an economic benefit 

for allowing others to use the facilities. This economic benefit 

provides Angel Island with the ability to spread the risk whether 

the association member pays the dues or each individual guest pays 

a fee to use the facilities. 

Angel Island argues that the association dues paid by the 

members do not extend to their guests to destroy Angel Island's 

protection under the statute. Angel Island argues that in order to 

retain tort liability, the valuable consideration must flow 

directly from the injured party to the landowner. We disagree. To 

retain tort liability, it is not necessary that the ultimate user 

furnish the consideration. However, the consideration must be paid 

by someone to create access to the premises for the ultimate user. 

Twohig v. United States (D. Mont. 1989), 711 F.Supp. 560, 564 

(citation omitted). Here, Angel Island requires members, including 

the Hunters, to pay dues for members and their guests to use the 

facilities. The Hunters1 payment was necessaryto create Simchuk's 

access to the tennis/basketball court. Accordingly, valuable 

consideration was paid destroying Angel Island's limited liability 

under the recreational use statute. 

We hold that the District Court erred in setting aside the 

jury verdict in favor of Simchuk based on the Montana recreational 

use statute. Therefore, we reverse the order of the District Court 
on this issue and remand for reinstatement of the jury verdict. 

11. 

Did the District Court err in denying Angel Island's motion 

for JNOV on the issue of negligence? 

Angel Island maintains that the District Court erred in 

denying its motion for judgment notwithstanding the jury verdict 

regarding Angel Island's negligence and the negligence of thirdparty defendant, Barbara Dobler. 

As stated in our prior discussion, a district court should 

grant a JNOV only if it appears that the non-moving party could not 

recover upon any view of the evidence. Larson v. K-Mart Corp. 

(1990), 241 Mont. 428, 433, 787 P.2d 361, 364 (citation omitted). 

The district court must view the evidence in a light most favorable 

to the non-moving party when considering a motion for judgment 

notwithstanding the verdict; the court must deny the motion if the 

non-moving party built a prima facie case or if a substantial 

conflict in the evidence exists. Nicholson v. United Pac. Ins. Co. 

(1985), 219 Mont. 32, 37, 710 P.2d 1342, 1345. Only if the 

evidence presents no room for an honest difference of opinion 

should a JNOV be granted. Walters v. Getter (1988) , 232 Mont. 196, 

203, 755 P.2d 574, 578 (citation omitted). 

Here the District Court denied various summary judgment and 

directed verdict motions because a dispute as to the evidence 

existed which necessarily forced the court to submit the case to 

the jury. After a thorough review of the record, we conclude that 

substantial evidence existed in the record from which the jury 
could resolve the conflicts in the manner in which it did. We 

hold, therefore, that the court properly denied the motions 

regarding Angel Island's negligence and Dobler's negligence. We 

affirm the District Court on this issue. 

111. 

Was the evidence insufficient to justify the jury verdict for 

John Simchuk and Barbara Dobler? 

Angel Island maintains that the jury verdict finding Angel 

Island negligent and Dobler negligence free is error because 

insufficient evidence existed to support such a conclusion. We 

disagree. 

We recently discussed our function in reviewing jury verdicts. 

See Silvis v. Hobbs (Mont. l992), 824 P.2d 1013, 49 St.Rep. 62. It 

is not the function of this Court to agree or disagree with the 

jury's verdict. Our function is to determine whether substantial 

evidence existed to support the verdict. In our examination, we 

review the facts in the light most favorable to the prevailing 

parties. If conflicting evidence exists, the credibility and 

weight given to the evidence is in the jury's province and we will 

not disturb the jury's findings unless they are inherently 

impossible to believe. Silvis, 824 P.2d at 1015-16, 49 St.Rep. at 

63-64. Our job is complete once we find substantial evidence in 

the record to support the jury's conclusion. 

The record shows that substantial evidence existed supporting 

the jury's verdict in favor of Simchuk and Dobler. Reviewing the 

evidence in the light most favorable to the prevailing parties, we 
direct our analysis to the evidence submitted in favor of Simchuk 

and Dobler. Simchuk submitted evidence that it was foreseeable 

that a free-standing light standard could fall, injuring anyone in 

its path. Simchuk also submitted evidence that it was foreseeable 

that someone, like Dobler, could act in such a manner to intervene 

with the standard's stability. Simchuk presented expert testimony 

regarding the minimal amount of force required to topple the light 

standard. 

Angel Island argued that it was unforeseeable that the prone 

light standard would be raised by someone, that Dobler would 

pirouette around that standard, and that the standard would fall 

and injure a player using the tennis/basketball court for its 

intended purpose. Angel Island submitted expert testimony that 

more than minimal force was required to topple the light standard. 

Angel Island argued that Dobler's actions were a superseding cause, 

eliminating Angel Island's liability. Angel Island attempted to 

prove that but for Dobler's actions, Simchuk would not have been 

injured. 

By finding in favor of Simchuk and Dobler, it is obvious the 

jury chose to believe the evidence presented on behalf of those 

parties. We will not retry this case simply because the jury chose 

to believe one side's evidence to the exclusion of the other. 

Silvis, 824 P.2d at 1016, 49 St.Rep. at 64. We hold that 

substantial evidence supported the jury's verdict. We affirm the 

District Court on this issue. 
Were the general damages awarded by the jury excessive? 

Angel Island maintains that if the jury verdict is reinstated 

and upheld on appeal, the general damages of approximately $177,000 

awarded by the jury are excessive. We disagree. 

Section 27-1-317, MCA, provides: 

For the breach of an obligation not arising from 

contract, the measure of damages, except where otherwise 

expressly provided by this code, is the amount which will 

compensate for all the detriment proximately caused 

thereby, whether it could have been anticipated or not. 

The court instructed the jury that reasonable compensation could be 

awarded for pain and suffering, the reasonable value of purchases 

necessitated by the injury, reasonable value of medical expenses, 

and the reasonable value for Simchuk's lost capacity to pursue an 

established course of life. The jury was not required to itemize 

their award pursuant to the above categories. 

The amount of damages awarded is properly left to the jury; 

this Court will not substitute its judgment for the jury's unless 

the amount is so grossly out of proportion as to shock the 

conscience of this Court. Gunning v. General Motors Corp. (1989), 

239 Mont. 104, 107, 779 P.2d 64, 66. We review the record in the 

light most favorable to the prevailing party to determine if 

substantial evidence supports the verdict. Gunning, 239 Mont. at 

109, 779 P.2d at 67. 

Evidence was submitted regarding Simchuk's pain and suffering, 

his medical care, and his medical prognosis experienced as a result 

of Angel Island's negligence. Expert testimony revealed that 
Simchuk suffers from permanent brain damage. This brain damage 

affects his ability to remember new information. After reviewing 

the record and realizing the extent of Simchuk's injuries, the 

jury's award of approximately $177,000 for Angel Island's 

negligence does not shock the conscience of this Court. We affirm 

the damages award. 

Reversed in part, affirmed in part, and remanded for entry of 

judgment in conformance with this opinion. 

We concur: A'