No. 93-565 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

DONALD C. WHITE 

and EDITH J. WHITE, 

Plaintiffs and Appellants, 

SHIRLEY S. MURDOCK, ROBERT 

JOSEPH LYNDS, JANE DOE, JOHN 

DOE and the STATE OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twenty-first Judicial 

~istrict, In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James A. Haynes, Hamilton, Montana 

For Respondents: 

Robert E. Sheridan, Garlington, Lohn & Robinson, 

Missoula, Montana (Murdock) 

Shelton C. Williams, Williams & Ranney, P.C., 

Missoula, Montana (Lynds) 

Betsy Brandborg, Special Assistant Attorney General, 

Helena, Montana 

5 FILED - - 

Filed: JUN 27 1994 

>,?- 

2 

CLERK OF StlPREkqE COURT 

STAXE QF MONTANA 

Submitted on Briefs: March 4, 1994 

Decided: June 27, 1994 
Chief Justice J. A. Turnage delivered the opinion of the Court. 

Edith White was injured in an automobile accident when the 

vehicle in which she was riding struck a moose on the highway and 

rolled over. She and her husband, Donald White, brought this 

action in the District Court for the Twenty-first Judicial 

District, Ravalli County, to recover their damages. The District 

Court granted the summary judgment motions of defendants Robert 

Lynds, Shirley Murdock and the State of Montana. We affirm. 

The issue is whether disputed issues of material fact preclude 

summary judgment . 

This case arose out of two motor vehicle accidents on U.S. 

Highway 93 between Hamilton and Darby, Montana, at approximately 

10:45 p.m. on August 21, 1991. Defendant Lynds was driving south 

at a speed of 50 to 55 miles per hour in a rented Winnebago motor 

home. It was a clear, dark night and the road was dry. Just north 

of Darby, at milepost 34.3, an 800- to 900-pound moose suddenly 

entered the highway five to eight feet in front of the motor home. 

The motor home struck the moose before Lynds was able to bring it 

to a controlled stop 300 to 600 feet further down the highway. 

Lynds does not remember actually seeing any oncoming vehicles at 

the time the motor home struck the moose, but he was certain he had 

his headlights dimmed in anticipation of oncoming traffic. 

The accident pushed the radiator against the engine block and 

the motor home began to fill with steam or smoke. After Lynds 

checked to make sure the moose was not in the immediate vicinity of 
the disabled motor home, he and his family got out. Lynds then 

became aware that another vehicle was possibly in trouble when he 

heard voices and saw headlights shining at an unnatural angle to 

the road. 

Plaintiff Edith White was a passenger in the front seat of the 

second motor vehicle, a Ford Bronco driven by her niece, defendant 

Shirley Murdock. Murdock, her two children, her niece, and White 

had been visiting White's daughter. Murdock turned north onto 

Highway 93 from White's daughter's private driveway, which was 

located approximately one-tenth of a mile south from where Lynds 

struck the moose. 

When Murdock first saw the dead or dying moose, it was lying 

on the road in her lane of traffic near the center line, approximately two car lengths ahead of her. She swerved to miss the moose 

but hit it with the tires on the driver's side of the Bronco. She 

lost control and the vehicle rolled. Murdock's estimated speed at 

the time of impact was 25 to 30 miles per hour. Neither Murdock 

nor White recalls seeing the Lynds vehicle before or during the 

accident. 

Lynds, Murdock, and the State of Montana were the only 

remaining defendants in this action when they moved for summary 

judgment in the District Court. The Whites asserted that these 

three defendants were negligent and that their negligence was an 

actual and proximate cause of Edith White's injuries sustained in 

the accident. The defendants argued that the undisputed material 
facts show that both accidents were unavoidable "acts of God" and 

that they were not liable as a matter of law. 

The parties filed deposition testimony by Lynds, Murdock, 

Edith White, highway patrol officer Charles Gorman, and State of 

Montana Highway Department employees Rusty Wrigg and Darrell Daw. 

After reviewing the deposition testimony and the arguments and 

briefs of the parties, the District Court granted summary judgment 

in favor of defendants Lynds, Murdock, and the State. The court 

found that the Whites presented no evidence, other than speculative 

conjecture, which would raise material questions of fact as to 

whether Lynds or Murdock failed in their duty to act as reasonable 

persons under the circumstances. The court found that the Whites 

were not able to establish the element of proximate cause against 

the State. Concluding that the Whites had failed to sustain their 

claims of negligence against any of the defendants, the court 

dismissed the action with prejudice. 

Do disputed issues of material fact preclude summary judgment? 

Summary judgment is proper when there are no genuine issues of 

material fact and the moving party is entitled to judgment as a 

matter of law. Rule 56(c), M.R.Civ.P. This Court's standard of 

review is the same as that of the district court. Knight v. City 

of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276. 

A negligence action requires proof of four elements: (1) 

existence of a duty; (2) breach of the duty; (3) causation; and (4) 
damages. If the plaintiff fails to offer proof of one of these 

elements, the action in negligence fails and summary judgment in 

favor of the defendant is proper. U.S. Fidelity and Guar. Co. v. 

Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. The causation 

element requires proof of both cause in fact and proximate cause. 

Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 167-68, 

789 P.2d 567, 574. 

The Whites maintain they have established questions of fact as 

to whether both Lynds and Murdock should have seen the moose before 

they did and as to whether Lynds failed a duty to warn Murdock of 

the moose in the road. They cite this Courtls opinion in Dillard 

v. Doe (1992), 251 Mont. 379, 824 P.2d 1016, as authority that, in 

a summary judgment motion, the court must presume that a breach of 

duty occurred. That was not the holding of Dillard. 

Dillard was a comparative negligence case in which the 

plaintiff was injured when a snowplow hit him while he was walking 

on a roadway. For purposes of a motion for summary judgment, the 

district court was asked to assume that defendant snowplow driver 

was negligent. Given that assumption, the court was asked to rule 

whether, as a matter of law, the plaintiff s negligence was greater 

than defendant s, thus barring recovery. The court answered yes" 

and granted summary judgment for defendant. This Court reversed on 

that issue. Remanding, this Court stated "it remains to be seen 

after sufficient further development of the record, whether any 
actual negligence on the part of the [defendant] can be shown by 

the [plaintiff]." Dillard, 824 P.2d at 1020. 

The Whites also cite language from Payne v. Sorenson (1979), 

183 Mont. 323, 326, 599 P.2d 362, 364, which was recently quoted in 

Okland v. Wolf (1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306: 

Under Montana law, a motorist has a duty to look not only 

straight ahead but laterally ahead as well and to see 

that which is in plain sight. Furthermore, a motorist is 

presumed to see that which he could see by looking, and 

he will not be permitted to escape the penalty of his 

negligence by saying that he did not see that which was 

in plain view. 

This language only establishes a presumption of negligence where 

there is evidence of something "which he could see by lookingw or 

"which was in plain view." As discussed below, no such evidence 

was produced in this case. Further, neither Payne nor Okland is 

analogous to the present case. 

In Pavne, the appealing plaintiff argued that the defendant 

was negligent as a matter of law and that the question of defendant's negligence was erroneously submitted to the jury. We 

rejected that argument, in the absence of evidence that all 

reasonable minds could agree on the issue. Pavne, 599 P. 2d at 364. 

In Okland, the plaintiff produced evidence of defendant's 

negligence, including the testimony of an eyewitness off-duty 

police officer and expert testimony by an accident reconstructionist. Both witnesses testified that the defendant should have seen 

the plaintiff before the collision. Okland, 850 P.2d at 305-06. 
Here, the Whites have produced no evidence whatsoever in 

support of their position that Lynds was negligent. Lynds was not 

ticketed and the investigating highway patrol officer testified 

that Lynds could not have avoided hitting the moose under the 

circumstances of this case. It was a dark night, and a dark moose 

suddenly came onto the road directly in front of Lynds. There was 

no evidence that Lynds was looking other than where he should have 

been or that it was possible for him to have seen the moose any 

sooner than he did. 

As to a duty to remove the moose from the highway after he hit 

it, Lyndst uncontradicted testimony demonstrated that he simply did 

not have enough time to do anything to warn Murdock of the 

possibility of a moose in the road. The Bronco had already rolled 

by the time Lynds got his family out of the motor home. There was 

additional testimony that three men working together were unable to 

move the moose carcass, and that a truck was finally used to drag 

it off the road. We conclude that the District Court did not err 

in ruling that the Whites have failed to establish material issues 

of fact concerning whether Lynds breached a duty. 

Next the Whites argue that the bare facts of the accident 

involving the Bronco supply enough evidence that Murdock failed to 

act as a reasonable person to defeat her motion for summary 

judgment. To establish material questions of fact, the party 

opposing summary judgment must set forth specific facts and cannot 

rely on speculative, fanciful, or conclusory statements. Sprunk v. 
First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 105. 

The Whites presented nothing other than their conclusory statement 

in support of their position that Murdock should have seen the 

moose sooner than she did and that she did not react as a reasonable, prudent person would be expected to react. The opinions in 

the depositions of the investigating highway patrol officer, 

Murdock herself, and Edith White do not establish anything Murdock 

did which was inappropriate or negligent. Because the Whites have 

produced no evidence upon which a jury could, without relying upon 

speculation or conjecture, conclude that Murdock failed to act as 

a reasonable person, we hold that the District Court did not err in 

ruling that they failed to establish a material question of fact as 

to whether Murdock breached a duty. 

Finally, the Whites contend there is a factual question as to 

whether the absence of moose hazard signs caused or contributed to 

this accident and is attributable to the State. They maintain that 

the nnsubstantial factorw test of causation is appropriate in this 

case, rather than the "but fornn test. The substantial factor test 

is applied only when each of several acts, alone, could have caused 

the damages. Kitchen Krafters, 789 P.2d at 574. Here, it cannot 

be said that the absence of warning signs alone could have caused 

Edith Whitens injuries. The "but for" test applies. 

Additionally, no evidence was produced that there was an 

established or known moose crossing place at or near milepost 34.3, 

where these accidents occurred. State highway department employees 
testified that there had been a known moose crossing several miles 

up the road, and that warning signs had, in the past, been posted 

there. However, they also testified that the signs had been 

repeatedly stolen and after the road was rebuilt and the slough 

which had formerly attracted moose to that area was drained, it was 

decided that the signs would not be replaced. 

Even if the signs had remained posted, Lynds testified that he 

did not believe his increased caution as a result of reading the 

warnings would have enabled him to see the moose earlier than he 

did or to avoid hitting the moose. The signs had been posted north 

of where Murdock encountered the moose. Because she was traveling 

north, she would not have come across the signs before she 

encountered the moose. The Whites have not produced rebuttal 

evidence on these points. We hold that the District Court did not 

err in ruling that the Whites have failed to establish material 

issues of fact as to whether actions or inactions of the State of 

Montana proximately caused their damages. 

Affirmed. 
We concur: 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

The majority has once again usurped the function of the jury 

to resolve the legitimate factual issues presented by the evidence 

in this case. 

Only when there are no issues of material fact and the moving 

party is entitled to judgment as a matter of law is summary 

judgment pursuant to Rule 56 (c) , M.R. Civ. P., appropriate. Reaves v. 

Reinhold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. 

In concluding whether there are issues of material fact, the 

role of the district court and this Court requires more than simply 

construing the testimony of the moving party in the manner most 

favorable to that party. All reasonable inferences that may be 

drawn from the offered proof are to be drawn in favor of the party 

opposing the summary judgment. Reaves, 615 P.2d at 898. 

Furthermore, we have, for good reason, held that ordinarily 

issues of negligence are questions of fact not susceptible to 

summary adjudication . Duchesneau v. Silver Bow County (1971) , 158 Mont . 

369, 377, 492 P.2d 926, 931. This case is a classic example of why 

issues of negligence are not normally susceptible to summary 

judgment . 

Before discussing the facts, and inferences from those facts 

which give rise to issues of fact, it is necessary to discuss the 

rules of law which pertain to the defendants' conduct. 

Both defendants, Shirley Murdock and Robert Lynds, are excused 

from their collision with a 600 to 900 pound moose based on the 
majority's acceptance of their disclaimer that they did not observe 

it until it was too late to avoid it. However, their protest is of 

little assistance to them under Montana law. As noted by the 

majority, we held in Paynev.Sorenson (1979), 183 Mont. 323, 326, 599 

P.2d 362, 364, that: 

Under Montana law, a motorist has a duty to look not 

only straight ahead but laterally as well and to see that 

which is in plain sight. Furthermore, a motorist is 

presumed to see that which he could see by looking, and 

he will not be permitted to escape the penalty of his 

negligence by saying that he did not see that which was 

in plain view. 

Montana's laws pertaining to motor vehicle equipment require 

that any vehicle being operated on Montana's highways between 

sunset and sunrise must be equipped with headlamps which on high 

beam are capable of illuminating objects at a distance of 350 feet, 

and on low beam are capable of illuminating objects at a distance 

of 100 feet. Section 61-9-220, MCA. Unless approaching or 

following another vehicle, use of the higher beam is required. 

Section 61-9-221(2), MCA. 

In other words, it makes no difference that defendant Murdock 

claims not to have seen a 600 to 900 pound moose lying in the 

middle of the highway until she was two car lengths away, and it 

makes no difference that defendant Lynds failed to see the same 

moose until it was located in his lane of travel at a distance of 

5 to 8 feet away. Both parties are presumed to have seen that 

which could have been seen had they been reasonably diligent and, 

if their vehicles were equipped as required by law with the proper 

headlamps which were being used as required by law, they should 
have seen the object with which they collided in this case at a 

distance of at least 350 feet away. 

Lynds testified that he was operating a recreational vehicle 

at a speed of 50 to 55 m.p.h. and proceeding in a southerly 

direction on Highway 93 just north of Darby. It was dark out, but 

there was little traffic and the road was straight and dry. He 

testified that he did not have his headlamps on high beam, but was 

not following another vehicle and does not recall that any vehicle 

was approaching him. 

Contrary to the representation in the majority opinion, he did 

not testify that the moose with which he collided entered the 

highway 5 to 8 feet in front of him. He testified that when he 

first observed the moose it was already in his lane of travel and 

5 to 8 feet away. 

He acknowledged that from the high seating position in the RV 

that he was driving he had a good field of vision. Yet, in spite 

of that field of vision and the 350 feet at which his headlamps 

should have illuminated the roadway and the adjoining areas, he had 

no idea where the moose came from until it was 5 to 8 feet in front 

of him. In fact, he never did apply his brakes. 

Only one of two situations could have occurred prior to Lynds' 

collision with the moose. Either the moose was in his lane of 

travel all along and he should have been aware of its presence at 

a distance of 350 feet away and been able to make some effort to 

avoid it, or it approached the highway from an area he was 

obligated to observe but which he evidently did not observe. In 
either event, he failed to comply with his obligation under Montana 

law, as set forth in our Payne decision, to observe the roadway 

ahead of him and see that which was in plain view. 

Furthermore, when Lynds stopped his vehicle 300 to 600 feet 

ahead of where his collision occurred, he had an obligation to do 

what he could to warn approaching motorists of the hazard he had 

created. He states in his testimony that he did so by activating 

the flashing warning signals on his vehicle. However, Murdock, who 

struck the same moose shortly after Lynds' collision, stated that 

even though the motor home was parked on the highway prior to her 

collision, she did not see it because there were no flashing 

lights. She testified that if she had seen flashing lights she 

would have slowed her vehicle. 

For similar reasons, there were issues of fact regarding 

Murdock's negligence. She testified that as she left the home 

where she and Edith White had been visiting, she doesn't recall 

whether her headlights were on high or low beam, but acknowledged 

that she saw no oncoming traffic, and therefore, there was no 

reason not to have them on high beam. 

From the time she turned onto the highway until she collided 

with the moose, she had not accelerated to more than 25 or 30 miles 

an hour. When she first saw the moose, it was straddling the 

center lane of the highway and blocking about half of her lane of 

travel. However, she testified that she did not see the moose 

until she was nearly two car lengths away. The highway was newly 

paved and had wide shoulders and there was ample room for her to 
avoid the moose. However, she swerved too late to completely avoid 

it, and as a result, rolled her vehicle. Obviously, the moose did 

not jump out in front of her, it was lying prone on the highway. 

Had her headlights been on high beam, she should have been able to 

see it for a distance of 350 feet. However, even on low beam, had 

she been keeping the lookout required by law, she should have seen 

it a distance of 100 feet away, not two car lengths, or 

approximately 20 feet away, as she testified. 

This testimony raises several issues of fact that should have 

been decided by a jury. (1) Were Lynds or Murdock keeping a proper 

lookout as required by law? (2) Had they been keeping a proper 

lookout, at what point should they have observed the hazard ahead 

of them on the roadway? (3) Finally, when Lynds and Murdock did 

observe a hazard ahead of them on the roadway, did they act 

reasonably or negligently in response to that hazard? 

The majority opinion never reaches these issues because it 

turns the rules of summary judgment upside down. It takes the 

testimony of the parties moving for summary judgment and construes 

it in the manner most favorable to them. The majority also 

completely ignores all necessary inferences from the testimony 

given by defendants. The majority simply disposes of these issues 

by concluding that under Payne there is only a presumption of 

negligence when the object struck is in plain view, and that there 

is no evidence that the moose was in plain view in this case. That 

conclusion defies logic. If both defendants' headlights were 

operating as required by law, and if the moose was located where 
they first described it, why wasn't it in plain view earlier than 

when they first observed it? It is simply impossible that it was 

not. 

The majority inappropriately refers to the fact that 

defendants were not ticketed. However, that observation is neither 

correct nor relevant. Lynds was ticketed because three passengers 

in his RV did not have seatbelts on. Perhaps that explains his 

reluctance to apply his brakes before colliding with the moose. 

However, whether he was or was not ticketed for any violation is 

irrelevant to whether or not he was negligent. 

The majority also relies on the highway patrol officer's 

testimony that Lynds could not have avoided hitting the moose under 

the circumstances of this case. However, that testimony was 

incompetent for the purposes for which it was offered or accepted 

by the majority. The patrolman was not at the scene of the 

accident and did not observe its manner of occurrence. He did not 

know where the moose came from before appearing in Lynds' lane of 

travel and acknowledged that depending on its route to where it was 

struck, Lynds might have been able to observe the animal 

substantially in advance of his collision with it. 

I also dissent from the majority's conclusion that the 

District Court correctly dismissed Donald and Edith White's claim 

against the State of Montana by summary judgment. This part of the 

majority opinion is incorrect for two reasons. 

First, the majority discusses whether the State breached a 

duty of due care by its failure to erect a warning sign in advance 
of the area where this accident occurred. Contrary to the 

representations of the majority opinion, there was ample evidence 

that the State had such a duty. Based on prior vehicle collisions 

with moose in this area, the Highway Department had determined that 

a hazard existed as early as 1987, and had first erected warning 

signs at that time. Even though a slough which was one of the 

attractions for moose in the area had been eliminated by road 

reconstruction in 1991, the Highway Department contract for that 

construction required that the contractor re-erect the signs as 

part of the highway project. The fact that the.signs were stolen 

did not relieve the Highway Department of the duty to maintain its 

highway by putting them back up again. Section 61-8-203, MCA, 

requires that the State warn motorists of known hazards. Darrell 

Daw, the Field Maintenance Supervisor forthe Highway Department in 

the area where the accident occurred, testified that frequent moose 

crossings were a known hazard, even after reconstruction of this 

stretch of highway. 

Most importantly, however, the District Court did not decide, 

and the State on appeal does not argue, that it had no duty to 

erect warning signs. The District Court concluded, based simply 

upon Lynds' and Murdockls testimony that they would not have slowed 

down because of warning signs, that there was no causal 

relationship between the State's failure to erect the signs and the 

collisions which resulted in Edith White's injuries. However, the 

opinions of the District Court and the majority of this Court 

ignore significant other testimony given by both defendants. For 
example, Lynds testified that when he sees deer crossing signs it 

makes him more alert and he is more inclined to watch what is 

happening on the road ahead of him. When asked if he would have 

driven any differently had he seen signs warning him that moose 

crossed the highway in the area where this collision occurred, he 

testified: "1 probably would have driven a little bit more 

defensively, yes, but it wasnltthere." He also testified that if 

he had known there was a possibility of moose crossing in the area, 

and if there had not been a car coming toward him, his headlights 

would have been on high beam at the time of the accident, rather 

than low beam. 

This testimony, when considered in combination with the legal 

requirements for headlamps on vehicles, the broad range of vision 

available in the recreational vehicle, and the broad range of 

illumination that would have occurred from high beam, are direct 

evidence that the collision which led directly to Edith White's 

injuries could have been avoided had an appropriate warning been 

given to Lynds. 

Likewise, Murdock testified that if she had seen moose warning 

signs that evening they would definitely have made an impression on 

her and she would have been more alert for the hazards that moose 

present. Perhaps in her case, because of the low speed at which 

she was already traveling, she would not have been going any slower 

because of warning signs. However, had Lynds been adequately 

warned there would not, in all likelihood, have been a dead moose 

on the highway for Murdock to collide with. 
None of these facts are referred to in the District Court 

opinion or the majority's opinion. Considering these facts it is 

impossible to conclude that there are not at least inferences from 

the testimony which create factual issues regarding the subject of 

causation. 

Under our laws pertaining to the respective responsibilities 

of courts and juries, the majority has no business substituting its 

judgment regarding the merits of plaintiffs' claim for that of the 

jury. However, that is what they have done in this case. For 

these reasons, I dissent from the majority opinion. 

Justice William E. Hunt, Sr., joins in the foregoing dissent. 

Justice. w