IN THE SUPREME COURT OF THE STATE OF MONTANA 

DONNA MAY PAPPAS, 

Plaintiff and Appellant, 

MIDWEST MOTOR EXPRESS, INC., and 

FREIGHTMASTERS, INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry R. Cole, Attorney at Law, Billings, 

Montana 

For Respondents: 

Michael W. Tolstedt; Brown, Gerbase, Cebull, 

Fulton, Harman & Ross, Billings, Montana 

Filed: 

Submitted on Briefs: September 8, 1994 

Decided: December 12, 1994 
Justice Karla M. Gray delivered the Opinion of the Court.

Donna May Pappas (Pappas) appeals from a judgment of the

Thirteenth Judicial District Court, Yellowstone County, dismissing

her complaint after granting summary judgment in favor of Midwest

Motor Express, Inc. (Midwest) and Freightmasters, Inc.

(Freightmasters). We affirm, concluding that no genuine issue of

material fact exists with regard to whether the defendants were the

proximate cause of the accident and, therefore, that the defendants

were entitled to summary judgment as a matter of law.

Pappas, a stained glass artist operating a home-based business

in Billings, Montana, ordered a large quantity of stained glass

from an out-of-state company in June of 1991. Midwest shipped the

glass to Montana and Freightmasters delivered it to Pappas.

Pappas expected Freightmasters to deliver the glass on July 8,

1991. She had arranged with a friend, B.R. Buckingham

(Buckingham), for assistance unloading the glass as well as help

providing tools to break open the crate and gloves to move the

glass sheets. Buckingham offered to help Pappas because he knew

Freightmasters would not deliver the glass upstairs to her apartment. Pappas was supposed to call him when the shipment arrived.

Freightmasters arrived at Pappas' apartment complex with a

large wooden crate weighing approximately 325 pounds on July 8.

Pappas requested Freightmasters to deliver the crate to the porch

of her upstairs apartment. Freightmasters' driver had neither the

equipment nor the personnel available to honor her request;

instead, he unloaded the crate in a common driveway in the

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apartment complex. At Pappas' request, but without success, he did

attempt to push the crate off to the side of the driveway.

Pappas continued to insist that Freightmasters' driver move

the crate from the driveway. After learning that the crate was

filled with individual glass sheets, the driver offered to help

carry the glass up to her apartment. Before they began, Pappas

asked the driver if he had any gloves she could wear; he did not.

Pappas and the driver began moving the glass without gloves. The

second sheet of glass Pappas carried slipped in her grip, resulting

in injury to the web space of her left hand. Buckingham was not

called until after the accident occurred. Pappas later

acknowledged she had seven years' professional experience working

with and handling stained glass and taught classes on the subject.

She also freely admitted she should not have moved the glass

without gloves.

Pappas sued Midwest and Freightmasters for negligence. The

defendants moved for summary judgment. The District Court granted

the motion, entered summary judgment and dismissed Pappas'

complaint. Pappas appeals, raising the issue of whether the

District Court erred in granting summary judgment in favor of the

defendants.

Summary judgment is proper when no genuine issues of material

fact exist and the moving party is entitled to judgment as a matter

of law. Rule 56(c), M.R.Civ.P. We review an order granting

summary judgment by applying the same criteria as the district

court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849

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P.2d 212, 214. Ordinarily, issues of negligence are questions of

fact not susceptible to summary adjudication. Dillard v. Doe

(1991), 251 Mont. 379, 382, 824 P.2d 1016, 1018 (citations

omitted). In certain cases, however, where reasonable minds could

reach but one conclusion as to the cause of the accident, questions

of fact may be determined as a matter of law. Dillard, 824 P.2d at

1018.

A plaintiff must prove four elements to maintain an action in

negligence: (1) duty; (2) breach of the duty; (3) causation; and

(4) damages. U.S.F. & G. v. Camp (1992), 253 Mont. 64, 68, 831

P.2d 586, 588-589. Pappas' complaint alleged that the defendants

owed her the following duties: (1) to bring the required unloading

equipment; (2) to place the crate on her property; (3) to place the

crate where she asked; (4) to unload the crate in a safe place; (5)

to warn of the danger of uncrating the glass; and (6) to furnish

her with gloves.

In this case, the propriety of summary judgment can be

determined by addressing the existence or absence of a genuine

issue of material fact as to whether the defendants' acts were the

proximate cause of the accident. We have separated the causation

element into two separate components: causation in-fact and

proximate or legal causation. U.S.F. & G., 831 P.2d at 589. Thus,

as to the causation element of a negligence claim, the plaintiff

must prove first, that the defendant's act is the cause-in-fact of

the injury and second, that the injury is the direct or indirect

result, proximately caused by the negligent act. U.S.F. & G., 831

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P.2d at 589; Kiger v. State of Montana (19901, 245 Mont. 457, 459,

802 P.Zd 1248, 1250. Stated differently, proximate cause is an act

or omission which, "in a natural and continuous sequence, unbroken

by any new, independent cause, produces injury, and without which

the injury would not have occurred." Bickler v. Racquet Club

Heights Assoc. (1993), 258 Mont. 19, 23, 850 P.2d 967, 970; quoting

Young v. Flathead County (1988), 232 Mont. 274, 282, 757 P.2d 772,

777.

1n a case where the plaintiff's own negligence contributed to

the accident or injury, proximate causation can be determined as a

matter of law if the comparative negligence of the plaintiff

exceeds the negligence of the defendant. Brohman v. State (1988),

230 Mont. 198, 205, 749 P.2d 67, 70. This is so because if the

plaintiff's own negligence exceeds the defendant's, the plaintiff

could not prove by a preponderance of the evidence that it was the

defendant's negligence that proximately caused the injury.

Brohman, 749 P.2d at 72.

For purposes of analysis, we will assume the defendants

breached the duties alleged by Pappas in failing to deliver the

glass safely into her apartment, provide gloves or warn as to the

dangers of uncrating the glass. See Dillard, 824 P.2d at 1019. We

will also assume that these presumed breaches of duty were the

cause-in-fact of Pappas' injuries, thereby focusing our attention

on the question of proximate causation.

The material facts are undisputed. After working with stained

glass for seven years and teaching classes in the subject, Pappas

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was aware of the risk of injury from carrying large sheets of glass

without gloves. She understood from Buckingham that Freightmasters

would probably not deliver the glass to her upstairs apartment and,

as a result, made preparations in advance of receiving the shipment

by having Buckingham available to provide gloves and assistance.

To avoid the risk of injury, Pappas could have called Buckingham,

as arranged, and waited for the gloves to arrive before picking up

the glass.

Section 27-l-701, MCA, provides that except as otherwise

provided by law, everyone is responsible for injury by want of

ordinary care or skill in the management of property or person.

Based on the record before us, there is no doubt that Pappas

breached her duty of ordinary care when she began moving the glass,

and that her breach contributed to her injury.

In order for summary judgment to be appropriate in this case,

however, we must determine whether Pappas' negligent act clearly

exceeded the presumed negligence of the defendants such that

reasonable minds could not differ that her own actions constitute

the proximate or legal cause of her injuries. Brohman, 749 P.2d at

72. The facts and analysis in Brohman provide clear guidance.

Brohman involved an automobile accident which occurred during

a snowstorm, producing limited visibility on a dark and

intermittently snow-packed highway. While in the act of passing a

slow-moving truck in a no passing zone marked by double yellow

lines, Brohman struck another vehicle traveling in the opposite

direction. She then brought a negligence action against the State

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of Montana based on the highway design and failure to install no

passing signs which would have identified the zone. The State

successfully moved for summary judgment and Brohman appealed. We

affirmed, stating that:

Even assuming, as the District Court did, that there was

negligence on the part of the State, Brohman's act of

attempting to pass without a clear view was the proximate

cause and far exceeded any negligence on the part of the

State.

Brohman, 749 P.2d at 72. Faced with a situation like the one in

Brohman, any reasonable driver would have realized that passing the

truck at night, in a snowstorm, on a partially snow-packed highway

was likely to result in an accident and injury. Even though no

passing signs and a better designed highway may have prevented the

accident, we determined that reasonable minds could not differ in

concluding that the plaintiff's negligence constituted the

proximate cause of the accident as a matter of law. Brohman, 749

P.2d at 72.

Like the plaintiff in Brohman, Pappas' actions demonstrate

substantial disregard of a known danger. From her past experience,

she knew injury could result from picking up glass without gloves.

Having assumed that she would have to move the glass into her

apartment from the crate, Pappas had made arrangements with

Buckingham which included his providing gloves to avoid the exact

injury she suffered. Given her prior arrangements and knowledge of

the danger of handling glass without gloves, Pappas' own negligence

in moving the sheets of glass without gloves clearly exceeds the

presumed negligent acts of the defendants in failing to deliver the

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Justice William E. Hunt, Sr., dissenting.

I dissent from the majority opinion.

It is clear to me that in order to arrive at the conclusion

that the majority has come to, requires findings of fact which are

better left to a jury. I do not think that, in moving sheets of

glass, the plaintiff clearly exceeded the presumed negligent acts

of the defendants in failing to deliver the glass upstairs to the

apartment. I do not have the confidence of the majority that a

jury could not possibly find otherwise than that the plaintiff's

negligence exceeded that of the defendants. A jury might well find

the same facts that are found by the majority, but on the other

hand, it might not, and plaintiff is entitled to have a jury make

that decision. I would reverse the summary judgment.

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