No. 88-77 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

RAMONA MEDDERS and RICHARD MEDDERS, 

Plaintiffs and Appellants, 

-vsARNOLD JOYES , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Sheridan, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney, Sweeney & Healow, Billings, Montana 

David Cybulski, Plentywood, Montana 

For Respondent: 

Habedank, Cumming & Best; 3-, Sidney, Montana 

Robrrr .J -SnjGCiC 

Submitted on Briefs: July 14, 1988 

Filed: KIG 9 1988' 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Ramona and Richard Medders (the Medders) appeal a 

Sheridan County District Court grant of summary judgment to 

Arnold Joyes (Joyes). We affirm. 

On May 27, 1984, vehicles driven by Ramona Medders and 

Arnold Joyes collided on a well graveled and recently graded 

county road in Sheridan County, Montana. Medders was 

traveling north and Joyes was traveling south on the county 

road. The head-on collision occurred at the crest of a hill 

at approximately 3:00 p.m. in good weather. Sheridan County 

Deputy Sheriff Brost (Brost) arrived at the accident scene at 

approximately 4:00 p.m. to find Ramona Medders and her 

eleven-year-old daughter, Tracie, trapped in their 1979 

Chrysler Cordoba. Brost also found Joyes at the wheel of his 

1984 Ford Bronco I1 and Arnold's wife, Iris Joyes, 

unconscious in the front passenger seat. All four accident 

victims were subsequently transported by ambulance to a 

Plentywood hospital where Iris Joyes later died of injuries 

she sustained in the accident. 

Brost conducted an examination of the accident scene 

and noted his findings on a State of Montana accident 

investigation report form. Sheriff Holt (Holt) photographed 

the accident scene before the vehicles were moved. Brost 

determined that the gravel road was twenty-two feet wide at 

the point of impact, and that the eastern edge of the skid 

mark left by the right rear tire of the Medders' vehicle was 

twelve feet from the eastern edge of the road. The eastern 

most edge of the skid mark made by the left rear tire of the 

Joyes' vehicle was twelve feet nine inches from the eastern 

edge of the road. The Medders' vehicle left a skid mark 
twenty-nine feet long and the Joyes' vehicle left a 

twenty-one foot five inch skid mark. The acccident occurred 

just to the north side of the crest of a hill with the ~oyes' 

vehicle nearing the crest and the Medders' vehicle on the 

downhill side. 

Sheriff Holt's photographs portray the two vehicles 

where they settled after recoil from the force of the impact. 

The rear end of both vehicles shifted to the east immediately 

after impact. Brost determined that the two vehicles 

collided primarily on the left front halves and noted the 

position of the two vehicles at impact on his accident 

investigation report and deposition diagrams. Officer 

Brost's calculations and Sheriff Holt's photographs place the 

Medders' vehicle in the lane of traffic properly occupied by 

the Joyes' vehicle immediately before impact. 

On March 5, 1986, the Medders filed a complaint 

alleging that Arnold Joyes operated his vehicle in a 

negligent manner thereby causing the accident in question. 

Joyes moved for summary judgment on September 10, 1987. The 

District Court granted summary judgment to Joyes on October 

15, 1987, and issued the following findings: 

1. That drivers of motor vehicles in 

the State of Montana have an obligation, 

pursuant to Section 61-8-321, MCA, to 

drive upon the right half of the 

roadway, with three statutory 

exceptions, none of which apply to the 

case at bar. 

2. The physical facts of the subject 

accident, which have not been 

controverted or rebutted by Plaintiffs, 

show the following: 

(a) That prior to and at the time 

of the collision, Defendant Joyes' 
vehicle was being driven in the right 

half of the subject county road pursuant 

to Section 61-8-321, MCA; 

(b) That prior to and at the time 

of the collision, Plaintiff Ramona 

Medders' vehicle was being driven in a 

northerly direction within Defendant 

Joyes' southbound lane of traffic. 

3. That there has been no credible or 

admissible evidence indicating excessive 

speed on the part of either Plaintiff 

Ramona Medders or Defendant Joyes. 

4. That there has been no substantial 

evidence offered by the Plaintiffs to 

raise a genuine issue of fact that the 

accident would not have occurred but for 

the fact that Plaintiff Ramona Medders 

was driving her vehicle outside the 

right half of the roadway in violation 

of Section 61-8-321, MCA. 

5. The materials offered by Plaintiffs 

in opposition to Defendant's motion for 

summary judgment are not material or of 

a substantial nature, but rather [are] 

fanciful, frivolous, gauzy, or merely 

suspicious. 

The Medders appeal the District Court's grant of summary 

judgment to Joyes and we identify the following issue for 

review: Do genuine issues of material fact exist which 

preclude summary judgment? 

The Medders assert that there are several genuine 

issues of material fact in this case. Summary judgment is 

improper where genuine issues of material fact exist. Rule 

56 (c) , M.R.Civ.P. The Medders' burden on this appeal is to 

establish the existence of a genuine issue of material fact. 

Eitel v. Ryan (Mont. 1988), 751 P.2d 682, 684, 45 St-Rep. 
The Medders first claim that there is a factual dispute 

as to the location of the two vehicles before and after 

impact. On the basis of his accident investigation, Officer 

Brost placed the Medders' vehicle primarily in the left lane 

of traffic in violation of 5 61-8-321, MCA. In support of 

his motion for summary judgment, Joyes also submitted an 

affidavit from A.D. Pipkin (Pipkin) , an accident 

investigation expert, who on June 5, 1984, investigated the 

scene of this accident. Pipkin studied Brost' s accident 

investigation report, surveyed the accident site, examined 

the damaged vehicles, and also concluded that Ramona Medders 

was on the wrong side of the road at the time of the 

collision. 

In opposition to Joyes' motion for summary judgment, 

the Medders submitted an affidavit from an ambulance 

attendant, Paula Tinsley (Tinsley), who attended to Ramona 

Medders at the accident scene. In her September 23, 1987 

affidavit, Tinsley recalled her two and one-half year old 

perception that both vehicles were near the middle of the 

road, that the Joynes' vehicle was substantially in the wrong 

lane of traffic, and that the Medders' vehicle was 

substantially in the correct lane of traffic. Tinsley 

arrived sometime after the accident and her recollections are 

of the shifted vehicle positions after impact and recoil. 

Unlike Brost and Pipkin, Tinsley did not investigate the 

accident scene or make any measurements to determine the 

location of the vehicles immediately prior to and at the time 

of impact. The Medders also allege that Holt's photographs 

and the coroner's report concerning Mrs. Joyes' death 

conflict with Brost's measurements and conclusions. The 

Medders did not submit any independent accident investigation 
reports or other expert evidence regarding the circumstances 

of the accident to support their allegations. 

The Medders also attempt to justify Ramona Medders' 

failure to drive on the right side of the road by contending 

that the county road in question contained deep ruts which 

forced traffic to drive near the center of the road. Holt's 

photographs and Brost's deposition, on the other hand, 

evidence a well graded and graveled two-lane county road with 

no ruts at the location of the accident. 

Initially we note that the Medders' claim that a 

negligence case such as here presented is not susceptible to 

adjudication by summary judgment. Brown v. Merrill Lynch, 

Pierce, Fenner & Smith, Inc. (1982), 197 Mont. 1, 10, 640 

P.2d 453, 458. Joyes cites to Brohman v. State of Montana 

(Mont. 1988), 749 P.2d 67, 45 St.Rep. 139, for the 

proposition that this Court will affirm a grant of summary 

judgment in a negligence case where "it is clear that a party 

has breached a duty and caused an accident." Brohman, 749 

P.2d at 69 (citing Birky v. Johnson (Mont. 1986), 716 P.2d 

198, 43 St.Rep. 488). We find the reasoning in Brohman to be 

applicable to the instant case. 

The District Court concluded that the Medders' evidence 

in opposition to the motion for summary judgment was "not 

material or of a substantial nature . . . I' We agree. 

Although the Medders dispute the fact that Ramona Medders was 

traveling in the wrong lane of traffic, Tinsley's affidavit 

and conclusory allegations as to what the photographs portray 

are not sufficient to give rise to a genuine issue of 

material fact in this case. 

The Medders have not presented any evidence to support 

the existence of a genuine issue of material fact regarding 
the location of the vehicles at the time of the collision. 

Ryan, 751 P.2d at 684. Where reasonable minds cannot differ 

as to the cause of an accident, questions of fact may be 

determined as a matter of law. Brohman, 749 P.2d at 70, 

(citing Hartley v. State (Wash. 1985), 698 P.2d 77, 81). The 

overwhelming evidence in this case supports the District 

Court's conclusion that Ramona Medders' negligence caused the 

accident and the District Court properly granted summary 

judgment. 

The Medders next contend that there is a genuine issue 

of material fact as to whether Joyes was speeding at the time 

of the accident. The facts concerning the speed of the 

Joyes' vehicle are not in dispute. Joyes admits that he was 

driving approximately forty miles an hour. The District 

Court concluded that the Medders had failed to present any 

credible or admissible evidence indicating that Joyes was 

speeding. The only evidence presented by the Medders with 

regard to the appropriate speed for this particular road was 

Ramona Medders' statement that she felt that eighteen to 

twenty miles an hour was all she could handle in her car. In 

a written statement dated June 13, 1984, Ramona Medders 

claimed to have been traveling approximatley thirty-five 

miles an hour immediately before the accident. After 

instigating this litigation, Ramona Medders changed her 

testimony to reflect that she was traveling eighteen to 

twenty miles an hour. On the other hand, Pipkin, in his 

affidavit, stated that forty miles an hour was not excessive 

under the road and driving conditions present at the time of 

the accident. In addition, Richard Medders stated in his 

deposition that he had traveled the same county road on 
several occassions at speeds of thirty-five to fifty miles an 

hour. 

The District Court in effect made a conclusion of law 

based on the undisputed facts in its determination that Joyes 

was not speeding. Such questions of law are properly decided 

by the District Court. Summary Judgment Under the Federal 

Rules: Defining Genuine Issues of Material Fact (1982) , 99 

F.R.D. 465, 487. The Medders have presented no evidence to 

support their allegation that Joyes was driving too fast. On 

the contrary, the record of this case indicates that Mr. 

Joyes was driving in a reasonable and prudent manner when his 

vehicle was struck by Ramona Medders' vehicle which was being 

driven in the wrong lane of traffic. 

Section 61-8-321, MCA, provides that all vehicles shall 

be driven on the right side of the roadway with certain 

exceptions not applicable to this case. The District Court 

concluded that Ramona Medders violated this statute and that 

the accident would not have occurred but for her negligence 

in driving on the wrong side of the roadway. The Medders 

assert that the District Court incorrectly held this 

violation of a statute to be negligence per se and that the 

lower court should instead have determined whether Ramona 

Medders and Arnold Joyes drove in a reasonable and prudent 

manner. 

We find nothing in the order of the District Court to 

suggest that it found Ramona Medders' violation of 

S 61-8-321, MCA, to be negligence per se. The District Court 

reviewed the evidence and concluded that Ramona Medders was 

the only negligent party. We have reviewed the pleadings, 

affidavits, answers to interrogatories, and the remainder of 
the record in this case and conclude that summary judgment 

was properly granted. Eitel, 751 P.2d at 684. 

Joyes requests that he be awarded attorney's fees and 

costs of this appeal pursuant to Rule 32, M.R.App.P. We 

decline to award attorney's fees in this case because we find 

that appellants' arguments, although not persuasive, were 

within the bounds of reasonable appellate argument. LaForest 

v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318. Costs 

of this appeal, other than attorney's fees, are to be awarded 

to Joyes as the prevailing party pursuant to S 25-10-104(2), 

MCA . 

Affirmed. 

\ 

We concur: /'