### No. 80-265 IN THE SUPREME COURT OF THE STATE OF MONTNAA 1981

LOIS JEFFERSONBIG MAN, Personally and as PersonalRepresentative of the Estate of Daniel Big Man, Deceased, Plaintiff and Appellant,

VS. 

### THE STATE OF MONTANA, and EUNICE IRENE CASE, Defendantsand Respondents.

Appeal from: District Court of the Thirteenth JudicialDistrict, In and for the County of Big Horn. Honorable Diane G. 

### Barz, Judge presiding. Counsel of Record: For Appellant: Holmstrom,Dunaway & 

### West, Billings,Montana Jock B.West argued, Billings,Montana For Respondents: 

### Moulton,Bellingham,Longo and Mather, Billings,Montana Corinne Courtney argued, Billings,Montana Crowley, Haughey, Hanson,Toole & 

### Dietrich, Billings,

Montana Cynthia Ford argued, Billings, Montana

Filed: 

## MAR10198% Submitted: January 15, 1981 Decided: 

## MARI0

## 1sMr. JusticeGene B. Daly delivered the Opinion of the Court. This is an appeal from 

### a summary judgment entered against the plaintiff in favor of both defendants by the District Court of the Thirteenth Judicial District, inand for the County of Big Horn. Daniel Big Man, a five-year-old pedestrian, 

### was struckby



### a car driven by Eunice Case. The accident occurred on ornear the south end of a bridge that crosses the LittleBig Horn River, 18

### miles south of Hardin, Montana, on Interstate90 (1-90). The 

### siteof the accident abuts 

### a "swimming hole" frequentlyused by children in the 

### area. The childrenhad access to the swimming hole through an opening in a fence which runs from the interstate boundary fence to a concrete abutment located atthe south end of the bridge. Daniel died 

### as 

### a result of the injuries sustained in the accident. Plaintiff brought suit against the Stateof Montana for negligence in the construction and maintenance of the highway fence and against Eunice Case fornegligence inthe operation of her vehicle. Defendants contend thatDaniel darted from behind the bridge abutment soquickly that Case could not avoid hitting him. After 

### some discovery

### was pursued, defendantsmved for summary judgment. The court granted judgment in their favor. Plaintiff presents the following issues to thisCourt for review:1. Did the District Court 

### err infinding no genuine issue



### as 

### to any

### material fact and thereby 

### err ingranting the summary judgment? 2. Did the statehave a legal duty to erect and maintain the fence along the interstate where the accident occurred so as 

### toprevent access by pedestrians? A partymoving for summary judgment has the burden of showing the complete absence of any genuine issue as to allfacts which are deemed material inlightof those principles whichentitlehim to a judgment 

### as a matter of 

### law. Reaves v. Reinbold (1980 I Mont

# . ,615 P.2d 896, 37 St.Rep. 1500; Harland 

### v. Anderson (1976), 169Mont. 447, 548 P.2d 613. As to defendant Case, the plaintiff contends there 

### are issues of fact yet to be resolved. Case concedes that the submitted record reveals that there 

### are genuine issues of fact but contends that they 

### are not material in lightof those principles which entitle her to a judgment as a 

### matter of law. The District Court could properlygrant summary judgment 

### toCase only on a finding that, on the submitted record, she exercised proper due 

### care inproceeding down the highway and 

### was unable to avoid the collisionwith the decedent. In support of this finding, Case presented her own affidavitand the affidavit of her husband, Clarence Case, who 

### was a passenger in the 

### car atthe 

### timeof the accident. These affidavitsestablished the following facts: 1. The accident occurred at 2:30 p.m. inthe southbound laneof a limited 

### access four-lane interstatehighway. The speed limit

### was 55miles per hour. 2. Eunice Case 

### was driving atapproximately 40 

### miles per hour. 3. The decedent 

### was firstseen by Clarence Case, a passenger indefendant's car, as they approached the south end of the bridge. 4. The decedent darted from behind a three-foot-high bridge abutment on the righthand side of the roadway directly into the highway. 5. The decedent appeared approximately three feet from the bridge abutment. 6. The decedent tried to stop, but ran into the right front fender of the vehicle. 7. The decedent appeared and ran into the side of the 

### car without warning and without 

### time for the defendant to take any action to avoid the collision.8. The decedent 

### was the only child who ran out from behind the bridge abutment at the time of the accident. In response toCase's allegations, plaintiff presented affidavits which established that atthe timeof the accident, there

### were other children on the bridge or standing on the interstateroadbed near the highway. The affidavitsalso indicated that the point of impact appeared to be 21.1 feetfrom the end of the bridge abutment. Issues of fact indispute include whether there

### were other children on the bridge 

### or roadway atthe timeof the accident; whether the point of impact 

### was 3 feetor 21feetfrom the end of the bridge abutment and whether Case's vehicle was traveling 

### at 

### a reasonable 

### rate of speed. These factsbeing indispute, the issue becomes whether they 

### are material to a final determination inthis

### matter and, thus, preclude any summary judgment. Section 61-8-504, MCA, provides: 

### "

# ...everydriver shall exercise due care to avoid collidingwith any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child

# ..

# . upon a roadway.

### " If children

### were present on the bridge 

### or standing on the roadbed and readilyvisible toCase, she 

### was under a duty to exerciseprecaution 

### to avoid any collision and to sound her horn when such action became necessary. Case failed 

### to make use of her horn as she approached the bridge but still contends she exercised due 

### care indriving her



### car. Case then concludes that the fact that childrenmay have been on the bridge orroadbed adjacent to the interstate is of no

concern for the collision with the decedent stil remained unavoidable. In support of thisposition, defendant cites Autio v. Miller (1932), 92 Mont. 150, 11 P.2d 1039, for the following proposition: "While the driver of an automobile 

### is required to be vigilant, he is not bound 

### to anticipatethat a child 

### willsuddenly dart from the side of the 

### street or suddenlyrun 

### across the 

### street, in frontof his 

### car." 11 P.2d at 1042. See 

### alsoAnnot., 65 A.L.R. 192 (1930);Annot., 113A.L.R. 528 (1938); 60A C.J.S. 

### Motor Vehicles, 

### 5 396(2)at777. It should be noted, however, that the court inAutio 

### also stated that if the driver of an automobile "isnot vigilant, if he does not keep a lookout, the jury may say he was negligent." Inproviding a lookout, the court indicated that the "driver must look 'not only straight ahead, but laterallyahead "I and that

### a "person is presumed to see thatwhich he could seeby looking." Inviewing the presented affidavits and the inferences arising therefrom, in a lightmost favorable 

### to the party opposing the motion for summary judgment, thisCourt must acknowledge that childrenwere present on the bridge orroadway and readilyviewable by the defendant. Children being present, Case 

### was under a duty 

### to exercise allproper precaution to avoid any collision. A determination of negligence is always dependent upon an examination of the surrounding circumstances. McCusker v. Roberts (1969), 152Mont. 513, 452 P.2d 408; Jackson v. William Dingwall Co. (1965), 145Mont. 127, 399 P.2d 236. The submitted record failsto fullydescribe the location and actions of the childrenbut affording the plaintiff allreasonable inferences which may be drawn from the offered proof, it could be found upon furtherexamination at trial that a failure

### to sound the 

### car horn and/or reduce the car's speed to less than 40 miles per hour 

### was inviolation of a duty of reasonable 

### care and precaution. This being the case, the trial court improperly granted Case a summary judgment

# . As to the disputed fact of whether the collision occurred 3



### or 21 feet from the bridge abutment, thiscontroversy bears on the issue of whether Case had 

### time to avoid the decedent as he

ran onto the highway. Plaintiff submits that, if the decedent



### was 21.1 feetdown the road from the bridge, Case in the exer-cise of due carewould have been able to see him prior

### to impact and thereby avoid the accident. There appears to be no dispute that the decedent darted suddenly out into the roadway from underneath the bridge and from behind a bridge abutment. The dispute is whether the defendant

was 3.0 feet

### or 21.1 feet from the bridge when he appeared inthe view of defendant. The discrepancy in this instance is 18.1 feet, but the defendant contends it 

### is of little significance in thatwhen traveling 

### at a speed of 40 

### miles per hour, thisdistance is covered inless than a second. What defendant failsto acknowledge, however, is that under the given circumstances, 40 

### miles per hour may have been excessive and had she been driving at a 

### more reasonable speed the distance could have allowed adequate timeto avoid the collision. In viewing the evidence and in£ erences arising therefrom in

### a lightmost favorable to the plaintiff, 

### we are not able to conclude, 

### as 

### a matter of 

### law, thatdefendantproperlyexercised her duty. Consequently, the summary judgment 

### was improperly granted. This determination agrees with thisCourt's holding that ordinarily issues of negligence arenot susceptible of summary adjudication. Hogen v. Great Northern Railway Co. (1969), 153 Mont. 309, 456 P.2d 51. It 

### is felt that the Court should be extremely cautious in reviewing grants of summary judgment in thisarea for the issues involved in

### a determination of negligence 

### are better resolved at trial. McAlpine v. Dahl (1978), Mont

# . ,585 P.2d 1307, 35 St.Rep. 1561; see also Lyndes v. Scofield (1979), Mont

# . ,589 P.2d 1000, 36 St.Rep. 185; Slagsvold v. Johnson (1975), 168Mont. 490, 544 P.2d 442; Dean v. FirstNational Bank of Great Falls (1969), 152Mont. 474, 452 P.2d 402. In regard 

### to the second issue on appeal the plaintiff contends that an issue of fact yet to be resolved is whether the -6-Stateof Montana as a defendant failed to properly upkeep the fence extending from the interstate boundary fence to the brige abutment. The State submits that the fact the fence may have been indisrepair is of no concern inthis

### matter for the State is under no legal duty to erect ormaintain the fence. To support her argument that the Statehas a duty of maintenance, plaintiff 

### cites section 60-5-105, MCA. This section reads: "Each highway authority may 

### so design any controlled 

### access facility and 

### so regulate, restrict, orprohibit 

### access as tobest serve the traffic for which the facility is intended. Indoing 

### so, it may divide and separate any controlled 

### access facility into separate roadways by the construction of raised curbings, central dividing sections, 

### or otherphysical separations

### or by designating a separate roadway by signs, markers, stripes and other devices." Upon reading this section inconjunction with Statev. District Court of the FourteenthJudicial District (1977), 175Mont. 63, 572 P.2d 201, plaintiff concludes thatonce the Statehas chosen

a method of regulating, restricting and prohibiting 

### access to 

### a highway 

### (i.e., by means 

### of a fence) it is liable forany negligent maintenance of such device. We failto find any requirement contained insection 60-5-105, MCA, that the Statehas a legal duty to 

### erect a fence 

### toprevent 

### access by pedestrians to a controlled 

### access highway. The statute specifically 

### states that the highway authority may (not shall)

### restrict or prohibit 

### access. Furthermore, 

### we fail

### to see that the Stateof Montana can be held liable for the negligent maintenance of 

### a fence it had no duty to erect based upon the decision rendered inStatev. DistrictCourt, supra. In that case, 

### two issues were presented forreview: "(1) May the Statemaintain a defense 

### of sovereign immunity against 

### claims arising from death? "(2)May the Statemaintain a defense of

financial feasibility ordiscretion' ina highway injury ordeath case?" 572 P.2d at202. Neither of these issues 

### are incontroversy in the 

### case athand.This Court inState, indiscussing the second issue on review, did indicate that "whenever and wherever it [the State] chooses 

### to build highways it assumes the duty of maintaining them safelyand is answerable if it failsto do 

### so." This statement, however, 

### was directed 

### at a duty owed 

### to a motorist, not a pedestrian, and was made solely in conjunction with a finding that the Statecannot avoid a claimof negligence on a defense of financial feasibility

### or discretion--matters not in issue inthis proceeding. See State, 572 P.2d at 203. State should not be deemed controlling in thisproceeding. (The 

### same analysis is true forModrell v. State (1978), Mont

# . ,587 P.2d 405, 35 St.Rep. 1811, cited by plaintiff.) Plaintiff also argues that since the Stateof Montana knew, 

### or should have known, that children in the area 

### swam in the river directlybelow the bridge where the accident occurred, the State

### was under a duty to 

### erect and maintain a fence 

### to prevent those children from gaining 

### access 

### to the highway. Inmaking this argument plaintiff firstrelies upon a policy declaration concerning the legislature's purpose in controlling 

### access on certain designated highways. See 

### section 60-5-101, MCA. The policy of the State in thisregard is to facilitate the flow of traffic and the promotion of public safety.This Court acknowledges the policy statementbut disagrees with the conclusion offered by plaintiff. The initialpurpose of the statute 

### is to facilitatethe flow of traffic on highways which have been designated for use solelyby through traffic. (See section 60-5-102 (2), MCA, for the definitionof controlledaccess highway. ) It is evident that the flow of traffic in this regard refers solely to 

### motor vehicle and not pedestrian traffic

as submitted by plaintiff. The additional purpose of the legislation is to promote public safetyand arguably this includes the promotion of pedestrial safety. 

### We are, however, unwilling 

### to find that this -8-promotion 

### also includes a statutoryduty, on the part of the State, 

### to protect pedestrians by preventing 

### access to 

### a controlled-access highway by erecting and maintaining a fence. It should not be said that the legislature, indeclaring a policy forcontrolling 

### access to designated highways, intended that the Statebe required to assure pedestrian safety by enclosing our highways with 

### a physical obstruction 

### so as 

### to prevent 

### a pedestrian's intentional entrance upon the roadway. Such a conclusion is untenable. In final support of the contention for imposing liability

on the Statefor failing to maintain a fence inan area known to be frequented by children, plaintiff 

### asserts the doctrine of attractive nuisance. See GagnierV. Curran Construction Co. (1968), 151Mont. 468, 443 P.2d 894; Molohon v. United States (D. Mont. 1962), 206 F.Supp. 388; Johnson v. United States (9th Cir. 1959), 270 F.2d 488, 

### cert. denied, 362 U.S. 924, 80 S.Ct. 677, 4 L.Ed.2d 742; Driscoll 

### v. Clark (1905), 32 Mont. 172, 80 P. 1. This Court has not decided, however, whether 

### a highway, as

an artificial condition, is such that the doctrine 

### is deemed applicable when 

### a child 

### is killed or injured thereon. Nor have



### we been able to find a 

### case dealing with such an application in otherjurisdictions. The elements needed to support a finding of liability under a theory of attractive nuisance include: (1)an artificial condition maintained by the possessor of land in

### a place which the possessor knows 

### or should know that children 

### are likely

### to trespass; (2)the condition involves an unreasonable risk of death 

### or seriousbodilyharm; (3)children because of their youth willbe unable to discover the condition 

### or realize the danger; (4)the utility

### of maintaining the condition is slightcompared to the risk it presents 

### to young children; (5)the possessor fails toexercise reasonable care to eliminate the danger 

### or otherwise protect the children. See Restatement of Torts 2d, S 339; Gagnier, supra. -9-An interstatehighway most certainlyconstitutes an artificialcondition, but 

### we are unable 

### to find anything inthe record that a five-year-old child would not be able 

### to discover it nor be able to appreciate the dangers involved when walking thereon. In a societywhere cars, 

### streets and highways are commonplace, a child from the minute he is able to walk is constantlyreminded that one should be extremely careful of roadways. Consequently, by the 

### time a child is five years of age, it may be he has grown to appreciate and fear the risks a highway presents to a pedestrian. Plaintiff failed to establish a legal duty on the State 

### to erect or maintain the fence 

### at issue. We affirm the summary judgment granted in favor of the Stateof Montana. Since 

### material issues of fact have yet to be resolved concerning the propriety of defendant Case's driving behavior and the distance from the bridge abutment of the impact, the summary judgment in defendant Case's favor is furtherproceedings.

Justice 

# d We concur:

~ustice 

## rank I. Haswell.

### Mr. Justice Daniel J. Shea concurring:

I agree with the decision of this Court affirming the grant of summary judgment to the defendant State of Montana, but reversing the grant of summary judgment to the defendant,Eunice IreneCase. Nonetheless, Imust express my disapproval of the way the trial court handled and granted both motions for summary judgment. There is absolutely no way from the record thatwe can tellwhy the trial court ruled in theway itdid. We should be able to tell from the trial court order or accompanying memorandum precisely why the trial court considered there to be no genuine issue 

### of fact. Ithas always seemed to be that if parties are to be thrown out of court they are entitled to knowwhy. The Canons of Judicial Ethics require that trial judges, in disposing of controverted cases, set out the reasons for their decisions. The first paragraph of Canon 19 (144Mont. at xxvi-xxvii) states in unequivocal language: "Indisposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregad-ed or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law." The order of the trial judge granting summary judgment to both defendants fails tomeasure up to thismandate. The order states in pertinent part: "WHEREAS,the Court having received written memorandums on behalf of the Plaintiff and the respectiveDefendants, and the Court having duly considered the same, "NOW,THEREFORE, IT ISORDERED that Motion for Summary Judgment of Defendant State of Montana is hereby GRANTED,

"IT IS FURTHER ORDERED that Motion for Summary Judgmentof DefendantEmice Irene Case ishereby GRANTED. "

### That is it--abs~lutely no analysis of why there is no genuine issue of material fact. Nor is there an accompanying memorandum setting out an analysis. In Ballantyne v. Anaconda Co. (1978),175Mont. 406, 574 P.2d 582, this Court quoted froinThe State Trial Judge's Book published by the West Publishing Company. 175Mont. at 409, 574 P.2d at 584. This language sets out in no uncertain terms why trial judges should explain the reasons for their decisions. One paragraph of -- 

### The State Trial Judge's Book, quoted in Ballantyne, isparticularly apt here: "'The functionof an opinion is to state the reason which led the court to decide the case the way itdid. Moreover, since in the process of preparing an opinion the judae must disciplinehis thinking, he ismore apt to reach a 

### just decision in a complex case if he reduces his reasoning to writing. Referring to the fruitful effect of the process, Chief Jfistice Hughes once commented, "The importance of written opinions as a protection against judicial carelessness is very great."'" 175 Mont. at 409, 574 P.2d at 584. If the trial courtwould have mulled the case over and entered a written decision explaining why it granted summary judgment, itmight, in the process of reaching that decision, have recognized the basic error in granting summary judgment. Obviously, the existence or nonexistence of children on the bridge would markedly change the duty of the defendantdriver to slowdown as shewas approaching the bridge. That basic fact is in dispute. A jury issue ismanifestly involved here. On trial, had the jury believed there were children on the bridge, itmight well conclude that the defendant-driver did not exercise reasonablecare in approaching the bridge and that this lack of care caused the death of the child. On the other hand, if the jury concluded there were no children on the bridge, it could conclude that the driver exercised reasonable care in approaching the bridge.

### A careful analysis of the casewould suggest a strong likelihood that the trial courtwould realize the error in granting summary judgment to the defendant-driver. The disputed facts were clearlypointed out to the trial court in the plaintiff's memorandum opposing the grant of summary judgment. That brief, after pointing out that the affidavits of defendant's witnesses that therewere no children on the bridge, were flatly contradicted by affidavits of plaintiff's witnesses that therewere children on the bridge, stated: "If the facts are as stated in theAffidavit submittedby the plaintiff, the question of fact whichmust be resolved iswhether or not the defendant Eunice Irene Case exercised due care in proceeding down the highway knowing children were on or near the highway and whether or not she was negligent in not seeing the decedent although he was 20 

### feet down the road from the bridge abutment:' (Plaintiff's Memorandum to the Trial Court at page 2.) 

### The trial court therefore, cannot claim that the existence of such genuine issues of material factwere not pointed out to the court by plaintiff's counsel. If the trial court found that the existence or nonexistence of children on the highwaywas not a material fact, the duty would then be imposed on the trial court to explain why the presence or absence of children on the bridgewould not alter the right of the defendant-driver to summary judgment

on the liability issue. Iwould urge the trial courts to heed the mandate of Canon 19. But evenwere the Canon not there, the reasons,

as pointed out in Ballantyne, supra, are just as compelling for a requirement that the trial courts spread upon the record the reasons for their

I concur with the foregoing concurring

Justice