No. 80-265 

IN THE SUPREME COURT OF THE STATE OF MONTNAA 

1981 

LOIS JEFFERSON BIG MAN, Personally and 

as Personal Representative of the 

Estate of Daniel Big Man, Deceased, 

Plaintiff and Appellant, 

VS. 

THE STATE OF MONTANA, and 

EUNICE IRENE CASE, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

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: MAR 10 198% 

Submitted: January 15, 1981 

Decided: MAR I 0 1s 
Mr. Justice Gene 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, in and for the County of Big 

Horn. 

Daniel Big Man, a five-year-old pedestrian, was struck by 

a car driven by Eunice Case. The accident occurred on or near 

the south end of a bridge that crosses the Little Big Horn River, 

18 miles south of Hardin, Montana, on Interstate 90 (1-90). The 

site of the accident abuts a "swimming hole" frequently used by 

children in the area. The children had access to the swimming 

hole through an opening in a fence which runs from the interstate 

boundary fence to a concrete abutment located at the south end of 

the bridge. Daniel died as a result of the injuries sustained in 

the accident. 

Plaintiff brought suit against the State of Montana for 

negligence in the construction and maintenance of the highway 

fence and against Eunice Case for negligence in the operation of 

her vehicle. Defendants contend that Daniel darted from behind 

the bridge abutment so quickly that Case could not avoid hitting 

him. 

After some discovery was pursued, defendants mved for 

summary judgment. The court granted judgment in their favor. 

Plaintiff presents the following issues to this Court for 

review: 

1. Did the District Court err in finding no genuine issue 

as to any material fact and thereby err in granting the summary 

j udgment? 

2. Did the state have a legal duty to erect and maintain 

the fence along the interstate where the accident occurred so as 

to prevent access by pedestrians? 

A party moving for summary judgment has the burden of 

showing the complete absence of any genuine issue as to all facts 

which are deemed material in light of those principles which 
entitle him 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), 169 Mont. 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 light of those principles 

which entitle her to a judgment as a matter of law. 

The District Court could properly grant summary judgment 

to Case only on a finding that, on the submitted record, she 

exercised proper due care in proceeding down the highway and was 

unable to avoid the collision with the decedent. 

In support of this finding, Case presented her own affidavit and the affidavit of her husband, Clarence Case, who was a 

passenger in the car at the time of the accident. These affidavits established the following facts: 

1. The accident occurred at 2: 30 p.m. in the southbound 

lane of a limited access four-lane interstate highway. The speed 

limit was 55 miles per hour. 

2. Eunice Case was driving at approximately 40 miles per 

hour. 

3. The decedent was first seen by Clarence Case, a 

passenger in defendant'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 to Case's allegations, plaintiff presented 

affidavits which established that at the time of the accident, 

there were other children on the bridge or standing on the 

interstate roadbed near the highway. The af f idavits also indicated that the point of impact appeared to be 21.1 feet from the 

end of the bridge abutment. 

Issues of fact in dispute include whether there were other 

children on the bridge or roadway at the time of the accident; 

whether the point of impact was 3 feet or 21 feet from the end of 

the bridge abutment and whether Case's vehicle was traveling at a 

reasonable rate of speed. These facts being in dispute, the 

issue becomes whether they are material to a final determination 

in this matter and, thus, preclude any summary judgment. 

Section 61-8-504, MCA, provides: 

" . . . every driver shall exercise due care to 

avoid colliding with 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 readily visible to Case, she was under a duty to 

exercise precaution 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 in driving her 

car. Case then concludes that the fact that children may have 

been on the bridge or roadbed adjacent to the interstate is of no 

concern for the collision with the decedent stil remained 

unavoidable. 

In support of this position, 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 anticipate 
that a child will suddenly dart from the side of 

the street or suddenly run across the street, in 

front of his car." 11 P.2d at 1042. 

See also Annot., 65 A.L.R. 192 (1930); Annot., 113 A.L.R. 528 

(1938); 60A C.J.S. Motor Vehicles, 5 396(2) at 777. 

It should be noted, however, that the court in Autio also 

stated that if the driver of an automobile "is not vigilant, if 

he does not keep a lookout, the jury may say he was negligent." 

In providing a lookout, the court indicated that the "driver must 

look 'not only straight ahead, but laterally ahead "I and that a 

"person is presumed to see that which he could see by looking." 

In viewing the presented affidavits and the inferences 

arising therefrom, in a light most favorable to the party 

opposing the motion for summary judgment, this Court must 

acknowledge that children were present on the bridge or roadway 

and readily viewable by the defendant. Children being present, 

Case was under a duty to exercise all proper precaution to avoid 

any collision. 

A determination of negligence is always dependent upon an 

examination of the surrounding circumstances. McCusker v. 

Roberts (1969), 152 Mont. 513, 452 P.2d 408; Jackson v. William 

Dingwall Co. (1965), 145 Mont. 127, 399 P.2d 236. The submitted 

record fails to fully describe the location and actions of the 

children but af fording the plaint iff all reasonable inferences 

which may be drawn from the offered proof, it could be found upon 

further examination 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 

in violation of a duty of reasonable care and precaution. This 

being the case, the trial court improperly granted Case a summary 

j udgmen t . 

As to the disputed fact of whether the collision occurred 3 

or 21 feet from the bridge abutment, this controversy 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 feet down the road from the bridge, Case in the exer- 
cise of due care would 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 in the 

view of defendant. 

The discrepancy in this instance is 18.1 feet, but the 

defendant contends it is of little significance in that when traveling at a speed of 40 miles per hour, this distance is covered 

in less than a second. What defendant fails to 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 time to 

avoid the collision. 

In viewing the evidence and in£ erences arising therefrom 

in a light most favorable to the plaintiff, we are not able to 

conclude, as a matter of law, that defendant properly exercised 

her duty. Consequently, the summary judgment was improperly 

granted. 

This determination agrees with this Court's holding that 

ordinarily issues of negligence are not 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 

this area 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), 168 Mont. 490, 544 P.2d 442; Dean v. 

First National Bank of Great Falls (1969), 152 Mont. 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 

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State of 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 in disrepair is of no concern in this matter for the State 

is under no legal duty to erect or maintain the fence. 

To support her argument that the State has 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, or prohibit access as to best serve 

the traffic for which the facility is intended. 

In doing so, it may divide and separate any 

controlled access facility into separate roadways by the construction of raised curbings, 

central dividing sections, or other physical 

separations or by designating a separate roadway 

by signs, markers, stripes and other devices." 

Upon reading this section in conjunction with State v. District 

Court of the Fourteenth Judicial District (1977), 175 Mont. 63, 

572 P.2d 201, plaintiff concludes that once the State has chosen 

a method of regulating, restricting and prohibiting access to a 

highway (i.e., by means of a fence) it is liable for any negligent maintenance of such device. 

We fail to find any requirement contained in section 

60-5-105, MCA, that the State has a legal duty to erect a fence 

to prevent 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 State of Montana can 

be held liable for the negligent maintenance of a fence it had no 

duty to erect based upon the decision rendered in State v. 

District Court, supra. In that case, two issues were presented 

for review: 

"(1) May the State maintain a defense of 

sovereign immunity against claims arising from 

death? 

"(2) May the State maintain a defense of 

financial feasibility or discretion' in a highway injury or death case?" 572 P.2d at 202. 

Neither of these issues are in controversy in the case at hand. 
This Court in State, in discussing 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 

safely and is answerable if it fails to 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 State cannot avoid a claim of negligence on a defense of 

financial feasibility or discretion--matters not in issue in this 

proceeding. See State, 572 P.2d at 203. State should not be 

deemed controlling in this proceeding. (The same analysis is 

true for Modrell v. State (1978), Mont . , 587 P.2d 405, 35 

St.Rep. 1811, cited by plaintiff.) 

Plaintiff also argues that since the State of Montana 

knew, or should have known, that children in the area swam in the 

river directly below 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. 

In making this argument plaintiff first relies upon a 

policy declaration concerning the legislature 's purpose in 

controlling access on certain designated highways. See sect ion 

60-5-101, MCA. The policy of the State in this regard is to 

facilitate the flow of traffic and the promotion of public 

safety. 

This Court acknowledges the policy statement but disagrees 

with the conclusion offered by plaintiff. The initial purpose of 

the statute is to facilitate the flow of traffic on highways 

which have been designated for use solely by through traffic. 

(See section 60-5-102 (2), MCA, for the definition of 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 safety and arguably this includes the promotion of 

pedestrial safety. We are, however, unwilling to find that this 

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promotion also includes a statutory duty, 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, in declaring a policy 

for controlling access to designated highways, intended that the 

State be 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 State for failing to maintain a fence in an area known to 

be frequented by children, plaintiff asserts the doctrine of 

attractive nuisance. See Gagnier V. Curran Construction Co. 

(1968), 151 Mont. 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 

other jurisdictions. 

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 serious bodily harm; (3) children because of their youth 

will be unable to discover the condition or realize the danger; 

(4) the utility of maintaining the condition is slight compared to 

the risk it presents to young children; (5) the possessor fails 

to exercise reasonable care to eliminate the danger or otherwise 

protect the children. See Restatement of Torts 2d, S 339; 

Gagnier, supra. 

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An interstate highway most certainly constitutes an artificial condition, but we are unable to find anything in the 

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 society where cars, streets and highways are 

commonplace, a child from the minute he is able to walk is 

constantly reminded 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 State of 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 

further proceedings. 

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 Irene Case. Nonetheless, I must 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 that we can tell why the trial court 

ruled in the way it did. 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. It has always seemed to be that if parties are to be 

thrown out of court they are entitled to know why. 

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 (144 Mont. at xxvi-xxvii) states in unequivocal language: 

"In disposing 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 to measure up to this mandate. The 

order states in pertinent part: 

"WHEREAS, the Court having received written 

memorandums on behalf of the Plaintiff and 

the respective Defendants, and the Court 

having duly considered the same, 

"NOW, THEREFORE, IT IS ORDERED that Motion 

for Summary Judgment of Defendant State of 

Montana is hereby GRANTED, 

"IT IS FURTHER ORDERED that Motion for Summary 

Judgment of Defendant Emice Irene Case is hereby 

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), 175 Mont. 406, 

574 P.2d 582, this Court quoted froin The State Trial Judge's 

Book published by the West Publishing Company. 175 Mont. 

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, is particularly apt here: 

"'The function of an opinion is to state the 

reason which led the court to decide the 

case the way it did. Moreover, since in 

the process of preparing an opinion the judae 

must discipline his thinking, he is more 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 court would have mulled the case over and 

entered a written decision explaining why it granted summary 

judgment, it might, 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 slow down as she was approaching the bridge. That 

basic fact is in dispute. 

A jury issue is manifestly involved here. On trial, 

had the jury believed there were children on the bridge, 

it might well conclude that the defendant-driver did not 

exercise reasonable care 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 case would suggest a strong 

likelihood that the trial court would realize the error in 

granting summary judgment to the defendant-driver. The disputed facts were clearly pointed 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 there were no children on the 

bridge, were flatly contradicted by affidavits of plaintiff's 

witnesses that there were children on the bridge, stated: 

"If the facts are as stated in the Affidavit 

submitted by the plaintiff, the question of 

fact which must be resolved is whether 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 fact were not 

pointed out to the court by plaintiff's counsel. If the 

trial court found that the existence or nonexistence of 

children on the highway was 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 bridge would not 

alter the right of the defendant-driver to summary judgment 

on the liability issue. 

I would urge the trial courts to heed the mandate of 

Canon 19. But even were 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