No. 04-361 IN THE SUPREME COURT OF THE STATE OF MONTANA 2005 MT 183 JOHN BONILLA,

Plaintiff and Appellant,
v. UNIVERSITY OF MONTANA and THE STATE OF MONTANA,

Defendants and Respondents.

APPEAL FROM: The District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 2002-695, Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD:

For Appellant: Thomas J. Beers, Beers Law Offices, Missoula, Montana For Respondents: Ann Brodsky, Special Assistant Attorney General, Risk Management and Tort Defense Division, Helena, Montana Submitted on Briefs: September 28, 2004 Decided: July 20, 2005 Filed:

__________________________________________ Clerk2

Justice J im Ric e delive red the O pinion of the C ourt. ¶1 John Bonilla (B onilla) appe als from the sum mary judgment entered on Februar y 11, 2004, by the Fourth Judicial Distric t Court, Missoula Count y, in favor of t

he University of Mon tana an d the St ate of M ontana (Univ ersity). W e affirm
. ¶2 We resta te the issues o n appeal a s follows: ¶3 Did the Distric

t Court err i

n gr an ting summary judgment to the def endants on John Bonilla’s negligenc e claim for injuries sustained when a University-owned chair col lapsed during a Z Z Top c oncert? ¶4 Did the Distric

t Court err i

n concluding that

the doctrine of res ipsa loquitur did not appl y toBoni ll a’s

negl igence c lai

m? FACTUAL AND PROC EDURAL BACKGROUND ¶5 On Novemb er 22 , 199 9, Bo nil la a tte nded a ZZ Top

conc ert at t he Ad ams Ce nter Arena (Arena) at the Univer sity. Bonilla is a v ery larg e individual a nd weighed approxim ately 350 pounds at the ti me of the concert. Pr

ior to the concer

t, Bonilla was concernedthat his weight wou ld render the University’s ch airs inadequate and offers that he cont actedthe Universit y and spoke with Graig Gilham (Gilha m). Bonilla, r

eferring t o himself as “Big Jo hn,” reque sted perm ission to use h is own m etal fol ding chair in t he Arena’s handicap section and to gain access by one o f the side entra nces prior to the conce rt. He had previously made similar arraignments t o atten d pub lic events, and had, on prior occasio ns, used his ow n chair a t Unive rsity fun ctions. ¶6 On the night

of the conc ert, Bonilla arri ved at the Arena’s si

de entrance where he was met by security personnel expecting his arrival. H e was then informed that despite pri or3

arrangem ents made with Gilham, the Universi ty’s insura

nce policy prohibi

ted the use of his
own chair. Bonill

a expressed skeptici sm abo ut the durability of the University’s ch air. Security personnel again advi sed Bonilla of t he policy’s requi

rement, but allevi ated Bonilla ’s
concerns by retrievi

ng the chair provided by the Universit y for his inspe ction before ent ering the Arena. Bonilla det

ermined the chair “was at l east as good

and possibly a li

ttle bett er than [h is] c hair,” “ifanythin g, may be it look ed a little s turdier o r reinfor ced tha n [his] o wn.” Bonilla’s own chair was returned to hi s vehicle, and he was escorted to the

Arena’s handicap section just

as the concert was begi nning. ¶7 During th e concert, Bonilla then af fixed a tape rec orderhe had brought by knotti ng
a leather “bo ot la ce” type str ap to the rail ing, unaware that

the recorder was prohi bited. Security personneldid not reali ze that Bonilla had brought th e device into the Aren a nor did they initially notice h im attach it to the rail ing. However, about halfway through the concert, security personne l detected the recorder an d requested its remova l. Bonilla attem pted to comp ly, but w as unab le to loos en the k notted le ather stra p. He became frustrated and told the securit

y personnel to “you

know, like, move out of m y way , I’m go ing to b reak it of f,” and he “gave it one big ya nk to break it and b ring it down. ” As he did so, the chai r provided to Bon illa collap sed ben eath him , and he fell onto his bac k and h ead. ¶8 It is not clear

from the record whet her Bonilla knew of his injuries i

mmediately or whetherhe stayed for the remainder of the concer t. Several days

later Boni lla sought medical assistance and was diagnosed with a coccyx frac t ure. How ever, Bonilla did not inform Gilham or anyo ne else w ith the U niversity of his inj ury. The Un iversity asserts that it first learned of

the incident

and alleged inj ury when Bonilla filed his negligence a ction on4

July 29, 2002 , about t wo years and e ight months after the concert. Bonilla did not f ile an incident report after the concert with the University, w hich indicates it has no record of the accide nt; nor d id Bon illa requ est inspe ction ofthe cha ir. ¶9 Bonilla claimed in his negligen ce action tha t the Unive rsity breache d its duty to exercise reasonable care i n the provision of

a chair, considerin g its know ledge of his weight, and failed to adv ise him of any da nger assoc iated with th e use of the c hair. The U niversity filed a motion for summary judgment, ass ertingthat Bonilla had failed to present evidence of negligence, spe cificall

y, that the Univers ity had breached any duty in the provi sion of the chair. The District Court granted the Univers ity’s motion, concluding Bonilla was owed no duty, because it was not r easonably foresee able to the University t ha t its chair would be subjected

to the additional weight and str ess of yanking a tape recor

der free, even to a person
o f Bonilla’s weight. The court al so held, in t he alternati

ve, that had t

he University owed Bonilla the duty o f care, he did not provide evidence t

hat the Universi

ty had breached the duty. B onilla ap peals th erefrom
. STANDARD OF REVIEW ¶10 Our review of a district court’s sum mary judgme nt order is de novo, and we apply the
same criteria a s the dist rict cour t based on Ru le 56, M .R.Civ .P. Farmers Union Mut. Ins. Co. v. Staples , 2004 M T 108 , ¶ 18, 32 1 Mo nt. 99, ¶ 1 8, 90 P .3d 381 , ¶ 18. ¶11 It is well esta

blished that

a p art y movi ng for summa

ry j udgmen

t mus t show a comple te absence of any genuine i ssue as to all facts show n to be material i n light of t

he substantive

principle t

hat entitles that

party to a judgment as

a matter of

law. Smith v. Kerns (1997), 281 Mont. 114, 116, 931 P.2d 717, 718 . The burd en is then sh ifted under R ule 565

to the non-moving party t o prove, by more than mere denial or speculation, that a genui ne issue does ex ist. Fisch v. Montana Rail Link, Inc. , 2003 MT 76, ¶ 6, 315 Mont. 13, ¶ 6, 67 P.3d 2 67, ¶ 6. ¶12 We review a d istrict court’s lega l conclusion that a mo ving party is entitled to judgment as a matter o f law to dete rmine whethe r the con clusion was co rrect. Peyatt v. Moore , 2004 M T 341 , ¶ 13, 32 4 Mo nt. 249, ¶ 13, 102 P.3d 5 35, ¶ 13
. DISCUSS

ION ¶13 Did the District Court err i n granting summary judgment to the defendants on Bonilla’s negligence claim for injuries s ust ained w hen a U niversity-o wned c hair collapsed durin g a ZZ T op concert? ¶14 The purpose of summary judgment is t o encourage judicial econo my through the elimination

of unnecessary trials, but summary adjudication should never be substitut

ed for
a tria l if a mate rial factu al contro versy e xists. Peyatt , ¶ 14. Ordinarily, questions of negligence are poor

ly situat ed for adjudicat

ion by summary judgment, and better l eft for a jury to determ ine. Peyatt , ¶ 14. A par ty moving f or su mmary j udgmen

t “mus t show a comple te absence of any genuine issue as to all f acts shown to be materia l in light of substan tive principles

that entit

le that part

y to a judgment as a matter of law.” Sm ith, 28 1 Mont. at 116, 931 P.2d at 718 . In a neglige nce action, a pla i ntiff must est ablish: (1)

the defendant

owed a duty to the plaintiff; (2) the defe ndant breached the dut

y; (3) the brea

ch
was the actual an d proxim ate cause o f the plaintiff’s inju ry; (4) that dam ages resulte d
. Massee v. Thompson , 2004 M T 121 , ¶ 30, 32 1 Mo nt. 210, ¶ 30, 90 P .3d 394 , ¶ 30. ¶15 Bonilla challenges the District C ourt’s forese eability analy sis and its conclusion that the University owed him no duty of car e. He contends that, pursuant to t he doc trine of6

premise liabili

ty, the Univers ity had a duty to i ts patrons t

o maintain safet

y in the Arena,
warn of hidden or lurking dangers, and provide safe ingress and egress t o and from the Arena. Alternativel

y, Bonilla ass erts that

he was owed a heightened dut y beca use the University provideda special sea ting arrange ment on the basis of his weight, a nd required him to use a U niversity-owned ch air. ¶16 In its appellate briefing, the U niversity has conceded this poi nt and acknowledges that it owed a d uty of care to its patrons for th eir safety in the Arena an d in providing the chair to Bo nilla. Therefo re, we con clude for pu rposes of th is appeal tha t the Unive rsit y owed a duty of care to Bonil

la, and turn t

o an analysis of t

he breach of that dut

y. ¶17 Ordinarily,the determination of whether a defendant

breached a legal duty owed is a fact question for the jury, and therefore not

susceptible

to summary judgment, unless t he evidence is undispute d or suscep tible to only o ne conclu sion by rea sonable people
. Smith, 281 Mont. at 117, 931 P.2d at 719

. ¶18 Bonilla argues,

as he did in the District Court, that the mere fact thechair collaps ed is determinative t

hat the Universi

ty breached its

duty, assert

ing that “the chair was not goi

ng to fal l apa

rt u nles s th ere was a pr

oble m wi th the chair.” It

is undisputed f

or purposes of summary judgment that the U niversity’s chair collapsed into thre e or four pieces simultaneous to Bonilla b reaking th e l eather strap which w as holding his tape record er. Howeve r, aside from thefact that the ch air collapsed , Bonilla offered no evidence e xplaining how or why th e chair broke and whether it was due t o any breach of duty by the Universi ty. There is no eviden ce indic ating that any action or inaction by t he University rende

red the chair unsafe or of po or qual ity. The cha ir itself was not re tained for insp ection imm ediately7

after the accident or

anytime subsequent

thereto, probably because it was not report ed to the Univ ersity. The on

ly ev iden ce relat ed to thi s par tic ular chai r’squality

is Bonil la’ s own testimonythat it appe ared of good qualit y, “at least as goo d and po ssibly a little better than my chair,” and that it “looked even a-little-more re inforced th an mine,” referr ing to the standard m etal chair he h ad broug ht to the con cert. ¶19 The University pres ented the affidavits of Gerald Michaud ( Michaud), assist

ant director at the Universi

ty’s facil ities ser vices department, and

Gary Hughes (Hughes), event manager for the Arena. Michaud and Hughes described the Univer sity’s proc edures for assuringthe safety of i

ts chairs and f

or processing miss ing or broken c h airs, and i ndicated that the Universit

y had no reco rd of this inciden t. Further, H ughes no ted that the U niversity had sel ected th e chairs for their d urability and qu ality. ¶20 In light of Bonilla’s inabili ty to establish

how or why the chair colla psed and whether the Universit

y played any part the

rein, his own s tatements that the chai r appeared durable, and Michaud’s and Hughes’ testi mony, the University was abl e to meet its bur

den of demonstrating

the absence of material fa ct regarding breach of its d uty of care. W hile Bonilla asserts that the “ chair was not going to fall apar t unless ther

e was a problem with the chair,” this stat

ement is conc lus ory and speculati ve and fails t

o present materia

l and substan tial evide nce to ra ise a gen uine issu e of m aterial fa ct. Saari v. W inter Sports , 2003 MT 31, ¶ 15 , 314 M ont. 212 , ¶ 15, 64 P.3d 1 038, ¶ 1 5. Thus, Bonilla did not meet the burden which shifted t

o him upon the University’ s showing. ¶21 We conclude that the Distric t Court did n ot err in granting the University’s summ ary jud gment motion on

Boni ll a’s

negl igence c lai

m.8

¶22 Did the District Court err in co ncluding tha t the doctrine of res ipsa loquitur did not appl y toBoni

ll a’s neg li gen ce clai

m? ¶23 Bonilla also argues that, under t he doctrineof res ipsa loquitur , the chair’ s collapse, i n and of i tself, a

llows the infe

rence that it

broke as a result

of some negligence by the University. This is the sa me reaso ning that he asserted to su pport his arg ument t hat th e University breac

hed its duty of c are. ¶24 Quoting Restatement (Second) of Torts § 328D, this Court has expl ained that an inference of negligence may arise pursua nt to the doctrine of res ipsa loquitur , as follows:

“(1) It may be inferred that ha rm suffered by the plaintiff is caused

by the negligence of

the defendant when: “(a) the event is o f a kind w hich ordina rily does no t o ccur in th e absence o f negligenc e; “(b) other responsibl

e causes, incl

uding the conduct

of the plaint

iff and third persons, are suffici ently eli minated by the evidence ; and “(c) the indicat

ed negl igence is within the scope of the d efendant’s duty to the plain tiff. “( 2) It is the funct

ion of the court

to determine whether t he inference may reasonably be drawn by the j ury, or whether it must necess arily be drawn. “(3) It is the

function ofthe jury to determin e whethe r the inferenc e is to be dra wn in any case where differ ent conclusions

may reasonably b e reached.” Tompkins v. Northwestern Union Trust Co. (1982), 198 Mont. 170, 176, 645 P.2d 402, 406 (empha sis added); see also Brothers v. General Motors Corp . (1983), 202 Mont. 477, 482, 658 P.2d 1108, 111 0. The doctrine of res ipsa loquitur , meaning “the thi ng speaks for i tself,” a llows the jury, under certain ci

rcumstances, to i

nfer negligence by t

he defendant relating to the occurrence of an event when the plaintiff is un able to establ

ish the causal connection

between the defend ant’s neglig ence and the resulting injury. How ever, before submissionto the jury, the c ourt must determine that t he plaintif

f has provided evide

nce satisfyi ng subsections 1(a) through (c) of the te st. Restat ement (Second) of Torts § 328D9

cmt. i. Without t

hat eviden ce, no in ference can be raised. See Clarkv. Norris (1987), 226 Mont. 43, 48, 734 P.2d

182, 185 (regardi

ng res ipsa loquitur , “[t]he mere happeni ng of an accident, in itsel f, is not evi dence of negligence i

n the ordinary negl

igence action. Nor is the mere f act of inj ury . . . stan ding alo ne”). ¶25 Bonilla’s bare assertion that thechair collaps ed is insuff icient evidence, by itself, to satisfy the Restate ment’s req uiremen t under sub section 1(b ) that other responsibl e caus es must be “suf ficiently elimin ated.” The requirements of t his subsection are further e xplained in comment i

of Re sta

tement ( Seco nd) o f Tor ts § 328D: The inference of negl

igence does not point

to the d efendant until

the plaintiff’s own con duct i s eliminated as a responsible ca

use. Where the evidence fails to s

how a greater proba

bility t hat the event was due t o the defendant’s negligence than that it was caused by the plaintiff’s ow n condu ct, the inferenceof the defendant’s responsibility cannot be drawn. This is true not only as to the plaintiff ’s own cont ributory negligenc e, but also as to his innoce nt cond uct . . . . ¶26 T he evidence here regar ding causation i

ncludes Bonilla’ s actions of yank ing har d enough to break the lea

ther strap ho lding h is tape re corder
. The evidence indicat es that, out of frustrat ion, Bonilla de

termined to disl

odge the strap by “gi

v[ing] it one

big yank to break it and bri ng it do wn.” This action preci pitated the

collapse of Bonil

la’s chair,

yet he did not provide evidence that would negate the possible causal con nection be tween this action and the chair’s coll

apse, or, at

least, “s how a greater probabilit y that the event

was due to the defendant’s negligence than t hat it was caused by the

plaintif f’s own conduct.” Rest

atement (Se cond) of Torts § 328D cmt. i. Bonilla’s onl y explanation of ca

use is his st

atemen t tha t the “chair was not going t o fall apa

r t unless ther

e was a problem with the chair.” We previously noted that this is insufficient to raise a genuine issue of material fact for Bonilla’s10

negligen ce cla im, and, for purposes of Bonilla’s res ipsa loquitur claim, it i s insuffic ient under these circumstanc es to establish the great er probabili

ty that the a

ccident occurre d due to the Universit

y’s negligence and not of his own conduct, ev en if his conduct was considered

innocent. Without s

uch evidence, the i

nf eren ce of the Universi

ty’s neglige

nce
canno t be draw n and th e Distric t Court ’s entry o f summ ary jud gmen t was ap propria te. ¶27 Affirmed.
/S/ J IM RICE11

We Co ncur: /S/ JOHN WARNER /S/ JAMES C. NELSON /S/ PATRICI

A O. COTTER /S/ W. WILLIAM LEAPHART