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:

__________________________________________

Clerk
2

Justice Jim Ric e delive red the Opinion of the Court. 

¶1 John Bonilla (Bonilla) appe als from the summary judgment entered on February 11,

2004, by the Fourth Judicial District Court, Missoula County, in favor of the University of

Montana and the State of Montana (University). We affirm. 

¶2 We resta te the issues on appeal a s follows: 

¶3 Did the District Court err in granting summary judgment to the defendants on John

Bonilla’s negligenc e claim for injuries sustained when a University-owned chair collapsed

during a ZZ Top concert?

¶4 Did the District Court err in concluding that the doctrine of res ipsa loquitur did not

apply to Bonilla’s negligence claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On November 22, 1999, Bonilla attended a ZZ Top concert at the Adams Center

Arena (Arena) at the University. Bonilla is a very large individual and weighed

approximately 350 pounds at the time of the concert. Prior to the concert, Bonilla was

concerned that his weight would render the University’s chairs inadequate and offers that he

contacted the University and spoke with Graig Gilham (Gilham). Bonilla, referring to

himself as “Big John,” reque sted permission to use his own metal folding chair in the

Arena’s handicap section and to gain access by one of the side entrances prior to the concert.

He had previously made similar arraignments to attend public events, and had, on prior

occasions, used his own chair a t Unive rsity functions. 

¶6 On the night of the conc ert, Bonilla arrived at the Arena’s side entrance where he was

met by security personnel expecting his arrival. He was then informed that despite prior
3

arrangements made with Gilham, the University’s insurance policy prohibited the use of his

own chair. Bonilla expressed skepticism about the durability of the University’s chair.

Security personnel again advised Bonilla of the policy’s requirement, but alleviatedBonilla’s

concerns by retrieving the chair provided by the University for his inspection before entering

the Arena. Bonilla determined the chair “was at least as good and possibly a little better than

[his] chair,” “if anything, maybe it looked a little sturdier or reinforced than [his] own.”

Bonilla’s own chair was returned to his vehicle, and he was escorted to the Arena’s handicap

section just as the concert was beginning.

¶7 During the concert, Bonilla then affixed a tape recorder he had brought by knotting

a leather “boot lace” type str ap to the railing, unaware that the recorder was prohibited.

Security personnel did not realize that Bonilla had brought the device into the Arena nor did

they initially notice him attach it to the railing. However, about halfway through the concert,

security personne l detected the recorder and requested its remova l. Bonilla attempted to

comply, but was unable to loos en the knotted le ather strap. He became frustrated and told

the security personnel to “you know, like, move out of my way, I’m going to break it off,”

and he “gave it one big yank to break it and bring it down.” As he did so, the chair provided

to Bonilla collapsed beneath him, and he fell onto his back and head. 

¶8 It is not clear from the record whether Bonilla knew of his injuries immediately or

whether he stayed for the remainder of the concert. Several days later Bonilla sought

medical assistance and was diagnosed with a coccyx fracture. However, Bonilla did not

inform Gilham or anyone else with the University of his injury. The University asserts that

it first learned of the incident and alleged injury when Bonilla filed his negligence action on
4

July 29, 2002, about two years and eight months after the concert. Bonilla did not file an

incident report after the concert with the University, which indicates it has no record of the

accident; nor did Bonilla request inspe ction of the chair. 

¶9 Bonilla claimed in his negligence action tha t the Unive rsity breached its duty to

exercise reasonable care in the provision of a chair, considering its knowledge of his weight,

and failed to advise him of any danger assoc iated with the use of the chair. The University

filed a motion for summary judgment, asserting that Bonilla had failed to present evidence

of negligence, specifically, that the University had breached any duty in the provision of the

chair. The District Court granted the University’s motion, concluding Bonilla was owed no

duty, because it was not reasonably foreseeable to the University that its chair would be

subjected to the additional weight and stress of yanking a tape recorder free, even to a person

of Bonilla’s weight. The court also held, in the alternative, that had the University owed

Bonilla the duty of care, he did not provide evidence that the University had breached the

duty. Bonilla appeals therefrom. 

STANDARD OF REVIEW 

¶10 Our review of a district court’s summary judgment order is de novo, and we apply the

same criteria as the district court based on Rule 56, M.R.Civ.P. Farmers Union Mut. Ins. Co.

v. Staples, 2004 M T 108, ¶ 18, 321 Mont. 99, ¶ 18, 90 P.3d 381, ¶ 18. 

¶11 It is well established that a party moving for summary judgment must show a

comple te absence of any genuine issue as to all facts shown to be material in light of the

substantive principle that 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 burden is then shifted under Rule 56
5

to the non-moving party to prove, by more than mere denial or speculation, that a genuine

issue does exist. Fisch v. Montana Rail Link, Inc., 2003 MT 76, ¶ 6, 315 Mont. 13, ¶ 6, 67

P.3d 267, ¶ 6. 

¶12 We review a district court’s lega l conclusion that a moving party is entitled to

judgment as a matter of law to dete rmine whether the conclusion was correct. Peyatt v.

Moore, 2004 M T 341, ¶ 13, 324 Mont. 249, ¶ 13, 102 P.3d 535, ¶ 13. 

DISCUSSION 

¶13 Did the District Court err in granting summary judgment to the defendants on

Bonilla’s negligence claim for injuries sustained when a University-owned chair

collapsed during a ZZ Top concert?

¶14 The purpose of summary judgment is to encourage judicial economy through the

elimination of unnecessary trials, but summary adjudication should never be substituted for

a trial if a material factual controversy exists. Peyatt, ¶ 14. Ordinarily, questions of

negligence are poorly situated for adjudication by summary judgment, and better left for a

jury to determine. Peyatt, ¶ 14. A party moving for summary judgment “must show a

comple te absence of any genuine issue as to all facts shown to be material in light of

substantive principles that entitle that party to a judgment as a matter of law.” Smith, 281

Mont. at 116, 931 P.2d at 718. In a negligence action, a plaintiff must establish: (1) the

defendant owed a duty to the plaintiff; (2) the defendant breached the duty; (3) the breach

was the actual and proximate cause of the plaintiff’s injury; (4) that damages resulted.

Massee v. Thompson, 2004 M T 121, ¶ 30, 321 Mont. 210, ¶ 30, 90 P.3d 394, ¶ 30. 

¶15 Bonilla challenges the District Court’s foreseeability analysis and its conclusion that

the University owed him no duty of care. He contends that, pursuant to the doctrine of
6

premise liability, the University had a duty to its patrons to maintain safety in the Arena,

warn of hidden or lurking dangers, and provide safe ingress and egress to and from the

Arena. Alternatively, Bonilla asserts that he was owed a heightened duty because the

University provided a special sea ting arrangement on the basis of his weight, and required

him to use a University-owned chair.

¶16 In its appellate briefing, the University has conceded this point and acknowledges that

it owed a duty of care to its patrons for their safety in the Arena and in providing the chair

to Bonilla. Therefore, we conclude for purposes of this appeal tha t the Unive rsity owed a

duty of care to Bonilla, and turn to an analysis of the breach of that duty.

¶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 the

evidence is undisputed or susceptible to only one conclusion 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 the chair collapsed

is determinative that the University breached its duty, asserting that “the chair was not going

to fall apart unless there was a problem with the chair.” It is undisputed for purposes of

summary judgment that the University’s chair collapsed into three or four pieces

simultaneous to Bonilla breaking the leather strap which was holding his tape recorder.

Howeve r, aside from the fact that the chair collapsed, Bonilla offered no evidence explaining

how or why the chair broke and whether it was due to any breach of duty by the University.

There is no evidence indicating that any action or inaction by the University rendered the

chair unsafe or of poor quality. The cha ir itself was not re tained for inspection immediately
7

after the accident or anytime subsequent thereto, probably because it was not reported to the

University. The only evidence related to this particular chair’s quality is Bonilla’s own

testimony that it appeared of good quality, “at least as good and possibly a little better than

my chair,” and that it “looked even a-little-more reinforced than mine,” referring to the

standard metal chair he had brought to the concert.

¶19 The University presented the affidavits of Gerald Michaud (Michaud), assistant

director at the University’s facilities services department, and Gary Hughes (Hughes), event

manager for the Arena. Michaud and Hughes described the University’s procedures for

assuring the safety of its chairs and for processing missing or broken chairs, and indicated

that the University had no record of this incident. Further, Hughes noted that the University

had selected the chairs for their durability and quality. 

¶20 In light of Bonilla’s inability to establish how or why the chair collapsed and whether

the University played any part therein, his own statements that the chair appeared durable,

and Michaud’s and Hughes’ testimony, the University was able to meet its burden of

demonstrating the absence of material fa ct regarding breach of its duty of care. While

Bonilla asserts that the “ chair was not going to fall apart unless there was a problem with the

chair,” this statement is conclusory and speculative and fails to present material and

substantial evidence to ra ise a genuine issue of material fact. Saari v. Winter Sports, 2003

MT 31, ¶ 15, 314 Mont. 212, ¶ 15, 64 P.3d 1038, ¶ 15. Thus, Bonilla did not meet the

burden which shifted to him upon the University’s showing.

¶21 We conclude that the Distric t Court did not err in granting the University’s summary

judgment motion on Bonilla’s negligence claim.
8

¶22 Did the District Court err in concluding that the doctrine of res ipsa loquitur did

not apply to Bonilla’s negligence claim?

¶23 Bonilla also argues that, under the doctrine of res ipsa loquitur, the chair’s collapse,

in and of itself, allows the inference that it broke as a result of some negligence by the

University. This is the same reasoning that he asserted to support his argument that the

University breached its duty of care.

¶24 Quoting Restatement (Second) of Torts § 328D, this Court has explained that an

inference of negligence may arise pursuant 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 of a kind which ordina rily does not occur in the

absence of negligenc e; 

“(b) other responsible causes, including the conduct of the plaintiff and

third persons, are sufficiently eliminated by the evidence; and 

“(c) the indicated negligence is within the scope of the defendant’s

duty to the plaintiff. 

“(2) It is the function of the court to determine whether the inference

may reasonably be drawn by the jury, or whether it must necessarily be drawn.

“(3) It is the function of the jury to determine whethe r the inferenc e is

to be drawn in any case where different conclusions may reasonably be

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, 1110. The doctrine of res ipsa loquitur, meaning “the thing speaks for

itself,” allows the jury, under certain circumstances, to infer negligence by the defendant

relating to the occurrence of an event when the plaintiff is unable to establish the causal

connection between the defendant’s negligence and the resulting injury. However, before

submission to the jury, the court must determine that the plaintiff has provided evidence

satisfying subsections 1(a) through (c) of the test. Restatement (Second) of Torts § 328D
9

cmt. i. Without that evidence, no inference can be raised. See Clark v. Norris (1987), 226

Mont. 43, 48, 734 P.2d 182, 185 (regarding res ipsa loquitur, “[t]he mere happening of an

accident, in itself, is not evidence of negligence in the ordinary negligence action. Nor is the

mere fact of injury . . . standing alone”). 

¶25 Bonilla’s bare assertion that the chair collapsed is insufficient evidence, by itself, to

satisfy the Restatement’s requirement under subsection 1(b) that other responsible causes

must be “sufficiently eliminated.” The requirements of this subsection are further explained

in comment i of Restatement (Second) of Torts § 328D:

The inference of negligence does not point to the defendant until the

plaintiff’s own conduct is eliminated as a responsible cause. Where the

evidence fails to show a greater probability that the event was due to the

defendant’s negligence than that it was caused by the plaintiff’s own conduct,

the inference of the defendant’s responsibility cannot be drawn. This is true

not only as to the plaintiff’s own contributory negligenc e, but also as to his

innocent conduct . . . . 

¶26 The evidence here regarding causation includes Bonilla’s actions of yanking hard

enough to break the leather strap holding his tape recorder. The evidence indicates that, out

of frustration, Bonilla determined to dislodge the strap by “giv[ing] it one big yank to break

it and bring it down.” This action precipitated the collapse of Bonilla’s chair, yet he did not

provide evidence that would negate the possible causal connection be tween this action and

the chair’s collapse, or, at least, “show a greater probability that the event was due to the

defendant’s negligence than that it was caused by the plaintiff’s own conduct.” Restatement

(Second) of Torts § 328D cmt. i. Bonilla’s only explanation of cause is his statement that

the “chair was not going to fall apart unless there was a problem with the chair.” We

previously noted that this is insufficient to raise a genuine issue of material fact for Bonilla’s
10

negligence claim, and, for purposes of Bonilla’s res ipsa loquitur claim, it is insufficient

under these circumstances to establish the greater probability that the accident occurred due

to the University’s negligence and not of his own conduct, even if his conduct was

considered innocent. Without such evidence, the inference of the University’s negligence

cannot be drawn and the Distric t Court’s entry of summary judgment was appropria te. 

¶27 Affirmed.

/S/ JIM RICE
11

We Concur:

/S/ JOHN WARNER

/S/ JAMES C. NELSON

/S/ PATRICIA O. COTTER

/S/ W. WILLIAM LEAPHART