IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 81-266 

JAMES V. AMBROGINI and 

ROBERT D. FLINT, 

Plaintiffs and Appellants, 

SONNY TODD, THE STATE OF MONTANA 

and MONTANA STATE DEPARTMENT OF 

HIGHWAYS, 

Defendants and Respondents. 

ORDER 

PER CURIAM: 

IT IS ORDERED that the fourth sentence of the third 

paragraph of the February 25, 1981, opinion in this matter 

be amended to state: "A fence was constructed and a rope 

gate installed approximately mid-way up the lane to the Todd 

ranch. " 

IT IS FURTHER ORDERED that the second sentence of the 

fourth paragraph of the same opinion be amended to state: 

"The rope gate mid-way up the lane was a nuisance to his 

customers." 

WITH THIS AMENDMENT of the facts, the Petition for a 

Rehearing of this matter is denied. 

DATED this 15th day of April, 1982. 

g,-$& .. - 

Chief Justice 

No. 81-266 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES V. AMBROGINI and 

ROBERT D. FLINT, 

Plaintiffs and Appellants, 

SONNY TODD, THE STATE OF MONTANA 

and MONTANA STATE DEPARTmNT OF 

HIGHWAYS, 

Defendants and Respondents. 

Appeal from: District Court of the Sixth Judicial District, 

In and for the County of Sweet Grass 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellants: 

Gregory 0. Morgan, Bozeman, Montana 

For Respondents: 

Landoe, Brown, Planalp, Kommers and Lineberger, 

Bozeman, Montana 

J. Daniel Hoven, Office of Attorney General, Helena, 

Montana 

Submitted on briefs: November 18, 1981 

~ecided: February 25, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

The plaintiffs, James Ambrogini and Robert Flint, appeal 

from summary judgment entered by the Sixth Judicial District 

Court in favor of both defendants, Sonny Todd and the Montana 

Department of Highways. 

On May 3, 1979, Flint was driving a truck owned by 

Ambrogini when it collided with two angus heifer calves on 

Highway 10. The calves were owned by Todd. In November of 

1979, the plaintiffs filed separate actions against defendant 

Todd alleging that Todd's negligence had caused the collision. 

The complaints were amended in April, 1980, to include the 

State of Montana and the Montana Department of Highways as 

defendants. These claims have since been consolidated. 

The facts are undisputed. In 1936, the State of Montana 

acquired a highway right-of-way easement from the prior 

owners of the Todd ranch. The State paid the prior owners 

$323.75 to construct a fence along Highway 10. A fence was 

constructed and a stock gate installed at the lane entrance. 

Through the years, the fence has been maintained by the 

owners of what is now known as the Todd ranch. 

Todd sells cattle and horses. The stock gate at the 

lane entrance was a nuisance to his customers. Todd did not 

wish to replace the stock gate with a cattle guard due to 

hazards posed to horses. Therefore, he removed the stock 

gate and lined the entire one hundred yard long lane with a 

mesh fence topped with barbed wire and wooden posts. Todd 

also installed a gate leading from the lane into the parking 

lot and turn-around area used by his customers. Todd testified that since the entire land and lane were fenced, he 

felt there to be no need to install a stock controlling 
device at the highway entrance to the lane. In fact, the 

lane was fenced in order to avoid the necessity of having a 

stock controlling device at the lane entrance. 

On the night of May 2, 1979, approximately 50 head of 

angus heifers were contained in their pen on the Todd ranch. 

The pen was enclosed by mesh fence very similar to that 

described as lining the lane. The cattle, some of which 

were in heat, broke through this fence and entered a shelter 

belt area surrounded by four-strand barbed wire fence. 

After grazing in the shelter area for some time, the cattle 

crawled through that fence without disturbing it and entered 

the parking lot and turn-around area used by Todd's customers 

for loading and unloading stock. The gate leading from that 

area to the lane was open. The calves walked through the 

open gate, down the lane and onto Highway 10. 

The truck driven by Flint collided with two of the 

heifers while they were on the highway. The truck went into 

the borrow pit and upset. Flint was injured. 

On January 12, 1981, defendant Montana Department of 

Highways moved for summary judgment pursuant to Rule 56 of 

the Montana Rules of Civil Procedure. On March 10, 1981, 

after considering the briefs, depositions, stipulations and 

arguments of the parties, the court granted summary judgment 

for the following reasons: 

(1) the State had no statutory duty to erect a cattle 

guard, gate or stock control device at the Highway 10 entrance 

to Todd' s lane ; 

(2) the failure to construct such a device resulted in 

no unreasonable risk of harm to the travelling public; and 

(3) the lack of a stock control device at the entry way 

to the ranch was not, as a matter of law, the proximate 
cause of the accident. 

~efendant Sonny Todd moved for summary judgment on 

March 23, 1981. The court granted his motion on May 6, 

1981, for the following reasons: 

(1) Section 60-7-201, MCA, imposes liability on a 

livestock owner only for negliqent conduct which results in 

his livestock occupying a highway and causing injury; 

(2) there was no evidence presented at trial showing 

defendant's fence to be constructed or maintained in a 

negligent manner; and 

(3) the ranch owner, as a matter of law, had no duty to 

anticipate that the cattle would escape through two fence 

lines and enter a turn-around area, therefore, making it 

necessary for Todd to either keep the gate between the area 

and the lane shut when not in use or construct a stock 

control device at the entrance to the lane. 

The issues presented to this Court on appeal are: 

(1) Did the defendant, Montana Department of Highways, 

have a duty to require and maintain a cattle guard or gate 

at the ranch entrance? 

(2) Did the defendant, Sonny Todd, have a legal duty 

to construct and maintain a fence to prevent livestock from 

entering the highway? 

(3) Is there sufficient evidence upon which reasonable 

men could conclude that Todd was negligent in either maintaining 

or constructing the fence through which the cattle passed? 

We uphold summary judgment for the Montana Department 

of Highways and reverse summary judgment for the defendant, 

Sonny Todd. We remand this case for a determination of 

whether or not Todd was negligent for not constructing a 

stock control device at the lane entrance or keeping the 
gate from the lane to the turn-around area shut at all times 

during which it was not in use. If the trier of fact finds 

Todd negligent, it must then determine whether his negligence 

was the proximate cause of the collision on May 3, 1979. 

Briefs, depositions and testimony at hearings established 

several undisputed, pertinent facts. The Todd ranch is 

located off Highway 10 approximately 6.5 miles east of Big 

Timber. This is an open range area. Highway 10 is classified 

by the Montana Department of Highways as being part of the 

federal-aid primary system. It is not a controlled access 

highway. The section of the highway near the Todd ranch was 

constructed prior to July 1, 1969, and has not been reconstructed 

since that date. This section has never been designated a 

"high-hazard area" pursuant to section 60-7-102(2), Montana 

Code Annotated. 

The above facts are relevant to sections 60-7-101 

through 60-7-103, MCA, governing when the Montana Department 

of Highways is responsible for the fencing of highways, as 

well as to sections 60-7-201 through 60-7-203, MCA, governing 

when a rancher is liable for damages caused by the presence 

of his cattle on a highway. These statutes are controlling 

in this situation and we focus on them as the basis for this 

decision. 

THE LIABILITY OF THE DEPARTMENT OF HIGHWAYS 

Section 60-7-101, MCA, and its legislative history 

indicate that the 1974 legislature intended to increase the 

safety of the motorist travelling through the ranching areas 

of Montana. Section 60-7-103, MCA, delegates the responsibility 

for the motorists' safety to the Montana Department of 

Highways. It states: 
"60-7-103. Department to fence right-of-way 

through open range. (1) The department shall 

fence the right-of-way of any part of the 

state highway system that is constructed or 

reconstructed after July 1, 1969, through open 

range where livestock present a hazard to the 

safety of the motorist. Where a fence is 

constructed, adequate stock gates or stock 

passes, as necessary, shall be provided to 

make land on either side of the highway usable 

for livestock purposes. 

" (2) The department shall erect a fence in 

every high-hazard area as promptly as possible, and the cost of such construction is an 

expenditure for the enforcement of federalaid highway safety programs. Gates, stock 

underpasses, water facilities, and cattle 

guards may be installed where necessary to 

make the land on either side of the highway 

usable for livestock purposes or where a 

public right-of-way intersects the state highway. " 

Section 60-7-102 (1) and (2), MCA, defines "open range" 

and "high-hazard area" as follows: 

" (1) 'Open range1 means those areas of the 

state where livestock is raised and maintained in sufficient numbers as to constitute a 

significant part of the local or county economy and where such animals graze and move 

about generally unrestrained by fences. 

" (2) A 'high-hazard area1 is a segment of 

the primary highway system passing through 

open range where livestock moves on or across 

the highway often enough, in enough numbers, 

and with enough ease of access that such animals create a significant traffic safety 

hazard. Evidence bearing on whether animals 

on the highway pose a significant hazard includes, without limitation, past accident 

records, the opinions of persons qualified 

by experience to evaluate the relative safety 

of road conditions, and the terrain around 

the road. I' 

Since the passage of section 60-7-103, MCA, the Montana 

Department of Highways is obligated to fence any right-ofway constructed or reconstructed after July 1, 1969, through 

a hazardous open range area. In addition, the Department 

must also fence any existing right-of-way which it classifies 

as being in an open range area containing a sufficient 

number of roaming livestock to constitute a significant 
traffic safety hazard. These fences must include stock 

gates, stock passes and cattle guards wherever necessary. 

The instant situation is not covered by these statutes. 

Depositions of two employees of the Department of Highways 

establish that no construction or reconstruction has been 

completed on the relevant highway section since July 1, 

1969. In addition, the Montana Department of Highways has 

not classified this segment of highways as a "high-hazard 

area." Therefore, pursuant to section 60-7-103, MCA, the 

Department of Highways has no statutory duty to construct a 

fence and thus no duty to construct a stock control device. 

Plaintiffs also rely on section 81-4-103, MCA, as a 

basis for establishing negligence on the part of the Department 

of Highways. That section states: 

"Civil Liability. Any person constructing 

or maintaining any fence of any kind not 

described in 81-4-101 is liable in a civil 

action for all damages caused by reason of 

injury to stock resulting from such defective fence." 

Section 81-4-101, MCA, defines a legal fence. The definitions 

are based on height and fencing material. Plaintiffs present 

no facts alleging that the Todd ranch fence fails to conform 

to the definition of a legal fence. Rather, plaintiffs 

allege that section 81-4-102, MCA, requires the presence of 

an auto pass in order to create a legal fence. This allegation 

is not well founded. 

Section 81-4-102, MCA, states merely that the presence 

of an auto pass will not make an otherwise legal fence 

illegal. This section ensures that a fence need not be a 

certain height where vehicles pass through it in order to 

retain its legal characterization. It does not imply that a 

fence without an auto pass is illegal. As there are no 

other allegations by plaintiffs that the Todd fence is 
illegal, the Department of Highways is not liable to plaintiffs 

for construction of an illegal fence pursuant to section 81- 

4-103, MCA. 

 in ally, plaintiffs assert a general duty on the part 

of the State to build and maintain highways in a safe manner, 

State ex. rel. Byorth v. District Court, 14th Judicial 

District (1977), 175 Mont. 63, 572 P.2d 201, and to ensure 

that the roads are not constructed negligently. Negligent 

conduct is that which falls below the standard established 

by law for the protection of others against unreasonable 

risk and necessarily involves the concepts of reasonableness 

and foreseeability. Mang v. Eliasson (1969), 153 Mont. 431, 

435, 458 P. 2d 777. 

The State paid in 1936 for the construction of a rightof-way fence on the Todd ranch. Undisputed evidence indicates 

that the ranch owners have since maintained the fence and 

that the fence has been, and currently is, in excellent 

condition. The lane leading from the Todd ranch to Highway 

10 is totally fenced. It contains a gate with an adequate 

latch. These facts made it reasonable for the Department of 

Highways to believe the road to be safe from the intrusion 

of livestock from the Todd ranch. The actions of the cattle 

in this particular instance were not foreseeable by the 

Department of Highways. 

As the State has no statutory or general duty to require 

a cattle guard or stock gate at the lane entrance to the 

Todd ranch, failure to construct such a device was not 

negligence on the part of the State. It is fundamental to 

the law of torts that there can be no negligence if no duty 

exists. Prosser on the Law of Torts S30 (1971). We uphold 

the summary judgment determination for defendant Department 
of Highways as plaintiffs failed to establish any duty, a 

material element of the negligence claim. 

THE LIABILITY OF SONNY TODD 

The District Court found the segment of Highway 10 

involved in this case to be located in an open range area. 

Generally, an open range designation implies that an owner 

is not liable for his wandering livestock. Beinhorn v. 

Griswold (1902), 27 E4ont. 79, 90, 69 P. 557, 558; Thompson 

v. Mattuschek (1959), 134 Mont. 500, 506, 333 P.2d 1022, 

1025; Bartsch v. Irvine (1967), 149 Mont. 405, 427 P.2d 302. 

The open range tradition has become increasingly eroded over 

the years as a greater number of motorists have appeared on 

Montana's roads and highways. Sections 60-7-201 and 60-7- 

202, MCA, are the statutory embodiments of this erosion. 

Prior to 1974 the statutes made it unlawful for the 

owner of livestock to wilfully allow them to graze on the 

right-of-way of fenced federal and state highways. See 

section 32-21-178, R.C.M., 1947. The specific language 

employed was "shall not wilfully permit." In 1974, the 

successor of that section was amended to state, in relevant 

part: 

"60-7-201. Grazing livestock on highway unlawful. A person who owns or possesses livestock may not permit the livestock to graze, 

remain upon, or occupy a part of the rightof-way of: 

" (2) a state highway designated by agreement 

between the highway commission and the secretary of transportation as a part of the federal-aid primary system, except as provided in 

60-7-202." 

Plaintiffs assert that the 1974 amendment resulted in a 

standard of absolute liability for conduct by a rancher 

resulting in a failure to keep his livestock off a highway. 
We cannot agree. Prior to 1974, a rancher was liable only 

when he wilfully allowed his livestock to roam on a highway. 

The legislature's choice of the term "may not permit" implies 

the reduction of the wilfullness standard to one of negligence. 

Practically every state which has considered the issue 

agrees that the use of words such as "permit," "allow" or 

"suffer" implies liability for negligent conduct as opposed 

to absolute liability. See, e.g., Santanello v. Cooper 

(Ariz. 1970), 106 Ariz. 262, 475 P.2d 246; Porier v. Spivey 

(Ga. 1958), 97 Ga. App. 209, 102 S.E.2d 706; Kupper v. 

Connolly (La. App. 1963), 153 So.2d 915; Sutton v. Duke 

(N.c. 1969), 7 N.C. App. 100, 171 S.E.2d 343, aff'd. (1970), 

277 N.C. 94, 176 S.E.2d 161; Burback v. Bucher (Wa. 1960), 

56 Wash. 2d 875, 355 P. 2d 981; Sparks v. Doe (~y. 1964), 379 

S.W.2d 252; Dollarhide v. Knight (Miss. 1953), 216 Miss. 

Ranchers in Montana are now liable for negligent rather 

than wilful1 conduct which results in the presence of their 

cattle on the right-of -ways. 

Section 60-7-202, MCA, contains the exclusions to 

section 60-7-201, MCA, and states: 

"60-7-202. Exclusions. Section 60-7-201 

does not apply to the following: 

"(1) livestock on state highways under the 

charge of one or more herders; 

"(2) the parts of fenced highways adjacent 

to open range where a highway device has not 

been installed to exclude range livestock; 

"(3) the parts of a state highway or a part 

of the federal-aid primary system which the 

department of highways designates as being 

impracticable to exclude livestock. These 

portions of the highway shall be marked by 

proper signs in accordance with the department's manual and specifications for a uniform system of traffic-control devices." 
The undisputed evidence clearly indicates that Todd's 

heifers were not in the charge of one or more herders on the 

night of May 2, 1979. Therefore, exclusion number one does 

not apply. 

We find that exclusion number two applies only to 

livestock which wander from open range onto adjacent fenced 

highway. Open range is defined in section 60-7-102, MCA, as 

being an area where animals graze and move about generally 

unrestrained by fences. Todd's heifers were restrained by 

fences prior to breaking free and roaming onto Highway 10. 

Therefore, exclusion number two is inapplicable. 

Finally, no evidence was presented to indicate that the 

Department of Highways designated the relevant section of 

Highway 10 as impracticable for excluding livestock. Exclusion 

number three is also inapplicable. 

As Todd does not qualify for any of the exclusions 

found in section 60-7-202, MCA, we find him subject to 

section 60-7-201, MCA. We hold that Todd has a legal duty 

to exercise due care in preventing his livestock from wandering 

on Highway 10. 

The fence surrounding the Todd ranch was in excellent 

condition. However, he did not construct a stock control 

device at the entrance to his lane because he had constructed 

fence along the entire length of the lane and had installed 

a gate further up the lane toward the farm itself. Through 

some inadvertent action, the gate to the lane was open on 

the night of May 2, 1979, and early morning of May 3, 1979. 

The reasonableness of Todd's conduct is for a jury to decide. 

We remand this case to the District Court for trial as 

to defendant Todd. We affirm summary judgment in favor of 

the State. 
We Concur: 

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