INTHE 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: ITIS ORDERED that the fourth sentence of the third paragraph of the February 25, 1981, opinion in thismatter be amended to 

### state: "A fence was constructed and a rope gate installed approximately mid-way up the lane tothe Todd ranch.

### " ITIS FURTHER ORDERED that the second sentence of the fourth paragraph of the same opinion be amended to state: "The rope gatemid-way up the lane

### was a nuisance tohis customers." WITH THIS AMENDMENT of the facts, the Petition for a Rehearing of thismatter is denied. DATED this 15thday of April, 1982. 

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### - 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,Judgepresiding. 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, 1982Mr. 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 SixthJudicial District Court infavor of both defendants, Sonny Todd and theMontana Department of Highways. On May 3, 1979, Flintwas driving a truck owned by Ambrogini when it collided with two angus heifer calves on Highway 10. The calves were owned by Todd. 

### InNovember of 1979, the plaintiffs filed separate actions against defendant Todd alleging that Todd's negligence had caused the collision. The complaints 

### were amended inApril, 1980, toinclude the State of Montana and the Montana Department of Highways 

### as defendants. These claims have sincebeen consolidated. The facts areundisputed. In 1936, the Stateof Montana acquired a highway right-of-way easement from the prior

owners of the Todd ranch. The Statepaid the prior owners $323.75 to construct a fence along Highway 10. A fencewas constructed and a stock gate installed atthe lane entrance. Through the years, the fence has been maintained by the

owners of what is now known as the Todd ranch. Todd sells cattleand horses. The stock gate atthe lane entrance 

### was a nuisance tohis customers. Todd did not wish to replace the stock gatewith a cattleguard due to hazards posed tohorses. Therefore, he removed the stock gate and lined the entireone hundred yard long lanewith a mesh fence topped with barbed 

### wireand wooden posts. Todd alsoinstalled a gate leading from the lane into theparking lotand turn-around area used by his customers. Todd 

### testified that since the entire land 

### and lane were fenced, he feltthere tobe no need to install a stock controllingdevice atthe highway entrance to the lane. In fact, the lanewas fenced inorder toavoid the necessity of having a stock controlling device atthe lane entrance. On the night of May 2, 1979, approximately 50 head of angus heifers were contained intheir pen on the Todd ranch. The pen was enclosed by mesh fence very similar tothat 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 

### wirefence. After grazing inthe shelter area for some time, the cattle crawled through that fence without disturbing it and entered the parking lotand turn-around area used by Todd's customers for loading and unloading stock. The gate leading from that

area to the lanewas open. The calves walked through the open gate, down the lane and onto Highway 10. The truck driven by Flint collidedwith two of the heifers while they were on the highway. The truck went into the borrow pit and upset. Flintwas injured. On January 12, 1981, defendant Montana Department of Highways moved for summary judgment pursuant to Rule 56 of theMontana Rules of CivilProcedure. On March 10, 1981, after considering the briefs, depositions, stipulations and arguments of theparties, the court granted summary judgment for the following reasons: 

### (1) the Statehad no statutory duty to erect a cattle guard, gate or stock control device atthe Highway 10 entrance toTodd'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 atthe entryway tothe ranch was not, as a matter of law, theproximatecause 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 liabilityon a livestock owner only for negliqent conduct which results in his livestock occupying a highway and causing injury; (2) there was no evidence presented 

### attrial showing defendant's fence tobe constructed ormaintained ina negligent manner; and (3) theranch owner, as a matter of law, had no duty to anticipate that the cattlewould escape through two fence lines and enter a turn-around area, therefore, making 

### it necessary for Todd toeither keep the gatebetween the area and the lane shutwhen not inuse or construct a stock control device atthe entrance tothe lane. The issues presented tothis Court on appeal are: (1) Did the defendant, Montana Department of Highways, have a duty torequire and maintain a cattleguard or gate atthe ranch entrance? (2) Did the defendant, Sonny Todd, have a legal duty toconstruct and maintain a fence toprevent livestock from entering the highway? (3) Is there sufficient evidence upon which reasonable

men could conclude that Todd was negligent ineithermaintaining

or constructing the fence through which the cattlepassed? Weuphold summary judgment for theMontana Department of Highways and reverse summary judgment for the defendant, Sonny Todd. We remand this case for a determination of whether ornot Todd was negligent for not constructing a stock control device atthe lane entrance

### or keeping thegate from the lane to the turn-around area shut atall

### times during which it 

### was not inuse. 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 athearings established severalundisputed, pertinent facts. The Todd ranch is located off Highway 10 approximately 6.5 

### mileseast of Big Timber. This is an open range area. Highway 10is 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 toJuly 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 cattleon a highway. These statutes arecontrolling 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 legislativehistory indicate that the 1974 legislature intended to increase the safety of themotorist travelling through the ranching areas of Montana. Section 60-7-103, MCA, delegates the responsibility for the motorists' safety tothe Montana Department of Highways. It states:"60-7-103. Department tofence right-of-way through open range. (1)The department shall fence theright-of-way of any part of the statehighway system that is constructed or reconstructed afterJuly 

### 1, 1969, through open range where livestock present a hazard to the safety of themotorist. Where a fence 

### is constructed, adequate stock gates or stock passes, 

### as necessary, shallbe provided to make land on either sideof the highway usable for livestock purposes. 

### "(2) The department shall erect a fence in every high-hazard area aspromptly aspossible, and the cost of such construction 

### is an expenditure for the enforcement of federalaid highway safetyprograms. Gates, stock underpasses, water facilities, and cattle guards may be installedwhere necessary to make the land on either sideof the highway usable for livestock purposes orwhere a public right-of-way intersects the statehighway.

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

### as follows: 

### "(1) 'Open range1means those areas of the statewhere livestock israised and maintained insufficientnumbers 

### as toconstitute 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 area1is a segment of the primary highway system passing through open range where livestock moves on or across the highway often enough, inenough numbers, and with enough ease of access that such animals createa significanttraffic safety hazard. Evidence bearing on whether animals on thehighway pose a significanthazard includes, without limitation, past accident records, the opinions of persons qualified by experience toevaluate 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

asbeing inan open range 

### area containing 

### a sufficient number of roaming livestock to constitutea significanttraffic safety hazard. These fencesmust include stock gates, stock passes and cattleguards 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, theMontana 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 alsorely on section 81-4-103, MCA, as a basis for establishingnegligence on the part of the Department of Highways. That section states: "CivilLiability. Any person constructing ormaintaining any fence of any kind not described in 81-4-101 

### is liable ina civil action for alldamages caused by reason of injury to stock resulting from such defective fence." Section 81-4-101, MCA, defines a legal fence. The definitions

arebased on height and fencingmaterial. Plaintiffspresent

no facts alleging that the Todd ranch fence failsto conform to the definition of a legal fence. Rather, plaintiffs allege that section 81-4-102, MCA, requires the presence of

an autopass inorder tocreate a legal fence. This allegation is not well founded. Section 81-4-102, MCA, statesmerely that the presence of an auto pass willnotmake an otherwise legal fence illegal. This section ensures that a fence need not be a certain height where vehicles pass through it inorder to retain its legal characterization. It does not imply that a fencewithout an autopass 

### is illegal. As there 

### are no other allegations by plaintiffs that the Todd fence isillegal, the Department of Highways is not liable toplaintiffs for construction of an illegal fencepursuant to section 81- 4-103, MCA. in ally, plaintiffs assert a general duty on the part of the State tobuild and maintain highways ina safemanner, State ex. 

### rel. Byorth v. District Court, 14thJudicial District (1977), 175Mont. 63, 572 P.2d 201, and to ensure that the roads arenot constructed negligently. Negligent conduct is thatwhich fallsbelow 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), 153Mont. 431, 435, 458 P.2d 777. The Statepaid in 1936 for the construction of a rightof-way fence on the Todd ranch. Undisputed evidence indicates that the ranch owners have sincemaintained the fence and that the fence has been, and currently 

### is, inexcellent condition. The lane leading from the Todd ranch toHighway 10is totally fenced. It contains a gatewith an adequate latch. These factsmade it reasonable for the Department of Highways tobelieve the road tobe safe from the intrusion of livestock from the Todd ranch. The actions of the cattle inthisparticular instance were not foreseeable by the Department of Highways. As the Statehas no statutory or general duty torequire

a cattleguard or stock gate atthe lane entrance to the Todd ranch, failureto construct such a device

### was not negligence on thepart 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). Weuphold the summary judgment determination fordefendant Departmentof 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 inthis case tobe located inan open range area. Generally, an open range designation implies that an owner is not liablefor hiswandering 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), 149Mont. 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, arethe statutory embodiments of this erosion. Prior to 1974 the statutesmade 

### it unlawful for the

owner of livestock towilfully allow them tograze on the right-of-way of fenced federal and statehighways. See section 32-21-178, R.C.M., 1947. The specific language employed was "shallnot wilfully permit." In 1974, the

successor of that sectionwas amended to state, inrelevant part: "60-7-201. Grazing livestock on highway unlawful. A person who owns orpossesses livestockmay not permit the livestock tograze, remain upon, or occupy a part of the rightof-way of:



### "(2) a statehighway designated by agreement between the highway commission and the secretary of transportation as a part of the federal-aid primary system, except asprovided in 60-7-202." Plaintiffs assert that the 1974 amendment resulted ina standard of absolute liability for conduct by a rancher resulting ina failuretokeep his livestock off a highway.We cannot agree. Prior to 1974, a rancher was liable only when he wilfully allowed his livestock toroam on a highway. The legislature's choice of the 

### term "may not permit" implies the reduction of the wilfullness standard toone of negligence. Practically every statewhich has considered the issue agrees that the use of words such as "permit," "allow" or "suffer" implies liability for negligent conduct as opposed toabsolute liability. See, e.g., Santanellov. Cooper (Ariz. 1970), 106Ariz. 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, 171S.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 inMontana arenow liable for negligent rather than wilful1conduct which results in the presence of their cattleon 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 tothe following: "(1) livestock on statehighways under the charge of one ormore herders; "(2) the parts of fenced highways adjacent toopen range where a highway device has not been installed toexclude range livestock; "(3) the parts of a statehighway or a part of the federal-aid primary system which the department of highways designates asbeing impracticable toexclude livestock. These portions of the highway shallbe marked by proper signs inaccordance 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 inthe charge of one ormore herders on the night of May 2, 1979. Therefore, exclusion number one does not apply. Wefind that exclusion number two applies only to livestock which wander from open range onto adjacent fenced highway. Open range isdefined 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 tobreaking 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 inpreventing his livestock from wandering

on Highway 10. The fence surrounding the Todd ranch was inexcellent condition. However, he did not construct a stock control device atthe entrance tohis 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 tothe lane was open on the night of May 2, 1979, and earlymorning of May 3, 1979. The reasonableness of Todd's conduct is for a jury todecide. Weremand this 

### case to the District Court for trialas todefendant Todd. Weaffirm summary judgment 

### infavor of the State.

### We Concur: 

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