No. 87-40
IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

PENNY WILSON and JOAN CLOS, Plaintiffsand Appellants,-vsJOHN DOE and THE STATE OF MONTANA, Defendantsand Respondents.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable ThomasHonzel,Judgepresiding.
COUNSEL OF RECORD: ForAppellant: DowlingLaw Firm;Thomas F. Dowling, Helena,Montana For Respondent: Keller, Reynolds, Drake, Sternhagen & Johnson;William Sternhagen, Helena,Montana

Submitted onBriefs: May 7,1987 Decided: August 7, 1987

Filed: 

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ClerkMr. Justice William E. Hunt, Sr., delivered the opinion of the Court. This is an appeal from the First Judicial District, Lewis and Clark County, Montana, from an order granting defendants' motion for judgment on thepleadings on the basis thatplaintiff did not state a causeof action. We affirm. On February 8, 1985,Joan Clos was driving east on U.S. Highway 12 approximately fourmiles east of Helena,Montana. A car driven by Mike Wilson was following the Clos vehicle. Penny Wilson was a passenger in this second car. A State of Montana snowplowwasheaded east on the samehighway in front of the two cars. Highway 12 was snowpacked and icy. The complaint of Penny Wilson and Joan Clos alleges that the unknown snowplow operator, John Doe, caused a cloud of snow while operating the snowplow,which enveloped both the Clos and the Wilsonvehicles. Joan Clos decelerated when her visibility was obscured andwas able to avoid going off the road or hitting anything. Mike Wilson, whose vision was also impaired, was unable to avoid running into the rear of the Clos vehicle, causing damage to thevehicles and injury to theplaintiffs. The plaintiffs both settled with Mike Wilson, but wish to also bring charges against the State of Montana and the driver of the snowplow,John Doe, for causing a cloud of snow which allegedly caused the collision. The State of Montana joined Mike Wilson as a third party defendant alleging that his actions were the sole cause of the accident. The District Court granted defendants' motion for judgment on the pleadings, finding that the snowplow driver was merely performing the duties of his job and cannot be held to have acted negligently.From this order, theplaintiffs appeal. The sole issue which this Court must address on appeal is whether the District Court erred by holding that the snowplow driver was not negligent and granting defendant's motion for judgment on thepleadings. Rule 12(c)

### , M.R.Civ.P., allows that I'[a]fter the pleadings are closed, but within such time as not to delay the trial,any party may move for judgment on the pleadings." "In considering a motion on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. " Wright and Miller, FederalPracticeand Procedure. 5 1368 (1969). Plaintiffs' complaint charges negligence against the State of Montana and the driver of the snowplow for creating
a cloud of snow whilemaintaining thehighways. The question whichwemust address iswhether,based on the pleadings, the plaintiffs stated a cause of action upon which relief can be granted. Is the creation of a snow cloud, caused by the operation of a State snowplow,negligence? "The mere happening of an accident is insufficient evidence of negligence." Erickson v. Perrett (1976), 169 Mont. 167, 171, 545 P.2d 1074, 1077. In Montana, the term "negligence" is defined as "a want of the attention to the nature or probable consequences of the act or omission that a prudent man would ordinarily give in acting in his own concerns." Section 1-1-204(4), MCA. Neither the complaint, nor the amended complaint of plaintiffs allege any negligent actionby the operatorof the snowplow, except that as a result of the operation of the snowplow, there was a "sudden cloud of loose snow" which obstructed the vision of the drivers of vehicles following the plow.In Merithew v. Hill (1958), 167 F.Supp. 320, a Federal District Court of Montana considered whether the creation of
a snow cloud by a truck being driven on the snowy highway constituted negligence. In deciding that a snow cloud, in itself,did 

### - not constitute negligence, the courtpointed out that, 

### "[s Jnow clouds are hazards which are not infrequently encountered in driving in sub-zero weather on snow packed highways." 167F.Supp. at 326. In the instant case, plaintiffs were following a snowplow. Itwas entirely forseeable that the operator would drop the blade and begin to plow the snow and ice from the road and that a cloud of snow may arise from such plowing. See Erickson, 545 P.2d at 1078. The complaint fails to allege any negligent actions on the part of the State or its employee in the operation of the snowplow. Therefore, the order of the District Court granting judgment on the pleadings for defendants, John Doe and the State ofMontana is affirmed.

Justice

We concur: 

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