No. 87-40 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

PENNY WILSON and JOAN CLOS, 

Plaintiffs and Appellants, 

-vsJOHN DOE and THE STATE OF 

MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dowling Law Firm; Thomas F. Dowling, Helena, Montana 

For Respondent: 

Keller, Reynolds, Drake, Sternhagen & Johnson; William 

Sternhagen, Helena, Montana 

Submitted on Briefs: May 7, 1987 

Decided: August 7, 1987 

Filed: PUG 7- 198~ 

E 

Clerk 
Mr. 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 the pleadings on the basis 

that plaintiff did not state a cause of action. 

We affirm. 

On February 8, 1985, Joan Clos was driving east on U.S. 

Highway 12 approximately four miles 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 snowplow was headed east on the same highway 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 Wilson vehicles. 

Joan Clos decelerated when her visibility was obscured 

and was 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 the vehicles and injury to the plaintiffs. 

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, the plaintiffs 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 the pleadings. 

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, 

Federal Practice and 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 while maintaining the highways. The question 

which we must address is whether, 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 action by the operator of 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 court pointed out 

that, " [s J now clouds are hazards which are not infrequently 

encountered in driving in sub-zero weather on snow packed 

highways." 167 F.Supp. at 326. 

In the instant case, plaintiffs were following a 

snowplow. It was 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 of Montana is affirmed. 

Justice 

We concur: A