No. 14775 IN THE SUPREME COURT OF THE STATE OF MONTANA

GERALDINE PATRICIA METS, mother of Decedent,Casey Edward Mets, GEORGE DOUGLAS METS, JR., as guardian and as brother of Decedent, Casey Edward Mets, and GEORGE DOUGLAS METS, JR., as Personal Representative for the Estate of Casey Edward Mets, Plaintiffs and Appellants,

EDGAR C. GRANRUD, Defendant and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: ForAppellants: Moore and Doran,Kalispell, Montana James D. Moore argued, Kalispell,Montana Warden, Walterskirchen and Christiansen, Kalispell,

Montana For Respondent: Hash, Jellison,O'Brien and Bartlett, Kalispell,

Montana James C. Bartlett argued, Kalispell,Montana

Submitted: November 6,1979

Filed:

### FEij

## 26 13%Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The survivors and personal representative of Casey Mets appeal from the order and judgment of the Flathead County District Court granting summary judgment in favor of Granrud; and Granrud appeals from the subsequent entry of summary judgment in favor of the survivors on his counterclaim. On December 19, 1976, a Ford jalopy departed from its proper lane of traffic on Whitefish Stage Road,where it 

## . had been proceeding in a southerlydirection. The vehicle passed over the edge of the road, through a barrowpit and collidedwith a telephone pole. The accident occurred on the second of two curves located south of the intersection of Granrud Lane and Whitefish Stage Road near Kalispell, Montana. The day had been sunny and clear, and the pavement

was dry. There were no skid marks nor any evidence that the driver had applied the brakes. Little physical evidence existed at the scene of the accident,and the vehicle was practically disintegrated as a result of the impact with the telephone pole. Both Mets and Granrud were thrown from the vehicle, and Mets died without regaining consciousness. Granrud suffered extensive injuries, and has nomemory now of any of the events surrounding the accident. Additionally, there were no eyewitnesses to the accident. On August 10, 1977, the survivors and personal representative of Mets brought suit alleging that Granrud's negligent driving caused the death of their decedent. On October 18, 1977, Granrud filed his answer and counterclaim alleging that Metshad been driving the vehicle when the collision occurred. On May 31, 1978, the District Court granted Granrud's motion for summary judgment,and accordingly judgmentwas entered

on June 5, 1978. On June 2, 1978, the survivorsmoved for summary judgment on Granrud's counterclaim. The survivors' motion was granted, and judgmentwas entered on June 5, 1978.On June 8, 1978, the survivors filed a motion to stay judgment, reconsider and vacate summary judgment. The District Court set the judgments aside and granted the survivors additional time in order to test the pitman arm,

a steering rod. On January 25, 1979, the District Court granted Granrud's motion for s-ary judgment on the ground that there was "no evidence, circumstantial or direct, establishing any negligence on the part of the defendant on any theory";and judgment

was entered on January 30, 1979. On February 16, 1979, the survivorsmoved for summary judgment on Granrud's counterclaim; and judgment for the survivorswas entered on February 16, 1979. The survivors appealed and Granrud cross-appealed. The dispositive issue on appeal iswhether the doctrine of 

### -- res ipsa loquitur is applicable under the facts of the instant case. The doctrine of -- res ipsa loquitur simply stated is: that when an instrumentality which causes injury, without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if the one in controluses proper care, then the lawinfersnegligence on the part of the one in control as the cause of the injury. Knowlton v. Sandaker (1968),150Mont. 438, 446, 436 P.2d 98, 103;Whitney v. Northwest Greyhound Lines (1952), 125 Mont. 528, 533, 242 P.2d 257, 259. The elements necessary for the application of -- res ipsa loquitur
are: (1)the instrumentalitywhich caused the injury must be within the exclusive control of the defendant; (2)the injurymust be one that does not ordinarily occur if the party in control uses proper care; (3)the injury must not be due to any fault on the part of the injured person. Montana Deaconess Hospital v. Gratton (1976),169 Mont. 185, 190, 545 P.2d 670, 673; Jackson v. William Dingwall Company (1965)) 145Mont. 127, 135-136, 399 P.2d 236, 241; Krohmer

v. Dahl (1965),145Mont. 491, 498, 402 P.2d 979, 983; Stocking v. Johnson Flying Service (1963), 143 Mont. 61, 68, 387 P.2d 312, 316, Prosser, Law -- of Torts 539, at 214 (4th ed. 1971). Because of the absence of evidence tending to establish that the death of Casey Mets was caused by the negligence of Granrud, and themanner inwhich Granrud drove the vehicle, the survivors rely upon the doctrine of res 

### -- ipsa loquitur to establish negligence on the part of Granrud. The doctrine of 

### - res ipsa loquitur is not an exception to the rule that the burden is on the plaintiff to prove actionable negligence,

nor does itpermit a recovery onmere proof of the injury. Itmerely has the force of a disputable presumption of law and suppliesthe place of proof necessarily wanting when the injured party cannot disclose the cause of his injury,but it is apparent prima facie that the accident would not ordinarily have happened had the defendant exercised ordinary

care. Stocking v. Johnson Flying Service, supra, 143 Mont. at 68. The first element of 

### -- res ipsa loquitur, that of "defendant's exclusive control at the time of injury", is disputed by the -4-parties in the instant case. Granrud contends that Mets

was driving, and the survivors contend that Granrud was driving the vehicle. The requirement of "exclusive control at the time of injury" does notmean actual physical control at the time of injury. Itmay be sufficient to show that the defendant exercised control some time prior to the injury. Knowlton v. Sandaker, supra, 150Mont. at 446. Officer Denning, following an investigation of the accident scene,determined that Granrud was the driver and that Mets

was the passenger. Officer Denning's determination was based upon the location of Granrud and Mets in relation to the position of the vehicle. The record also indicates that Granrud was driving the vehicle when he picked up Mets. Granrud was observed driving the vehicle approximately thirty minutes before the accident occurred. The second element of res -- ipsa loquitur, that "the injurymust be one that does not ordinarily occur if the party in control uses proper care", is lacking in the instant

case. The plaintiff is not required to eliminatewith certainty all causes or inferences other than the negligence on the part of the driver. As Professor Prosser has stated: "All that is needed is evidence from which reasonablemen can say that on the whole it is more likely that therewas negligence associated with the cause of the event than that there was not." Prosser, -- Law of Torts, S39, at 218 (4th ed. 1971) The above cannot reasonably be said in the instant case. Whether the cause of the accidentwas due to the negligence of the driver remains in doubt. The accident occurred at a point where the road curves,on a sunny and clear day, the pavementwas dry, and therewas no evidence that the brakes had been applied. Mets died as a result of the accident and Granrud has no memory whatsoever concerning the -5-facts and events surrounding the accident. Further, there

were nowitnesses to the single vehicle accident. Officer Denning,the ~ontan'a Highway Patrolmanwho responded to and inspected the accident scene,was deposed and gave his opinion that the cause of the accidentwas that the vehicle's pitman arm broke at a weld point as the vehicle entered the second curve. The record contains the affidavit of an expert, Ralph Godtland,president of Western Iron Works, Inc. Godtland stated, "it is infinitelymore likely and probable that thispitman arm fractured under the force of the impact with the utility pole at the point of collision." In this regard,the survivors contend that Officer Denning lacked the requisite training, education, experience and expertise to allow him to give his opinion concerning the pitman arm. The survivors filed a motion in limine to restrict Officer Denning's testimony to matters within the scope of his education, experience,and competence; which was denied 

### by the DistrictCourt. Highway patrolmen in Montana have been allowed to reconstruct and give their opinion as to the cause of an accident based upon their investigation. See Statev. Deshner (1971), 158Mont. 188, 489 P.2d 1290. The determination of the qualification of a skilled or expertwitness is amatter largelywithin the discretion of the trial judge,and in the absence of a showing of abuse, ordinarilywill not be disturbed. Graham

v. Rolandson (1967),150Mont. 270, 285, 435 P.2d 263, 271. From our examination of the record in the instant case, we cannot conclude that the District Court abused its discretion in denying the survivor's motion in limine.In the instant case, it ispossible that therewas some lapse on the driverspart and that the driver was negligent,and because of that, the vehicle went off the road and collidedwith the telephonepole. But it is also possible that the cause of the accidentwas not due to the driver's fault; and that the cause of the accidentwas the failure of the brakes to operate, a failure in the steering mechanism, or some other reason not due to lack of care on the part of the driver. See Speiser,TheNegligence Case: Res Ipsa Loquitur,Vol. 2, 526.7 (1972). In such a situation, 

### -- the balance of probabilities between, first, causes of an accident involving thevehicle which are due to lack of

care on thepart of the driver, and second,causes of an accident not due to lack of reasonable care, are so nearly equal that a conclusion that the driver was negligent cannot reasonablybe found and would be the result of mere speculation. This conclusion is further supported by the confl.ictingopinions of Denning and Godtland concerning the pitman arm and the cause of the accident. Under the facts and circumstances of the instant case, the doctrine of 

### -- res ipsa loquitur is not applicable because at least one of the threenecessary elements to the applicability of the doctrine cannotbe shown to exist, namely; the injurymust be one that does not ordinarily occur if the party in control uses proper care. The third element of 

### -- res ipsa loquitur is that "the injurymust not be due to any fault on the part of the injured person." From our review of the record,we cannot determine whether therewas any fault on the part of Mets. A conclusion that Mets was or was not at fault,wholly or partially, cannot reasonablybe found and would also be the result of mere speculation.Because of the combination of uncertainties involved in the instant case,we cannot say that the unexplained collision of the vehicle with the telephone pole would not ordinarily occur in the absence of negligence. As we have stated,this is one of the necessary elements for invoking the doctrine of -- res ipsa loquitur. Therefore, there is no inference of negligence in the instant case, and accordingly therewas no genuine issue as to any material fact, and Granrud was entitled to judgment as amatter of law. The District Court was correct in entering summary judgment in favor of Granrud;and in entering summary judgment in favor of the survivors on the counterclaim. Affirmed.

Justice We Concur:

Chief JusticeMr. Justice Daniel J. Shea dissenting:

Ido not believe Officer Denningwas competent to give his opinion as to the cause of the accident. Furthermore, the doctrine of res ipsa loquitur does apply in this case. Theplaintiffs filed a motion in limine seeking an order from the trial court restricting Officer Denning's testimony to matters within his education, experience and competence. The trial court denied this motion and Denning then testified at his deposition that the cause of the accident was that the vehicle's pitman arm broke at a weld point as the vehicle entered the second curve. Although Ido not believe that Officer Denning should necessarily have been restricted at his deposition, I do believe that the trial courthad no right to rely on his opinion testimony in granting summary judgment to the defendant. Officer Denning was clearly not qualified to render an opinion

on the subject. An expert witness may be qualified by professional, scientificor technical training,or have practical experience in some field or activity conferring upon him a specialknowledge. The true testwould seem to bewhether the subject is sufficiently complex so as to be susceptible to opinion evidence, and whether the witness isproperly qualified to give his opinion. McGuire

v. Nelson (1975),167Mont. 188, 200, 536 P.2d 768. The most critical considerations to be made are the qualifications of a person to give his opinion. Here, on the question involved, the highway patrolman had none at all. Highway patrolmen may reconstructand give opinion testimony

as to the cause of an accidentbased upon their investigation. State v. Deshner (1971),158Mont. 188, 193, 498 P.2d 1290. There isno doubt here that expert opinion evidence concerning thepitman arm is required, for the knowledgeand expertise required -9-to form an opinion concerning the pitman arm isbeyond that possessed by a layman. But OfficerDenning had no qualifications to provide thenecessary opinion. The record indicates that he is a high school graduate,had no metallurgical training, and no specialknowledge of stress or force. Furthermore, he had no special training inmechanics and possessed no identificable qualifications or knowledge relating to weld strength,metal stress, design or defect. He had no previous experience investigating an accident involving a broken pitman arm or defect in the steeringmechanism. His testimony at deposition was devoid of any factual basis in support of his opinion concerning the pitman arm. The knowledge and experience required in the instant

case isbeyond that within the normal competence of a highway patrolman. An expert opinion concerning thepitman arm does not relate at all to training or experience in estimating speed,examining skidmarks,and the performance of similar investigative functions. The question related to metallurgical factors and the officerhad absolutely no qualifications to give an opinion in this area. Modern day lawsuits could rarely functionwithout the aid of expert witnesses. Indeed, it seems that the need for the so-called expertise at trial sua sponte gives birth to

I the presence of an e?fect of some kind to provide the necessary opinion. But there are limits to the use of expert testimony, and trial courtsmust recognize those limits. Here, Officer Denning clearly lacked the necessary qualifications to render an opinion in relation to the metallurgical failure of thepitman arm. Discretion of a trial court inpermitting expert testimony is no substitute for careful consideration of the underlying qualifications of a witness to advance his opinionon a subject requiring expert opinion. -la-The determination by themajority that a conclusion was negligent that the driver/would be mere speculation isbut a speculative comment itself, for it fails to consider the proper role of

res ipsa loquitur. Ihave no quarrel with the three element test set forth by themajority as necessary for the application of the doctrine of res ipsa loquitur; Montana Deaconess Hospital v. Gratton

(1976), 169Mont. 185, 545 P.2d 670,correctly sets it forth. The first element of res ipsa loquitur, that of "defendant's exclusive control at the time of injury",does not require direct evidence of actualphysical control at the time of injury. It is sufficientto show that the defendant exercised control some time prior to the injury,Knowlton v. Sandaker

(1968), 150Mont. 438, 446, 436 P.2d 98. The record reveals that Granrudwas driving thevehicle when he picked up Mets; and Granrudwas observed driving the vehicle approximately thirtyminutes before the accidentoccurred. Officer Denning, following an investigationof the accident scene,determined that Granrud was the driver and Mets was thepassenger. Officer Denning's determinationwas based upon the location of Granrud and Mets in relation to the position of the vehicle. The first element of res ipsa loquitur is thus satisfied. The second element of res ipsa loquitur, that "the injury must be one thatdoes not ordinarily occur if the party in control usesproper care', is also satisfied. The accident occurred at thepoint where the road curves, on a sunny and clear day, the pavement was dry, and therewas no evidence that the brakes had been applied. Mets died as a result of the accident and Granrud has no memory whatsoever concerning the factsand events surrounding the accident. Additionally, there -11-were no witnesses to the singlevehicle accident. Officer Denning investigated the accident scene and said that there

were no objects in or on the roadwhichwould have caused the accident. normal It is reasonable to assume that undedthe circumstances do not automobiles simply/veer off the road into a borrow pit unless the driver has been negligent. Themajority conclusion that it ispossible that the accidentwas not due to the driver's fault, that is, that the cause of the accidentmay have been due to brake failure,or some other reason, is itself mere speculation. Theplaintiffs here were not required to eliminate allpossibilities ofhow the accidentmay have happened. Plaintiffs were required only to establish a factual basis to infer negligence on the part of the driver. The inference is clear in this case;whether the jurywould have accepted this inference is yet anothermatter. The conflicting opinions of Officer ~enning and Mr. Godtland concerning thepitman arm as the causative agent of the accident,do not cancel the application of the doctrine of res ipsa loquitur. Indeed,if thiswere the case,a defendant could defeat the application of res ipsa loquitur by hiring himself a pseudo expert (inessence, what happened in this case) to render an opinion as towhat caused the accident. Here themajority has classified Officer Denning

as an expert witness in relation tometalurgy and pitman arms and by permitting his testimony,has denied plaintiffs an opportunity to take their case to the jury under the doctrine of res ipsa loquitur. This ishardly a fair result, especially when plaintiffs had their own expert, who was properly qualified, to testify that the cause of the accidentwas not a broken pitman arm or defective steeringmechanism. Assuming the qualifications of Officer Denning to give his opinion in relation to thepitman arm, the majority cannot then -12-declare thatMr. Godtlandwas not at least equally qualified to give his opinion that the accidentwas not caused by a broken pitman arm or defective steeringmechanism. If the jury chose tobelieve Mr. Godtland rather than Officer Denning, then the jury could proceed to find negligence on the part of the driverbased upon the inferences permitted by the doctrine of res ipsa loquitur. But themajority here has usurped the function of the jury. The third element of res ipsa loquitur, that "the injury must not be due to any fault on the part of the injured person", is also satisfied. There is absolutelyno evidence indicating that the deceased,was at fault in any manner. Obviously, there isno direct evidence as to the lack of faulton the part of the deceased; just as there isno direct evidence of faulton the part of the defendant. But this situationcalls for the application of res ipsa loquitur. The doctrine permits the case to go to the jurywhere there is a lack of direct evidence on thesematters. If therewere direct evidence, the doctrine eitherwould not apply orwould have limited applicability. The Hawaii case of Winter v. Skemran (1976),57 Hawaii 279, 554 P.2d 1137, is inpoint. The factsofWinter are similar to the factsof this case. InWinter, a vehicle failed to negotiate a curve, crossed into the opposite lane of traffic, onto the opposite shoulder of the highway, and traveled on the shoulder parallel to thepavement for 225 feetuntil it collided with a utility pole. After the collisionwith thepole, the vehicle overturned. There were no defects in or objects on the highway,no mechanical defect in the vehicle was discovered, and no eyewitnesses of the accident. Both the driver and passenger died from injuries received in this single car accident. Under these facts, the Hawaii SupremeCourtheld that an inference of negligencewas created through the application of the doctrine of res ipsa loquitur. -13-The only differencebetween Winter and the instant case is the question of mechanical defects. InWinter, no ..mechanical defects in the vehiclewere discovered. In the instant case Officer Denning determined that the pitman arm broke, which was the cause of the accident. However, as previously discussed,Officer Denningwas not qualified as

an expert or competent to give such an opinion concerning causation;and therefore this opinion should not have been considered by the District Court. Furthermore, there was contrary opinion evidenceprovided by the plaintiffs. The doctrine of res ipsa loquitur is not an exception to the rule that theburden is on the plaintiff to prove actionable negligence,nor does itpermit a recovery onmere proof of the injury. Itmerely has the force of a disputable presumption of law and supplies the place of proof necessarily wanting when the injured party cannotdisclose the cause of his injury,but where it is apparent that the accident would not ordinarily have happened had the defendant exercised ordinary

care. Stocking v. Johnson Flying Service (1963),143Mont. 61, 68, 387 P.2d 312. The procedural effect of the applicationof the doctrine of res ipsa loquitur is important. Res ipsa loquiturmeans that the factsof the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish such circumstantial evidenceof negligence where direct evidence of itmay be lacking,but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanationor rebuttal,not necessarily that they require it; that theymake a case to be decided by the jury,not that they forestall the verdict. Res ipsa loquitur,where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is,whether the preponderance is with the plaintiff. Helmke

v. Goff (1979), 

### -Mont

# . ,597~.2d1131,36 St.Rep. 1104, 1107-1108.The trial court should have denied the defendant'smotion for summary judgment,and allowed the plaintiff to take his

case to the jury through the application of the doctrine of res ipsa loquitur. Under the facts, reasonable people could reach differing conclusions as to the negligence of the defendant. See Helmke 

### v. Goff, supra, 36 St.Rep. at 1108. Themajority opinionhas undermined one of theprinciple functions of res ipsa loquitur--to let a jury determine the ultimate factof negligence if there is sufficient circumstantial evidence to create an inference. But here, the trial court and this Court had become the trier of factby declaring that other reasonable possibilities exist which are inconsistent with the driver's negligence. Thatmay well be true; but if so, it should be a jurymaking that decision.