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: 

For Appellants: 

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 southerly direction. The vehicle 

passed over the edge of the road, through a barrowpit and 

collided with 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 no memory 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 Mets 
had been driving the vehicle when the collision occurred. 

On May 31, 1978, the District Court granted Granrud's motion 

for summary judgment, and accordingly judgment was entered 

on June 5, 1978. On June 2, 1978, the survivors moved 

for summary judgment on Granrud's counterclaim. The survivors' 

motion was granted, and judgment was 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 

survivors moved for summary judgment on Granrud's counterclaim; 

and judgment for the survivors was entered on February 16, 

1979. The survivors appealed and Granrud cross-appealed. 

The dispositive issue on appeal is whether 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 control uses proper care, then the law 
infers negligence on the part of the one in control as the 

cause of the injury. Knowlton v. Sandaker (1968), 150 Mont. 

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 instrumentality which caused the injury must 

be within the exclusive control of the defendant; (2) the 

injury must 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)) 145 Mont. 127, 135-136, 399 P.2d 236, 241; Krohmer 

v. Dahl (1965), 145 Mont. 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 the manner in which 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 it permit a recovery on mere proof of the injury. 

It merely has the force of a disputable presumption of law 

and supplies the 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 not mean actual physical control 

at the time of injury. It may be sufficient to show that 

the defendant exercised control some time prior to the 

injury. Knowlton v. Sandaker, supra, 150 Mont. 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 

injury must 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 eliminate with 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 

reasonable men can say that on the whole it is 

more likely that there was 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 accident was 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 pavement was dry, and there was 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 no witnesses to the single vehicle accident. 

Officer Denning, the ~ontan'a Highway Patrolman who 

responded to and inspected the accident scene, was deposed 

and gave his opinion 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. The record contains the 

affidavit of an expert, Ralph Godtland, president of Western 

Iron Works, Inc. Godtland stated, "it is infinitely more 

likely and probable that this pitman 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 District Court. 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 State v. Deshner (1971), 158 Mont. 188, 

489 P.2d 1290. The determination of the qualification of a 

skilled or expert witness is a matter largely within the 

discretion of the trial judge, and in the absence of a 

showing of abuse, ordinarily will not be disturbed. Graham 

v. Rolandson (1967), 150 Mont. 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 is possible that there was 

some lapse on the drivers part and that the driver was 

negligent, and because of that, the vehicle went off the 

road and collided with the telephone pole. But it is also 

possible that the cause of the accident was not due to the 

driver's fault; and that the cause of the accident was 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, The Negligence Case: 

-- Res Ipsa Loquitur, Vol. 2, 526.7 (1972). In such a situation, 

the balance of probabilities between, first, causes of an 

accident involving the vehicle which are due to lack of 

care on the part 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 

reasonably be found and would be the result of mere speculation. 

This conclusion is further supported by the confl.icting opinions 

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 three necessary elements to the applicability of the doctrine cannot be shown to exist, namely; 

the injury must 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 

injury must not be due to any fault on the part of the 

injured person." From our review of the record, we cannot 

determine whether there was any fault on the part of Mets. 

A conclusion that Mets was or was not at fault, wholly or 

partially, cannot reasonably be 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 there was no genuine issue as to any material 

fact, and Granrud was entitled to judgment as a matter 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 Justice 
Mr. Justice Daniel J. Shea dissenting: 

I do not believe Officer Denning was competent to give 

his opinion as to the cause of the accident. Furthermore, 

the doctrine of res ipsa loquitur does apply in this case. 

The plaintiffs 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 I do not believe that Officer Denning 

should necessarily have been restricted at his deposition, I 

do believe that the trial court had 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, 

scientific or technical training, or have practical experience 

in some field or activity conferring upon him a special knowledge. 

The true test would seem to be whether the subject is sufficiently 

complex so as to be susceptible to opinion evidence, and whether 

the witness is properly qualified to give his opinion. McGuire 

v. Nelson (1975), 167 Mont. 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 reconstruct and give opinion testimony 

as to the cause of an accident based upon their investigation. 

State v. Deshner (1971), 158 Mont. 188, 193, 498 P.2d 1290. 

There is no doubt here that expert opinion evidence concerning 

the pitman arm is required, for the knowledge and expertise required 

-9- 
to form an opinion concerning the pitman arm is beyond that 

possessed by a layman. But Officer Denning had no qualifications 

to provide the necessary opinion. The record indicates that 

he is a high school graduate, had no metallurgical training, 

and no special knowledge of stress or force. Furthermore, 

he had no special training in mechanics 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 steering mechanism. 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 is beyond that within the normal competence of a highway 

patrolman. An expert opinion concerning the pitman 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 officer had absolutely no qualifications to 

give an opinion in this area. 

Modern day lawsuits could rarely function without 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 courts must recognize those limits. Here, Officer 

Denning clearly lacked the necessary qualifications to 

render an opinion in relation to the metallurgical failure 

of the pitman arm. Discretion of a trial court in permitting 

expert testimony is no substitute for careful consideration 

of the underlying qualifications of a witness to advance his 

opinion on a subject requiring expert opinion. 

-la- 
The determination by the majority that a conclusion 

was negligent 

that the driver/would be mere speculation is but a speculative 

comment itself, for it fails to consider the proper role of 

res ipsa loquitur. 

I have no quarrel with the three element test set forth 

by the majority as necessary for the application of the doctrine 

of res ipsa loquitur; Montana Deaconess Hospital v. Gratton 

(1976), 169 Mont. 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 actual physical control at the time of 

injury. It is sufficient to show that the defendant exercised 

control some time prior to the injury, Knowlton v. Sandaker 

(1968), 150 Mont. 438, 446, 436 P.2d 98. The record reveals 

that Granrud was driving the vehicle when he picked up Mets; 

and Granrud was observed driving the vehicle approximately 

thirty minutes before the accident occurred. Officer Denning, 

following an investigation of the accident scene, determined that 

Granrud was the driver and 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 first 

element of res ipsa loquitur is thus satisfied. 

The second element of res ipsa loquitur, that "the injury 

must be one that does not ordinarily occur if the party in 

control uses proper care', is also satisfied. The accident 

occurred at the point where the road curves, on a sunny and 

clear day, the pavement was dry, and there was no evidence 

that the brakes had been applied. Mets died as a result of the 

accident and Granrud has no memory whatsoever concerning the 

facts and events surrounding the accident. Additionally, there 

-11- 
were no witnesses to the single vehicle accident. Officer 

Denning investigated the accident scene and said that there 

were no objects in or on the road which would 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. The majority conclusion that 

it is possible that the accident was not due to the driver's 

fault, that is, that the cause of the accident may have been 

due to brake failure, or some other reason, is itself mere 

speculation. The plaintiffs here were not required to 

eliminate all possibilities of how the accident may 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 jury would have 

accepted this inference is yet another matter. 

The conflicting opinions of Officer ~enning and Mr. 

Godtland concerning the pitman arm as the causative agent 

of the accident, do not cancel the application of the doctrine 

of res ipsa loquitur. Indeed, if this were the case, a 

defendant could defeat the application of res ipsa loquitur 

by hiring himself a pseudo expert (in essence, what happened 

in this case) to render an opinion as to what caused the 

accident. Here the majority has classified Officer Denning 

as an expert witness in relation to metalurgy 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 is hardly a fair result, especially 

when plaintiffs had their own expert, who was properly qualified, 

to testify that the cause of the accident was not a broken 

pitman arm or defective steering mechanism. 

Assuming the qualifications of Officer Denning to give his 

opinion in relation to the pitman arm, the majority cannot then 

-12- 
declare that Mr. Godtland was not at least equally qualified 

to give his opinion that the accident was not caused by a 

broken pitman arm or defective steering mechanism. If the 

jury chose to believe Mr. Godtland rather than Officer Denning, 

then the jury could proceed to find negligence on the part of 

the driver based upon the inferences permitted by the doctrine 

of res ipsa loquitur. But the majority 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 absolutely no evidence indicating 

that the deceased, was at fault in any manner. Obviously, there 

is no direct evidence as to the lack of fault on the part of the 

deceased; just as there is no direct evidence of fault on the 

part of the defendant. But this situation calls for the 

application of res ipsa loquitur. The doctrine permits the case 

to go to the jury where there is a lack of direct evidence on 

these matters. If there were direct evidence, the doctrine 

either would not apply or would have limited applicability. 

The Hawaii case of Winter v. Skemran (1976), 57 Hawaii 

279, 554 P.2d 1137, is in point. The facts of Winter are 

similar to the facts of this case. In Winter, 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 the pavement for 225 feet until it collided 

with a utility pole. After the collision with the pole, 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 Supreme Court held that an 

inference of negligence was created through the application 

of the doctrine of res ipsa loquitur. 

-13- 
The only difference between Winter and the instant case 

is the question of mechanical defects. In Winter, no 

..mechanical defects in the vehicle were 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 Denning was 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 evidence provided by the plaintiffs. 

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 it permit a recovery on mere 

proof of the injury. It merely has the force of a disputable 

presumption of law and supplies the place of proof necessarily 

wanting when the injured party cannot disclose 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), 143 Mont. 61, 

68, 387 P.2d 312. 

The procedural effect of the application of the doctrine 

of res ipsa loquitur is important. Res ipsa loquitur means 

that the facts of the occurrence warrant the inference of 

negligence, not that they compel such an inference; that they 

furnish such circumstantial evidence of negligence where direct 

evidence of it may be lacking, but it is evidence to be weighed, 

not necessarily to be accepted as sufficient; that they call 

for explanation or rebuttal, not necessarily that they require 

it; that they make 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's motion 

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. 

The majority opinion has undermined one of the principle 

functions of res ipsa loquitur--to let a jury determine the 

ultimate fact of negligence if there is sufficient circumstantial 

evidence to create an inference. But here, the trial court 

and this Court had become the trier of fact by declaring that 

other reasonable possibilities exist which are inconsistent 

with the driver's negligence. That may well be true; but if 

so, it should be a jury making that decision.