No. 95-071 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

JAMESR. BURCHARD,

Plaintiff andAppellant,
v. MINNIE GREGORY,UNITEDMATERIALS OFGREATFALLS, INC., andJohn DoesAthrough E,

Defendants andRespondents.

APPEALFROM: District Court of the Eighth Judicial District,

In andfor the County of Cascade, TheHonorable ThomasM.McKittrick, Judgepresiding.

COUNSELOFRECORD:

For Appellant: JamesR.Burchard, ProSe, Port Orchard, Washington J. MayoAshley, Attorney at Law, Helena, Montana
For Respondents: LonT. Holden; Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana (for Minnie Gregory) Paul R. Haffeman; Cure, Borer &Davis, Great Falls, Montana (for United Materials of Great Falls)

/pFi 15'i9Y6 Submitted onBriefs: September 28, 1995 Decided: April 15, 1996 Filed:Justice Karla M.Gray delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana SupremeCourt 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished byits filing asapublic document with the Clerk of the SupremeCourt andbyareport of its result to Montana LawWeek, State Reporter and West Publishing Company. JamesBurchard appeals from the judgment entered bythe Eighth Judicial District Court, Cascade County, on its orders granting defendants' motions for summaryjudgment. Weaffirm. Thesole issue onappeal is whether the District Court erred in granting summaryjudgment in favor of Minnie Gregory andUnited Materials of Great Falls, Inc. At approximately 11:OOp.m. onJuly 12, 1989, appellant James Burchard (Burchard) wasdriving his pickup truck and fifth-wheel trailer eastbound in the inside lane of 10th Avenue South in Great Falls, Montana. His wife andayoung relative also were in the cab of Burchard's pickup. The weather was rainy and windy, and the portion of 10th AvenueSouth onwhich Burchard wasdriving recently had been resurfaced by United Materials of Great Falls, Inc. (United). Burchard lost control of his vehicle near the intersection of 38th Street and10th AvenueSouth. Thefifth-wheel trailer rode up on the median and Burchard's attempts to regain control caused the pickup and trailer to "jackknife," coming to rest partially onthe median andpartially onwestbound 10th Avenue

2South. Minnie Gregory (Gregory) was traveling in the inside

westbound lane of traffic on10th Avenue South at the time andher vehicle collided with Burchard's. Great Falls Police Officer Keith Kercher (Kercher) investigated the accident. Burchard told Kercher that he lost control of his pickup because various fluids at the accident scene had seeped out of the new pavement, creating a slippery road surface. Kercher observed gasoline, oil, antifreeze and transmission fluid onthe pavement from the damagedvehicles and disagreed with Burchard's characterization of the source of the slippery road surface at the scene of the accident. He subsequently performed skid tests, however, in order to investigate Burchard's theory. Kercher cited Burchard for careless driving; he did not cite Gregory. Burchard's wife filed anegligence action against Burchard, Gregory, United, andJohnDoesAthrough Ein July of 1992, seeking recovery for injuries she sustained in the accident. Burchard filed a separate negligence action against the other defendants that samemonth. TheDistrict Court consolidated the actions and Burchard's wife subsequently settled her case. Burchard proceeded pro seafter his attorney waspermitted to withdraw. Pursuant to the court's scheduling order, the plaintiff anddefendant were required to disclose expert witnesses byAugust 1, 1994, and August 15, 1994, respectively, and to complete discovery by September 1, 1994. Trial wasscheduled for October 31, 1994.Gregory andUnited filed motions for summaryjudgment pursuant

to Rule 56, M.R.Civ.P., on September 8, 1994, and Burchard responded. Following ahearing held onOctober 7, 1994, the trial date apparently was vacated. The District Court granted both motions for summary judgment on December 5, 1994, and entered judgments accordingly. Burchard appeals. Did the District Court err in granting summary judgment in favor of Gregory andUnited? Summaryjudgment is proper whennogenuine issues of material fact exist andthe moving party is entitled to judgment asamatter of law. Rule 56(c), M.R.Civ.P. The party moving for summary judgment hasthe initial burden of establishing both the absence of anygenuine issue of material fact andits entitlement to judgment
as amatter of law. AgAmerica, FCBv. Robson (1995), 272Mont. 413, 416-17, 901P.2d 100, 102 (citation omitted). Whenreviewing
anorder granting summaryjudgment, weapply the samecriteria as the district court. AsAmerica, 901P.2dat 102(citation omitted). Ordinarily, negligence issues involve "questions of fact not susceptible to summary adjudication." Hatch v. State Dep't of Highways (1994), 269Mont. 188, 192-93, 887P.2d 729, 732 (citation omitted). Notwithstanding this general rule, anegligence action properly maybe resolved on amotion for summaryjudgment under limited circumstances. If a moving defendant establishes the absence of agenuine issue of material fact regarding any one of the four elements constituting the negligence action, and the plaintiff does not come forward with proof establishing the existence of a genuine factual issue regarding that element, 4summary judgment in the defendant's favor is proper. Hatch, 887

P.2d at 732 (citation omitted). Thenonmoving party's proof must besubstantial andconsist of specific facts; reliance onpleadings
or speculative, fanciful or conclusory statements is insufficient. Thornton v. Songstad (1994), 263Mont. 390, 397-98, 868 P.2d 633, 638 (citation omitted).
a. Summaryjudgment in favor of Minnie Gregory Burchard's complaint alleged that he lost control of his vehicle and that it cameto rest partly on the raised median separating eastbound andwestbound 10th Avenue South, andpartly "in the left lane of westbound traffic." His sole allegation against Gregory wasthat shenegligently operated hervehicle at an excessive speed and, asaresult, collided with his pickup in the left lane of westbound traffic, thus causing the accident andhis injuries andother damages. Gregory movedfor summaryjudgment. Gregory supported her motion with affidavits andadrawing of the accident scene from Kercher, whohadreceived formal accident investigation training and investigated more than 700 accidents during his law enforcement career. According to Kercher, Gregory
was travelling at approximately the speed limit when Burchard's vehicle suddenly appeared in and obstructed her inside westbound lane of travel. Kercher's opinion that Burchard's pickup obstructed Gregory's lane of travel resulted from his investigation andreconstruction of the accident andwasreflected onadiagram showing Burchard's pickup blocking Gregory's westbound lane at the point of impact. Kercher stated that Gregory could not have
5avoided the accident even if shehadbeengoing slower, given the

sudden obstruction of her lane of travel byBurchard's pickup. In his opinion, the accident was caused by Burchard's failure to maintain control of his vehicle. The District Court concluded that Gregory met her initial burden of establishing the absence of anygenuine issue of material fact with regard to Burchard's negligence claim against her. The court further concluded that Burchard's submissions in opposition to Gregory's motion were insufficient to raise agenuine issue of material fact as to Gregory's negligence or the cause of the accident. Onthat basis, the District Court granted Gregory's motion. Alaw enforcement officer with years of experience in accident investigation mayrender opinions onwhether aparty was driving too fast andonthe causeof anautomobile accident. Hart-Anderson
v. Hauck (1989), 239Mont. 444, 448-49, 781 P.2d 1116, 1118-19. Indeed, this has been well-settled law in Montana since at least 1974. & Rudev. Neal (1974), 165Mont. 520, 526, 530P.2d 428, 432. Moreover, an experienced investigating officer's opinion regarding the causeof anautomobile accident is sufficient to meet
amoving party's initial burden of establishing the absence of a genuine issue of material fact onthat element of anaccident-based negligence claim. White v. Murdock (1994), 265Mont. 386, 391, 877 P.2d 474, 477. Here, Kercher's opinions that Gregory wasnot driving too fast and that Burchard caused the accident were based on his
6investigation and experience. Thus, Kercher's opinions were

sufficient to establish the absence of any genuine issue of material fact regarding her alleged negligence andthe cause of the accident. SeeWhite, 877 P.2d at 477. Weconclude, therefore, that Gregory met her initial burden onsummaryjudgment. Gregory having mether burden asthe party moving for summary judgment, the burden shifted toBurchard to establish the existence of genuine issues of material fact. Hecontends that he raised several such issues. Burchard relies on his ownaffidavit in contending, first, that afactual dispute exists regarding Gregory's speedat the time of the accident. In his affidavit, he stated that Gregory's vehicle was "negligently driven at the time

. . [and was1 travelling at anexcessive rate of speed. .'I Oncethe party moving for summaryjudgment has satisfied its initial burden, the nonmoving party may not rest on the mere allegations in its pleadings. Rule 56(e), M.R.Civ.P. Byaffidavit
or asotherwise provided byRule 56, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), M.R.Civ.P. Burchard's statement regarding Gregory's speed simply reiterates the speed-related allegation in his complaint. Moreover, speculative and conclusory statements are insufficient to raise agenuine issue of material fact; they donot constitute the substantial proof consisting of specific facts which is necessary to withstand aproperly supported motion for summary
7judgment. Thornton, 868P.2d at 638. Here, Burchard's affidavit

includes only his own speculative and conclusory statement regarding Gregory's speed. In light of Kercher's investigationbased opinion that Gregory wasnot driving at anexcessive rate of speed, weconclude that Burchard's affidavit is insufficient to establish the existence of a genuine issue of material fact regarding Gregory's alleged excessive speed. In disclosing his witnesses andagain at the summaryjudgment hearing, Burchard indicated that Ralph Ward(Ward), awrecking yard operator he identified as a trial witness, estimated Gregory's speed at 55miles per hour, which exceeds the speed limit at the location of the accident. He submitted no affidavit or other evidence from Ward. Moreover, when questioned by the District Court about whether Wardwasqualified to give anopinion regarding the speed at which Gregory wasdriving, Burchard responded that Wardwasnot anengineer andthat heguessed that he "can gofind another guy andseeif he'll talk." Oncethe burden onsummaryjudgment hasshifted, the nonmoving party must affirmatively respond by affidavit or other sworn testimony containing material facts raising genuine issues. Koepplin v. Zortman Mining, Inc. (1994), 267Mont. 53, 58-59, 881 P.2d 1306, 1309 (citation omitted). Even assuming Ward's qualifications to offer an opinion regarding Gregory's speed, Burchard's statements about Ward's alleged opinions were insufficient to meet his burden. Substantial evidence raising a genuine issue of material fact must be in proper form; aparty's
8statements regarding anticipated future testimony or proof are

insufficient. Morales v. Tuomi (1985), 214 Mont. 419, 424, 693 P.2d 532, 534-35 (citation omitted). Burchard argues onappeal that heshould begranted more time to find anexpert to render anopinion relating to Gregory's speed. Wedisagree. Rule 56(f), M.R.Civ.P., allows the nonmoving party in
asummaryjudgment proceeding to request acontinuance to obtain affidavits ordiscovery necessary topresent facts in opposition to the motion. This salutary procedure requires only that the party satisfy the court, via affidavit, that sufficient reasons exist why it is asyet unable to present facts essential to support its case in opposition to summary judgment. Rule 56(f), M.R.Civ.P. Burchard did not avail himself of the Rule 56(f) procedure. In addition, Burchard had more than two years between the filing of his complaint andthe summaryjudgment hearing to acquire evidence in support of his caseor, at least, to offer areasonable explanation of whyhewasunable to doso. Burchard conceded that he had retained an accident reconstructionist and, indeed, he listed the expert in his witness disclosure statement filed onJuly 29, 1994. Burchard did not provide any information from this expert andmerely stated at the summaryjudgment hearing that his expert "didn't want to report." Gregory filed her motion for summary judgment early in September of 1994, amere seven weeks before the scheduled trial. In addition, nearly three months passed between the time Gregory filed her motion andthe court's order granting it onDecember 5,
91994. Burchard did not submit expert or, indeed, any support for

his opposition to Gregory's motion during those three months and also did not request additional time in which to doso. For these reasons, wedeny Burchard's request for additional time to locate
anexpert to establish the existence of agenuine issue of material fact regarding the speed at which Gregory was operating her vehicle. Burchard next contends that, notwithstanding Kercher's affidavits and diagram establishing that his pickup wasblocking Gregory's lane of travel immediately prior to the accident, he raised agenuine issue of material fact that his pickup blocked only the left-turn lane of westbound traffic, rather than Gregory's lane of travel. He apparently argues that Gregory caused the accident bynegligently not remaining in her clear lane of travel. There are two problems with Burchard's position. Asset forth above, the sole allegation of negligence against Gregory contained in Burchard's complaint is that shewasoperating her vehicle at anexcessive speed. His contention that Gregory's negligence washer failure to remain in her ownlane of travel is
an attempt to oppose summaryjudgment advancing anewtheory of negligence. Burchard cites no authority--and weknow of none-- under which such asubstitution of anewcause of action can be utilized to raise agenuine issue of material fact in opposition to
amotion for summaryjudgment. Burchard could have pleaded this theory about Gregory's negligence inhis original complaint, either alternatively or in addition to the "speeding" allegation. &
10Rule 8(e) (2), M.R.Civ.P. Hedid not doso. Hecould have amended

his complaint to addsuchaclaim asamatter of right, under Rule 15(a), M.R.Civ.P., at anytime prior to the filing of aresponsive pleading; hedid not doso. Nor did Burchard seek leave of court to amendhis pleading at a later time, pursuant to Rule 15(a), M.R.Civ.P. Toallow the nonmoving party to add anewtheory in opposition to summaryjudgment after the moving party hasmet its initial burden, and to raise anissue of fact about that theory, would makeevery case a "moving target" andeffectively preclude the use of summary judgment to resolve cases which present no genuine factual issue for trial. While summaryadjudication cannot be used as a substitute for a trial on the merits of contested issues of fact (Roev. Corbin Water Users' Ass'n (1994), 267Mont. 503, 507, 885 P.2d 419, 421 (citations omitted)), it is an appropriate means of disposing of cases which contain no such issues. Theproblem with Burchard's related contention--that heraised
a genuine issue of material fact regarding the location of his pickup whenGregory collided with it--is similar. The locationrelated allegation inBurchard's complaint wasthat his pickup came to rest, in part, "in the left lane of westbound travel." Indeed, Kercher's evidence established that Gregory was traveling in the left--that is, the inside--westbound lane of travel at the time she collided with Burchard's vehicle partially occupying that lane. In opposing summaryjudgment, Burchard attempted to raise an issue of fact that his pickup cameto rest in the left-turn lane

11rather than in the left lane of westbound travel. This variance

from the allegations of his complaint wasadvanced for the first time in opposition to Gregory's motion for summaryjudgment. For the reasons discussed immediately above, Burchard maynot oppose summaryjudgment by creating amoving target. Onthat basis, we decline to address these contentions further. Finally, Burchard contends that heestablished agenuine issue of material fact regarding whether Gregory should have seen his pickup in time to avoid the accident, evenif hewere occupying her lane of travel. While this contention arguably varies the allegations in Burchard's complaint in a manner similar to the contentions discussed above, it is at least arguably related to the excessive speed allegation in his complaint. In this regard, however, Burchard provided noevidence, substantial or otherwise, in response to Kercher's affidavit stating that Burchard suddenly appeared in Gregory's lane of travel and that Gregory could not reasonably haveavoided the accident. Weconclude, therefore, that Burchard's bare contention is insufficient to raise agenuine issue of material fact. Burchard hasfailed to establish the existence of anygenuine issue of material fact regarding any breach of duty by Gregory which caused the collision between the Gregory and Burchard vehicles. Wehold, therefore, that the District Court did not err in granting Gregory's motion for summaryjudgment. b. Summaryjudgment in favor of United Materials of Great Falls, Inc. Anegligence action involves four elements, eachof which must
12be established by the plaintiff: 1) duty; 2) breach of duty; 3)

causation; and 4) damages. Hatch, 887 P.2d at 732. Burchard's complaint alleged negligent road construction and negligent supervision of the road construction project by United and that United's negligence wasacause of the accident andhis damages. More specifically, he alleged that he encountered wet, slippery roadway which hadrecently beenoiled andwhich caused his vehicle to travel upover the raised median. In addition, Burchard alleged that there "appeared to be"anoily or otherwise hazardous surface, "as if" the road hadbeen recently oiled or otherwise coated with
amaterial which caused the roadway to behazardous and slippery. Healleged oninformation andbelief that the roadway in the area of the accident had recently been under construction by United. United movedfor summaryjudgment. In support of its motion, United submitted Kercher's affidavits stating that he investigated the scene and performed skid tests on the pavement. The skid tests produced a "drag factor" of .77 which, in Kercher's opinion, demonstrated that the pavement was less slippery than normal wet pavement. Kercher further opined that the condition of the road wasnot afactor in the accident and that Burchard's failure to control his vehicle caused the accident. The District Court concluded that United established the absence of genuine issues of material fact regarding Burchard's allegations that the roadway was "hazardous and slippery" as a result of any negligence by United andthat the condition of the
13roadway caused the accident. Theburden having thereby shifted to

Burchard, the court concluded that Burchard's submissions in opposition to United's motion were legally insufficient to establish a genuine issue of material fact regarding United's liability. Expert testimony generally is required to establish both the applicable standard of care and a breach of that standard in negligence actions against professionals and those involved in skilled trades. SeeNewville v. State (1994), 267Mont. 237, 257, 883P.2d 793, 805 (citations omitted). Burchard concedes onappeal that expert testimony is required to establish the applicable standard of care andUnited's breach in this case, aswell as to establish that the condition of the roadway caused the accident. Because of that concession, this case does not present--and wedo not address--the issue of whether expert testimony wasrequired as
amatter of law regarding United's duty, anybreach of that duty,
or the causal connection between anybreach of duty andBurchard's accident. Also conceding that he did not present the requisite expert testimony, Burchard contends that heshould beallowed more time to obtain anexpert's opinion because, asapro selitigant, hedid not recognize the necessity of expert testimony. Therecord does not support Burchard's claim that hedid not recognize the need for expert testimony to support his negligence action against United. In disclosing his witnesses on July 29, 1994, Burchard listed the nameof an accident reconstructionist whosereport wasto beforthcoming; henever provided the expert's
14opinion or report in response to United's Rule 26(b) (4),

M.R.Civ.??., request. Furthermore, in response to the court's question as to whether hehad anexpert, Burchard stated that he had paid anexpert but that the expert did not provide areport. Basedonthis record, weare unpersuaded byBurchard's assertion on appeal that hedid not recognize the need for expert testimony. Burchard also asserts that heindicated his needfor moretime to bring in an expert to the District Court, but that the court refused to grant acontinuance. In essence, he argues that the court abused its discretion in failing to continue the proceedings andorder Burchard to obtain anexpert. Burchard filed his complaint onJuly 9, 1992. Thescheduling order in this case was entered on January 24, 1994, with ajury trial scheduled for October 31, 1994. Burchard's expert witness disclosure was due by August 1, 1994, a discovery deadline of September 1, 1994, wasestablished andwitness lists were due by September 26, 1994. Asnoted above, Burchard timely disclosed the
name of his accident reconstruction expert; he simply did not provide any affidavit, testimony or report from that expert. United filed its motion for summary judgment onSeptember 8, 1994. Burchard hadapproximately eight months between entry of the scheduling order andthe summaryjudgment hearing, not to mention the more than two years after filing his complaint, to procure expert witness testimony for his claim against United. Moreover,
even aside from his failure to utilize the formal procedure provided byRule 56(f), M.R.Civ.P., for requesting acontinuance of
15the summaryjudgment proceeding, Burchard did not makeasufficient

showing under the rule to require the court to exercise its discretion regarding acontinuance in his favor. Finally, even Burchard's post-hearing document, filed amonthbefore the District Court's ruling andentitled "Request Motion for SummaryJudgment Be Denied Defendant['ls," wasnot accompanied byanyexpert opinion as to the applicable standard of care in this negligent road construction action against United oranybreach of suchastandard by United. Wecannot conclude, onthe record before us, that the court abused its discretion in refusing to continue the proceedings. Notwithstanding his concession that expert testimony was needed to successfully oppose United's motion, Burchard advances other arguments relating to his action against United. First, he contends that hepresented substantial evidence that the road was oily and slick and, therefore, that he raised agenuine issue of
material fact as to the cause of the accident. In light of Burchard's concession that expert testimony wasrequired "regarding the cause of the accident most specifically, the road surface" and his failure to provide such testimony, wedo not address this contention. Burchard having failed to present expert affidavit or other testimony heconcedes wasnecessary to withstand summaryjudgment
onnegligence action against United, weconclude that hedid not establish the existence of any genuine issue of material fact regarding abreach of duty by United which caused the accident in
16this case. Wehold, therefore, that the District Court did not err

in granting United's motion for summaryjudgment. Burchard also argues, asto both defendants, that the District Court erred in failing to consider the allegations in his complaint and affidavits from other witnesses which he submitted. As discussed above, once the party moving for summary judgment satisfies its initial burden, the nonmoving party cannot rest on the allegations in its pleadings, but must come forward with specific facts demonstrating the existence of agenuine issue of material fact. Rule 56(e), M.R.Civ.P. Further, although Burchard asserts that the court did not consider affidavits from other witnesses, the only affidavit Burchard presented, other than his own, wasthat of Patricia Bourne. TheDistrict Court addressed the Bourne affidavit, which related to the location of Burchard's pickup at the time the accident occurred andto the condition of the roadway vis-a-vis whether United's negligence caused the accident. Because we have determined that, on this record, Burchard maynot properly raise issues of fact regarding those issues in aneffort to defeat summaryjudgment, weneednot address the Bourne affidavit further. Burchard's final arguments are that the District Court did not consider his deposition and that hewasnot allowed to take the defendants' depositions. In addressing motions for summary judgment, district courts consider only pleadings anddiscovery "on file." Rule 56(e), M.R.Civ.P. Depositions are not routinely filed; if aparty believes that adeposition should be filed, itmaymake an ex parte request that it be filed under Rule 5(d),

M.R.Civ.P. Burchard did not request that his deposition befiled. Therefore, because the deposition wasnot part of the record, the District Court did not err in failing to consider it. Burchard contends that the District Court granted the defendants' motions basedoninadequate information and, therefore, that summary judgment was not appropriate. Burchard relies on Rasmussenv. Bennett (1983), 207Mont. 33, 672P.2d 278, where we set aside asummaryjudgment andreturned the case to the district court for further consideration because the district court did not have the depositions of all four defendants before it and, therefore, maynot have been in possession of all the facts. In Rasmussen, the action wasacomplicated libel andslander suit, the disputed facts were fifteen years old bythe time summaryjudgment
wasgranted, andboth counsel proceeded under the belief that the defendants' depositions were of record. Rasmussen, 672 P.2d at 279. Rasmussenis inapplicable here. Thefacts in Burchard's case are neither as old, nor as complicated, as those in Rasmussen. Furthermore, at the time wedecided Rasmussen, the parties were required byRule 30(f), M.R.Civ.P. (1983), to file depositions with the court. Asdiscussed above, depositions are nolonger routinely filed; indeed, aparty seeking to file adeposition must obtain the court's permission to doso. Rule 5(d), M.R.Civ.P. Burchard did not. Finally, Burchard's argument that summary judgment was
18inappropriate because he "had not been allowed" to take the

defendants' depositions is unsupported by the record. Burchard could have deposed the defendants at any time after filing his action in July of 1992; that hefailed to dosocannot beblamed on the District Court. The record does not indicate that Burchard
ever served a notice of intent to depose anyone from United. Moreover, while Burchard served notice of his intent to depose Gregory on September 15, 1994, after the September 1, 1994, discovery deadline, andGregory andher counsel were available at the Cascade County Courthouse onthe date specified, Burchard did not appear. Weconclude that alitigant's total failure to conduct discovery cannot constitute error byadistrict court. Affirmed.

Weconcur.

Justices 19Justice Terry N. Trieweiler dissenting.

I dissent from the majority's opinion in which it clearly usurps the fact-finding role properly reserved to a jury after consideration of andbalancing all the evidence andwhich blatantly disregards those rules which this Court has, in the past, applied to motions for summaryjudgment. Only whenthere are noissues of material fact andthe moving party is entitled to judgment as a matter of law, is summary judgment appropriate pursuant to Rule 56(c), M.R.Civ.P. Reevesv. Reinhold (1980), 189Mont. 284, 287, 615P.2d 896, 898. In the determination of whether there are issues of material fact, "all reasonable inferences that might be drawn from the offered evidence should bedrawn in favor of the party whoopposed summary judgment." Heistv.EasternMontanaCollege (Mont

. 1996), 53 St. Rep. 162, 163. Furthermore, wehave, for good reason, held that ordinarily issues of negligence are questions of fact not susceptible to summary adjudication. DuchesneauY.SilverBowCounty (19'71), 158Mont. 369, 377, 492 P.2d 926, 931. For the following reasons, this case wasclearly not susceptible to summaryadjudication: In the complaint filed byBurchard andprepared for himbythe attorney whorepresented him at that time, Burchard alleged that his vehicle went out of control while approaching anintersection
on10th AvenueSouth in Great Falls andthat after coming to astop
onthe median, andwhile partially located in the westbound lane of

20to establish Gregory's negligence. Weheld in Payne v.Sorenson (1979) ,

183Mont. 323, 326, 599P.2d 362, 364, that:

Under Montana law, amotorist hasaduty to look not only straight ahead but laterally ahead aswell and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that hedid not see that which wasin plain view. Furthermore, the fact that Burchard mayhavebeenplaced in a position of danger by his ownnegligence did not bar his claim against Gregory. Restatement (Second) of Torts § 479 (1965), provides asfollows: Aplaintiff whohas negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance andcare, and (b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, whenhe

(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise. Weapproved of the last clear chance doctrine set forth at 5479in Lambv.Page (19691, 153Mont. 171, 455 P.2d 337. Plainly, pursuant to the law in Montana, Burchard's affidavit
was sufficient to raise an issue of fact regarding Gregory's negligence, regardless of anyevidence to the contrary. With regard to defendant United Materials, Burchard alleged in his complaint that that defendant had recently done work at 10th

22traffic, Minnie Gregory negligently collided with him and caused

himdamage. In support of his allegation that Gregory wasnegligent andin opposition to her motion for summaryjudgment, Burchard filed an affidavit in which hestated the following relevant facts: 10.

11.

12.

13. That I wasproceeding east on10th Avenue South at approximately 25 mph and attempted to brake, because of the traffic light changing to amberas I approached the intersection of 38th Street and10th Avenue South whenmyvehicle, pulling afifth-wheel trailer, jack-knifed and the two front wheels of the towing vehicle crossed the raised median, coming to rest partly in the left-hand turn lane of the west bound traffic on10th Avenue South; That the towing vehicle cameto afull-stop onthe median with its two front wheels protruding into the left-hand turn lane of west-bound traffic on 10th Avenue South, leaving two full west-bound lanes free for safe traffic; That the east bound lanes of 10th Avenue South had an oily appearing surface, as if the east bound lanes of 10th Avenue South hadbeen recently oiled or otherwise coated with a material which caused the roadway to behazardous andslippery. That approximatelv three (3) minutes after the towins vehicle cameto a full stop on the median with its two front wheels protrudinq into the left-hand turn lane of west-bound traffic on 10th Avenue South, leaving two full west-bound lanes free for safe traffic, avehicle negligently driven at the time bv the defendant, Minnie Greqorv, traveling at an excessive rate of speed hit mv stooped towinq vehicle at or about its riqht rear wheel

. . . . (Emphasis added.) The facts a pursuant to Rule lleged in Burchard's affidavit were admissible

56, M.R.Civ.P., andif believed, were sufficient

21Avenue South at the scene of his accident and that as aresult of

its negligence, the road was left in an oily, hazardous, and slippery condition which prevented him for controlling his vehicle and caused the predicament in which he found himself at the time that he was struck by Gregory. In support of that contention and in opposition to United's motion for summary judgment, Burchard produced his own affidavit testimony set forth above, in addition to the following affidavit testimony from Patricia Lynn Bourne:
6.

7.

8.

9.

12.

13.

14. That on July 12, 1989 I managed the Sahara Motel located at 3460 10th Avenue South in Great Falls, Montana; That the Sahara Motel is located on the southwest corner of the intersection of 35th Street and 10th Avenue South; That onJuly 12, 1989 I lived with myhusband Frank Meyers and my family at the Sahara Motel in an apartment connected to the motel; That the office of the motel, in July of 1989, was abox-like structure located in that portion of the motel that was closest to 10th Avenue South. Except for afireplace chimney onthe north side of the office, it was covered with windows or glass doors so that anyone in the office had a clear and unobstructed view of 10th Avenue South to the east, to the west and except for the chimney, to the north;

. . . That the construction company that was resurfacing 10th Avenue South in front of the Sahara Motel with bituminous asphalt (black-top) had completed its work during the last few days; That the freshly laid black-top was oozing oil and mixing with the rain; That the "bleeding" made the surface slick and slippery, like it was black ice;

2315. That as a result of the slick and slippery condition on 10th Avenue South onJuly 12, 1989 I observed several east boundvehicles fishtailing at the traffic light located at the 38th Street intersection. Most of the fishtailing occurred whenthe traffic light went from Green to Yellow to Red; 16. That myhusband Frank remarked several times during the day that

. . . he knew that an accident was going to happenbefore the daywasover;

. . . . 19. That Frank and I watched the office T-V set for perhaps ahalf anhour whenweboth heard acrash;

. . . 22. That I ran to the pick-up truck andsawthat there wasnofire in or around the truck;

24. That the pick-up truck was straddling the center divider (or median) with its front wheels protruding into the left-hand turn lane of west-bound traffic on10th Avenue South:

. . . . 32. That onJuly 12, 1989there were nosigns on, at or near 10th Avenue South that indicated that the roadway washazardous, slippery, or dangerous; 33. That onJuly 12, 1989there were no caution signs and no drive with care signs on, at or near 10th Avenue South

. . . It is reasonable to infer from the combined affidavits of Burchard and Bourne that when Burchard attempted to bring his vehicle to astop at the intersection of 10th AvenueSouth and38th Street, he was unable to do so and jackknifed his vehicle as a result of the hazardous, slippery surface of the street. Expert testimony was not required for the proposition that when a road

24contractor leaves a street in such a slippery and hazardous

condition that people operating their vehicles at less than the lawful speed limit cannot bring their vehicles to asafe stop and when no warning has been provided that such adangerous condition exists, the contractor had acted negligently. The fact that contrary evidence was offered in the form of the investigating officer's opinion did not eliminate the question of fact which was raised by Burchard's and Bourne's affidavits. Officer Kercher's affidavit, at most, created aclear question of fact regarding the negligence of United. The majority concludes that Gregory satisfied her initial burden of establishing the absence of any genuine issue of material fact when she submitted the affidavit of the investigating officer who arrived after the collision and, based on his investigation, concluded that she had not been traveling too fast and that the accident was Burchard's fault. The first response that comes to mind is that it was impossible for Officer Kercher to estimate Gregory's speed prior to her impact with Burchard because there
were no skid marks at the point of impact. His opinion had to be based solely onwhat hewas told by Gregory. Second, it makes no difference howfast Gregory was traveling prior to the time at which she collided with Burchard. She had an obligation, pursuant to the law previously cited, to keep alookout for hazards on the roadway and avoid them. If, as stated in Burchard's affidavit, he was blocking the roadway for at least three minutes prior to the collision, she should have seen him and 25avoided him. There was no indication that the roadway was anything

but straight and level at the point of impact or that her view was obstructed in any other way. The majority cavalierly disregards Burchard's sworn statement that he blocked only the westbound left-hand turn lane and not Gregory's lane of travel based onthe fact that that contention was not made in his original complaint. There are several problems with this basis for the majority's conclusion. First, Burchard did not prepare the complaint. It was prepared by an attorney who represented him at that time but did not represent him during the summary judgment proceedings. At the same time he was also represented by a second attorney who defended him in the action brought by his wife. The two actions were later consolidated. In the answer to June Burchard's complaint, which was filed on September 28, 1992, Burchard specifically stated in paragraph two of his second defense that:

Responding to paragraph II of the complaint, defendant James Burchard admits that he was proceeding east on 10th Avenue South at approximately 10 mph less than the speed limit and attempted to brake as he approached the intersection at 38th Street and 10th Avenue South when his vehicle, pulling a fifth-wheel trailer, jack-knifed and the two front wheels of the towing vehicle crossed the raised median, coming to rest partly in the left-hand turn lane of west-bound traffic on 10th Avenue South. (Emphasis added.) Therefore, there was nothing inconsistent about the position taken by Burchard in his affidavit and the position taken by Burchard in the early pleading stages of this litigation.

26There was no "new theory" advanced by Burchard in opposition to

summary judgment. Second, whether Burchard's wheels came to rest in the left westbound lane or the left westbound turn lane is irrelevant. A change in the alleged location did not constitute "a substitution of anew cause of action." Burchard's claim was that his vehicle
came to rest at aplace where Minnie Gregory could have avoided it had she kept aproper lookout and exercised reasonable care. His point was that whether his vehicle was in the westbound lane or the westbound turn lane, it had been there for at least three minutes prior to the collision and there was no reason Gregory could not have seen it and avoided it. There was no reason for him to amend his complaint to allege that his wheels were in the westbound turn lane, rather than the westbound lane. The purpose of the complaint
was to give general notice of the nature of his claim, not to state with perfection every fact which formed the basis of that claim. The suggestion that his affidavit filed in opposition to summary judgment is somehow unworthy of consideration because it varied in
some insignificant detail from ageneral complaint prepared for him by an attorney two years earlier, is preposterous. The suggestion that his affidavit alleged material facts about which the defendants had not been previously advised is not supported by the record. The suggestion that Keith Kercher, a Great Falls Police Officer who arrived at the scene of the accident sometime after events had occurred, is in abetter position to state what happened

27at the time of the accident than the actual participants is strange

indeed.The majority states in their opinion that "Burchard provided
no evidence, substantial or otherwise, in response to Officer Kercher's affidavit stating that Burchard suddenly appeared in Gregory's lane of travel andthat Gregory could not reasonably have avoided the accident." The majority's statement to that effect is incorrect. For the purpose of putting it in context, Iwill again recite that part of Burchard's affidavit which directly contradicted the relied on part of Officer Kercher's affidavit. Burchard stated: 13. That auuroximatelv three (3) minutes after the towinq vehicle came to a full stop on the median with its two front wheels orotrudins into the left-hand turn lane of west-bound traffic on 10th Avenue South, leaving two full west-bound lanes free for safe traffic, avehicle negligently driven at the time by the defendant, Minnie Greqorv, travelinq at an excessive rate of soeed hit my stooped towins vehicle at or about its right rear wheel

. . . . (Emphasis added.) If Burchard had been in the left-hand westbound turn lane or the westbound lane of travel for three minutes before the collision, hecould not have suddenly appeared in Gregory's lane of travel.We have never previously held that expert testimony is necessary to prove that aroadway is hazardous or that amotorist
on that road is entitled to awarning of a sudden change in the road's condition. This is a poor case in which to set that

28precedent. It should not take arocket scientist or someonewith

anengineering degree to establish that aroadway onwhich vehicles cannot cometo asafe stop while traveling at aspeed equal to or less than the allowable speed is unsafe and requires awarning by the contractor whocreates that condition. However, without any authority other than Burchard's concession, first made while proceeding as aprose litigant, the majority has nowmadesuch a requirement, andin the process, increased the complexity andcost of all future litigation related to roadway conditions. Themajority opinion affirming summaryjudgment in favor of United Materials completely overlooks the following proof submitted by affidavit: 1. Burchard approached the intersection where United had donesurfacing work at aspeedof about 25miles per hour (10 miles per hour under the speed limit), applied his brakes, and lost control of his vehicle. 2. Thelane onwhich helost control hadanoily appearing surface which caused the roadway to behazardous andslippery. 3. United hadcompleted resurfacing of the area in the few days prior to the accident. 4. Thefreshly laid surface wasoozing oil which mixed with the rain. 5. The combination of the oil and rain madethe surface slick and slippery like it wasblack ice. 6. Nowarning of the roadway's condition waserected.

297. As a result of the slick and slippery condition of the

roadway at the scene of Burchard's accident, an independent third party, who resided in the area, observed vehicles fishtailing at the same location earlier in the day. Most of the fishtailing occurred when those samemotorists were trying to stop for the same traffic light that caused Burchard to apply his brakes. 8. At least one resident in the area remarked prior to Burchard's accident that an accident was going to happen at the intersection before the day was over. In light of this testimony and the inferences that can be drawn from it, the majority's conclusion that summary judgment for United should beaffirmed based onBurchard's failure to produce an expert witness presents anew and inappropriate dimension to the litigation of simple automobile accidents. In Heiatv. EasternMontanaCollege (Mont. 1996), 53 St. Rep. 162, we recently held that afemale college professor whowas hired for a position comparable to her husband's, but at less pay, was entitled to a trial on the merits of her claim that she had been discriminated against in the face of uncontroverted affidavits to the contrary simply because of inferences which arose from the pay discrepancy. In this case, the plaintiff has produced sworn affidavits providing facts in direct support of his allegations that the defendants were negligent. The District Court ignored those affidavits. The majority now ignores those affidavits in favor of evidence that it finds more persuasive. Apparently the
message is that in Montana nonresident prose litigants who have been 30injured in automobile collisions are not entitled to the same due

process as college professors claiming gender discrimination. I find this Court's grossly disparate treatment of these litigants inexplicable on any other basis. For these reasons I dissent from the majority opinion.

Justice William E. Hunt, Sr., joins in the foregoing dissenting opinion.

31Justice W.William Leaphart, specially concurring anddissenting.

Ijoin in the dissent of Justice Trieweiler with regard to the summary judgment granted to defendant Gregory. While there are discrepancies between his complaint, his affidavit, andhis answer to his wife's complaint, the fact remains that Burchard's sworn affidavit raises aquestion of fact asto where his vehicle cameto rest and, thus, aquestion asto whether Gregory should andcould have avoided colliding with him. I concur with the Court in affirming the summaryjudgment for United Materials of Great Falls. Officer Kercher's affidavit established that, based upon his tests of the road surface, the road was no more slippery than after a normal rain. Burchard presented the affidavit of Bourne which established that the road
wasoozing oil which wasmixing with the rain andthat the surface
wasslippery like black ice andthat, asaresult of the slippery condition, Bourne observed several vehicles fishtailing. Although this affidavit establishes that the road wasslippery, it does not raise aquestion of fact with regard to whether United Materials
wasthe cause of that slippery condition. Furthermore, Bourne's affidavit does not purport to makeany causal connection between the slippery condition andwhat happened to Burchard's vehicle as opposed to other vehicles. That is, did Burchard lose control due to the slippery condition or due to his driving too close to the median asestablished byOfficer Kercher? Secondly, although the Bourne affidavit establishes that the
32road wasslippery dueto rain andoil, it doesnot refute the fact

(established byOfficer Kercher) that the road wasnomoreslippery than normal wet pavement in a rain storm. ASall drivers know, after or during arain storm, roads become "slippery whenwet." In light of the fact that this accident occurred while it was raining, Burchard hadto domore than establish that the road was slippery. That is, hehadto produce testimony (whether from alay person or anexpert) to the effect that, dueto the oil applied by United Materials, the road wasrendered moreslippery than it would be from amere rain storm. Theaffidavit of Bourne does not do this. It merely establishes that the road was slippery. A slippery condition can be attributed to nature rather than any negligence by United Materials. Because Burchard did not raise agenuine issue of material fact asto whether the road wasmoreslippery than it would befrom
a rain storm, summary judgment was properly granted to United Materials.

33