No. 95-071 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

JAMES R. BURCHARD, 

Plaintiff and Appellant, 

v. 

MINNIE GREGORY, UNITED MATERIALS 

OF GREAT FALLS, INC., and John 

Does A through E, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James R. Burchard, Pro Se, Port Orchard, Washington 

J. Mayo Ashley, Attorney at Law, Helena, Montana 

For Respondents: 

Lon T. 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 1 5 'i9Y6 

Submitted on Briefs: 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 Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to Montana Law Week, State Reporter and West Publishing 

Company. 

James Burchard appeals from the judgment entered by the Eighth 

Judicial District Court, Cascade County, on its orders granting 

defendants' motions for summary judgment. We affirm. 

The sole issue on appeal is whether the District Court erred 

in granting summary judgment in favor of Minnie Gregory and United 

Materials of Great Falls, Inc. 

At approximately 11:OO p.m. on July 12, 1989, appellant James 

Burchard (Burchard) was driving his pickup truck and fifth-wheel 

trailer eastbound in the inside lane of 10th Avenue South in Great 

Falls, Montana. His wife and a young relative also were in the cab 

of Burchard's pickup. The weather was rainy and windy, and the 

portion of 10th Avenue South on which Burchard was driving recently 

had been resurfaced by United Materials of Great Falls, Inc. 

(United). Burchard lost control of his vehicle near the 

intersection of 38th Street and 10th Avenue South. The fifth-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 on the median and partially on westbound 10th Avenue 

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

westbound lane of traffic on 10th Avenue South at the time and her 

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 on the pavement from the damaged vehicles 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 a negligence action against Burchard, 

Gregory, United, and John Does A through E in July of 1992, seeking 

recovery for injuries she sustained in the accident. Burchard 

filed a separate negligence action against the other defendants 

that same month. The District Court consolidated the actions and 

Burchard's wife subsequently settled her case. 

Burchard proceeded pro se after his attorney was permitted to 

withdraw. Pursuant to the court's scheduling order, the plaintiff 

and defendant were required to disclose expert witnesses by August 

1, 1994, and August 15, 1994, respectively, and to complete 

discovery by September 1, 1994. Trial was scheduled for October 

31, 1994. 
Gregory and United filed motions for summary judgment pursuant 

to Rule 56, M.R.Civ.P., on September 8, 1994, and Burchard 

responded. Following a hearing held on October 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 and United? 

Summary judgment is proper when no genuine issues of material 

fact exist and the moving party is entitled to judgment as a matter 

of law. Rule 56(c), M.R.Civ.P. The party moving for summary 

judgment has the initial burden of establishing both the absence of 

any genuine issue of material fact and its entitlement to judgment 

as a matter of law. AgAmerica, FCB v. Robson (1995), 272 Mont. 

413, 416-17, 901 P.2d 100, 102 (citation omitted). When reviewing 

an order granting summary judgment, we apply the same criteria as 

the district court. AsAmerica, 901 P.2d at 102 (citation omitted). 

Ordinarily, negligence issues involve "questions of fact not 

susceptible to summary adjudication." Hatch v. State Dep't of 

Highways (1994), 269 Mont. 188, 192-93, 887 P.2d 729, 732 (citation 

omitted). Notwithstanding this general rule, a negligence action 

properly may be resolved on a motion for summary judgment under 

limited circumstances. If a moving defendant establishes the 

absence of a genuine 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, 

4 
summary judgment in the defendant's favor is proper. Hatch, 887 

P.2d at 732 (citation omitted). The nonmoving party's proof must 

be substantial and consist of specific facts; reliance on pleadings 

or speculative, fanciful or conclusory statements is insufficient. 

Thornton v. Songstad (1994), 263 Mont. 390, 397-98, 868 P.2d 633, 

638 (citation omitted). 

a. Summary judgment in favor of Minnie Gregory 

Burchard's complaint alleged that he lost control of his 

vehicle and that it came to rest partly on the raised median 

separating eastbound and westbound 10th Avenue South, and partly 

"in the left lane of westbound traffic." His sole allegation 

against Gregory was that she negligently operated her vehicle at an 

excessive speed and, as a result, collided with his pickup in the 

left lane of westbound traffic, thus causing the accident and his 

injuries and other damages. Gregory moved for summary judgment. 

Gregory supported her motion with affidavits and a drawing of 

the accident scene from Kercher, who had received 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 

and reconstruction of the accident and was reflected on a diagram 

showing Burchard's pickup blocking Gregory's westbound lane at the 

point of impact. Kercher stated that Gregory could not have 

5 
avoided the accident even if she had been going slower, given the 

sudden obstruction of her lane of travel by Burchard'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 any genuine 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 a genuine issue of 

material fact as to Gregory's negligence or the cause of the 

accident. On that basis, the District Court granted Gregory's 

motion. 

A law enforcement officer with years of experience in accident 

investigation may render opinions on whether a party was driving 

too fast and on the cause of an automobile accident. Hart-Anderson 

v. Hauck (1989), 239 Mont. 444, 448-49, 781 P.2d 1116, 1118-19. 

Indeed, this has been well-settled law in Montana since at least 

1974. & Rude v. Neal (1974), 165 Mont. 520, 526, 530 P.2d 428, 

432. Moreover, an experienced investigating officer's opinion 

regarding the cause of an automobile accident is sufficient to meet 

a moving party's initial burden of establishing the absence of a 

genuine issue of material fact on that element of an accident-based 

negligence claim. White v. Murdock (1994), 265 Mont. 386, 391, 877 

P.2d 474, 477. 

Here, Kercher's opinions that Gregory was not driving too fast 

and that Burchard caused the accident were based on his 

6 
investigation and experience. Thus, Kercher's opinions were 

sufficient to establish the absence of any genuine issue of 

material fact regarding her alleged negligence and the cause of the 

accident. See White, 877 P.2d at 477. We conclude, therefore, 

that Gregory met her initial burden on summary judgment. 

Gregory having met her burden as the party moving for summary 

judgment, the burden shifted to Burchard to establish the existence 

of genuine issues of material fact. He contends that he raised 

several such issues. 

Burchard relies on his own affidavit in contending, first, 

that a factual dispute exists regarding Gregory's speed at the time 

of the accident. In his affidavit, he stated that Gregory's 

vehicle was "negligently driven at the time . . [and was1 

travelling at an excessive rate of speed. .'I 

Once the party moving for summary judgment 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. By affidavit 

or as otherwise provided by Rule 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 a genuine issue of material fact; they do not 

constitute the substantial proof consisting of specific facts which 

is necessary to withstand a properly supported motion for summary 

7 
judgment. Thornton, 868 P.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 was not driving at an excessive rate of 

speed, we conclude 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 and again at the summary judgment 

hearing, Burchard indicated that Ralph Ward (Ward), a wrecking yard 

operator he identified as a trial witness, estimated Gregory's 

speed at 55 miles 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 Ward was qualified to give an opinion regarding 

the speed at which Gregory was driving, Burchard responded that 

Ward was not an engineer and that he guessed that he "can go find 

another guy and see if he'll talk." 

Once the burden on summary judgment has shifted, the nonmoving 

party must affirmatively respond by affidavit or other sworn 

testimony containing material facts raising genuine issues. 

Koepplin v. Zortman Mining, Inc. (1994), 267 Mont. 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; a party's 

8 
statements 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 on appeal that he should be granted more time 

to find an expert to render an opinion relating to Gregory's speed. 

We disagree. Rule 56(f), M.R.Civ.P., allows the nonmoving party in 

a summary judgment proceeding to request a continuance to obtain 

affidavits or discovery necessary to present 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 as yet 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 and the summary judgment hearing to acquire 

evidence in support of his case or, at least, to offer a reasonable 

explanation of why he was unable to do so. Burchard conceded that 

he had retained an accident reconstructionist and, indeed, he 

listed the expert in his witness disclosure statement filed on July 

29, 1994. Burchard did not provide any information from this 

expert and merely stated at the summary judgment hearing that his 

expert "didn't want to report." 

Gregory filed her motion for summary judgment early in 

September of 1994, a mere seven weeks before the scheduled trial. 

In addition, nearly three months passed between the time Gregory 

filed her motion and the court's order granting it on December 5, 

9 
1994. 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 do so. For these 

reasons, we deny Burchard's request for additional time to locate 

an expert to establish the existence of a genuine 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 was blocking 

Gregory's lane of travel immediately prior to the accident, he 

raised a genuine 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 by negligently not remaining in her clear lane of travel. 

There are two problems with Burchard's position. 

As set forth above, the sole allegation of negligence against 

Gregory contained in Burchard's complaint is that she was operating 

her vehicle at an excessive speed. His contention that Gregory's 

negligence was her failure to remain in her own lane of travel is 

an attempt to oppose summary judgment advancing a new theory of 

negligence. Burchard cites no authority--and we know of none-- 

under which such a substitution of a new cause of action can be 

utilized to raise a genuine issue of material fact in opposition to 

a motion for summary judgment. Burchard could have pleaded this 

theory about Gregory's negligence in his original complaint, either 

alternatively or in addition to the "speeding" allegation. & 

10 
Rule 8(e) (2), M.R.Civ.P. He did not do so. He could have amended 

his complaint to add such a claim as a matter of right, under Rule 

15(a), M.R.Civ.P., at any time prior to the filing of a responsive 

pleading; he did not do so. Nor did Burchard seek leave of court 

to amend his pleading at a later time, pursuant to Rule 15(a), 

M.R.Civ.P. To allow the nonmoving party to add a new theory in 

opposition to summary judgment after the moving party has met its 

initial burden, and to raise an issue of fact about that theory, 

would make every case a "moving target" and effectively preclude 

the use of summary judgment to resolve cases which present no 

genuine factual issue for trial. While summary adjudication cannot 

be used as a substitute for a trial on the merits of contested 

issues of fact (Roe v. Corbin Water Users' Ass'n (1994), 267 Mont. 

503, 507, 885 P.2d 419, 421 (citations omitted)), it is an 

appropriate means of disposing of cases which contain no such 

issues. 

The problem with Burchard's related contention--that he raised 

a genuine issue of material fact regarding the location of his 

pickup when Gregory collided with it--is similar. The locationrelated allegation in Burchard's complaint was that 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 summary judgment, Burchard attempted to raise an 

issue of fact that his pickup came to rest in the left-turn lane 

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

from the allegations of his complaint was advanced for the first 

time in opposition to Gregory's motion for summary judgment. For 

the reasons discussed immediately above, Burchard may not oppose 

summary judgment by creating a moving target. On that basis, we 

decline to address these contentions further. 

Finally, Burchard contends that he established a genuine issue 

of material fact regarding whether Gregory should have seen his 

pickup in time to avoid the accident, even if he were 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 no evidence, 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 have avoided the accident. We conclude, therefore, that 

Burchard's bare contention is insufficient to raise a genuine issue 

of material fact. 

Burchard has failed to establish the existence of any genuine 

issue of material fact regarding any breach of duty by Gregory 

which caused the collision between the Gregory and Burchard 

vehicles. We hold, therefore, that the District Court did not err 

in granting Gregory's motion for summary judgment. 

b. Summary judgment in favor of United Materials of Great 

Falls, Inc. 

A negligence action involves four elements, each of which must 

12 
be 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 was a cause of the accident and his damages. 

More specifically, he alleged that he encountered wet, slippery 

roadway which had recently been oiled and which caused his vehicle 

to travel up over the raised median. In addition, Burchard alleged 

that there "appeared to be" an oily or otherwise hazardous surface, 

"as if" the road had been recently oiled or otherwise coated with 

a material which caused the roadway to be hazardous and slippery. 

He alleged on information and belief that the roadway in the area 

of the accident had recently been under construction by United. 

United moved for summary judgment. 

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 was not a factor 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 and that the condition of the 

13 
roadway caused the accident. The burden 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. See Newville v. State (1994), 267 Mont. 237, 257, 

883 P.2d 793, 805 (citations omitted). Burchard concedes on appeal 

that expert testimony is required to establish the applicable 

standard of care and United's breach in this case, as well as to 

establish that the condition of the roadway caused the accident. 

Because of that concession, this case does not present--and we do 

not address--the issue of whether expert testimony was required as 

a matter of law regarding United's duty, any breach of that duty, 

or the causal connection between any breach of duty and Burchard's 

accident. Also conceding that he did not present the requisite 

expert testimony, Burchard contends that he should be allowed more 

time to obtain an expert's opinion because, as a pro se litigant, 

he did not recognize the necessity of expert testimony. 

The record does not support Burchard's claim that he did 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 name of an accident reconstructionist 

whose report was to be forthcoming; he never provided the expert's 

14 
opinion 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 he had an expert, Burchard stated that he 

had paid an expert but that the expert did not provide a report. 

Based on this record, we are unpersuaded by Burchard's assertion on 

appeal that he did not recognize the need for expert testimony. 

Burchard also asserts that he indicated his need for more time 

to bring in an expert to the District Court, but that the court 

refused to grant a continuance. In essence, he argues that the 

court abused its discretion in failing to continue the proceedings 

and order Burchard to obtain an expert. 

Burchard filed his complaint on July 9, 1992. The scheduling 

order in this case was entered on January 24, 1994, with a jury 

trial scheduled for October 31, 1994. Burchard's expert witness 

disclosure was due by August 1, 1994, a discovery deadline of 

September 1, 1994, was established and witness lists were due by 

September 26, 1994. As noted 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 on September 8, 1994. 

Burchard had approximately eight months between entry of the 

scheduling order and the summary judgment 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 by Rule 56(f), M.R.Civ.P., for requesting a continuance of 

15 
the summary judgment proceeding, Burchard did not make a sufficient 

showing under the rule to require the court to exercise its 

discretion regarding a continuance in his favor. Finally, even 

Burchard's post-hearing document, filed a month before the District 

Court's ruling and entitled "Request Motion for Summary Judgment Be 

Denied Defendant['ls," was not accompanied by any expert opinion as 

to the applicable standard of care in this negligent road 

construction action against United or any breach of such a standard 

by United. We cannot conclude, on the 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 he presented substantial evidence that the road was 

oily and slick and, therefore, that he raised a genuine issue of 

material fact as to the cause of the accident. In light of 

Burchard's concession that expert testimony was required "regarding 

the cause of the accident most specifically, the road surface" and 

his failure to provide such testimony, we do not address this 

contention. 

Burchard having failed to present expert affidavit or other 

testimony he concedes was necessary to withstand summary judgment 

on negligence action against United, we conclude that he did not 

establish the existence of any genuine issue of material fact 

regarding a breach of duty by United which caused the accident in 

16 
this case. We hold, therefore, that the District Court did not err 

in granting United's motion for summary judgment. 

Burchard also argues, as to 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 a genuine 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, was that of Patricia Bourne. The District Court addressed the 

Bourne affidavit, which related to the location of Burchard's 

pickup at the time the accident occurred and to the condition of 

the roadway vis-a-vis whether United's negligence caused the 

accident. Because we have determined that, on this record, 

Burchard may not properly raise issues of fact regarding those 

issues in an effort to defeat summary judgment, we need not address 

the Bourne affidavit further. 

Burchard's final arguments are that the District Court did not 

consider his deposition and that he was not allowed to take the 

defendants' depositions. In addressing motions for summary 

judgment, district courts consider only pleadings and discovery "on 

file." Rule 56(e), M.R.Civ.P. Depositions are not routinely 

filed; if a party believes that a deposition should be filed, it 
may make an ex parte request that it be filed under Rule 5(d), 

M.R.Civ.P. Burchard did not request that his deposition be filed. 

Therefore, because the deposition was not 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 based on inadequate information and, therefore, 

that summary judgment was not appropriate. Burchard relies on 

Rasmussen v. Bennett (1983), 207 Mont. 33, 672 P.2d 278, where we 

set aside a summary judgment and returned 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, may not have been in possession of all the facts. In 

Rasmussen, the action was a complicated libel and slander suit, the 

disputed facts were fifteen years old by the time summary judgment 

was granted, and both counsel proceeded under the belief that the 

defendants' depositions were of record. Rasmussen, 672 P.2d at 

279. 

Rasmussen is inapplicable here. The facts in Burchard's case 

are neither as old, nor as complicated, as those in Rasmussen. 

Furthermore, at the time we decided Rasmussen, the parties were 

required by Rule 30(f), M.R.Civ.P. (1983), to file depositions with 

the court. As discussed above, depositions are no longer routinely 

filed; indeed, a party seeking to file a deposition must obtain the 

court's permission to do so. Rule 5(d), M.R.Civ.P. Burchard did 

not. 

Finally, Burchard's argument that summary judgment was 

18 
inappropriate 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 he failed to do so cannot be blamed 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, and Gregory and her counsel were available at 

the Cascade County Courthouse on the date specified, Burchard did 

not appear. We conclude that a litigant's total failure to conduct 

discovery cannot constitute error by a district court. 

Affirmed. 

We concur. 

Justices 

19 
Justice 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 and balancing all the evidence and which blatantly 

disregards those rules which this Court has, in the past, applied 

to motions for summary judgment. 

Only when there are no issues of material fact and the moving 

party is entitled to judgment as a matter of law, is summary 

judgment appropriate pursuant to Rule 56(c), M.R.Civ.P. Reeves v. 

Reinhold (1980), 189 Mont. 284, 287, 615 P.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 be drawn in favor of the party who opposed 

summary judgment." Heist v. Eastern Montana College (Mont . 19 9 6 ) , 53 

St. Rep. 162, 163. 

Furthermore, we have, for good reason, held that ordinarily 

issues of negligence are questions of fact not susceptible to 

summary adjudication. Duchesneau Y. Silver Bow County (19'71) , 158 Mont. 

369, 377, 492 P.2d 926, 931. For the following reasons, this case 

was clearly not susceptible to summary adjudication: 

In the complaint filed by Burchard and prepared for him by the 

attorney who represented him at that time, Burchard alleged that 

his vehicle went out of control while approaching an intersection 

on 10th Avenue South in Great Falls and that after coming to a stop 

on the median, and while partially located in the westbound lane of 

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

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

Under Montana law, a motorist has a duty to look not 

only straight ahead but laterally ahead as well 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 he did not see 

that which was in plain view. 

Furthermore, the fact that Burchard may have been placed in a 

position of danger by his own negligence did not bar his claim 

against Gregory. Restatement (Second) of Torts § 479 (1965), 

provides as follows: 

A plaintiff who has 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 and care, and 

(b) the defendant is negligent in failing to 

utilize with reasonable care and competence his then 

existing opportunity to avoid the harm, when he 

(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. 

We approved of the last clear chance doctrine set forth at 

5 479 in Lambv.Page (19691, 153 Mont. 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 any evidence to the contrary. 

With regard to defendant United Materials, Burchard alleged in 

his complaint that that defendant had recently done work at 10th 

22 
traffic, Minnie Gregory negligently collided with him and caused 

him damage. 

In support of his allegation that Gregory was negligent and in 

opposition to her motion for summary judgment, Burchard filed an 

affidavit in which he stated the following relevant facts: 

10. 

11. 

12. 

13. 

That I was proceeding east on 10th Avenue South at 

approximately 25 mph and attempted to brake, 

because of the traffic light changing to amber as I 

approached the intersection of 38th Street and 10th 

Avenue South when my 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 

the west bound traffic on 10th Avenue South; 

That the towing vehicle came to a full-stop on the 

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 had been recently oiled 

or otherwise coated with a material which caused 

the roadway to be hazardous and slippery. 

That approximatelv three (3) minutes after the 

towins vehicle came to 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, a vehicle 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., and if believed, were sufficient 

21 
Avenue South at the scene of his accident and that as a result 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 on July 12, 1989 I lived with my husband 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 

a box-like structure located in that portion of the 

motel that was closest to 10th Avenue South. 

Except for a fireplace chimney on the 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; 

23 
15. That as a result of the slick and slippery 

condition on 10th Avenue South on July 12, 1989 I 

observed several east bound vehicles fishtailing at 

the traffic light located at the 38th Street 

intersection. Most of the fishtailing occurred 

when the traffic light went from Green to Yellow to 

Red; 

16. That my husband Frank remarked several times during 

the day that . . . he knew that an accident was 

going to happen before the day was over; 

. . . . 

19. That Frank and I watched the office T-V set for 

perhaps a half an hour when we both heard a crash; 

. . . 

22. That I ran to the pick-up truck and saw that there 

was no fire 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 on 10th Avenue South: 

. . . . 

32. That on July 12, 1989 there were no signs on, at or 

near 10th Avenue South that indicated that the 

roadway was hazardous, slippery, or dangerous; 

33. That on July 12, 1989 there 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 a stop at the intersection of 10th Avenue South and 38th 

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 

24 
contractor 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 a safe stop and 

when no warning has been provided that such a dangerous 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 a clear 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 on what he was told by Gregory. 

Second, it makes no difference how fast 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 a lookout 

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 

25 
avoided 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 on the 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. 

26 
There 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 a new cause of action." Burchard's claim was that his vehicle 

came to rest at a place where Minnie Gregory could have avoided it 

had she kept a proper 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 a general 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 a better position to state what happened 

27 
at 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 and that 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, I will 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, a vehicle 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, he could not have suddenly appeared in Gregory's lane of 

travel. 

We have never previously held that expert testimony is 

necessary to prove that a roadway is hazardous or that a motorist 

on that road is entitled to a warning of a sudden change in the 

road's condition. This is a poor case in which to set that 

28 
precedent. It should not take a rocket scientist or someone with 

an engineering degree to establish that a roadway on which vehicles 

cannot come to a safe stop while traveling at a speed equal to or 

less than the allowable speed is unsafe and requires a warning by 

the contractor who creates that condition. However, without any 

authority other than Burchard's concession, first made while 

proceeding as a prose litigant, the majority has now made such a 

requirement, and in the process, increased the complexity and cost 

of all future litigation related to roadway conditions. 

The majority opinion affirming summary judgment in favor of 

United Materials completely overlooks the following proof submitted 

by affidavit: 

1. Burchard approached the intersection where United had 

done surfacing work at a speed of about 25 miles per hour (10 miles 

per hour under the speed limit), applied his brakes, and lost 

control of his vehicle. 

2. The lane on which he lost control had an oily appearing 

surface which caused the roadway to be hazardous and slippery. 

3. United had completed resurfacing of the area in the few 

days prior to the accident. 

4. The freshly laid surface was oozing oil which mixed with 

the rain. 

5. The combination of the oil and rain made the surface 

slick and slippery like it was black ice. 

6. No warning of the roadway's condition was erected. 

29 
7. 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 same motorists 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 be affirmed based on Burchard's failure to produce an 

expert witness presents a new and inappropriate dimension to the 

litigation of simple automobile accidents. 

In Heiatv. EasternMontana College (Mont. 1996), 53 St. Rep. 162, we 

recently held that a female college professor who was 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 

30 
injured 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. 

31 
Justice W. William Leaphart, specially concurring and dissenting. 

I join 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, and his answer 

to his wife's complaint, the fact remains that Burchard's sworn 

affidavit raises a question of fact as to where his vehicle came to 

rest and, thus, a question as to whether Gregory should and could 

have avoided colliding with him. 

I concur with the Court in affirming the summary judgment 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 

was oozing oil which was mixing with the rain and that the surface 

was slippery like black ice and that, as a result of the slippery 

condition, Bourne observed several vehicles fishtailing. Although 

this affidavit establishes that the road was slippery, it does not 

raise a question of fact with regard to whether United Materials 

was the cause of that slippery condition. Furthermore, Bourne's 

affidavit does not purport to make any causal connection between 

the slippery condition and what 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 as established by Officer Kercher? 

Secondly, although the Bourne affidavit establishes that the 

32 
road was slippery due to rain and oil, it does not refute the fact 

(established by Officer Kercher) that the road was no more slippery 

than normal wet pavement in a rain storm. AS all drivers know, 

after or during a rain storm, roads become "slippery when wet." 

In light of the fact that this accident occurred while it was 

raining, Burchard had to do more than establish that the road was 

slippery. That is, he had to produce testimony (whether from a lay 

person or an expert) to the effect that, due to the oil applied by 

United Materials, the road was rendered more slippery than it would 

be from a mere rain storm. The affidavit 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 a genuine issue of material 

fact as to whether the road was more slippery than it would be from 

a rain storm, summary judgment was properly granted to United 

Materials. 

33