No. 8?-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JEAN M. WHITFIELD; JOHN F. WHITFIELD; 

ANNE M. WHITFIELD; JEAN M. WHITFIELD, 

as Guardian for STEVEN C. WHITFIELD, 

and CAROL E. WHITFIELD; and the ESTATE 

OF HAROLD F. WHITFIELD, JR., Deceased, 

Plaintiffs and Appellants, 

-vsTHERRIAULT CORP., a Montana corp., a/k/a 

THERRIAULT RANCH, a/k/a THERRIAULT CREEK 

RANCH; and THE STATE OF MONTANA, 

Defendants and Respondents. 

THERRIAULT CORPORATION, a Montana corporation, 

Defendant and Third-Party Plaintiff, 

-vsTHE STATE OF MONTANA, 

Defendant and Third-Party Defendant. 

APPEAL FROM: District Court of the Nineteenth Judicial Di-strict, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Warden, Christiansen, Johnson & Berg; Thomas R. 

Bostock, Kalispell, Montana 

For Respondent : 

Chris D. Tweeten, Agency Legal Services, Helena, 

Montana 

S. Y. Larrick, Kalispell, Montana 

Submitted on Briefs: Sept. 17, 1987 

Decided: Novemher 19, 1987 

Prt, 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Nineteenth Judicial District, 

Lincoln County, dismissed plaintiffs' claim for wrongful 

death against the State of Montana (State), and granted the 

State summary judgment. Plaintiffs appeal. We affirm. 

The issue is whether the District Court erred in granting summary judgment in favor of the State. 

Harold F. Whitfield, Jr., died on October 29, 1984, as a 

result of injuries sustained in an automobile accident which 

occurred on October 23, 1984. The highway patrol accident 

report indicates that on the morning of the accident, Mr. 

Whitfield was traveling north on U.S. Highway 93. At approximately 7:30 a.m., he apparently encountered two horses on 

the roadway about two miles south of Eureka, Montana. Mr. 

Whitfield's automobile collided with one of the horses and 

Mr. Whitfield was fatally injured. 

Mr. Whitfield's wife and children brought this wrongful 

death action against the party alleged responsible for the 

loose horses, Therriault Corporation (Therriault). Plaintiffs have settled with Therriault, and Therriault is not a 

party to this appeal. Before settling with plaintiffs, 

Therriault filed a third party complaint seeking indemnity 

and contribution from the State. The plaintiffs amended 

their complaint to add a claim against the State. The claim 

against the State is based upon a highway department maintenance employee's observation of two horses in the roadway 

prior to the accident. 

Hubert McKenzie, the highway department employee, testified in a deposition that he saw the horses at approximately 

5:15 a.m. while checking road conditions from Eureka to 

St-ryker in a highway department dump truck. He said he 
followed the horses down the road for approximately one-half 

mile before he was able to pass them as they turned off on an 

approach road. He did not make any report of the horses 

being loose, but did note in his logbook that he had seen 

them. Mr. McKenzie testified that he proceeded to Stryker, 

turned around and returned to Eureka, arriving at approximately 7:00 a.m. Mr. McKenzie stated that he did not see the 

horses on his return trip. 

Janice Pinson, who lives in a house near the accident 

scene, testified in a deposition that she observed Mr. 

McKenziels encounter with the horses. She stated that she 

saw a highway department dump truck "chase" the horses between 6:30 a.m. and 7: 15 a.m., and that she was not sure of 

the exact time, but that the sun had not fully risen. 

The plaintiffs contend that Mr. McKenzie failed to 

exercise reasonable care after discovering the horses on 

Highway 93. They argue that Mr. McKenzie breached a duty 

owed to Mr. Whitfield by failing to clear the horses from the 

roadway or to warn oncoming motorists. Plaintiffs also 

contend that the discrepancy between Mr. McKenziels testimony 

and the testimony of Mrs. Pinson as to the time Mr. McKenzie 

first encountered the horses constitutes a material issue of 

fact and that summary judgment was improperly granted. 

Did the District Court err in granting summary judgment 

in favor of the State? 

Rule 56, M.R.Civ.P., allows a court to enter summary 

judgment when the pleadings, depositions, and other documents 

on file, together with any affidavits filed, demonstrate no 

genuine issues of material fact and that the moving party is 

entitled to a judgment as a matter of law. In reviewing a 

summary judgment, this Court is free to examine the entire 

case and reach a conclusion in accordance with its findings. 
Shimsky v. Valley Credit Union (Mont. 1984), 676 P.2d 1308, 

1310, 41 St.Rep. 258, 260. In the present case, the District 

Court file contains a number of depositions, along with 

answers to interrogatories and a number of exhibits. 

A claim of negligence must establish a legal duty, 

breach of that duty, and damages proximately caused by the 

breach. Detert v. Lake County (Mont. 1984), 674 P.2d 1097, 

1100, 41 St.Rep. 76, 79. Plaintiffs cite the general duty of 

the department of highways to maintain highways in a safe 

condition. See $$ 60-1-101 and -102, MCA. They also cite 

several cases in which the state was found negligent in 

vehicle-stock collisions on federal-aid primary highways. 

(Highway 93 is a federal-aid primary highway. ) However, 

several of these cases hinge on the state's duty to post 

warning signs for animal crossings. E.g., Jensen v. Maricopa 

County (Ariz. 1974), 522 P.2d 1096. The State's duty to post 

warning signs is not at issue here. In fact, there was 

testimony that the area in which Mr. Whitfield's accident 

occurred was posted for range cattle. The plaintiffs also 

cite the State's duty under S 60-7-103, MCA, to fence the 

right-of-way through high hazard areas of the open range. 

Plaintiffs do not assert that this section of road had been 

classified as "high hazard." Nor do they assert that this 

highway was constructed or reconstructed after July 1, 1969, 

as is required in order for the statute to apply. 

Plaintiffs have not cited any authority stating that a 

Montana highway maintenance employee has a duty to remove 

live animals from the roadway. In addition, Mr. McKenzie's 

uncontradicted deposition testimony is that the horses had 

turned off onto an access road when he last saw them. They 

were no longer on the roadway. Plaintiffs have cited no 

authority for their further assertion that Mr. McKenzie had a 

d-uty to somehow insure that the horses did not come back onto 
the highway. We conclude that the plaintiffs have not shown 

any duty on the part of Mr. McKenzie to do more than he did. 

Plaintiffs contend that the differences in the testimony 

of Mr. McKenzie and Mrs. Pinson as to the time at which Mr. 

McKenzie encountered the horses constitutes a material issue 

of fact prohibiting summary judgment. We disagree. As 

discussed above, the plaintiffs' case fails to establish a 

duty on the part of Mr. McKenzie. Absent a showing of such a 

duty, the time at which Mr. McKenzie saw the horses is not a 

material issue of fact. We conclude that the discrepancy 

between the time given by Mr. McKenzie and that given by Mrs. 

Pinson is not a basis to deny summary judgment to the State. 

We affirm the lower court's dismissal of the State from 

this action. 

We concur: .-,,I