No. 86-378 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

BONITA S. SCHELLINGER, individually, 

and as Personal Representative of the Estate 

of ROBERT K. SCHELLINGER and Guardian Ad 

Litem of TODD R., STACY K. and RORY K., Minor 

Children; and BRYAN E. SCHELLINGER, 

Plaintiffs and Appellants, 

-vsMARSCHALL, PRESTON & ASSOCIATES, INC., 

an Idaho Corporation, MIKE RHODES AND 

DALE SCHULTZ , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of P4issoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bothe Law Firm; David W. Lauridsen, Columbia Falls, 

Montana 

For Respondent: 

Williams Law Firm; Paul Sharkey, Missoula, Montana 

Submitted on Briefs: Nov. 20, 1986 

Decided: February 24, 1987 

Filed: FEB 24 1987 

u *,- Clerk 
Mr. Justice Fred J. Weber delivered. the Opinion of the Court. 

Appellants brought a wrongful death and survivorship 

action against Marschall, Preston and Associates and two of 

their employees (Marschall) alleging negligence. The District Court for the Fourth Judicial District, Missoula County, granted the summary judgment motion of Marschall. We 

affirm. 

The issue is whether the District Court erred in granting Marschall's motion for summary judgment. 

Robert K. Schel-linger was a helicopter pilot who ran his 

own helicopter service and carried persons for compensation. 

He was hired by Marschall to transport part of a geological 

survey crew into and out of the Cabinet Mountains in 1981. 

In early May 1981, Mr. Schellinger was in the process of 

picking up two members of the survey crew on a steep hillside 

when the rotors of the helicopter hit the hillside, causing 

the helicopter to crash. Mr. Schellinger was killed in the 

crash. 

In their complaint, the surviving spouse and children of 

Mr. Schellinger allege that the defendants: 

. . . had a duty to inform, advise and direct the 

decedent as to the location of his helicopter in 

relationship to the hillside and breached their 

duty by failing to properly notify the decedent 

that the rotors of his helicopter were too close to 

the hillside for a safe and proper boarding by the 

Defendants. In addition, the Defendants . . . knew, or should have known, that if they attempted 

to board the helicopter, the aircraft would move 

downward due to the change in weight distribution 

and collide with the adjoining hillside. 

The District Court granted Marschall's motion for summary judgment and the Schellingers appealed maintaining there 
are material facts to be resolved and thus the summary 

judgment order was improper. 

Did the District Court err in granting Marschall's 

motion for summary judgment? 

Mayer Bros. v. Daniel Richard Jewel.ers, Inc. (Mont. 

1986), 726 P.2d 815, 43 St.Rep. 1821, contains a pertinent 

discussion of the summary judgment elements with which we are 

concerned: 

Thus, we may find summary judgment proper when "the 

pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue 

as to any material fact and that the moving party 

is entitled. to a judgment as a matter of law." 

Rule 56 (c) , M.R.Civ.P. 

Mayer Bros., 726 P.2d at 816, 43 St.Rep. at 1823. 

Mayer Bros. further emphasizes the nature of the required 

record stating: 

Once the record discloses no genuine issue of 

material fact, the burden of proof shifts to the 

party opposing the motion for summary judgment to 

show by present facts of a substantial nature that 

a material fact issue does exist. (Cases cited.) 

Mere conclusory or speculative statements are 

insufficient to raise a genuine issue of material 

fact. (Case cited.) The opposing party "may not 

rest upon the mere allegations or denials of his 

pleading, but his response, by affidavits or as 

otherwise provided in this rule, -- must set forth 

specific facts showing there - is - a genuine issue for 

trial." (Emphasis added.) Rule 56 (e) , M.R.Ci~.P. 

Mayer Bros., 726 P.2d at 816, 43 St.Rep. at 1823. 

With the foregoing in mind, we now consider the contentions on the part of the Schellingers. In their briefs, the 

Schellingers attempt to raise the following issues of material fact: (1) whether the survey crew's contact with the 

helicopter prior to the crash caused the helicopter crash; 
(2) whether the survey crew's lack of training and. experience 

in helicopter procedure contributed to the crash; (3) whether 

one of the survey crew members actually opened the door of 

the helicopter; and (4) whether the testimony of one of the 

survey crew members was credible. Unfortunately, the record 

does not support the contentions of the plaintiffs. The 

record includes the transcript of the lower court's hearing, 

the depositions of Bonita S. Schellinger (wife of the deceased) , Michael C. Duff ield (the Schellinger Is accountant) , 

Robert B. Evans (private investigator), James W. Kruger 

(helicopter pilot) , and Kenneth McNees (Federal Aviation 

Administration), several answers to interrogatories, requests 

for admissions, and various documents requested for production. Nothing in this record supports the contentions of the 

plaintiffs with regard to the issues of material fact. 

As pointed out in Mayer Bros., the responsibility of the 

plaintiffs is to set forth by affidavits, or as otherwise 

provided in Rule 56, M.R.Civ.P., specific facts showing that 

there is a genuine issue for trial. The defendants, Mike 

Rhodes and Dale Schultz, who apparently were the only eye 

witnesses, were not deposed nor was a sworn statement of any 

type obtained from them. The record just does not support 

the arguments on the part of the plaintiffs. 

Although we agree with the District Court's conclusion 

that summary judgment was proper in this case, we do wish to 

point out that the standard the District Court used to reach 

that conclusion was incorrect. In its order granting 

Marschall's summary judgment motion the District Court 

stated: 

Plaintiffs present no substantial admissible evidence to the effect that any negligence of the 

Defendants proximately caused, or was even a sub- 
stantial factor in bringing about, the helicopter 

crash. 

The test to determine whether summary judgment should be 

granted is not whether the party presented any "substantial 

admissible evidence," but rather whether there is a genuine 

issue of material fact. Rule 56(c), M.R.Civ.P. We recognize 

that the District Court initially stated that there was no 

issue of material fact and that Marschall was entitled to 

judgment as a matter of law. However, we emphasize the 

correct standard to be applied in summary judgment proceedings so there will be no confusion in future cases. 

After a careful review of all of the materials in the 

record, we conclude that the plaintiffs have not shown the 

existence of a genuine issue of material fact. We affirm the 

summary judgment of the District Court. 

We Concur: 

& I 

1 

L 

Justices