No. 87-232 

IY THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

PATRICIA BROHMAN, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

P. Keith Keller; Keller, Reynolds, Drake, Sternhagen 

& Johnson, Helena, Montana 

For Respondent : 

John Maynard, Dept. of Administration, Helena, Montana 

Submitted on Briefs: Nov. 6, 1987 

Decided : January 19, 1988 

Filed: .i)R% 1 g 19@ 

- - 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal of an order of the First Judicial 

District, Lewis and Clark County, granting the 

defendant/respondent State of Montana (State) a motion for 

summary judgment against the plaintiff/appellant, Patricia 

Brohman (Brohman). The District Court ruled as a matter of 

law that appellant's negligence exceeded that on the part of 

the State. It is from this ruling that Brohman appeals. 

We affirm. 

On January 21, 1984, at about 8:10 p.m., Brohman was 

driving east from Missoula, Montana to Helena, Montana on 

Highway 12. She was accompanied by her husband, two 

daughters and one son. The roads were intermittently snow 

packed. Approximately two miles west of Elliston, Brohman 

attempted to pass a slower moving truck driven by Jason 

Newton. At this point in the highway, a hump in the roadway 

existed disallowing sight from either the west or east side. 

As Brohman pulled into the passing lane, another car, driven 

by Sean Kane who was accompanied by three other Carroll 

College students, was cresting this hump from the opposite 

direction. Neither Brohman nor Kane could react and a 

head-on collision resulted. All parties suffered varying 

degrees of injury and two of the passengers in Kane's car 

died. 

The hump in the road is not noticeable from a distance. 

A driver in either direction can see vehicles if they are far 

enough away but lose sight once the vehicle is closer to the 

hump. The highway runs parallel to a railroad track that is 

completely flat. Although the highway is marked with a 

double stripe indicating a no-passing zone, there were no 

signs indicating a no-passing zone and on the night of the 
accident the stripes were covered with snow and ice. The 

investigating highway patrolman, Bernard Barton, testified in 

deposition that he had to dig through the packed snow to find 

the highway striping. 

At the time of the accident, Brohman's visibility was 

obscured by blowing snow. Barton stated that on his way to 

the accident scene he passed the ambulance but could do so 

only because he had radio communication with the ambulance 

driver. 

Brohman could not remember events leading to the 

accident or the accident itself. She did, however, testify 

that she had traveled this stretch of highway frequently. 

This action is a result of the Brohman-Kane accident. 

The underlying claims in this case were originally filed in 

Federal District Court where the estates of the two deceased 

victims sued Brohman and the Shaklee Corporation (Shaklee) 

because of diversity of citizenship. Brohman worked for 

Shaklee, was driving a leased vehicle that she and her 

husband received through their participation with Shaklee, 

and was returning from a Shaklee meeting in Missoula when the 

accident occurred. 

Brohman attempted to join the State in the Federal 

cases as a third-party defendant but the Federal District 

Court denied the motion on March 7, 1986 on grounds that the 

presence of the State as a third party defendant would 

destroy diversity of citizenship. On March 13, 1986, the 

Federal District Court granted motions for partial summary 

judgment against Brohman and Shaklee on the issue of 

liability. 

This suit was filed in State District Court on January 

29, 1986 alleging the State's negligence caused the accident 

because of careless and reckless design, construction or 

supervision. The State moved for partial summary judgment on 
grounds that Brohman was collaterally estopped from denying 

liability because the Federal District Court had ruled she 

was negligent as a matter of law. The State then moved for 

partial summary judgment on grounds that Brohman's negligence 

exceeded any negligence on the part of the State. Both 

motions were granted and final judgment against Brohman was 

entered. 

On this appeal, Brohman relies on the report of her 

expert, Donald Reichmuth, an engineer, who concluded that the 

stretch of highway was dangerous. Reichmuth based this 

conclusion on a "deficient stopping sight distance for 55 mph 

and [a] blind spot in the passing sight distances from both 

east and west." He stated that the posted speed should be 45 

or 40 mph and no passing signs should augment the no-passing 

zone pavement markings. 

The only issue we have before us is whether the 

District Court erred in granting the State's motion for 

summary judgment. 

Summary judgment may be granted pursuant 

to Rule 56, M.R.Civ.P., when there is no 

genuine dispute over material facts and 

the moving party is entitled to a 

judgment as a matter of law. The initial 

burden of proof is upon the party moving 

for summary judgment. The moving party 

must demonstrate that no genuine issue of 

material fact exists. Then, the party 

opposing the motion must come forward 

with substantial evidence that raises a 

genuine issue of material fact. 

Hendrickson v. Neiman (1983), 204 Mont. 367, 370, 665 P.2d 

219, 221. 

Brohman contends the general rule disallows disposal of 

negligence cases with a summary judgment motion. 

Ordinarily, issues of negligence are not 

susceptible to summary judgment and are 

better determined at trial. Brown v. 
Merrill Lynch, Pierce, Fenner & Smith, 

Inc. (1982), Mont., 640 P.2d 453, 458, 39 

St.Rep. 305, 310. Liability should not 

be adjudicated upon a motion for summary 

judgment where factual issues concerning 

negligence and causation are presented. 

Duchesneau v. Silver Bow County (1971), 

158 Mont. 369, 492 P.2d 926, 931. 

Hendrickson, supra, 665 P.2d at 222. 

However, we have in the past affirmed the granting of 

summary judgment on negligence when it is clear that a party 

has breached a duty and caused an accident. Birky v. Johnson 

(Mont. 1986), 716 P.2d 198, 43 St.Rep. 488. 

In this case, we are dealing with a suit by Brohman 

against the State for injuries she suffered. For Brohman to 

recover, she would have to prove, .that the negligence on the 

part of the State exceeded any negligence on her part in 

causing the collision. Section 27-1-702, MCA. Section 

61-8-325 (1) and (2) (a), MCA defines the applicable duty for 

Brohman under the circumstances of this case: 

(1) No vehicle shall be driven to the 

left side of the center of the roadway in 

overtaking and passing another vehicle 

proceeding in the same direction unless 

such left side is clearly visible and is 

free of oncoming traffic for a sufficient 

distance ahead to permit such overtaking 

and passing to be completely made without 

interfering with the safe operation of 

any vehicle approaching from the opposite 

direction or any vehicle overtaken. In 

every event the overtaking vehicle must 

return to the right-hand side of the 

roadway before coming within 100 feet of 

any vehicle approaching from the opposite 

direction. 

(2) No vehicle shall at any time be 

driven to the left side of the roadway 

under the following conditions: 
(a) when approaching the crest of a 

grade or upon a curve in the highway 

where the driver's view is obstructed 

within such distance as to create a 

hazard in the event another vehicle might 

approach from the opposite direction. 

The State has the duty to provide and maintain safe 

highways for the citizens of the state of Montana. State v. 

District Court of the Fourteenth Judicial District (1977), 

175 Mont. 63, 67, 572 P.2d 201, 203. Brohman argues that the 

State failed to properly warn her of the no-passing zone 

because the double striping was covered with snow and there 

were no no-passing signs in the area. Brohman contends 

therefore, that the State breached its obligation under 

5 61-8-203, MCA: 

The department of highways shall place 

and maintain traffic-control devices, 

conforming to its manual and 

specifications, upon all state highways 

it considers necessary to indicate and to 

carry out this chapter and chapter 9 or 

to regulate, warn, or guide traffic. 

From its plain language, this statute shows the State 

of Montana is required to place a sign where "[ilt considers 

necessary . . . " In the case of no-passing zones, the duty 

on the part of the State is discretionary. 

The department of highways may determine 

those portions of a highway where 

overtaking and passing or driving to the 

left of the roadway would be especially 

hazardous, - and it may a appropriate 

signs or markings -- on the roadway indicate 

the beginning and end of these zones. 

When the signs or markings are in place 

and clearly visible to an ordinarily 

observant person, every driver of a 

vehicle shall obey the directions of 

those signs. (Emphasis added.) 
Section 61-8-326, MCA. 

No evidence was presented at the District Court level 

that any accidents had occurred at this particular spot on 

Highway 12 prior to the Brohman accident. Patrolman Barton 

stated he had no knowledge of any subsequent accidents. 

The District Court in its memorandum and order granting 

the motion for summary judgment stated: 

Normally, negligence is a question of 

fact. In certain cases, however, where 

reasonable minds cannot differ, the cause 

of an accident may be a question of law 

for the Court to determine ... thus. 

when reasonable minds could reach -- butone - conclusion, questions of fact may - be 

determined as a - matter -- oflaw. 

Citing, Hartley v. State (Wash. 1985), 698 P.2d 77, 81, see 

also, Prosser and Keeton, The Law of Torts, pp. 238, 319-320 

(5th Ed. I 1984). 

The District Court determined reasonable minds could 

not differ that Brohman's negligence exceeded that of the 

State. The District Court concluded, because of the unusual 

nature of the case, summary judgment was appropriate: 

It is true that because of the peculiarly 

exclusive nature of the concept of 

negligence, it is the rare personal 

injury case which may be properly 

disposed of by summary judgment. 

(Citations omitted. ) [TI he mistake 

should not be made of supposing that 

because summary judgment cannot normally 

be granted in a particular kind of case, 

the motion should not be granted in an 

unusual case of the kind in question 

where such procedure is in fact 

appropriate. Citing Bland v. Northfolk 

and Southern Railroad Company (4th Cir. 

19691, 406 F.2d 863, 866. 

This case falls into the category that allows the court 

to determine negligence as a matter of law. 
In its memorandum and order of April 15, 1987, the 

District Court stated: 

[Ilt is undisputed that Plaintiff 

attempted to pass at night, in a no 

passing zone; that the highway was 

intermittently snow packed; that 

visibility was obscured by blowing snow 

so that she could not see when she was 

passing; and that she had traveled that 

highway frequently . . . 

Summary judgment demands that all 

reasonable inferences from the proof 

presented must be drawn in favor of the 

non-moving party. Here that means the 

Court must assume negligence on the part 

of the State. 

I conclude that reasonable minds would 

not differ on the issue of comparative 

negligence. The only conclusion to be 

reached is that the Plaintiff ' s 

negligence exceeded that of the State's. 

I find therefore, that as a matter of 

law, the Plaintiff was more responsible 

for her injuries than the State may have 

been in designing the highway or in 

failing to have signs. 

Patrolman Barton testified, in his deposition used in 

the Federal District Court cases in regard to his subsequent 

accident report, that the hill and improper passing were 

contributing factors. Additionally, he commented that 

Brohman's visibility was obscured when she pulled into the 

passing lane. He stated: 

Q. Describe for us what you mean by 

improper passing. 

A. Okay. If you had been able to see 

the solid line, the pass was being made 

where there was a solid line. The 

visibility was obscured so she could not 

see when she was passing . . . 
Q. You said it was snowing when you 

arrived? 

A. Yes. It would snow -- you know, it 

wasn't a steady snow. It was off and on. 

Mainly the visibility was bad from 

blowing snow. 

Q. Such as the snow that's kicked up by 

the car in front of you or a truck? 

A. Just the wind blowing snow. It was 

kind of like a ground blizzard coming 

through there. 

Q. The snow was not falling heavily at 

that time? 

A. No. Before we left it had started 

snowing quite heavy. But at the time of 

the accident it was more of a blowing 

snow type thing . . . 

Q. As you were proceeding to the 

accident scene, say east of Avon and for 

that area of roadway between Avon and the 

accident scene, how was your visibility 

so far as blowing snow as you've earlier 

described and snowing conditions? 

A. The visibility was poor, especially 

when there was another vehicle in the 

area. I followed the ambulance for quite 

a ways just on account of the visibility. 

Q. You eventually passed the ambulance, 

I think you said, and arrived at the 

accident scene prior to the ambulance 

arriving? 

A. Yes. But they advised me that it was 

clear ahead to pass. You know, if we 

wouldn't have had contact, there would 

have been no way I could pass them, 

because they were kicking up the snow 

Q. Were the conditions similar in the 

area where you attempted to pass the 
ambulance as they were at the area of the 

accident? 

A. Yes . . . 

Barton also stated at the coroner's inquest that "[tlhe 

pass could not be made in safety . . . on account of the 

visibility." 

From this testimony, the negligence of Brohman is 

apparent. She drove her vehicle to the left of the 

centerline in a snowstorm while lacking the ability to see 

clearly whether there was oncoming traffic. Reasonable 

people could not disagree that a reasonable person under 

these circumstance would not, and could not, pass in safety. 

Brohman could remember nothing of the accident nor events 

leading to the accident. Therefore, no evidence asserted by 

Brohman's counsel of her objective knowledge at that time is 

authentic. 

The testimony of Newton and Mike Hataway, the 

individuals in the vehicle overtaken by Brohman, at the 

corner's inquest further confirmed that Brohman's vision had 

to have been obstructed. Newton stated: 

Q. What were the weather conditions; do 

you recall? 

A. It was snowing and the visibility 

wasn't all that good . . . 

Q. Was the snow blowing at that time; do 

you recall? 

A. Mrn hmm. 

Hataway, the passenger in the passed vehicle, concurred. 

Q. [D]o you recall what the weather 

conditions were? 

A. It was snowing fairly hard. The road 

was partially snow packed in places, 
patchy, and the visibility was not real 

good. 

Q. The wind was blowing? 

A. Yeah, there was snow blowing around ... 

On this testimony the Federal District Court based its 

conclusion that Brohman's operation of her car caused the 

collision and that she violated the Montana Vehicular Safety 

statutes. With this information, the District Court 

determined that Brohman was, "[als a matter of law . . . more 

responsible for her injuries than the State may have been in 

designing the highway or in failing to have signs." 

On this appeal, Brohman argues that the District Court 

erred in finding that she was collaterally estopped from 

bringing the negligence claim and that a material issue of 

fact was raised by the affidavits and reports filed by her 

expert. 

The District Court's order shows that it independently 

considered the facts of the case in its own determination 

that reasonable minds would not differ on the issue of 

comparative negligence. The District Court assumed 

negligence on the part of the State and made all reasonable 

inferences in favor of Brohman prior to concluding that 

Brohman's negligence exceeded that of the State. 

In this case, the District Court properly found Brohman 

liable as a matter of law. In any action for negligence, the 

plaintiff must produce evidence from which it can be 

reasonably inferred that the negligent conduct on the part of 

the defendant was the proximate cause of the plaintiff's 

injuries. Krone v. McCann (1982), 196 Mont. 260, 638 P.2d 

397; Bostwick v. Butte Motor Co. (1965), 145 Mont. 570, 

403 P.2d 614. The lack of signing in this case has not 
been shown to be the proximate cause of this accident. Even 

assuming, as the District Court did, that there was 

negligence on the part of the State, Brohman's act of 

attempting to pass without a clear view was the proximate 

cause and far exceeded any negligence on the part of the 

State. 

Brohman would have to prove by a preponderance of the 

evidence that her damages were proximately caused by the 

State's presumed negligence. Holenstein v. Andrews (1975), 

166 Mont. 60, 530 P.2d 476. Under the facts of this case, 

the evidence presented and the depositional testimony, it is 

clear that Brohman could not prove by a preponderance of the 

evidence that the State proximately caused her injuries. 

Reasonable minds could not differ in this result. 

Finally, as to the claim that Brohman's expert created 

an issue of fact, viewing the expert's conclusions in a light 

most favorable to Brohman, a question of fact is still not 

raised. Reichmuth stated in his report: "[a] driver -- who does 

not frequently drive this stretch -- of road might not perceive 

the existence of the hump and its accompanying blind spot 

which limits visibility." (Emphasis added. ) Brohman 

traveled this stretch of road numerous times. 

Q. With what frequency in the five years 

that you've lived in Helena, now, do you 

have to go to Missoula? Any idea? . . . 

A. Well, it has varied. But it has 

varied between one and three times a 

week. 

Q. I take it, then, you have driven the 

road between Missoula and Helena 

frequently? 

A. Yes . . . 
From the depositions in this record and the exhibits 

and documents available, we hold that the District Court did 

not err in granting summary judgment. The State met its 

burden of showing no material issue of fact as to Brohman's 

negligence. Brohman failed to produce substantial evidence 

that raised a genuine issue of material fact. All-State 

Leasing Co. v. Top Hat Lounge, Inc. (1982), 198 Mont. 1, 649 

P.2d 1250, 1251-1252. 

We affirm. 

We concur: /--+"