No. 92-283 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

ELROY C. YAGER and BARBARA A. YAGER, Plaintiffs and Appellants,

-vsROLLAND DEANE, a/k/a ROLAND E. DEANE, JR., Defendant and Appellant, and THE STATE OF MONTANA, Defendant and Respondent.

APPEAL FROM: District Court of the EighteenthJudicialDistrict, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellants: J. David Penwell,Attorney at Law, Bozeman,Montana and John L. Weyland, Attorney at Law, Wayzata, Minnesota (for appellants, Yagers) James M. Kommers and Daniel J. Roth; James M. Kommers and Associates, Bozeman, Montana (for appellant Deane) For Respondent: Allen B. Chronister; Chronister, Driscoll & Moreen, Helena, Montana Kelly O'Sullivan, Agency Legal Services Bureau, Helena,,Montana

. - Submitted on Briefs: October 29, 1992

CLERKQFSiji2i::EEiE COUm SZ.A.I.E~i:' w~*l(jNlAlUAJustice Karla M. Gray delivered the Opinion of the Court.

PlaintiffsElroy and BarbaraYageranddefendantRolland Deane appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment in favor of the Stateof Montana. We affirm. The sole issue on appeal is whether the District Court erred ingranting summary judgment on thebasis that the State ofMontana had no duty toprevent livestock fromwandering onto the interstate highway. Thepertinent facts of the case are undisputed. On March 22, 1989, at approximately 1:30 a.m., Elroy Yager (Yager)was driving a semi-tractor and trailer in the westbound lane of Interstate 90

(1-90). Yager'svehicle struck a horse, owned by defendantRolland Deane (Deane)

## , that had wandered onto thehighway near the Jackson Creek interchange east of Bozeman. As a result of the impact, the semi-tractor and trailer went through a guardrail and rolled down

an embankment, injuring Yager. On March 29, 1991,Elroy and Barbara Yager (theYagers) filed suit against Deane and the State of Montana (the State). They alleged that Deane negligently allowed hishorse towander onto I90 and that the State negligently maintained a fence and cattleguard, allowing the horse access to 1-90. Elroy Yager sought damages for permanent bodily injury, medical expenses and lost wages. Barbara Yager sought damages for lossof consortium. Deane and theState filed cross-claims seeking indemnity and contribution from each other. On April 24, 1992, the District Court granted the State'smotion for summary judgment. The District Court determined that actionable negligence could not lie against the State absent a legal duty to erect or maintain a fence or to keep the interstate highway free of livestock. Itconcluded thatno suchduty existed. The Yagers and Deane appeal. Did theDistrictCourt err ingranting summary judgment on the basis that the State of Montana had no duty to prevent livestock from wandering onto the interstate highway? 

### A district court properly grants summary judgment when there

are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty: the existence of a legal duty is

a question of law tobe determinedby thedistrict court. Nautilus Insurance Co. 

### v. First National Insurance (Mont. 1992), 837 P.2d 409, 411, 49 St.Rep. 802, 803. The question before us, as it was before the DistrictCourt, iswhether the State has a legalduty on which appellantscanbase anegligence claim. We examine, in turn, the sources which appellants contend impose a duty on the State to prevent livestock from wandering onto 1-90 where the accident occurred.

Statutory Basis The District Court considered whether 

### $5 60-7-103 and 60-5-105(1), MCA,required the State toprevent livestock from wandering onto the highway. Section 60-7-103,MCA, provides: Department to fence right-of-way through open range.

(1) The department shall fence the right-of-way of any part of the state highway system that is constructed or reconstructed after July 1, 1969, through open range where livestock present a hazard to the safety of the motorist. Where a fence is constructed, adequate stock gatesor stock passes, asnecessary, shallbeprovided to make land on either side of the highway usable for livestock purposes. (2) The department shall erect a fence in every high-hazard area aspromptly aspossible, and the cost of such construction is an expenditure for the enforcement of federal-aid highway safety programs. Gates, stock underpasses, water facilities, and cattle guardsmay be installedwhere necessary tomake the land on either side of the highway usable for livestock purposes or where a public right-of-way intersects the state highway. The court determined that the area was not "open range" within the meaning of 5 60-7-102(1), MCA, because it lieswithin a horse herd district. Furthermore, the segment of 1-90 where the accident occurred is not a high hazard area as defined in S 60-7-102(2), MCA; the highway is not part of the primary highway system nor has the segment been designated as a high hazard area. As a result, the court determined that 

### 5 60-7-103, MCA, did not require the State to erect a fence along the interstate. Section 60-5-105(1), MCA, provides in pertinent part: Design of controlled-access facility--entrance and exit restricted. (1) Each highway authoritymay so design any controlled-access facilityand so regulate, restrict,or prohibit access as to best serve the traffic for which the facility is intended. The District Court determined that this provision was permissive, and therefore, did not impose a duty on the State. Appellants do not contend that the District Court erred inconstruing and applying 11 60-7-103 and 60-5-105(1), MCA. Nor do appellants cite other statutory authority establishing a duty by the State toprevent livestock fromwandering onto the interstate. Deane contends, however, that once the State voluntarily constructs a fence along thehighway right-of-way, as a controlled access facility under g 60-5-105(1), MCA, the State is required to exercise ordinary care in its construction and maintenance. The record reflects that the Statedid not "voluntarilyuconstructthe fence. Rather, the State erected the fence along the interstate highway right-of-way asa precondition for receiving federal funds. We have previously stated that g 60-5-105(I), MCA, provides that the State may--not shall--restrict or prohibit access. Big Man v. State (1981), 192 Mont. 29, 36, 626 P.2d 235, 239. In 

### & Man, we determined that the statute's permissive language did not require,or impose a duty on,the State to erect 

### a fence toprevent

access by pedestrians to a controlled access highway. While the specific facts on which our determination in Biq Man was based are distinguishable, no provision in the statute imposes a duty to erect a fence for any purpose. Deane cites Stewart v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694, to support his position that once the State constructs a fence under g 60-5-105,MCA, it owes a duty to the motoring public, who rely on the State's construction and maintenance of the fence. "[Wlhere a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed,he isbound toperform it in such a manner that those who are rightfullyled to a course of 5conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injuryby reason of negligent failure so toperform it." Stewart, 55 P.2d 696,quoting 45 C.J. 650. Even if the State's construction of the fence could be characterized as a discharge of Deane's duty to prevent the horse fromwandering onto thehighway, the rationale in Stewartprovides

no basis for imposing a duty on the State. Deane has not alleged

or in any way established that in driving on the highway, Yager relied on the State's construction and maintenance of the fence to prevent livestock from gaining access. We conclude that 

### 35 60-7- 103 and 60-5-105(1), MCA, do not impose a duty on the State to maintain the fence or prevent livestock from wandering onto the highway.

The State's General Duty to Keep Hiqhways Reasonably Safe The appellants did not assert before the District Court that the State's general duty to keep highways reasonably safe imposed

a duty on the State relative to livestock. On appeal, however, they urge us to extend the State's general duty to include a specific duty requiring the State to prevent livestock from wandering onto thehighway. Appellants rely on a number of sources for the State's general duty. They contend that the State is required to maintain the fence along the right-of-way under its general duty to keep the highways reasonably safe, citing Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The Yagers also base the State's general duty on its ownership of the right-of-way. They contend that property owners, including governmental entities, have a duty to maintain their property in a reasonably safe condition,relying on Kaiserv. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, and Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. Additionally, Deane relies on State

ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201, as a source for the general duty. While we do not disagree that the Statehas a general duty to keep highways in a reasonably safe condition,we decline to expand that duty to impose a new duty to prevent livestock from reaching interstate highways. Montana has been, and continues to be, an open range state. 

### See State ex rel. Martin v. Finley (1987), 227 Mont. 242, 738 P.2d 497. Under the open range doctrine, neither the State nor livestock owners have a duty to prevent livestock from wandering onto roadways. However, due to the increase in motor travel and in an effort to protect the motoring public, the Montana legislature has passed two carefully crafted exceptions to thedoctrine. 

### Id. The StateDepartment ofHighways is required to fence certain rights-of-way pursuant to 

### 55 60-7-101 et seq., MCA. Sections 60-7-201 et seq., MCA, make it unlawful for a livestock

owner to allow livestock to graze or occupy certain rights-of-way. As discussed above,the District Court determined that S 60-7-103, MCA, did not impose a duty on the State to fence livestock off the highway on the facts before it; appellants do not argue otherwise. In Martin, we declined to impose duties on a livestock owner whichwere not specificallycreated by theMontana legislatureviastatutory provisions governing fencing of the open range. There, the State and others sought to enjoin livestock owners from allowing livestock towander beyond theirproperty. Theplaintiffs claimed that the wandering livestock constituted a public nuisance pursuant to 5 45-8-111,MCA, by interfering with the enjoyment of 

### their property and posing a hazardous driving condition. We discussed the open range doctrine and set forth the statutory exceptions which impose liability on livestock owners for certain negligent conductrelating to their livestockand require the State to fence certain rights-of-way. We concluded that neither of the two flcarefully craftedttstatutory exceptions to the open range doctrinerequired the livestockownertorestrainhis livestockand that case law imposed no 

### such duty. Martin, 738 P.2d at 498-99. As a result, we declined to apply the general public nuisance statute to impose an additional duty not provided for in the specific open range provisions. We reach the same result here. We decline to apply the Staters

### general duty to keep its 

### property 

### in 

### a reasonably 

### safe condition,as articulated in Kaiser and Limberhand, or itsgeneral duty to keep its highways in a reasonably safe condition, as enunciated 

### in Buck and BYorth,to specificallyrequirethe State to prevent livestock 

### from wandering onto the interstate highway. Where the Montana legislature has acted to define the duty of the State relative to livestock on roadways, we will not impose an additionalduty, the source ofwhich 

### is extraneous to the statutory provisions governing the fencing of the open range,Appellants contend that the District Court misapplied in determining that the State's general duty did not impose a duty on the State to maintain the fence. The court acknowledged that the State's general duty to keep highways in a reasonably safe condition extended to thepaved portions of the roadway and to the shouldersand adjacent parts of the roadway underBuck. The court reasoned, however, that the fence was well off the paved or shoulder portions of thehighway and,therefore, that the Statehad no duty to maintain it. We do not disagree with appellants' contention that the District Court failed to connect their argument on fencing to the "adjacentparts" language in Buck. However, we findnobasis in

### Buck to impose a duty on the State tomaintain the fence. InBuck, thedriver failed to negotiate a curve in the highway and went off the left hand side of the pavement. As the driver attempted to return the vehicle to the roadway, the vehicle collided with a bridge abutment. We concluded that the State's duty to keep its highways in a reasonably safe condition extended to the shoulders "and the adjacent parts thereof." 

### Buck, 723 P.2d at 214. Inrelying on this language to support a duty by the State with regard to fencing,however, appellants fail to recognize that the extension of the State's general duty in

### Buck specifically was premised on the "common experience that vehicles may stray or

swerve from theusual traveledportion" of the roadway. 

### d. Here, Yager did not stray from theusually traveled path and encounter an unreasonably unsafe condition on an adjacent part of the roadway.Thus, the 

### Buck language relied on by appellants is inapplicable here.Finally,appellants assertthat theDistrict Court erroneously relied onWhitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126, and Ambrogini v. Todd (l982), 197 Mont. 111, 642 P.2d 1013, to support its determination that the State's general duty did not require it to prevent livestock from gaining access to the highway. Those cases are, indeed, distinguishable on their facts from the present case and, therefore, are not controlling on the issue of the State'sduty toprevent livestock fromwandering onto the particular roadway here. Whitfield and Ambroqini do reflect, however, our consistent refusal to impose a duty on the State or livestock owners relativeto fencing livestockoff roadwaysthat is not specifically created by the legislature.

Montana Department of Hiqhways Maintenance Manual Section 3.110 of the Montana Department of Highways Maintenance Manual provides: The major portion of the highway right of way has been fenced either by the adjoining landowner or by the state. Themaintenance of this fence isdetailed in the rightof way agreement. On Interstatehighways, however, the fence and its maintenance are the responsibility of the Department of Highways. Highway fences may be important as any other safety device on the highway and, thus, so are theirmaintenance. Placement of a fencenot only outlines the limits of the right of way, but also keeps humans and animals away from hazardous areas. Careful inspectionand routine maintenance should notbe neglected. The District Court ruled that the maintenance manual imposed no duty on the State to erect fences. The court determined thatviolations of themanual provide evidence of negligence only after the existence of a legal duty has been established. The Yagers make a dual argument relating to the manual. First, they argue that themanual affirmatively imposes 

### a duty on the State to maintain the fence, relying 

### on Townsend v. State

(l987),227 Mont. 206, 738 P.2d 1274,and Hashv. State (lggl), 247 Mont. 497, 807 P.2d 1363. Neither Townsend nor Hash holds, or infers in anyway, thatprovisions of themaintenancemanual impose

a duty. Second, the Yagers assert that aviolation of themaintenance manual is evidence of negligence and that negligence is a fact question for the jury, relying again onTownsend and Hash. On this basis, they argue that the District Court erred ingranting summary judgment. Townsend and Hash do supporttheYagers' contention that violations of themanual are evidence ofnegligence. Townsend, 738 P.2d at 1276; Hash, 807 P.2d at 1366. However, the cases do not preclude summary judgment in the present case. The existence

### of 

### a dutywasnot at issue in eitherTownsend or Hash; the State's general duty to keep highways in a reasonably safe conditionwas applicable to the facts of those cases. Under thosecircumstances,we concludedthatproof of the State'sfailure to comply with the manual was evidence of negligence. Here, appellants have not established the existence of a legal duty by the State to erect ormaintain fences along the interstatehighway to 

### prevent livestock from 

### gaining access. Thus, the question 

### of whether the State breached its duty, to which violations of themanual as evidence of negligence properly could be addressed, simply does not arise in this case. We conclude that the highwaymanual does not impose a duty on the State to maintain the fence. Absent the existence of a legal duty, the manual cannot be used as evidence that the State negligentlymaintained the fence.

Riqht-of-Way Purchase Aqreement The Yagers' final contention is that the State assumed a duty to maintain the fence when it purchased the right-of-way. In support of this contention,the Yagers appended documentsentitled HighwayRight of Way Easement andAgreement to Fenceto theirbrief opposing summary judgment in theDistrict Court, and to theirbrief to this Court. The District Court did not consider the appended documents; nor did it address whether the State assumed a duty to maintain the fence when it purchased the right-of-way. TheYagers contend that thedocumentswereproperly before the District Court because they had been obtained from the Highway Department duringdiscovery. However,when addressingamotion for summary judgment,adistrict court considersonly discovery that is

on file. Rule 56(c), M.R.Civ.P. The Yagers failed to file the documents; on that basis, the District Court's failure to address them or the issue for which theywere appendedwas appropriate. We join the District Court in declining to address an issue lacking proper support in the record. Appellants have failed to cite any authority imposing a dutyon the State toprevent livestock fromwandering on, or to erect or maintain a fence along, the sectionof the interstate highway where the accident occurred. Absent a duty,there canbe no negligence. We hold that the District Courtdid not err in granting the State's motion for summary judgment. Affirmed.

We Concur: 

# A~~,P Chief Justice

Justices

### Justice Terry N. 

### Trieweiler dissenting. 

### Idissent from themajority opinion. Plaintiffs filed a complaint in which they alleged that the State of Montana had a duty to maintain fences and cattle guards which were built by the State on State property to protect motorists on Interstate 90 

### from wandering livestock. Plaintiffs alleged that the State was negligent by failing tomaintain these fencesand cattle guardsand thatplaintiff Elroy Yagerwas injured

as a result of the State's negligence. The State denied that it

was negligent 

### in itsanswer. However,no evidencehasbeen offered by the State, by affidavit or otherwise, which would controvert plaintiffs' allegation of negligence. The District Court's order of summary judgment,and thisCourt's opinionaffinningthat order,

are based simply on the conclusion that the State had no duty to maintain its own property in a way that would prevent an unreasonable risk of injury to others. The majority's conclusion is wrong as a matter of law for several reasons. First, the State has the same duty that all private property owners have by statute in Montana to act reasonably in the maintenance of its property. Second, the State assumed a duty by adopting the Uniform Maintenance Manual which required that it erect andmaintain the fenceswhichwere the subject of this suit. Finally,the State assumed theduty tobuild andmaintain the fence and cattle guard in question when it accepted federal funding for the construction of Interstate Highway 90, 

### and it agreed as a

### condition to that funding 

### to build and maintain the protective devices in 

### question. DUTY TO EXERCISE ORDINARY CARE 

### Article 11, 

### section 18, 

### of the Montana Constitution provides in relevant part that: The state

# . .

# . shall have no immunity from 

### suit for injury to a 

### person or property, except as may be specifically

### provided by lawby a 2/3vote 

### of each

### house of the legislature. Section 2-9-102, MCA, 

### provides that: Every governmental entity is subject to liability for its 

### torts and those of its 

### employees acting within the scope of their employment or duties whether arising out of a 

### governmental or proprietary function except as specifically provided by the legislature under ~rticle 11, 

### section 18,

### of the Constitution of the State of Montana. It 

### is clear, then, thatunless specifically prohibited by the Legislature, the State is liable to the same 

### extent that a

### private individual would be 

### liable for 

### its negligence as defined in the



### common law. Under the common law of Montana, we have previously held that statutory obligations give rise to duties which, if breached, form the 

### basis of a 

### common law cause 

### of action. For example, § 

### 27-1-701, MCA, 

### provides that: Except 

### as otherwise provided 

### by law, everyone is responsible not only for the results of hiswillful acts but also for an injury occasioned to anotherby his want of 

### ordinary care or skill 

### in the management of 

### his property or person except so far as 

### the latter has 

### willfully or by want of ordinarycarebrought 

### the injury upon himself. In

### Limberhand

### v. &Ditch Company (1985), 218 

### Mont. 132, 144-45, 

### 706 P.2d 491, 498-99,

### we held 

### that this statute imposed a duty on

### land owners to use ordinary care in the management of their property so as not to create an 

### unreasonable risk to those who could be 

### foreseeably injuredby their failure to do so. 

### According to our Constitution and the statutory authority previously cited, the 

### Statehad the 

### same duty to

### maintain the fence and cattle guard 

### that it 

### constructed on the right-of-way that it owned. The 

### majority opinion fails 

### to discuss why the duty imposed 

### by 5 

### 27-1-701,MCA, 

### applies to everyprivate person inthisState,but not to state government itself. HIGKWAY MAINTENANCE MANUAL As

### pointed out in themajority opinion, the State

### ofMontana*s 

### own highway maintenance manual provides that it is the State's responsibilitytomaintain fencing along interstate highways. The manual even points out exactly why 

### it is important to maintain fences. It

### provides that '1[p]

### lacementof a fence not only outlines the limits of the right of way, but 

### also keepshumans and animals away from hazardous areas. Careful inspection and routine maintenance should not be neglected." However, themajority dismissed the obligation createdby the State's own maintenance manual by 

### concluding that even though failure 

### to comply with the maintenance manual is evidence of 

### negligence, the

### manual did not create any duty. It 

### is true thatwe 

### have specificallyheld that llviolations of 

### the 

### Maintenance Manual provided evidence of 

### negligence." Towmend

v.

### State 

### (l987), 227 Mont. 206, 209, 

### 738 P.2d 

### 1274, 1276. However,

### it is a non sequitur to conclude that there can be evidence of negligence without a duty. We have previously held that a duty is

aprerequisite for findingnegligence. In

### Royv.Neibauer (1981)

## , 191 

### Mont. 224, 226, 623 

### P.2d 555, 

### 556,we held that: It is an elementaryprinciple of law that before a claim for relief can be made against a defendant for negligence, the existence of a duty by the defendant to the plaintiff must be shown, along with the breach of that duty and a resulting injury. If there has to be a duty and a breach of duty before there

can be a claim of negligence, how can failure to comply with the maintenance manual be evidence of negligence, but no basis for establishing a duty? In its effort to protect the State from accountability for its negligence in this case, the majority's opinion is logically inconsistent with the majority's previous decisions. DUTY UNDER FEDERAL 

### LAW Themajority brieflyreviews State statutory lawwhich imposes

a duty to fence highways, but concludes that since those statutes

were not applicable to the area where this action occurred, there

was no statutory duty imposed on the State to protect motorists on this highway from wandering livestock. However, I 

### do not understand why the majority's review of statutory obligations is limited to state law. What rational distinction is there between state statutes which impose a duty to fence highways and federal statuteswhich impose the same duty? The State of Montana concedes, in its appellate brief, that the area where this accident occurred was originally fenced and

### protected by the State Highway Department because the State was required todo soby federal law. In its brief, the State concedes that: While state law is permissive regarding Interstate fencing, the primary if not exclusive reason that these highways are fenced is that fencing is required by the Federal government as a precondition for receiving critical constructionfunding. A complete discussionof the applicable Federal statutesand regulationswould be complicated and lengthy and is unnecessary here. It is sufficient to note that Federal law requires states to comply with Federal standards for design (23 

### U.S.C. §§ 

### 106 and 109), construction (23 

### U.S.C. 5 

### 114), and maintenance (23

### U.S.C. 

### 5 

### 116) of Interstate highways,and for inspections and approvals to insure compliance. The statutes referred to in the State's brief are part of the Federal-Aid Highway Act, 23 

### U.S.C. 55 

### 101 through 160 (1958). A

more completeexplanationofthecontrolling provisions is found in Dayev.CommonwealthofPennsylvania 

### (1972)

## , 344 

### F. Supp. 1337. That court explained that: Section 106(a) provides for the submission by the state and approval by the United States Secretary of Transportation [Secretary] of surveys, plans, specificationsand estimates for each proposed project. Section 109(a) provides that the Secretary shall not approve the plans and specifications unless they are conducive to traffic needs, safety, durability and economy. Section 109(d) provides that the location of highway signs shall be subject to the approval of the State Highway Department with the concurrence of the Secretary. Section 109(e) provides that no funds shall be approved unless proper safety protective devices complying with certain safety standards approved by the Secretary are installed. Section 114(a) provides that highway construction shall be under the supervision of the State Highway Department, subject to the inspection and approval of the Secretary. Section 116(a) provides that it is the duty of the state to maintain the highways,and Section116(c) provides that ifthehighway is not being properly maintained, the Secretary may withhold approval of further projects.Daye, 344 F. Supp. 

### at 1347. 

### The State cites 

### Daye for the principle that these federal statutes do not create a

### duty on thepart of 

### the State to construct andmaintain its fences andprotectivedevices. However, 

### Ido

### not agreewith that interpretation ofDuye. The Federal District Court simply found that the statutes in questiondid 

### not give rise to an independent private cause of action which was 

### in contravention of Pennsylvania's immunity statutes, However, it is clear 

### that the statutes create a 

### duty 

### on the part of the State to comply with federal requirements 

### as a condition to federal funding, and the State concedes that those requirements included constructing and maintaining the fences which are the subject of plaintiffs1 complaint. Finally, it appears to 

### me that the 

### majority opinion is based

on 

### several false 

### premises. The 

### Court 

### concluded that 1 60-7-103, MCA,

### whichrequiresfencingoftheright-of-way constructed through open range areaswas not applicable because the location where this accident occurred was within a horse herd district. However, the majority then proceeds to justify its decision based upon its conclusion that "Montana has been, and continues to be, an open 

### range state." They hold that ml[u]nderthe open range doctrine, neither the State nor livestock owners have a duty to prevent livestock from wandering onto roadways. Why does the majority rely on the fact that this is a 

### herd district for purposes of rejectingplaintiffstclaim that the Statehad a statutory duty 

### to

### fence,and then rely on an inconsistentconclusion thatMontana is an open range statewhen it declines to impose a common lawduty to maintain the State's fences? Likewise, the majority concludes that since the Montana Legislature has not imposed a duty to fence the particular right-of-way where this accident occurred, we should not impose thatduty. What about the duties imposedby the federal government and by the Department of Highways itself? To me, this claim involves simple issues. The State, by statute,had a duty tomaintain its property, including its fence and cattle guard, in a condition that would have prevented unreasonable risk of harm to others, including motorists on the interstatehighway. Plaintiffsalleged that it failed todo soand that Elroy Yager was injured as a result of that negligent omission. The State has offered no evidence to the contrary, therefore, summary judgment should have been denied. If the statutory duty imposed on everyone in Montana to exercise reasonable care inthemaintenance of theirproperty isnot a clear enough creation of a duty for the majority, then certainly the obligations imposed by the Highway Department's own maintenance manual, or the commitment made 

### by the State, pursuant to federal statute, in order to obtain federal highway funds, create additional duties. I am at a loss to find any justification for the majority opinion. If the State was not negligent, or if the State's negligence was not a cause of injury to Mr. Yager, then our laws

### shouldprotect theState from liability. However, if the Statewas negligent,and itsnegligence causedharm toMr. Yager,then simple fairness and justice require that the Statebe accountable for its conduct. It is beyond my comprehensionwhy any court would go to the lengths that this Court has gone to in an effort to allow the State to avoid accountability for its negligent omissions. By its reliance on statuteswhich are irrelevant, and prior

case law which is not on point, the majority has constructed what appears at first glance tobe a rational justification for denying recovery in this case. The question that I

### have a difficult time understanding is to what justifiable purpose is that effort directed? For these reasons, I 

### dissent from the majority opinion. I 

### would reverse the judgment of the District Court.