NO. 91-227 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

KELVIN DILLARD, 

Plaintiff and Appellant, 

-vsJOHN DOE, and THE STATE OF MONTANA, 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Manley; Manley Law Offices, Polson, Montana 

For Respondents: 

Hon. Marc Racicot, Attorney General, Betsy 

Brandborg, Assistant Attorney General, Helena 

Montana 

Submitted on Briefs: August 29, 1991 

Decided: January 28, 1992 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court 

The appellant, Kelvin Ijillard, appeals from an order of the 

District Court of the Twentieth Judicial District, Lake County, 

granting summary judgment in favor of the respondents, John Doe and 

the State of Montana. We affirm in part, reverse in part and 

remand for further proceedings. 

The sole issue on appeal is whether the District Court erred 

in granting summary judgment to the respondents. 

Early on the morning of January 9, 1989, the appellant, Kelvin 

Dillard, was walking from his home on Fulkerson Lane near Flathead 

Lake to work the 7:OO a.m. shift at Flathead Lumber in Polson, 

Montana. It was dark, windy and snowing as the appellant followed 

Highway 35 west into Polson. Wearing a Levi coat, jeans, and a 

black hat and carrying his yellow hard hat, he walked next to the 

highway delineator posts with his back to the wind and blowing snow 

and to traffic headed in the same direction as he was. It did not 

appear to the appellant that the highway had been plowed yet. 

The appellant testified in his deposition that as he walked "I 

kept turning around and looking behind me hopefully to thumb a ride 

with a car and watching out for the plow because I didn't want to 

get hit. I seen the plow as it rounded the corner at Fulkerson 

Hill." He knew the approaching vehicle was a snowplow because he 

could see the flashing yellow lights and hear the scraper. 

The appellant's testimony of the events which occurred after 

he saw the snowplow round the corner is as follows: 

2 
A. I saw [the snowplow]. I says to myself, "Before that 

guy gets up here, I've got to get on the other side of 

the ditch, or I'm going to he buried in snow." I maybe 

walked another 25, 30 yards, stopped, hung my hard hat on 

the reflector, bent over to light a cigarette, and that's 

when I caught the reflection of his yellow flashing light 

in the snow and (indicating), he got me. 

Q. 

A. I believe it was the blade. 

With what did he get you? 

The appellant was between the fogline and the delineator post with 

one foot on the pavement when he was hit. The snowplow continued 

on, its operator apparently unaware of what had occurred. 

On August 7, 1989, the appellant filed suit against the 

operator of the snowplow, named in the complaint as John Doe, and 

the State of Montana alleging negligence and seeking to recover 

general, special and punitive damages. During discovery, the 

respondent State of Montana filed a motion for summary judgment. 

A hearing on the motion was held on January 16, 1991. Thereafter, 

the District Court granted summary judgment in favor of the 

respondents. 

In its memorandum and order granting summary judgment the 

District Court first determined that the appellant was negligent as 

a matter of law. The court determined that the appellant was 

negligent in that: (1) he violated 5 61-8-506, MCA, which requires 

a pedestrian to walk only on the left side of the roadway facing 

traffic which may approach from the opposite direction; (2) he 

violated § 61-8-507, MCA, which prohibits standing in a roadway for 

the purpose of soliciting a ride; and (3) after hearing and seeing 

the snowplow, he "walked 25 yards further, stopped, hung his hard 

3 
hat on the highway delineator post and bent slightly to light a 

cigarette with his back still to the traffic when he was hit either 

by the snowplow [blade] or by thrown snow." 

The snowplow operator had not yet been deposed at the time of 

the hearing on the motion for summary judgment. The District Court 

found that the appellant's factual allegations failed to establish 

any negligence on the part of the snowplow operator and that the 

record was devoid of any evidence of negligence by the respondents. 

The court went on, however, for purposes of the summary judgment 

motion only, to infer and assume negligence by the respondents 

based on the appellant's allegations, even though those allegations 

were not supported by facts on the record. Assuming first that the 

snowplow was owned by the State and operated by its employee, John 

Doe, at the time of the accident, the court went on to assume that 

the snowplow operator was negligent in failing to keep a proper 

lookout, failing to maintain control of his vehicle, driving too 

close to the appellant and driving too fast. 

The District Court then concluded that reasonable minds could 

not differ on the issue of comparative negligence: the appellant's 

negligence far exceeded the respondents' negligence. Thus, the 

court ruled that the respondents were entitled to summary judgment 

as a matter of law. 

Did the District Court err in granting the motion for summary 

judgment? 

In order for summary judgment to issue, the movant must 

demonstrate that there is no genuine issue as to facts deemed 

4 
material in light of the substantive principles entitling the 

movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.: 

Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 

P.2d 57, 60. If the movant meets this burden, the burden then 

shifts to the non-moving party to demonstrate a genuine issue of 

material fact. Friqon, 233 Mont. at 117, 760 P.2d at 60. 

Ordinarily,, issues of negligence are questions of fact not 

susceptible to summary adjudication. Brohman v. State (1988), 230 

Mont. 198, 201, 749 P.2d 67, 69. 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, 377, 492 P.2d 926, 931. 

However, in certain cases where reasonable minds could reach but 

one conclusion <as to the cause of an accident, questions of fact 

may be determined as a matter of law. Brohman, 230 Mont. at 202, 

749 P.2d at 70, (citing Hartley v. State (Wash. 1985), 698 P.2d 77, 

81). 

Here, the factual issues that were determined as a matter of 

law by the District Court were that the appellant was negligent and 

that his negligence exceeded the presumed negligence of the 

respondents. Thus, the question we must determine on appeal is 

whether the District Court correctly concluded that reasonable 

minds could not differ under the factual circumstances presented in 

this case. In so doing, we will follow the District Court in 

presuming certain acts of negligence by the respondents as 

established fact for purposes of appeal. 

5 
The appellant's negligence is clear on the record before us. 

He failed to walk on the left side of the roadway facing traffic 

which may approach from the opposite direction, in violation of fc 

61-8-506(2), MCA. In addition, instead of moving farther off the 

roadway after he became aware of the approaching snowplow, the 

appellant walked another twenty-f ive to thirty yards with his back 

still to traffic, stopped, hung his hard hat on the delineator 

post, and bent over to light a cigarette; only then was he hit 

either by the snowplow blade or by thrown snow. There can be no 

doubt that, given the darkness and blowing snow, this conduct by 

the appellant constitutes negligence. 

We disagree, however, with the District Court's determination 

that the appellant's negligence is also evidenced by a violation of 

fc 61-8-507, MCA, which prohibits standing in the roadway for the 

purpose of soliciting a ride. Although the appellant's deposition 

testimony indicated that before he stopped to light a cigarette he 

would look behind as he walked in hopes of thumbing a ride, nothing 

in the record supports a finding that the appellant was at any time 

standing & the roadway for the purpose of soliciting a ride, as 

prohibited by 5 61-8-507, MCA. Nevertheless, we conclude that the 

District Court correctly determined that the appellant was 

negligent as a matter of law. Given the clear evidence in the 

record, we hold that reasonable minds could not differ as to the 

appellant's negligence. Thus, the respondents are entitled to 

summary judgment on the issue of the appellant's negligence. 

6 
Balanced against the appellant's negligence are certain acts 

of presumed negligence by the snowplow operator: that he failed to 

keep a proper lookout, did not maintain control of his vehicle, 

drove too close to the appellant and drove too fast. As previously 

stated, the District Court concluded that the appellant could not 

prevail on the issue of comparative negligence based on its 

determination that reasonable minds could not differ in finding 

that the appellant's actual negligence "far exceeded" the 

respondents' presumed negligence. 

In our view, however, the amount of presumed negligence on the 

part of the respondents is substantial. The presumed actions and 

omissions of the snowplow operator would constitute a violation of 

5 61-8-302, MCA, which requires operating a vehicle in a careful 

and prudent manner and § 61-8-303, MCA, which requires operating a 

vehicle in a careful and prudent manner and at a rate of speed no 

greater than is reasonable under existing conditions. In addition, 

the snowplow operator had a duty to look not only straight ahead 

but laterally ahead as well and the law presumes that he saw that 

which was in plain view. Payne v. Sorenson (1979), 183 Mont. 323, 

326, 599 P.2d 362, 364. Here, it is presumed that the snowplow 

operator failed to keep a proper lookout and, thus, failed to see 

that which was in plain view. 

Both parties agree that in cases where there is evidence of 

negligence by both parties, it is generally for the factfinder to 

determine the comparative degree of negligence. Reed v. Little 

(1984), 209 Mont. 199, 206-07, 680 P.2d 937, 940-41. However, the 

7 
respondents assert that this is an extraordinary case in which the 

parties' comparative negligence can be determined as a matter of 

law. They contend that the factual circumstances of the present 

case are similar to those in Brohman v. State (1988), 230 Mont. 

198, 749 P.2d 67, in which we affirmed a grant of summary judgment 

which was based on the district court's determination, as a matter 

of law, that the plaintiff's negligence exceeded the presumed 

negligence on the part of the State. In Brohman, the State was 

presumed to have been negligent for failing to warn of a no-passing 

zone. Contrasted to the State's presumed negligence was the 

plaintiff driver's negligence in attempting to pass in a no-passing 

zone, at night, in a snowstorm, with obscured visibility. We held 

that under the circumstances presented, reasonable minds could not 

differ in finding that the plaintiff's negligence clearly exceeded 

the State's presumed negligence and was the proximate cause of the 

resulting accident. Brohman, 230 Mont. at 205, 749 P.2d at 72. 

Unlike the situation in Brohman, we cannot conclude in the 

case before us that the issue of comparative negligence can be 

determined as a matter of law. Here, there is substantial, active 

negligence by both parties (although at this point the respondents' 

negligence is only assumed) at the very moment the accident 

occurred. Given the quantum of presumed negligence on the part of 

the respondents, reasonable minds could differ on the issue of the 

parties' comparative negligence. Thus, we hold that the District 

Court erred in determining, as a matter of law, that the 

8 
appellant's negligence far exceeded the presumed negligence of the 

respondents. 

The respondents assert that the appellant's negligence was the 

sole proximate cause of the accident and, therefore, the District 

Court properly granted summary judgment in their favor. Given our 

holding in this case with respect to comparative negligence and the 

fact that it remains to be seen, after sufficient further 

development of the record, whether any actual negligence on the 

part of the respondents can be shown by the appellant, we will not 

address the issue of proximate causation. 

Affirmed in part, reversed in part and remanded for further 

proceedings. 

We rb concux 

9 
January 28, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

James A. Manley 

Manley Law Offices 

201 Fourth Ave. E. 

Polson. MT 59860 

Betsy Brandborg, Asst. Atty. General 

Risk Management & Tort Defense Div. 

Rm. 111, Mitchell Bldg.. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY 

Deput$ I