The opinion
No. 92-283
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ELROY C. YAGER and BARBARA A. YAGER,
Plaintiffs and Appellants,
-vs-
ROLLAND 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 Eighteenth Judicial District,
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
CLERK QF Siji2i::EEiE C O U m
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'
Justice Karla M. Gray delivered the Opinion of the Court.
Plaintiffs Elroy and Barbara Yager and defendant Rolland Deane
appeal from an order of the Eighteenth Judicial District Court,
Gallatin County, granting summary judgment in favor of the State of
Montana. We affirm.
The sole issue on appeal is whether the District Court erred
in granting summary judgment on the basis that the State of Montana
had no duty to prevent livestock from wandering onto the interstate
highway.
The pertinent 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's vehicle struck a horse, owned by defendant Rolland
Deane (Deane), that had wandered onto the highway 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 (the Yagers) filed
suit against Deane and the State of Montana (the State). They
alleged that Deane negligently allowed his horse to wander onto I-
90 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 loss of consortium. Deane
and the State filed cross-claims seeking indemnity and contribution
from each other.
On April 24, 1992, the District Court granted the State's
motion 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. It concluded that no such duty existed.
The Yagers and Deane appeal.
Did the District Court err in granting 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 to be determined by the district 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 District Court, is whether the State has a legal duty on
which appellants can base a negligence 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 to prevent 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
gates or stock passes, as necessary, shall be provided 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 as promptly as possible, 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 guards may be
installed where necessary to make 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 lies within 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 authority may so design any
controlled-access facility and 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 in
construing 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 to prevent livestock from wandering onto the interstate.
Deane contends, however, that once the State voluntarily
constructs a fence along the highway 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 State did not "voluntarilyu construct the
fence. Rather, the State erected the fence along the interstate
highway right-of-way as a 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 to prevent
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 is bound to perform it in such
a manner that those who are rightfully led to a course of
5
conduct or action on the faith that the act or duty will
be duly and properly performed shall not suffer loss or
injury by reason of negligent failure so to perform 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
from wandering onto the highway, the rationale in Stewart provides
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 3 5 6 0 - 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 the highway. 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 Kaiser v. 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 State has 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
the doctrine. Id. The State Department of Highways is required to
fence certain rights-of-way pursuant to 5 5 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
which were not specifically created by the Montana legislature via
statutory provisions governing fencing of the open range. There,
the State and others sought to enjoin livestock owners from
allowing livestock to wander beyond their property. The plaintiffs
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 conduct relating to their livestock and require the State
to fence certain rights-of-way. We concluded that neither of the
two flcarefullycraftedttstatutory exceptions to the open range
doctrine required the livestock owner to restrain his livestock and
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 its general
duty to keep its highways in a reasonably safe condition, as
enunciated in Buck and BYorth, to specifically require the 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
additional duty, the source of which 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 the paved portions of the roadway and to the
shoulders and adjacent parts of the roadway under Buck. The court
reasoned, however, that the fence was well off the paved or
shoulder portions of the highway and, therefore, that the State had
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 "adjacent parts" language in Buck. However, we
find no basis in Buck to impose a duty on the State to maintain the
fence.
In Buck, the driver 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. In relying 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 the usual traveled portion" of the roadway. d. Here,
Yager did not stray from the usually 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 assert that the District Court erroneously
relied on Whitfield 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's duty to prevent livestock from wandering onto
the particular roadway here. Whitfield and Ambroqini do reflect,
however, our consistent refusal to impose a duty on the State or
livestock owners relative to fencing livestock off roadways that 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. The maintenance of this fence is detailed in the
right of way agreement. On Interstate highways, 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 their maintenance. Placement of a fence not
only outlines the limits of the right of way, but also
keeps humans and animals away from hazardous areas.
Careful inspection and routine maintenance should not be
neglected.
The District Court ruled that the maintenance manual imposed no
duty on the State to erect fences. The court determined that
violations of the manual 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 the manual 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 Hash v. State (lggl), 247
Mont. 497, 807 P.2d 1363. Neither Townsend nor Hash holds, or
infers in any way, that provisions of the maintenance manual impose
a duty.
Second, the Yagers assert that a violation of the maintenance
manual is evidence of negligence and that negligence is a fact
question for the jury, relying again on Townsend and Hash. On this
basis, they argue that the District Court erred in granting summary
judgment. Townsend and Hash do support the Yagers' contention that
violations of the manual are evidence of negligence. 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 duty was not at issue in either Townsend or
Hash; the State's general duty to keep highways in a reasonably
safe condition was applicable to the facts of those cases. Under
those circumstances, we concluded that proof of the State's failure
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 or maintain fences along the interstate highway
to prevent livestock from gaining access. Thus, the question of
whether the State breached its duty, to which violations of the
manual as evidence of negligence properly could be addressed,
simply does not arise in this case.
We conclude that the highway manual 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
negligently maintained 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 documents entitled
Highway Right of Way Easement and Agreement to Fence to their brief
opposing summary judgment in the District Court, and to their brief
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.
The Yagers contend that the documents were properly before the
District Court because they had been obtained from the Highway
Department during discovery. However, when addressing a motion for
summary judgment, a district court considers only 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 they were appended was 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 duty
on the State to prevent livestock from wandering on, or to erect or
maintain a fence along, the section of the interstate highway where
the accident occurred. Absent a duty, there can be no negligence.
We hold that the District Court did not err in granting the State's
motion for summary judgment.
Affirmed.
We Concur:
A ~
Chief Justice
~ , P
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority 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 to maintain these
fences and cattle guards and that plaintiff Elroy Yager was injured
as a result of the State's negligence. The State denied that it
was negligent in its answer. However, no evidence has been offered
by the State, by affidavit or otherwise, which would controvert
plaintiffs' allegation of negligence. The District Court's order
of summary judgment, and this Court's opinion affinning that 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 and maintain the fences which were the subject of this suit.
Finally, the State assumed the duty to build and maintain 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 law by a 2 / 3 vote 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, that unless 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 his willful acts
but also for an injury occasioned to another by 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 ordinary care brought the injury
upon himself.
In Limberhand v. &Ditch Company (1985), 2 1 8 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 injured by their failure to do so. According
to our Constitution and the statutory authority previously cited,
the State had t h e 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 every private person in this State, but
not to state government itself.
HIGKWAY MAINTENANCE MANUAL
As pointed out in the majority opinion, the State of Montana * s
own highway maintenance manual provides that it is the State's
responsibility to maintain fencing along interstate highways. The
manual even points out exactly why it is important to maintain
fences. It provides that '1 [p]lacement of a fence not only outlines
the limits of the right of way, but also keeps humans and animals
away from hazardous areas. Careful inspection and routine
maintenance should not be neglected."
However, the majority dismissed the obligation created by 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 that we have specifically held 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
a prerequisite for finding negligence. In Roy v Neibauer (1981), 191
.
Mont. 224, 226, 623 P.2d 555, 556, we held that:
It is an elementary principle 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
The majority briefly reviews State statutory law which 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
statutes which 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 to do so by 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 construction funding. A complete discussion of
the applicable Federal statutes and regulations would 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. 5 5 101 through 160 (1958). A
more complete explanation ofthe controlling provisions is found in
Daye v. Commonwealth of Pennsylvania (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,
specifications and 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 Section 116(c) provides that if the highway
is not being properly maintained, the Secretary may
withhold approval of further projects.
Daye, 3 4 4 F. Supp. at 1347.
The State cites Daye for the principle that these federal
statutes do not create a duty on the part of the State to construct
and maintain its fences and protective devices. However, I do not
agree with that interpretation of Duye. The Federal District Court
simply found that the statutes in question did 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, which requires fencing ofthe right-of-way constructed through
open range areas was 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]nder the 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
rejecting plaintiffst claim that the State had a statutory duty to
fence, and then rely on an inconsistent conclusion that Montana is
an open range state when it declines to impose a common law duty 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
that duty. What about the duties imposed by the federal government
and by the Department of Highways itself?
To me, this claim involves simple issues. The State, by
statute, had a duty to maintain 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
interstate highway. Plaintiffs alleged that it failed to do so and
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 in the maintenance of their property is not 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
should protect the State from liability. However, if the State was
negligent, and its negligence caused harm to Mr. Yager, then simple
fairness and justice require that the State be accountable for its
conduct. It is beyond my comprehension why 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 statutes which are irrelevant, and prior
case law which is not on point, the majority has constructed what
appears at first glance to be 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.