Archive | Negligence

RSS feed for this section

Not Afraid v. State

Not Afraid v. State, 2015 MT 330 (Dec. 1, 2015) (Baker, J.) (5-0, aff’d)

Issue: Whether the district court erred in granting summary judgment to the governmental defendants on the ground that Not Afraid failed to produce evidence that they violated a standard of care.

Short Answer: No.


Facts: Cyril Not Afraid was paralyzed in August 2009 when the car he was riding in crashed and everyone was ejected. The driver was convicted of felony vehicular homicide. The car had been driving on Zimmerman Trail, a steep, winding narrow road with concrete barriers along the sharp curve where the accident occurred. The car struck the barriers, causing it to go over the barriers and down a steep hillside.

Two accident reconstruction experts hired by Not Afraid determined that the car was traveling 45 mph when it first struck the concrete barriers.…

Watterud v. Gilbraith

Watterud v. Gilbraith, 2015 MT 288 (Oct. 6, 2015) (Cotter, J.) (6-0, aff’d)

Issue: Whether the district court erred in granting summary judgment to sellers’ real estate agent on the basis that the buyers’ negligence claim is premised on duties to inspect and discover, which do no exist under the statute.

Short Answer: No.


Facts: Gilbraiths retained Amber Uhren to sell their home in September 2013. The GIlbraiths disclosed in the listing contract that the property had not been tested for mold nor treated or mitigated for mold.

Two days later, the Watteruds entered into a buy-sell with the Gilbraiths, and both couples signed a property disclosure statement and a mold disclosure form. The Gilbraiths disclosed that there had been leakage, flooding, moisture or evidence of water in the basement in 2005, and that the “issue has been handled & taken care of.” They also checked the box next to flooding, draining, grading problems, or French drains, and wrote that there was water damage and the whole basement was redone in 2008, but had “been fine since.” Both parties agreed it was the buyers’ responsibility to obtain a mold inspection.…

O’Connor v. George

O’Connor v. George, 2015 MT 274 (Sept. 15, 2015) (Cotter, J.; Baker, J., dissenting) (4-1, rev’d)

Issue: Whether the district court manifestly abused its discretion in denying O’Connor’s motion for a new trial based on defense counsel’s failure to disclose that some of George’s photographic evidence depicted damage from another accident.

Short Answer: Yes.

Reversed and remanded for new trial

Facts: In September 0211, O’Connor was rear-ended by George while stopped at a railroad crossing in Helena. Both vehicles sustained minor damage; the property damage claim was resolved. O’Connor claimed she was injured in the accident. George admitted liability but disputed the extent of O’Connor’s injuries.

O’Connor sued George in May 2013. State Farm, George’s insurer, investigated and provided O’Connor with its investigative materials.…

George v. Bowler

George v. Bowler, 2015 MT 209 (July 28, 2015) (Baker, J.) (5-0, aff’d)

Issue: Whether the district court properly granted summary judgment to Bowlers on the basis of workers’ compensation exclusivity.

Short Answer: yes.


Facts: Robert George was a warehouse manager for Carpets Plus, a corporation whose sole shareholder and president is Curtis Bowler, and whose secretary and treasurer is Jean Bowler. Carpets Plus operates on rented property owned by the Bowlers individuals. In 20008, the Bowlers applied for a permit to build a warehouse on their property for use by Carpets Plus, and listed “owners” as the general contractors for the construction project.

In September 2008, Curtis asked Robert to assemble carpet racks in the uncompleted warehouse. While doing so, Robert fell and was injured.…

McDonald v. Ponderosa Enterprises, Inc.

McDonald v. Ponderosa Enterprises, Inc., 2015 MT 160 (June 16, 2015) (Wheat, J.; McKinnon, J., concurring & dissenting) (5-0, aff’d)

Issue: (1) Whether the district court erred in holding the Montana Occupational Health and Safety Act did not create duty of safety running from an employer to an independent contractor; (2) whether the district court erred in prohibiting testimony related to “rules” on a construction site; and (3) whether RTK is entitled to costs and fees for being improperly joined as an appellee by Ponderosa.

Short Answer: (1) No; (2) no; and (3) no.


Facts: Ponderosa is a framing company, and Matt Orrell is its principal. Cody McDonald is a construction worker doing business as Head First Construction. McDonald was approved as an independent contractor by the Department of Labor in April 2008.…

Locke v. Estate of Davis

Locke v. Estate of Davis, 2015 MT 141 (May 26, 2015) (Cotter, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court properly denied the estate’s motion to alter or amend the judgment; (2) whether the district court abused its discretion by making findings and conclusions that effectively bind Safeco to a judgment when Safeco was not a named party and did not appear.

Short Answer: (1) No; and (2) yes.

Affirmed in part, vacated and remanded

Facts: In May 2011, Marian Davis lost control of her car and struck Amy Locke’s car. Davis died several hours later. Locke suffered multiple physical and emotional injuries.

Davis was insured by Safeco under a policy with $100,000 per person coverage. In August 2012, Locke filed a claim for damages against Davis’s estate.…

Woods v. State ex rel. Montana State Hospital

Woods v. State ex rel. Montana State Hospital, 2015 MT 8 (Jan. 13, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether the Montana State Hospital had a duty to warn Catherine Woods of the risk of violent behavior by her former boyfriend after his release from involuntary commitment.

Short Answer: No.


Facts: Justin Schiller was involuntarily committed to the Montana State Hospital in Jun 2008. He was released 12 days later, and his relationship with Catherine Woods ended thereafter. In July 2008, Schiller bought a handgun. In November 2008, Schiller saw Woods at a bar with a male friend. Schiller had been drinking. When Woods and the friend left the bar, Schiller followed. He assaulted Wood’s friend and fired multiple shots at Woods as she tried to drive away.…

Harrington v. The Crystal Bar

Harrington v. The Crystal Bar, 2013 MT 209 (July 30, 2013) (5-0) (Rice, J.)

Issue: (1) Whether the district court properly granted summary judgment to the Crystal Bar on Harrington’s negligence claim, and (2) on Harrington’s dram shop claim.

Short Answer: (1) No, and (2) yes.

Affirmed in part, reversed in part, & remanded

Johnston v. Centennial Log Homes

Johnston v. Centennial Log Homes, 2013 MT 179 (July 8, 2013) (6-1) (Baker, J., for the majority; McKinnon, J., dissenting)

Issue: (1) Whether the district court properly granted summary judgment to Centennial on the basis that Johnstons’ claims were barred by the statute of limitations; (2) whether the release executed by the Leonards is binding on the Johnstons; and (3) whether the district court abused its discretion in granting Johnstons’ motion to dismiss Keeko Log Homes, Ltd. as a defendant.

Short Answer: (1) No, because factual issues regarding Johnstons’ discovery of the defects are in dispute; (2) no, because Johnstons owned 36% of the house at the time of the release and were not parties to the release; and (3) yes, as it did not allow Centennial to file a brief in opposition pror to dismissing Keeko..…

McCulley v. American Land Title Co.

McCulley v. American Land Title Co., 2013 MT 89 (April 9, 2013) (5-0) (Cotter. J.)

Issue: Whether the district court properly granted summary judgment to the bank and the title company.

Short Answer: (1) Yes to the title company; (2) yes to the contract and negligence claims against the bank; (3) no as to the fraud claim against the bank.

Affirmed in part and reversed in part