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. The posted speed limit is 25 mph. When they visited the scene in June 2011, the experts found the barriers tilted about 15 degrees. Based upon that finding, they concluded the barriers were improperly installed. Not Afraid sued Billings Public Works Director David Mumford for products liability, and Mumford, the state, the county and the city of Billings for negligence.

The city’s reconstruction expert determined the car was traveling 68-73 mph when it struck the barriers, and found the barriers tilted 13-14 degrees in March 2014. He concluded the barriers tilted as a result of the accident.

Procedural Posture & Holding: Yellowstone County moved for summary judgment on the ground that it transferred ownership of the road to the city in 2005. Mumford moved for summary judgment on the grounds of immunity and because he could not be liable for products liability. The state moved for summary on the ground that it did not own, maintain or control the road. The city moved for summary judgment on the ground that Not Afraid failed to establish a breach of a duty of care, in part because Not Afraid failed to establish the barriers’ condition at the time of the accident. The district court granted all defendants’ motions. Not Afraid appeals the judgments against the governmental entities, and the Supreme Court affirms.

Reasoning: In granting the defendants’ motions, the district court concluded that Not Afraid failed to offer any proof of the standard of care by which to measure the defendants’ actions. The Court concludes that the placement, installation and maintenance of concrete barriers is sufficiently outside the experience of lay jurors to require expert testimony. Not Afraid failed to produce any evidence regarding standards for concrete barrier installation in Montana or the vehicle speeds that the barriers should be able to withstand. The finding that the barriers were tipped 15 degrees nearly two years after the accident is not sufficient to establish that they were improperly installed in the 1980s. Not Afraid failed to establish “the degree of prudence, attention, and caution” the county was obligated to exercise in placing and installing the barriers.

Similarly, Not Afraid failed to establish standards of concrete barrier maintenance in Montana.