RYAN v CITY OF BOZEMAN
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No. 96-086 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 MAXINE RYAN, Plaintiff and Respondent, v. CITY OF BOZEMAN, Defendant APPEAL FROM: and Appellant. District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry Moran, Judge presiding. COUNSEL OF RECORD: For Appellant: Philip F. Walsh; Walsh & McKenna, Bozeman, Montana For Respondent: Rienne H. McElyea; Berg, Lilly, Tollefsen, Bozeman, Montana Submitted on Briefs: Decided: Filed: Andriolo & October 17, 1996 November 26, 1996 Justice W. William Maxine Leaphart Ryan (City) alleging vehicle such (Ryan) that that delivered filed suit a City it collided of Cottonwood verdict Ryan and the City directed verdict (JNOV) on the issue control 96-086) grant of M.R.App.P. In its two be combined issues oppose the interests both for for not for purposes the of of posture this motions of the JNOV and the granting on the supervisory Rule 1, asked that the Ryan did not case the writ in Cause No. 96-086. and found under briefing; of a of a JNOV since the City economy, we granted briefing returned the verdict writ appeal the writ, the of a new trial to the grant to a City a new trial for subject Bozeman at Ryan's from the grant regard Given of judicial the granting combined with for granted notwithstanding a petition petition motion. vehicle A jury and granted appealed a JNOV is of drove Ryan's The court judgment and filed (Cause No. 96-263) City were each 50% negligent of liability The City of damages. (Cause No. the issue the and Montana Streets. and for of the Court. negligently with damages in the amount of $37,000. for against employee intersection that the Opinion and in and ordered the that of the new trial We reverse be and remand a new trial. This suit intersection Bozeman. arises out of Montana Street Lindsey Korell, of a collision at and Cottonwood Street a summer employee driving east on Cottonwood in collided with Ryan who was traveling a City-owned 2 north the for uncontrolled in the City the pickup on Montana City truck. of was She and entered the intersection there on Korell's right. was a hedge of at least corner of the intersection. Street for the intersection. view The driver's side suffered injuries of vehicle M.R.Civ.P., directed it is any view the verdict, appears hit it Wilkerson submission the greatest exercise constitutionally for absence School Motions is grounds). not upon inferences to be (1985), 216 Mont. verdict or for absence of any Jacques v. Montana Nat. 1325. The courts in interfering of jury decision. evidence properly Rulings a where directed 649 P.2d 1319, 202 Mont. for only a complete to a jury. 50 (b) , not prevail could District for judgment a motion the legitimate self-restraint is of may be granted of any credible a JNOV motion on other review a party 493, 504, Montana Power Company (1983), (overruled Rule mandated processes a complete verdict, to when there will is pursuant verdict v. 622. 199 Mont. Ryan a including Guard (1982), pole. from of the evidence to warrant a telephone the on the made verdict only automobile appeals same as that proper Ryan's it entered in of law that a JNOV are evidence review 700 P.2d 617, they that of Review as a matter 211, a manner as into to Cottonwood of the collision. and a directed drawn therefrom. 203, of the on the southwest such drivers as a result notwithstanding in both and pushed standard in height feet Standard The feet 20-30 City door six of the accident, The hedge ran adjacent approximately obstructed At the time in granted. with Unless support the there of the Barmeyer v. 185, 191, 657 P.2d 594, 597 on the admissibility of evidence are within Rosston (19881, an abuse court's of the discretion 232 Mont. 186, 189-90, discretion rulings of the trial this Court Bank v. Challinor (1992), not reverse of evidence. 253 Mont. Cooper v. 756 P.2d 1125, 1127. will on the admissibility court. 412, 416, Absent a district Glacier National 833 P.2d 1046, 1049. Discussion I Did Ryan properly plead a cause negligence regarding the City's failure street vision triangle ordinance? In granting and a JNOV, intersection respondent the court occurred Ryan's found that contained in the street City of the Bozeman had an affirmative Code Section obstructions that the City's the sole On appeal, Ryan to basis. It street evidence assertion the City were no allegations by the hedge or that of the City vehicle that the City the enforce that the that vision trial no hedge triangle, and City's erred was negligent for to on that Lindsey of the accident; views in failure verdict employee, was injuries. court the the Bozeman the only negligence the drivers' 4 feet reasoned a directed at the time the hedge be trimmed. the and ten six where and of Ryan's as to that verdict the hedge be trimmed that and in granting is the City's lot requires that contends by Ryan was the negligence that the to require City the ordinance there which within introduce enforce who was driving to cause of the collision the corner duty for the a directed The court 18.50.080, failure proximate allowing triangle. be permitted for a hedge between tall Municipal vision motion of action to enforce alleged Korell, that were obstructed failing to require A plaintiff other of must allege pleading the nature jurisdiction the unless considered claim. relief the Baptist 451, 457, a verdict outside parties Church, (1948), In reviewing Bozeman in the 628. entire The parties which superseded trial order, the Ryan's the other issues complaint drove is a that City prepared allegations in "Contentions," vehicle and filed 206 National court. Surety 192 P.2d 317, 319). that the City is the of employee, into City Lindsey plaintiff's a pre-trial the complaint. in their entirety, order In the are follows: The automobile collision was a result of the negligence of Lindsey Korell in failing to yield the right of way to Maxine Ryan, in driving at a rate of speed that was too fast for the circumstances, and in failing to keep a proper lookout and to take proper evasive steps to avoid the accident. As a result of the negligence of Lindsey Korell and the ensuing collision, Maxine Ryan has sustained serious physical injuries resulting in past and future medical expenses, lost wages and lost earning capacity, pain and suffering, and loss of enjoyment of her established way of life. Because Lindsey Korell was an employee of the City of Bozeman and was acting within the scope of her employment, the City of Bozeman is liable for her negligence. 5 be (1983), to the against its by the must be based upon we determine of negligence have to the proof. presented 202, 205-206, not questions of Revenue A judgment complaint, also does presented 671 P.2d at 628 (citing allegation "negligently vehicle." that or a defendant are amended to conform 121 Mont. Ryan's The only correct. of the issues stipulate 671 P.2d 625, v. Kruse court Church v. Montana Dep't BaDtiSt in a complaint to apprise A district and must be within Old Fashion Korell, specificity or the pleadings Old Fashion Corp. of sufficient to grant pleadings Mont. with a cause of action preas Although issues the could to be filed advise trimming in order in advance of trial" in limine that pre-trial the jury that there that require the City's nor the pre-trial ignored the reason that for a claim negligence of District a claim Court filing a motion in contends, it in to defeat order plaintiff Diehl to sustainable limine City (1963), that it upon which is not a cause of 175, if of the hedge Ryan to pursue the hedge, the through following and as the motions the burden action. In 382 P.2d 552, the complaint can be granted to the of the hedge for of to file related objected However, Rather, sufficient relief height burden 142 Mont. by the City the height issue. claims. plead the constituted the complaint In allowing for on that unpled adequately Lumber Co. facts the upon by Ryan was negligent neither to the height that for In concluding the City of negligence. is not a defendant's the proposition states related based faulted that any negligence Ryan had not contended was a basis the City the ordinance Furthermore, of any evidence of Bozeman allegations hedge be trimmed. the fact alleged of the hedge. introduction or that to comply with order to the height responsibility the view failure the court negligence, the City had no legal the legal motion as to whether it that of of a possible were no affirmative the hedge obstructed to on "Determination does make mention by the City the hedge, failing section in limine is on the Rambur v. we adopted concisely upon any legally basis. This court agrees that plaintiffs' pleading should Yet a complaint must state something more be so viewed. than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. 6 City Liberality that which relief. Rambur, does not go so far as to excuse omission of is material and necessary in order to entitle 382 P.2d at 554 (citations In the present drivers' views case, being Ryan did obstructed Accordingly, trial did not even "breed to relief vehicle her complaint on any theory was negligent exceeding any facts as to the height and contentions a suspicion" other than in failing as to the that that the to yield of in the pre- she was entitled driver of the right the City of way and in the speed limit. In McJunkin v. Kaufman &Broad 432, 748 P.2d 910, we upheld the jury against not plead nor any facts the hedge. order omitted). an unpleaded the seller. should be liberally 15(b), M.R.Civ.P., McJunkin, one-half claim the trial of specifically allowed, cannot that in refusing complaint we held to submit to submit to warranty amendment to pleadings leave to amend under Rule that or perfunctorily. McJunkins and that warranty that 229 Mont. an express arbitrarily Noting (1987), refusal of that be granted the express K & B and not the seller, discretion breach we held that to amend their stated court's While recognizing 748 P.2d at 913-14. years Homes Systems the issue the pretrial claim the court had two and applied order only to did not abuse its to the jury. McJunkin, 748 P.2d at 919. In the present case, the City did not move to amend her pleading Rule 15(b), M.R.Civ.P. correctly to conform Rule 15(b), M.R.Civ.P., points out that to the evidence 7 under states: When issues not raised by the pleadings are tried express or implied consent of the parties, they shall Ryan by be treated in all respects as if they had been raised in the Such amendment of the pleadings as may be pleadings. necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. Under conform Rule 15(b), to the evidence or implied consent made and granted neither City when the issues to conform Bank, consent in of court City not ruled for Although that that the at 1049 objections narrowed as we stated in does not go so far as to order were to be liberally and necessary that tried. (no implied to 8 or Rambur, excuse that & express Rather, the blaming pled; the a motion in limine. and amendments 382 P.2d at 554, omission of that to entitle relief." in the complaint state of Further, evidence). construed in order the allegations insufficient being through allowed, We conclude be said had been generally the issues Here, cannot be amended. are is material it to the pleadings issue has been a motion to the admission issue pleadings "[lliberality trial 833 P.2d repeated request not having liberally which light that to by express to the evidence. of the hedge, consented National or when there Having objected as to the height impliedly can be amended to have been tried the pleadings pertains. Glacier Ryan did pleadings of the parties circumstance the evidence the M.R.Civ.P., a cause and the preof action for negligence failure arising out of the height to have the hedge trimmed. court abused its discretion The court upon that same evidence that the City's further failure compounded this was the of the City sole verdict City's that Code Section error when, the hedge, it Code was negligence cause of against the as to the height of Bozeman Municipal to enforce a JNOV and directed we hold evidence as to the height se and such negligence granted the hedge or the Accordingly, in admitting of the hedge and the requirements 18.50.080. of Ryan's the City based ruled per damages and on the issue of liability. II Did the trial court err in determining that Ryan was not negligent as a matter of law and that contributory negligence was not applicable under the facts of the case? In granting that it the directed had committed negligence err verdict and a JNOV, the the question In so ruling, to the jury. in submitting the court court held of comparative stated: As a matter of fact, I find that there is no credible evidence that the plaintiff committed any acts of negligence which were [the] proximate cause of the accident in this matter, nor any acts of negligence which contributed in any way to her injuries. . I will make a specific finding of no negligence on the part of plaintiff that would justify a comparative negligence disposition of the case either by the Court or the jury, and I order a new trial in this matter on the issue of damages alone. In the subsequent written were any negligence by Ryan, cause of the accident The City not negligent contends is order, the court held such negligence that, was not even if there a proximate and her damages. that contrary the court's to the 9 determination evidence. that Ryan was The speed limit on Cottonwood and Montana expert determined point of there that impact. traveling between 28 m.p.h. causation. could determine was the that not apparent what it the concluded per conclusion facts court that with se for is without with that from which meant regard the violating support. the was clear in that was negligent Although that 10 it determined (if any) was the Ordinance. was no basis is is not contributory we can only se. that negligence negligence per regard. a proximate Since Ryan had not pled there error was not said City whether states the facts, court it verdict case. when it ordinary the to the hedge, City It contributory under Ryan's what to determine negligence of this the jury she were negligent, determination further, was not applicable negligence finding the of law, this the the directed her and, under be compared action granting the collision, negligence not order Despite of injuries. the jury's conclude the finder, to preempt could Thus she were exceeding If to her was that evidence contributed she to the question If she was negligent. Ryan were negligent, applicable that was credible the impact. it irrelevant is in error. at that before as a matter as fact The court's cause of just Ryan's 22 m.p.h. concluded prerogative, negligence the court least speed limit. held, was totally there that jury's even if in effect, 25 m.p.h. from which the 25 m.p.h. vehicle then at expert the jury This conclusion speed limit, Bozeman is and 37 m.p.h. before the court, speed of Ryan's for City's Ryan was exceeding testimony, in she was going The was testimony that Streets for Even assume could City's Such a a cause of the court's assuming, argue&o, that ordinance or traffic negligence with Anderson court the v. City violated statute granted intersection does not preclude the ordinary Hauck (1989), negligence 239 Mont. the plaintiff's collision the ordinance, in which for a directed plaintiff. On appeal, the defendant whether she was guilty of negligence per closely in violation jury consider negligent 1117. her in stopping Relying 199, 206, in front on our decision that plaintiff of contributory se for plaintiff of her. verdict ended the regardless in front negligence. of following Hart-Anderson, that in an too to have was contributorily in Reed v. Little stopped of such the trial MCA, she was entitled 680 P.2d 937, 940, we held as to whether a claim claim that, an In Hart- had rear argued the comparison 781 P.2d 1116, the defendant of ยง 61-8-329, of of the plaintiff. 444, motion violation 781 P.2d at (1984), 209 Mont. the conflicting evidence of the defendant In light of this supported conflicting we stated: evidence, It is not appropriate for the court to weigh conflicting evidence; rather, that is the function of the trier of fact, As in Reed, it was in this case, the jury. possible for the jurors to find that plaintiff came to an abrupt stop in front of defendant and was contributorily negligent. We conclude that reasonable men might differ in drawing conclusions from the evidence. Thus a directed verdict in favor of plaintiff was not appropriate. We remand this case to the District Court. . . Hart-Anderson, 781 P.2d at 1118 As in Hart-Anderson, which it could there determine Regardless of whether or not, was the jury's it that the trial was testimony before the jury Ryan was contributorily judge prerogative 11 found negligent. the evidence to weigh that from credible evidence. For the above discretion in in reasons, to enforce failing and in the granting verdict. liability allowing the we conclude the the issue street directed We reverse of the vision verdict and remand and damages. We concur: 12 that the City's court alleged ordinance a new its negligence to go to the and judgment for abused jury notwithstanding trial on both
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