Estate of Lefthand v. Tenke

646 F.Supp.3d 1287

The ESTATE OF Darrell Duane LEFTHAND,THROUGH Darrelyn LEFTHAND, as Personal Representative, Plaintiff, v. Justin TENKE, Defendant.

CV 21-114-BLG-SPW

United States District Court, D. Montana, Billings Division

Signed December 19, 2022

Donald D. Sommerfeld, Towe Ball Enright Mackey & Sommerfeld, Billings, MT, D. Michael Eakin, Eakin, Berry & Grygiel, PLLC, Billings, MT, for Plaintiff.

Randall G. Nelson, Nelson Law Firm, P.C., Billings, MT, for Defendant.

ORDER

SUSAN P. WATTERS, United States District Judge

Plaintiff Estate of Darrell Duane Lefthand filed this action against Defendant Justin Tenke, alleging negligence, wrongful death, and a survival action. (Doc. 1-3 at 4-5). Before the Court is Defendant's Motion for Summary Judgment (Doc. 23). For the following reasons, the Court grants summary judgment for Defendant on the survival action and denies summary judgment on all other issues.

I. Statement of Facts

Just after midnight on June 23, 2020, Defendant was driving a Ford F-350 north on Highway 451 toward Wyola, Montana at about 70 mph. (Doc. 30-1 at 11). Defendant straddled his truck over the center-line to avoid wildlife. (Id.).

This portion of the two-lane highway is straight, and visibility is unobstructed. (Id. at 5). The speed limit is 65 mph. (Id.). That night, the moon was a waning crescent and below the horizon line, so the road was only illuminated by Defendant's headlights. (Id. at 11; Doc. 25 at 4).

Around milemarker 31, Defendant looked and reached into the backseat to check on his dog, taking his eyes off the road. (Doc. 30-1 at 7). When he looked forward, he briefly saw something, then hit Darrell Lefthand and Melanie DeCrane,¹ who were either seated or kneeling in the middle of the road. (Id. at 11). Lefthand and DeCrane were killed. An autopsy determined Lefthand died as a result of multiple blunt force injuries. (Doc. 30-3 at 1).

After the crash, Plaintiff filed suit against Defendant for negligence, wrongful death, and a survival action. (Doc. 1-3).

II. Legal Standard

A. Summary Judgment

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "material" only if it could affect the outcome of the suit under the governing law. Id.

The party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To meet this burden, the movant must identify those portions of " 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (citing Fed. R. Civ. P. 56(c)(1)(A)). If the movant meets its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When deciding the motion, the Court must draw all inferences from the underlying facts in the light most favorable to the non-moving party. See id. at 587, 106 S.Ct. 1348.

B. Negligence

"Negligence is the failure to use the degree of care that an ordinarily prudent person would have used under the same circumstances." Peterson v. Eichhorn, 344 Mont. 540,189 P.3d 615, 620-21 (2008).² Under Montana law, a plaintiff alleging negligence must prove: (1) the defendant owed a duty to plaintiff, (2) the defendant breached that duty, (3) the breach injured the plaintiff, and (4) damages resulted. Id. Violation of a traffic statute constitutes negligence per se. Giambra v. Kelsey, 338 Mont. 19, 162 P.3d 134, 145 (2007).

"[A] plaintiff's contributory negligence may be raised as a defense to a negligence claim." Larchick v. Diocese of Great Falls-Billings, 350 Mont. 538, 208 P.3d 836, 850 (2009). However, a plaintiff's contributory negligence only bars recovery if the plaintiff is more than 50% negligent. Id. This negligence scheme is called comparative negligence.

Summary judgment is generally inappropriate in negligence and comparative negligence cases because of the prevalence of factual issues. See Peterson, 189 P.3d at 621, 622; Reed v. Little, 209 Mont. 199, 680 P.2d 937, 940-41 (1984) (where there is evidence of negligence by both parties, the factfinder generally should determine the comparative degree of negligence). "However, summary judgment may be appropriate when reasonable minds 'could not draw different conclusions from the evidence.' " Walden v. Yellowstone Elec. Co., 404 Mont. 192, 487 P.3d 1, 6 (2021) (citing Larchick, 208 P.3d at 857 (internal quotation omitted)).

III. Analysis

A. Admissibility of Expert Report

As an initial matter, the Court must decide what parts of Plaintiff's expert report the Court can consider at summary judgment. Defendant argues Plaintiff impermissibly relies on conclusions of law from its expert, Jamie Maddux, to rebut summary judgment. (Doc. 31 at 2-3).

Under Rule 56, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). See also Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006) (the court may only consider admissible evidence in ruling on a summary judgment motion). "[A]n expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law." Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (internal citation omitted) (emphasis in original). However, expert testimony on an ultimate issue of fact is admissible. Id. (citing Fed. R. Evid. 704(a)).

The line between expert opinion on an ultimate issue of fact and a legal conclusion is fine; an expert can testify to an issue of law, but not express an opinion on a conclusion of law. Ford v. Allied Mut. Ins. Co., 72 F.3d 836, 841 (10th Cir. 1996). For instance, in Hangarter, the plaintiff's expert could testify that the defendants deviated from industry standards in order to support a finding of bad faith. 373 F.3d at 1016. However, the expert could not "testif[y] that he had reached a legal conclusion that Defendants actually acted in bad faith." Id.

Maddux concludes in his report that Defendant violated a handful of Montana laws, including Mont. Code Ann. §§ 61-8-321, 61-8-328 for failure to drive on the right side of the roadway and for driving over the center line, respectively. (Doc. 30-2 at 8). These are impermissible legal conclusions that the Court cannot consider. However, Maddux also comments on the issues pertaining to the traffic laws, such as his conclusion that one or more of the fatalities could have been avoided if Defendant had been driving in the correct lane. (See id.). These are permissible statements on an ultimate issue of fact. As such, the Court disregards Maddux's legal conclusions but will consider the statements on the ultimate issues of fact.

Importantly, the Court does not take issue with the legal conclusions made by Plaintiff in its brief that are based on the facts and factual opinions contained in Maddux's report. Defendant frames these legal conclusions as based entirely on Maddux's legal conclusions. (Doc. 31 at 2). However, Plaintiff is permitted to conclude that Defendant violated a statute based on his expert's determination that Defendant was driving in the middle of the road. That is the role of an attorney.

B. Negligence and Wrongful Death

Because this case involves the driver of a vehicle and a pedestrian, and both are alleged to have acted negligently, the Court will outline the standards of care for drivers and pedestrians.

Generally, Montana drivers have a duty to operate their vehicle "in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property or other rights of a person entitled to the use of the highway." Mont. Code Ann. 61-8-302(1). Pursuant to the duty to drive carefully and prudently, drivers must "look not only straight ahead but laterally ahead . . . to see that which is in plain sight." Walden v. Yellowstone Elec. Co., 404 Mont. 192, 487 P.3d 1, 6 (2021) (internal citation and quotation omitted). A motorist "is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view." Id. (internal citation omitted). A driver cannot escape negligence if they did not see what was in plain sight because they were not looking. Payne v. Sorenson, 183 Mont. 323, 599 P.2d 362, 364 (1979).

Pedestrians also must fulfill their duty of care on roadways. Fretts v. GT Advanced Tech. Corp., CV 11-160, 2013 WL 816684, at *1 (D. Mont. Mar. 5, 2013). Unless a pedestrian is in a crosswalk or crossing the street, a pedestrian and motorist generally have equal rights to the use of a public highway.³ Hightower v. Alley, 132 Mont. 349, 318 P.2d 243, 247 (1957); Sorrells v. Tryan, 129 Mont. 29, 281 P.2d 1028, 1030 (1955). However, a pedestrian still must exercise reasonable care to prevent injury to himself. Oberson v. United States, 311 F. Supp. 2d 917, 960 (D. Mont. 2004) (citing Mont. Code Ann. § 27-1-701). Specifically, an intoxicated⁴ pedestrian does not have right to walk on the highway or the shoulder. Mont. Code Ann. § 61-81-502.

When the driver and pedestrian both have acted with substantial negligence, the Court must deny summary judgment to allow the factfinder to determine the...