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Jessica L. Tonner v. Holly Ann Cirian

December 27, 2012

JESSICA L. TONNER, PLAINTIFF AND APPELLANT,
v.
HOLLY ANN CIRIAN, DEFENDANT AND APPELLEE.



APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 09-37 Honorable James B. Wheelis, Presiding Judge

The opinion of the court was delivered by: Justice Beth Baker

Submitted on Briefs: October 3, 2012

Decided: December 27, 2012

Filed:

Clerk

Justice Beth Baker delivered the Opinion of the Court.

¶1 Jessica L. Tonner (Tonner) appeals an order of the Nineteenth Judicial District Court, Flathead County, granting summary judgment to Holly Ann Cirian (Cirian). The sole issue on appeal is whether Cirian is entitled to judgment as a matter of law. We reverse and remand for trial on Tonner's claim of negligence.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On March 19, 2007, Tonner was driving her Nissan Titan pickup truck east on Balsam Street in Libby, Montana. At the same time, Cirian was driving her Hyundai Elantra north on Washington Avenue, which meets Balsam Street at an uncontrolled intersection. Cirian approached the intersection from Tonner's right, and Tonner was to Cirian's left. As Tonner was driving through the intersection, the front of Cirian's car collided with the rear quarter-panel of the passenger side of Tonner's truck.

¶3 The collision damaged both vehicles and injured Tonner. Tonner filed an amended complaint against Cirian on July 25, 2011, alleging that the "collision was the direct and proximate result of the negligence of [Cirian]." Tonner contended in part that Cirian was negligent because she had failed "to maintain a proper lookout for other vehicles lawfully driving upon said roadway" and because she had failed "to operate her vehicle in a reasonable and prudent manner, under the circumstances then and there existing."

¶4 Cirian moved for summary judgment under M. R. Civ. P. 56(c), contending that she was not negligent "as a matter of law" because she "approached the intersection to the right of Tonner," and thus Tonner had an absolute "statutory duty to yield the right-of-way to Cirian" under § 61-8-339, MCA (2007). Tonner opposed Cirian's motion, arguing that "the simple allegation of a right of way violation . . . does not conclude issues of comparative negligence, which are distinctly factual." She contended that "the fact that one driver enjoys the right of way does not absolve the favored driver of his duty to maintain a proper lookout." Both parties submitted deposition testimony and Tonner also attached a signed affidavit to her brief, recounting her recollection of the collision.

¶5 Each driver testified in her deposition that she was driving at or under the posted speed limit and was unimpaired. Both admitted, however, that neither saw the other's car prior to entering the intersection. Tonner explained in her affidavit that she slowed and looked down the street to her right before crossing Washington Avenue, but she did not see Cirian's car. Cirian, on the other hand, testified in her deposition that she did not look to her left before entering the intersection. She stated, "I'm pretty sure I was just looking straight, I mean, but at the last minute I saw her, so I was looking straight instead of anywhere else." Cirian later explained that, even if she had looked left, she would have been unable to see Tonner because "bushes and a fence" rendered that side of the intersection "very un-visible" to her. With her affidavit in response to Cirian's motion, Tonner attached photographs of the intersection taken shortly after the accident, purporting to demonstrate that Cirian's view of Balsam Street was not obstructed.

ΒΆ6 The District Court granted Cirian's motion for summary judgment on February 16, 2012, on the ground that "no genuine issue of material fact exists and that [Cirian] is entitled to judgment as a matter of law." The court faulted Tonner for failing to offer "admissible evidence to support [her] allegations." It refused to consider Tonner's contention that Cirian had received a traffic citation, noting that she had failed to submit an affidavit from the investigating officer and that issuance of a traffic citation was not admissible in the civil case in any event (citing Hart-Anderson v. Hauck, 239 Mont. 444, 449, 781 P.2d 1116, 1119 (1989)).The court also noted the lack of evidence that Cirian was speeding. The court concluded that, ...


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