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Johnson v. Re-Em Transportation Services, Ltd.

United States District Court, D. Montana, Missoula Division

March 13, 2017

MELBA SUE JOHNSON, ROBERT ALGOOD and TERESA ALGOOD, Plaintiffs,
v.
RE-EM TRANSPORTATION SERVICES, LTD.; 1338023 ALBERTA, LTD.; and ADAM BOYKIW Defendants.

          FINDINGS & RECOMMENDATION

          Jeremiah C. Lynch United States Magistrate Judge.

         I. Introduction

         This matter is before the Court on Plaintiff Melba Sue Johnson's motion for partial summary judgment filed February 6, 2017. Johnson requests judgment be entered in her favor with respect to the following four affirmative defenses advanced against her by Defendants, collectively referred to as “RTS”: (1) contributory negligence; (2) comparative fault; (3) laches; and (4) non-party liability. Review of the record reflects that RTS has not filed a response to Johnson's motion within the time period prescribed by Local Rule 7.1(d)(1)(B)(i). For the reasons stated below, Johnson's motion should be granted.

         II. Standard of Review

         Under Fed.R.Civ.P. 56, a party moving for summary judgment who - like Johnson here - does not have the burden of persuasion at trial must produce evidence which either: (1) negates an essential element of the non-moving party's claim or affirmative defense, or (2) shows that the non-moving party does not have enough evidence of an essential element of its claim or affirmative defense to ultimately carry its burden at trial. Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). And where, as here, the moving party has satisfied her initial burden, the non-moving party must set forth through supporting evidentiary materials “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). An issue of fact is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case.

         III. Analysis

         By way of her affidavit (doc. 38), and the affidavit of Robert Algood (doc. 39), Johnson has satisfied her initial burden in producing evidence of the following facts.

         On August 12, 2014, Johnson was injured in an automobile collision. The collision occurred when a semi-truck and trailer operated b RTS crossed the centerline and collided with a pickup truck operated by Robert Algood. Johnson was a rear seat passenger in Algood's vehicle. Johnson was not acting in any manner - immediately before or at the time of the collision - that contributed to the cause of the collision.

         Johnson filed this action approximately 19 months after the collision - well within the applicable three year period of limitations. See Mont. Code Ann. § 27-2-204.[1]

         RTS has failed to sustain its burden to designate specific facts supported by evidentiary materials of record showing that there exists any genuine dispute with respect to the referenced facts established by Johnson.

         A. Contributory and Comparative Negligence

         By way of its first and second affirmative defenses, RTS asserts Johnson's negligence claim and any resultant damages ar barred or reduced by her contributory or comparative negligence. Johnson first argues that with Montana's adoption of comparative negligence - as codified at Mont. Code Ann. § 27-1-202 -- contributory negligence was “statutorily abolished” as a defense and is thus unavailable in this case. Johnson is only partially correct.

         Montana did not adopt a pure comparative negligence scheme where “no plaintiff is completely barred from recovery because of her contributory negligence.” Giambra v. Kelsey, 162 P.3d 134, 144 (Mont. 2007) (quoting Dobbs, The Law of Torts § 201, at 505). Rather, “Montana's comparative negligence scheme employs the ‘greater than' version of comparative negligence.” Giambra, 162 P.3d at 144 (citation omitted). Consequently, “[a]s now codified in § 27-1-702, MCA, ... a plaintiff's contributory negligence is a defense to a charge of negligence, but ‘[c]ontributory negligence does not bar recovery in an action by a person' unless that person's contributory negligence was ‘greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought.'” Giambra, 162 P.3d at 144. Thus, because of Montana's adoption of a bastardized version of pure comparative fault, the rubric of contributory negligence remains in the statutory and decisional law of Montana. And, consistent with Mont. Code Ann. § 27-1-201, contributory negligence remains a defense to a claim of negligence where a plaintiff's negligence is found to exceed fifty percent.

         Here, RTS's first affirmative defense invoking contributory negligence tracks the language of Mont. Code Ann. § 27-1-201 by asserting that Johnson's contributory negligence bars her recovery because it “exceeds that of RTS.” (Doc. 7, at 5). Consequently, this aspect of ...


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