United States District Court, D. Montana, Missoula Division
MELBA SUE JOHNSON, ROBERT ALGOOD and TERESA ALGOOD, Plaintiffs,
RE-EM TRANSPORTATION SERVICES, LTD.; 1338023 ALBERTA, LTD.; and ADAM BOYKIW Defendants.
FINDINGS & RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge.
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.
Standard of Review
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
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.
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
filed this action approximately 19 months after the collision
- well within the applicable three year period of
limitations. See Mont. Code Ann. §
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.
Contributory and Comparative Negligence
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.
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.
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