CHRISTY A. BOCKMAN-FRYBERGER, Plaintiff, Appellant, and Cross-Appellee,
STATE OF MONTANA, Defendant, Appellee, and Cross Appellant.
Submitted on Briefs: June 27, 2018
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. DDV 2016-593
Honorable James P. Reynolds, Presiding Judge.
Appellant: Joseph P. Cosgrove, Anders Blewett, Hoyt &
Blewett PLLC, Great Falls, Montana
Appellee: Courtney Mathieson, Special Assistant Attorney
General, Risk Management and Tort Defense Division, Helena,
Montana Maxon R. Davis, Davis, Hatley, Haffeman & Tighe,
P.C., Great Falls, Montana
Christy A. Bockman-Fryberger drove her vehicle into the back
of a slow-moving, front-end loader on U.S. Highway 93, south
of Ronan, on a January night. The loader was owned and
operated by the Montana Department of Transportation (MDOT).
Bockman-Fryberger filed suit against the State to recover
damages for injuries sustained in the collision. A Lewis and
Clark County jury found Bockman-Fryberger fifty-one percent
at fault in the accident. On appeal, Bockman-Fryberger argues
that the District Court violated the law when it refused to
strike for cause a juror who was a state employee. We affirm
and do not reach the State's cross-appeal.
AND FACTUAL BACKGROUND
Shortly before 10 p.m. on January 21, 2016, Greg Fryberger,
an employee of MDOT, finished clearing snow berms with a
front-end loader on an intersection of U.S. Highway
He was working about ten miles north of the MDOT shop where
the loader normally was kept. After finishing his work,
Fryberger began driving back to the MDOT shop to return the
loader. It was five hours after sunset, and the road was
dark. Fryberger had the top light, flashers, and headlights
of the loader on, and the vehicle had a
"slow-moving" placard on it. The loader was driving
about fifteen to twenty miles per hour. As Fryberger drove
the front loader down Highway 93, Bockman-Fryberger, who was
driving sixty-two miles per hour, rear-ended the loader. She
was injured in the collision.
Bockman-Fryberger sued the State for its employee's
negligent actions and its failure to have a policy
prohibiting the operation of a loader on a public highway at
night, its failure to ensure the loader was equipped with
lights compliant with statutory requirements, and its failure
to properly train or supervise the driver of the
front-loader. The State's theory at trial was that
Bockman-Fryberger's negligence caused the collision and
her injuries: the loader's lights and reflectors were
visible and, despite having ample time to slow down, she made
no attempt to reduce her speed as she approached the loader.
During jury selection, Bockman-Fryberger moved to have all
state employees removed from the jury for cause pursuant to
§ 25-7-223(3), MCA, which allows challenges for cause
when a juror "stand[s] in the relation of . . . employer
and employee . . . to either party." Bockman-Fryberger
withdrew the motion after the District Court agreed that she
could challenge individual jurors during voir dire under the
Bockman-Fryberger challenged two potential jurors, Eugene
Betz and Steven Haynes, for cause under § 25-7-223(3),
MCA, due to their employment with the State. Betz works for
the Montana Highway Patrol Division in Helena. During voir
dire, Betz stated that he knew many state employees,
including his two ex-wives and his best friend. He also
stated that he had formed a "close relationship"
with the current director of MDOT, Mike Tooley, when Tooley
was chief of the Highway Patrol; he added that they
"don't run in the same circles, but [do] say
hello." The District Court overruled both challenges.
Bockman-Fryberger used her peremptory challenges to remove
state employees from the jury, including Betz. Four state
employees, including Haynes, remained on the jury. On appeal,
Bockman-Fryberger challenges the District Court's refusal
to grant her challenge for cause of Betz. She does not
separately challenge Haynes's service on the jury.
We review a court's refusal to dismiss a juror for cause
for an abuse of discretion. Reff-Conlin's Inc. v.
Fireman's Fund Ins. Co., 2002 MT 60, ¶ 16, 309
Mont. 142, 45 P.3d 863. "We will reverse the judgment
and order a new trial if a court abuses its discretion by
denying a defendant's challenge for cause, the defendant
removes the challenged prospective juror with a peremptory
challenge, and the ...