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Bockman-Fryberger v. State

Supreme Court of Montana

August 21, 2018

CHRISTY A. BOCKMAN-FRYBERGER, Plaintiff, Appellant, and Cross-Appellee,
STATE OF MONTANA, Defendant, Appellee, and Cross Appellant.

          Submitted on Briefs: June 27, 2018

          APPEAL 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.

          For Appellant: Joseph P. Cosgrove, Anders Blewett, Hoyt & Blewett PLLC, Great Falls, Montana

          For 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



         ¶1 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.


         ¶2 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 93.[1] 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.

         ¶3 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.

         ¶4 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 provision.

         ¶5 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.


         ¶6 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 ...

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