United States District Court, D. Montana, Billings Division
CHARLES P. MCJUNKIN, deceased, by and through his executor and personal representative, RHETT MCJUNKIN, and RHETT MCJUNKIN, executor and personal representative, on behalf of the heirs of CHARLES P. MCJUNKIN, Plaintiffs,
JAMES YEAGER d/b/a JIM YEAGER OUTFITTERS, Defendant.
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
McJunkin, as personal representative of the estate of Charles
P. McJunkin, and on behalf of the heirs of Charles P.
McJunkin (“Plaintiffs”), brings this action
against Defendant James Yeager, doing business as Jim Yeager
Outfitters (“Yeager” or “Defendant”),
in relation to a fatal boating accident that occurred on the
Stillwater River near Columbus, Montana. Plaintiffs assert
claims for negligence, negligent infliction of emotional
distress, and loss of consortium. (Doc. 1.)
before the Court are Plaintiffs' Motion to Amend the
Complaint (Doc. 23), Plaintiffs' Motion for Partial
Summary Judgment Regarding the Constitutionality of the
Montana Recreation Responsibility Act (Doc. 28), and
Defendant's Motion for Summary Judgment (Doc. 31). The
motions are fully briefed and ripe for the Court's
considered the parties' submissions, the Court finds
Plaintiffs' Motion to Amend should be
DENIED, Plaintiff's Motion for Partial
Summary Judgment should be DENIED, and
Defendants' Motion for Summary Judgment should be
GRANTED in part and DENIED in part.
is a professional fishing guide and outfitter. On July 17,
2014, Yeager took a paying client, Charles P. McJunkin
(“McJunkin”), on a guided fishing trip in a raft
on the Stillwater River. As Yeager was guiding and operating
the raft, McJunkin fell into the river and drowned. McJunkin
was 81 years old at the time of his death.
had gone on similar guided fishing trips with Yeager for
approximately 20 years. In fact, in the week preceding the
July 17, 2014 accident, McJunkin had floated and fished the
Stillwater River three times with Yeager. On each occasion,
Yeager put-in at the Johnson Bridge Fishing Access, and used
the Swinging Bridge Fishing Access Site for a take-out at the
end of the day. The Swinging Bridge take-out is approximately
one-quarter mile above a set of rapids known as the Beartooth
Drop. Yeager had never floated through the Beartooth Drop
date of the accident, Yeager was guiding McJunkin and his
partner, Julia Garner (“Garner”). The plan was to
again float from Johnson Bridge to the Swinging Bridge
take-out. The river conditions encountered by Yeager that day
were characteristic of, and consistent with conditions he
previously encountered on that stretch of the river. Yeager
approached the Swinging Bridge take-out in the same manner as
he had on the three earlier days of fishing. As he approached
the take-out, the raft crossed an underwater shelf of rocks.
When the rear of the raft passed the shelf, the boat rocked
and McJunkin fell into the water. Although the raft was
equipped with personal floatation devices (PFDs), McJunkin
was not wearing one at the time.
swam toward the raft, and Yeager attempted to position the
raft so that McJunkin could grab a hold of the side. During
this process, the party floated past the Swinging Bridge
take-out. To complicate matters further, as Yeager attempted
to pull McJunkin into the raft, Garner fell into the water.
The parties dispute what caused Garner's fall. Plaintiffs
contend Yeager accidentally hit her with an oar. Yeager
indicated he didn't know what caused her to fall in,
testifying “I don't know if I hit a rock or a wave
or whatever, Julie went in.” Garner yelled to Yeager
that she could not swim. Yeager made the split-second
decision to let go of McJunkin and attempt to save Garner,
fearing she would drown otherwise. Yeager was able to pull
her back into the raft as they entered the Beartooth Drop.
Meanwhile, McJunkin lost contact with Yeager and the raft and
floated through the rapid. He ultimately did not survive.
LEGAL STANDARD FOR SUMMARY JUDGMENT
judgment is appropriate where the moving party demonstrates
the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Material facts are those which may affect
the outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable fact-finder to return a verdict for the
nonmoving party. Id. “Disputes over irrelevant
or unnecessary facts will not preclude a grant of summary
judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
party seeking summary judgment always bears the initial
burden of establishing the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. The moving
party can satisfy this burden in two ways: (1) by presenting
evidence that negates an essential element of the nonmoving
party's case; or (2) by demonstrating that the nonmoving
party failed to make a showing sufficient to establish an
element essential to that party's case on which that
party will bear the burden of proof at trial. Id. at
322-23. If the moving party fails to discharge this initial
burden, summary judgment must be denied and the court need
not consider the nonmoving party's evidence. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 159-60 (1970).
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In attempting to establish the
existence of this factual dispute, the opposing party must
“go beyond the pleadings and by ‘the depositions,
answers to interrogatories, and admissions on file,'
designate ‘specific facts showing that there is a
genuine issue for trial.'” Celotex, 477
U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The opposing party
cannot defeat summary judgment merely by demonstrating
“that there is some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586;
Triton Energy Corp. v. Square D Co., 68 F.3d 1216,
1221 (9th Cir. 1995) (“The mere existence of a
scintilla of evidence in support of the nonmoving party's
position is not sufficient.”) (citing
Anderson, 477 U.S. at 252).
Cross-Motions for Summary Judgment Related to the Montana
Recreation Responsibility Act
assert Yeager's negligence caused McJunkin's death.
Yeager contends Plaintiffs' negligence claim fails as a
matter of law because it is barred by Montana's
Recreation Responsibility Act (the “MRRA”), Mont.
Code Ann. § 27-1-751, et seq. Thus, Yeager argues
summary judgment on the negligence claim is warranted.
counter that the MRRA is unconstitutionally vague, and
violates the constitutional guarantee of equal protection and
right to full legal redress. Plaintiffs, therefore, move for
partial summary judgment declaring the MRRA unconstitutional.
Plaintiffs further assert that even if the MRRA is
constitutional, there are genuine issues of material fact
which preclude summary judgment.
Yeager's Motion for Summary Judgment under the
MRRA limits the liability of recreational opportunity
providers for injuries resulting from the inherent risks of
sports or recreational opportunities.Specifically, the MRRA
provides in relevant part:
(1) A person who participates in any sport or recreational
opportunity assumes the inherent risks in that sport or
recreational opportunity, whether those risks are known or
unknown, and is legally responsible for all injury or death
to the person and for all damage to the person's property
that result from the inherent risks in that sport or
(2) A provider is not required to eliminate, alter, or
control the inherent risks within the particular sport or
recreational opportunity that is provided.
(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an
action based on the negligence of the provider if the injury,
death, or damage is not the result of an inherent risk of the
sport or recreational opportunity.
Mont. Code. Ann. § 27-1-753.
The MRRA defines “Inherent risks” as:
[T]hose dangers or conditions that are characteristic of,
intrinsic to, or an integral part of any sport or
recreational activity and that cannot be prevented by the use
of reasonable care.
Mont. Code Ann. § 27-1-752(2).
interpreting a statute, a court is required to look to the
plain meaning of the words. Clarke v. Massey, 897
P.2d 1085, 1088 (1995). A court will only resort to the
legislative history of a statute if the legislative intent
cannot be determined from the statute's plain wording.
Id. “[T]he office of judge is simply to
ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted or to
omit what has been inserted.” Mont. Code Ann. §
maintains that the statute has a simple, straight-forward
application to the facts of this case. He argues
McJunkin's death was caused by drowning; falling out of a
boat and drowning is an inherent risk of fishing from a raft;
therefore, Plaintiffs' negligence claim is barred under
the MRRA as a matter of law. In short, Yeager asserts because
the injury in this case involved drowning while fishing from
a raft, the MRRA precludes Plaintiffs' claim. (Doc. 32 at
reads the MRRA much too broadly. Construing the statute in
this fashion would immunize providers of recreational
activities from their own negligence. The Court finds that
such a construction would be contrary to the statute's
plain words, the legislative intent in enacting the
legislation, and would likely render the MRRA
the plain language of the MRRA, a risk must satisfy two
requirements to constitute an “inherent risk” and
thus fall within the Act's protection. There must be (1)
a danger or condition that is characteristic of, or intrinsic
to the activity, and (2) the danger or condition must be one
that cannot be prevented by the use of reasonable care. Mont.
Code Ann. § 27-1-752(2). Therefore, the MRRA does not
insulate a provider from all risks which are characteristic
of, or intrinsic to the activity. It only provides protection
for those risks which cannot be prevented with the use of
reasonable care. In order to make this determination, it is
necessary to look at the facts and circumstances of each case
and the specific risk or condition involved.
has a similar “Recreation Safety Act.” Wyo. Stat.
Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the
Wyoming Act provides that “[a]ny person who takes part
in any sport or recreational opportunity assumes the inherent
risk in that sport or recreational opportunity, whether those
risks are known or unknown . . . .” Wyo. Stat. Ann.
§ 1-1-123(a). It also similarly states that a provider
of the “recreational opportunity is not required to
eliminate, alter, or control the inherent risks” of the
activity. Wyo. Stat. Ann. § 1-1-123(b). One critical
difference between the two acts, however, is the definition
of an inherent risk. The MRRA and the Wyoming Act both define
inherent risk to mean “those dangers or conditions
which are characteristic of, intrinsic to, or an integral
part” of the activity. Wyo. Stat. Ann. §
1-1-122(a)(i). But the Wyoming Act's definition does not
also include the MRRA's requirement that the risk
“cannot be prevented by the use of reasonable
the construction of the Wyoming Act is instructive as far as
the similarities go. Courts which have construed and applied
the Wyoming statute have rejected the broad, general
interpretation advanced by Yeager in this case. To determine
what risks are inherent, decisions under the Wyoming Act have
consistently required that a court “go beyond a broad
characterization and inquire into the specific circumstances
of both [the plaintiff's] actions and those of the
recreation provider.” Creel v. L & L,
Inc., 287 P.3d 729, 736 (Wyo. 2012).
Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000),
for example, the plaintiff was injured during a guided
horseback trail ride. The injury occurred when the
plaintiff's saddle slipped around to the belly of the
horse, causing the plaintiff to fall to the ground. The
defendant moved for summary judgment under the Wyoming
Recreation Safety Act, arguing that a slipping saddle is an
inherent risk of horseback riding. In determining the
application of the Act, the Tenth Circuit made clear that the
risk in question must be not be evaluated broadly or
generally, but in the context of the specific factual setting
Horseback riding undoubtedly carries some inherent risk that
the rider will fall off the horse and get injured. A horse
could stumble on an uneven path, or rear, or simply begin to
gallop for no apparent reason. All of these risks clearly
would qualify as inherent risks of horseback riding. Simply
because some risks are inherent in horseback riding, however,
does not mean that all risks of falling from a horse are
necessarily inherent; instead, it is necessary to look
factually at the specific risk to which the rider was
exposed. When attempting to determine whether a risk is
inherent to a sport, we can not look at the risk in a vacuum,
apart from the factual setting to which the rider was
exposed. And, we must evaluate the risk at the greatest level
of specificity permitted by the factual record. See