Incompetent Defendant Appeared Pro Se

Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Montana Supreme Court recently.

Stewart v. Rice, 2013 MT 55

The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on Old Highway 97 on the Crow Reservation in Big Horn County. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.

At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.

On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”

On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.

A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.

However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.

The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.

Negligence per se

Montana law holds us liable for both our intentional and negligent acts. Because intentional acts tend to be very obvious, most legal cases are more concerned with negligence. I’ve discussed it before on here, but negligence happens when a person fails to exercise “reasonable care.” But, deciding this happens after the fact and usually requires a jury. One exception to that is negligence per se.

Negligence per se translates to negligence in itself. Basically, some acts are so obviously problematic that it doesn’t matter whether or not they’re done with reasonable care. If something is negligence per se, the person who commits that act is liable for the reasonably foreseeable consequences of that action. No matter how careful they were. Basically, this refers to the violation of a statute. Specifically, this refers to the violation of a statute intended to protect the plaintiff that injures the plaintiff.

In Montana, a plaintiff must establish five elements to bring a negligence per se claim: (1) that the defendant violated a particular statute; (2) that the statute was enacted to protect a specific class of persons; (3) that the plaintiff is a member of the class; (4) that the plaintiff’s injury is the kind of injury that the statute was enacted to prevent; and (5) that the statute was intended to regulated members of the defendant’s class.

If the plaintiff proves these elements, a defendant is negligent as a matter of law. But that’s just the first step. The plaintiff must still succeed in proving causation and damages to establish liability. If a plaintiff fails to do that, his claim fails as a matter of law. The defendant’s actions must have caused the alleged damages. Similarly, a claim fails as a matter of law if the plaintiff fails to establish the material elements of the claim, including damages.

What does all that mean? Basically that negligence law continues to apply. The four common elements of damages are duty, breach, causation, damages. Instead of a traditional duty analysis, we have the five factor test discussed above. But that’s only the first step – and the remaining three steps continue to apply. Because it short-circuits the duty requirement, negligence per se can be a powerful claim. But, it’s important to remember that it carries its own set of requirements and shouldn’t be reduced to just “breaking a law.”

Default Judgment as a Discovery Sanction

Richardson v. State, 2006 MT 43

Richardson, who was 84 years old at the time of her accident, fell in the locker room while taking a water aerobics class on the Montana College of Technology campus located in Butte. She suffered severe injury to her hip which required surgical reconstruction and months of rehabilitation. She filed suit against the state of Montana seeking recovery for her medical expenses as well as pain and suffering.

In April of 2003, Richardson sent her first discovery requests to the State seeking information related to her case. Following the State’s response, she sent a second set of discovery requests which included an interrogatory and a request for production seeking information regarding other slip and fall accidents at the same facility. The State refused to answer all ten interrogatories in this second set of requests, claiming that the information was irrelevant, that the requests were not reasonably calculated to lead to the discovery of admissible evidence, and that the requests were vague and ambiguous. Additionally, the State offered no legally recognizable response to four of Richardson’s six requests for production. They simply responded, “Not applicable.”

Richardson sent a letter to the State, requesting an adequate response but the State failed to answer. Richardson then filed a Motion to Compel Discovery in February of 2004. The State responded to the motion by saying that the word “area” as used in “the area of Plaintiff’s fall” was too vague and ambiguous to answer. Initially, the State continued to contest Richardson’s requests for information about other falls, but during oral argument on the Motion to Compel finally agreed to provide that information. The District Court granted Richardson’s Motion to Compel, but did not grant her sanctions.

Following the Court order, Richardson reserved her discovery requests, with a few minor changes. Although the State provided answers to most of them, it continued to refuse to answer the questions regarding other falls in the facility. Finally, on May 13, 2004 – over seven months after Richardson’s initial request, over two months after discovery had closed, and a more eleven days before trial – Richardson received a response to her originally submitted interrogatory and request for production regarding other falls at the facility.

There were brief descriptions of eight other falls resulting in injuries, and seven incident reports. However, the incident reports were of such a poor quality that legible copies had to be requested from the State which consumed more time before trial. Finally, a four day jury trial was held where the jury found eight to four that the State was not negligent.

Noting the Montana Supreme Court “strictly adheres to the policy that dilatory discovery actions shall not be dealt with leniently,” the Court looked at appropriate sanctions. It noted that it had previously held that some discovery abuses warranted the imposition of a default judgment on the issue of liability and determined that it was appropriate in this case as well. The Court observed that “[t]he State’s concealment of the evidence of other falls prevented Richardson from assessing the merits of the State’s proffered defenses and building her case-in-chief. Additionally the belated disclosure preventing Richardson from conducting meaningful follow-up discovery in time for trial.”

Ultimately, the Supreme Court ruled that “the State’s pattern of willful and bad faith conduct outweighs the general preference for trial on the merits. Simply put, the State demonstrated clear disregard for a resolution on the merits when it improperly concealed important evidence by asserting frivolous objections, and subsequently sought to gain strategic advantage thereby.” On the basis, they entered a default judgment against the State on the issue of liability, and remanded for further proceedings to determine liability.

Montana Motorcycle Accidents

Montana is an enormous state with seemingly endless miles of road and beautiful scenery. What could be better for motorcycle riding? Unfortunately, the freedom that comes on two wheels also comes with a price. Careless and negligent drivers are no safer because you are riding a motorcycle and significantly more vulnerable. Instead, a beautiful ride from Kalispell to Missoula along Flathead Lake can turn ugly when an inattentive driver causes a motorcycle accident. Motorcycle accidents often involve a combination of inattentive motorists and the fact that motorcycles are usually smaller than other vehicles on the road. And, they are likely to result in major injuries such as head injuries, spinal cord injuries, and sometimes death.

In 2008 there were 5,290 fatalities resulting from motorcycle accidents in the United States. Over 96,000 people were injured in motorcycle crashes during that same time period. 41% of those who died were not wearing a helmet. According to 2007 statistics, motorcyclists were about 37 times more likely than automobile occupants to die in a motor vehicle crash when you factor in the death rate per number of miles travelled. Motorcyclists were 9 times more likely to be injured in a crash than a passenger car occupant.

The fun and freedom that comes with riding a motorcycle is unfortunately coupled with a real risk from other drivers on the road. When you’re injured because someone else made a mistake, Montana law allows you to recover the damages that you suffer. And those damages can include more than just your medical bills and the cost to fix your motorcycle. If you’ve been injured in a motorcycle accident in Montana, please consider calling a motorcycle injury lawyer immediately. There are important time limits that make acting quickly important. Obviously, I hope you’ll call the motorcycle injury lawyers at Measure, Sampsel, Sullivan & O’Brien, P.C., but whoever you choose I wish you a speedy and full recovery.

Boating Accidents on Flathead Lake

Spend much time in Montana, and you know that summertime means an influx of people – and that more than a few of them are towing boats. In Western Montana, lakes like Flathead Lake, Swan Lake, and Whitefish Lake transform from relatively empty fishing spots to top boating destinations. Unfortunately, not everyone comes prepared and knowledgeable about boating safety and regulations. And those people pose a real threat to the rest of us.

Montana Boat Accident Lawyers

Too often, a day of drinking and careless boating can end in serious injury or death. As boating injury lawyers in Montana, we are aware of the dangers that reckless boaters pose. As natives who grew up around the water and with boating safety in mind, we’re even more outraged by what some people will do on the water.

Too often, people think that watercraft are just toys, that don’t deserve the respect and care that we would ordinarily show to motorized vehicles. And honestly, the opposite is true. Especially in Montana, we may spend 12 months a year driving our cars, but only a month or two of boating. Our skills get rusty and our intuitions fail. That’s one reason it’s even more important to be hyper vigilant on the water. Another good reason is that even if you’re being careful, it’s a likely bet that someone else isn’t.

Have fun, but remember to take care out on the water. As a starting point, here’s a list of items Montana law requires you to have on your boat:

  • Life jackets: U.S. Coast Guard approved Personal Flotation Devices (PFDs or life jackets) must fit the intended wearer, be readily accessible, and be in good condition.
  • Children under 12 years of age must wear a life jacket on a boat less than 26 feet in length that is in motion.
  • Anyone towed by a boat must wear a life jacket.
  • Motorboats less than 26 feet long must have at least one B-1 fire extinguisher.
  • Exception: motorboats less than 26 feet long that are propelled by an outboard motor and are completely open construction (no closed spaces where gasoline fumes may be trapped) are not required to have a fire extinguisher.
  • Motorboats 26 feet to less than 40 feet long must have at least two B-1 or one B-II fire extinguishers.
  • Motorboats 40 feet to not more than 65 feet long must have at least three B-1 or one B-1 , and one B-II fire extinguishers.
  • When a fixed fire extinguishing system is installed and operational in the machinery space of a boat, one less B-1 fire extinguisher is required.
  • A motorboat 16 to 26 feet long must carry some means of producing an efficient sound signal that is audible for one-half mile, such as a whistle or a horn.
  • A motorboat more than 26 feet long must have on board a bell and a whistle or horn capable of making a sound that is audible for one mile.
  • Between sunset and sunrise and at other times of restricted visibility, vessels in operation must display navigational lights. All white lights required by the rules must be visible from a distance of at least two miles. All colored lights must be visible for a distance of at least one mile.
  • Navigation lights include:
    • a green light on the starboard (right) side of the boat
    • a red light on the port (left) side of the boat
    • a white light that is visible in all directions (usually located on the stern and higher than the red and green lights)
Be sure to check with Montana Fish, Wildlife and Parks for a full list of rules and regulations. And if you are injured because of someone else’s negligence, please consider calling the boat accident attorneys at Measure, Sampsel, Sullivan & O’Brien, P.C.

 

Dog Bite Injuries in Montana

Dog attacks can cause painful and lasting injuries for the victims. In Montana, the owners of dogs who bites bystanders are held strictly liable. This means that even if the owner was trying to control the dog, and took adequate precautions, they can still be held liable for the damage that their dogs cause.

If you’ve read other articles on our site, you know that this is a departure from the common standard in Montana. Usually, you have to prove that the other party was negligent before they can be held responsible. In the case of dog bites though, the statute creates strict liability so negligence is not an issue. The law does impose a few other restrictions though.

The law only applies within an incorporated city or town within Montana. Also, the victim must either be in a public place, or be lawfully in a private place. The upside of this is that if your dog attacks a burglar who is robbing your house, the thief can’t turn around and sue you for his injuries. But, if you are walking down the street in Kalispell and a dog bites you, you probably have a cause of action against the owner. So long as you meet the next requirement, which is that the dog attacked without provocation. The law will not protect someone who harasses a dog and then is attacked because of it.

Law suits in dog bite cases often focus on whether the victim harassed the dog, and whether they were trespassing at the time of the attack. Unfortunately, the Supreme Court has had very few chances to address this law meaning that we don’t have a tremendous amount of guidance. But we do know a few things. In one case, a man had his hands over his neighbor’s fence. The neighbor warned him to remove his hands from the fence prior to the dog bite attack, but the man did not remove his hands. The Supreme Court ruled that this did not make him a trespasser and he could still recover for his injuries. In the same case, the man who was attacked had chased the dog with a fence post four to six weeks before the attack. The Supreme Court ruled that this did not qualify as “provocation” under the dog bite laws. While I would never recommend either course of action, it does give some idea for when the statute continues to apply.

Dog bites cause immediate physical pain, can result in the need for surgery or other rehabilitation, and often include severe psychological trauma. Dealing with the fallout from an animal attack requires skill and a delicate touch. If you or your child has been injured by a dog or animal attack, please consider calling us today for a free consultation.

Hit by a Drunk Driver in Montana? Act Quickly.

In Montana personal injury cases involving a drunk driver, there’s an additional time constraint that doesn’t exist in other situations. Usually, the statute of limitations sets the amount of time an injury victim has to commence a lawsuit against the person who injured him. For personal injury cases in Montana, that’s generally the three year rule for tort actions. So, ordinarily you would have three years after an incident to find an injury lawyer and start a suit.

But, for victims hit by a drunk driver in Montana, there can be an additional restriction. Montana has what is known as a Dram Shop Act, which applies to people or businesses who sell or provide alcoholic beverages. Montana’s Dram Shop Act allows you to hold the bar responsible for your injuries if they served the driver who hit you while he was visibly intoxicated. If a bar serves a person who is clearly drunk, and that person then hits you while driving home, Montana law holds the bar responsible as well as the drunk driver. But, in order to do this you have to notify the bar within 180 days of the incident and begin your lawsuit within 2 years. These restrictions over rule the standard limitation period and impose a greater burden on victims to act quickly.

In Rohlfs v. Klemenhagen, LLC, a heavily divided Montana Supreme Court addressed the constitutionality of the statute. Cary Rohflfs was hit by Joseph Warren shortly after he left the Stumble Inn where he had been drinking all night. Cary filed her complaint a little over a year after the accident, but the District Court dismissed it because she had not given notice to the Stumble Inn (Klemenhagen, LLC). Cary appealed and challenged the constitutionality of the law. The majority of justices ruled that the law was constitutional (at least under the challenges Cary brought up in her appeal).

But, a concurring opinion, filed by Justice Morris raised an interesting point. The purpose of the law is to put Tavern owners on notice that something has happened. Conceivably, a driver could leave a bar, get in an accident miles and miles away, and the bar would have no way of knowing anything had happened. But in this case it was undisputed that the accident happened almost immediately after Joseph Warren left the Stumble Inn. High Patrol Officers spoke with bar employees that night. There is no arguing that the Stumble Inn was aware of the incident. It appears a majority of the Court would have accepted that argument, but it was not raised on appeal.

Your Health Insurance May Not Cover Motorcycle Accidents

Think your health insurance will cover you if you’re involved in a motorcycle accident in Montana? You might want to read the fine print. More and more insurance companies are adding language to their policies that exempts medical care payments for motorcycle accident injuries from coverage. So if you’re injured by an irresponsible driver while on a motorcycle, your health insurance may not help.

As motorcycle accident attorneys in Montana, we specialize in working with uncooperative insurance companies to try to ensure that you get everything you’re entitled to.

You may think that you have “full coverage.” You may have been told that you have full coverage. But please believe me when I say that there is no such thing as full coverage. In fact, you would probably be shocked to discover the list of things not covered by your insurance. Like motorcycle wrecks.

Most people imagine insurance as a warm blanket, protecting them from all the bad things that can happen everyday. And often it is. But sometimes, when things go wrong you end up on opposite sides of a dispute from your insurance company. When that happens, a strong advocate can mean the difference between success and failure. The insurance companies hire skilled attorneys to help protect their bottom line. Don’t you want someone on your side?

Montana Car Accident Attorneys

Despite being called car accidents, they usually aren’t accidents at all. Instead, if you look back you can usually find something one of the drivers did that caused the automobile wreck. As Montana Car Accident Lawyers, a large part of what we do is determining what happened before an accident. Especially if the collision causes injury or death, these actions need to be investigated completely in order that the victims can be compensated for their losses.

The Montana car accident attorneys at Measure, Sampsel, Sullivan & O’Brien, P.C., know how crucial it is for our clients to be able to depend on us to protect their rights. That’s why we provide a free consultation for injury victims. You can call us today, toll free, at 1-888-999-5037, or use the form below to email us.

Tragically, most car accidents are caused by negligence or recklessness that could have been avoided. Negligence occurs when the vehicle’s driver fails to exercise due care. Recklessness, on the other hand, is the intentional disregard for a substantial and unjustifiable risk. There are many different kinds of negligent or reckless actions that lead to Montana car accidents. For example: drunk driving, texting while driving, drowsy driving, speeding, following too closely, failure to yield, red light running, and drugged driving (which includes prescription drugs as well as illegal narcotics).

Although Montana law requires that all drivers carry liability insurance, too many people choose to break the law. This means that when they cause an accident, it can be much harder to hold them responsible and adequately compensate the injured party. Having your own insurance is helpful, but as I’ve heard too many times – insurance companies don’t make money by approving claims. If you’re the victim of a Montana car accident, you may find yourself fighting your own insurance company. At times like that, having knowledgeable and skilled attorneys can make a huge difference.

Montana Sexual Abuse Lawyers

In Montana, Sexual Abuse is a crime, and the perpetrators can be held criminal responsible and sent to jail. But, they can also be held civilly liable and forced to pay for the damages they cause to their victims. Although nothing can repair the trauma and pain survivors face on a daily basis, the law does provide for recovery for a wide array of categories including ongoing treatment and counseling, pain and suffering, and others.

Sadly, children are especially vulnerable to these predators. Incurring this type of trauma during a person’s formative years can have lasting consequences and require ongoing assistance. As Montana Sexual Abuse lawyers, we work to help clients receive the compensation they are entitled to for this horrendous crime. Although nothing can take away what happened, we can at least help you obtain what relief the system does offer.

Unlike other types of injury, sexual abuse often includes feelings of shame, embarrassment, and fear. Telling one person can be terrifying, let along reliving the horrific experience in front of an entire court room. But holding abusers and their institutions accountable is important, and can sometimes help with the healing process.

But the decision to hire a sexual abuse lawyer and pursue a case is very personal, and has to be something you are comfortable with. Ultimately, the decision has to be yours and yours alone. If we can help by offering legal advise or with an explanation of the legal process, it would be our pleasure.

Survivors of sexual abuse face unique hurdles in seeking justice, but a dedicated and knowledgable attorney can make a major difference. If you or someone you know has been a victim of sexual abuse, please contact an attorney immediately. As with any injury case, the statute of limitations can prove to be an impossible hurdle to overcome if survivors wait too long.