For example, imagine that Fred is bicycling down the road in Kalispell when he is struck by Ben who is driving on the same road. Even if the jury finds that Fred was negligent in his bike riding because he was wearing headphones while riding, he can still recover damages in a suit against Ben so long as the jury finds that Ben’s negligence was greater than Fred’s. To put a number on it, so long as Fred was only 49% negligent, Ben’s negligence is greater than Fred’s and Fred can still prevail.

However, “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.” This means that while Fred can recover damages in his suit against Ben, those damages must be reduced by whatever percentage negligent Fred was. So, in the earlier example where Fred was 49% negligent, any damages that were awarded to Fred in his suit would be reduced by 49%. He can still recover 51% of whatever is awarded to him, the percentage that Ben was responsible for.

If the jury finds that Fred’s negligence is equal to or greater than Ben’s negligence, then Fred will be unable to collect any damages under the Montana rule. In a case with multiple defendants, the combined negligence of all the defendants is compared with that of the plaintiff to make the same determination.

In one of her arguments, Stevens maintained that the statute of limitations was tolled by a class action lawsuit brought in federal district court in Tennessee (the Becker suit). Stevens asserted that because the Becker suit contained a request for worldwide class certification, and contained claims substantively identical to those made by Stevens, the statute of limitations was tolled as to Stevens as well as other potential class members.

As a matter of first impression, the Montana Supreme Court concluded that the class action tolling rule would be logically applied in this case and ruled that Stevens’ amended complaint was timely filed.

In addressing one of Novartis’ two principal arguments to the application of class action tolling, the Montana supreme court went on to adopt a rule allowing for cross-jurisdictional tolling of claims. The Court found that the main reason that other state courts were declining to adopt cross-jurisdictional tolling is the fear that doing so while the doctrine is not yet widely accepted will trigger a rush on the courts of that state.

The Montana Supreme Court did not agree that this was a valid concerned and plainly stated its belief that they were not expanding access to Montana’s courts beyond the access to which out-of-state plaintiffs are already entitled.

The Court went on to caution that some class action lawsuits would not put the defendants on notice of the substantive claims against them, and under such a situation the class-action tolling rule may not apply. The Court also noted that the amount of time the plaintiff is alleging has been tolled is a relevant consideration (noting that 10 years may have produced a different outcome than the 10 months in the present case).

John Neumann built an addition to his barn on his property near Pipestone, Montana in 2005. Two years later, the new roof blew off and cut a power line on the Goles’ property which sparked a fire consuming outbuildings, fences, corrals, trees, a field, and personal property. The Goaleses sued for negligent construction of the roof, alleging that he should have used “storm collars” to secure the roof in high winds.

The case proceeded to trial and each party introduced expert testimony. The Goles’ expert testified that he always used storm collars in windy areas and believed that the lack of collars was not reasonable and prudent, rendering the roof insufficient. On Neumann’s behalf, a wood science expert testified that while storm collars are commonly used in windy areas, the fact that Neumann had used 550 nails to secure the roof was significant. He believed it would have required winds of 100-105 mph to lift the roof, compared to 90 mph which was the standard.

Judge Tucker, the trial judge, gave the following instruction to the jury:

Negligence is not proven merely because someone later demonstrates that there would have been a better way. Reasonable care oes not require prescience nor is it measured with the benefit of hindsight.

The Goleses objected to the instruction, claiming that it was cumulative, unnecessary, and a comment on the evidence. Judge Tucker over ruled the objection and the jury returned a verdict in Neumann’s favor.

The Montana Supreme Court disagreed, holding that jurors could have reasonably inferred from the instruction that the testimony of both experts as to the efft that storm collars make better roofs should be disregarded. The majority held that jurors following this instructions could ahve concluded that they were obligated to disregard much of the evidence, instead of using their own sense of which evidence to accept and which to reject.

Justices Rice and Baker dissented on the grounds that the instruction was not an incorrect statement of negligence law and had previously been held proper in a Montana negligence case.

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September of 2006, Charles Lokey was bicycling through Bozeman when a Welles dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw Andrew Breuner who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind Breuner and were beginning to pass him on his right.

The dump truck stopped and motioned for Breuner to make his turn, which Breuner did, and collided with Lokey who had not stopped along with the dump truck. Lokey sued both drivers for his injuries.

At the District Court, Judge Swandal ruled that the dump truck driver was “no more responsible for Lokey than he was for any of the hudreds of other drivers on the road,” and that there is “no authority for Lokey’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” Lokey appealed this decision to the Montana Supreme Court.

The Montana Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for Breuner to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused Lokey’s injuries and damages.

DUTY

All negligence claims are based on a duty. Most often, that is the general duty we all have to exercise reasonable care when interacting with the world. Most often, this forms the basis of a negligence claim. But some people, when performing certain tasks, are held to a higher standard of care. A doctor, for example, can be held legally negligent for failing to do something that an ordinary person would never be expected to do. This is a large part of why all injury and negligence cases are so different. Analyzing what happened depends on who did it, and in what capacity they were acting.

BREACH

Once we have established what duty was owed, we need to determine whether there was a breach of that duty. Although it can be a significant factor, the fact that an injury occurred does not necessarily mean that there was a breach of the duty. As the standard of care rises and the task being performed becomes more complex, it can be harder and harder to tell whether a breach occurred. In the case of the doctor mentioned above, it may require expert testimony by another doctor to determine whether the first doctor took the precautions that were reasonable. In more ordinary circumstances, like a driver who failed to secure his trailer, common sense intuitions about safety can go a long way – but fall short in unexpected ways. The bottom line is that a trained negligence lawyer will probably be necessary to determine whether there was a breach or not. And sometimes, the area is just so gray that a judge or a jury is required to make the final determination.

CAUSATION

For a negligence claim, it is not enough that a duty was breached. The injured party must also show that the breach was the cause of the damages that he sustained. This can be a very complicated step. A law school trick for determining causation is the but-for test. Ask yourself, “but for the defendant’s actions, would the injury have taken place.” If, in a world without the defendant’s action, the injury still would have occurred, we probably don’t have causation. On the other hand, if we take away the defendant’s action and the injury disappears, that’s a good sign that causation exists. It’s important to remember that there is some limit on causation. People are only responsible for the reasonably foreseeable results of their actions. If the damage was a result of a long and windy path of improbable and unlikely reactions, it may be that legal causation will limit the defendant’s responsibility and determine that causation doesn’t exist. Again, this is highly fact specific and worth consulting an expert about for your situation.

DAMAGES

Finally, a negligence case must have damages. It’s not enough that a duty was breached and that breach caused something to happen to a victim. The breach must cause damage to the victim. Damages are about placing a monetary value on the harm to a victim. They are imperfect and occasionally insulting, but the best our legal system has to offer. There are different types of damages. Special damages are quantifiable dollar amounts that the victim lost because of the harm. They include compensatory damages. They might include lost wages, medical bills, or damage to your car as examples. General damages are reflective of harm that doesn’t have a specific dollar amount. Pain and suffering a commonly used example. Finally, we have punitive damages which are intended to punish the negligent party for his actions. They don’t exist to compensate and aren’t tied to the harm suffered but instead to how badly the defendant acted.

The basic idea behind negligence is that everyone should exercise reasonable care when they act, and doing that means taking into account the potential harm their actions could foreseeably cause others. Those who fail to take reasonable care, are liable for the reasonably foreseeable results of their actions. So, for example, if you fail to tie down some furniture in the back of your pick-up truck which then falls out while you’re driving down the highway and hits the driver behind you, you were negligent and responsible for the foreseeable results of your actions. And since it doesn’t take a Stephen King to imagine that driving with loose furniture could be a danger to those behind you, the damages you caused were probably foreseeable.

But often, it’s not so clear whether or not someone was negligent. In that situation, it may take a Court to determine whether a party was negligent and liable for the damage they caused. Injury lawsuits in Montana can be fought over liability, damages, or both. If the parties are arguing over whether someone was negligent, they are arguing over liability.

The thing to remember is that when you go out in the world, you are expected to behave in a reasonably prudent manner. Be careful. And watch out for everyone else too. The law may presume that people will act with reasonable care, but you’ll probably be safer if you assume the opposite.

For example, imagine you were in a car accident with an unknown driver. The driver left the scene before you could gather any information and so you’re left holding the bag. You make a claim with your insurance company to cover your injuries and damages, and your insurance pays some of your claim. Later, your insurance company tracks down the man who hit you and, on your behalf, recovers some of the amount he owes you. If your insurance company is paid the amount they initially paid to you, that’s subrogation.

In Montana, subrogation is a controversial issue because of the made-whole rule. Until an injury victim has recovered damages sufficient to cover all his damages, his insurance company cannot seek subrogation. Like all things to do with the law, this is a complicated subject and the outcome depends heavily on your specific situation. If you have questions about subrogation and how it works in Montana, please call me today at (406) 752-6373 to discuss your case and learn more about your options.

For example, imagine you are hit by a car while crossing the street and the driver speeds off. Since you don’t know who hit you, your insurance company may pay for some or all of the damages and losses you experienced. If later you find out who the driver was and make a claim against his insurance company, it would be subrogation if your insurance company tried to recoup some (or all) of what it paid to you from the second insurance company.

The made-whole rule addresses when an insurance company is entitled to subrogation. In Skauge v. Mountain States Tel. & Tel. Co., the Montana Supreme Court held that an insurance company cannot seek subrogation until the insured has been made whole. This includes the expenses of litigation and attorney’s fees. In Skauge, the Court reasoned that in a situation where either the insured or the insurer must sustain a loss, it should be the insurer that goes unpaid because that is the risk the insured has paid it to assume.

Since Skauge, the Made-Whole Rule has been developed through Montana cases and grown into a strong protection for injury victims in Montana. The basic idea is that in a situation where someone (either the insurer or the insured) is going to suffer a loss, it should be the insurer. And because of that, where there isn’t enough money from the person who caused the damage to go around, it should first go to the victim until his losses have been repaid, and then go to repay the insurance company. Because this is a very pro-victim rule, it is controversial. If you have questions about the made-whole rule, please call me today to discuss your specific situation.

We view the client-attorney relationship as a partnership. We provide professional legal advice and help you obtain the compensation you need and deserve. And more than that, we talk to you throughout the process. Instead of handling your claim without your input, we consider you vital to every step of the process. At Measure Law Office, it really is a team effort.

Automobile, truck, and bus accidents happen every day. But when they happen to you, or to someone you know, they change lives. And car accidents may involve more than determining fault. Your case may involve issues such as determining insurance coverage, medical expenses, wage loss and uninsured motorist (UM) and underinsured motorist (UIM) coverage. We also work with your doctors to keep your case moving smoothly, and to be certain that you receive compensation for all of your injuries, including pain and suffering, wage losses, property damages and other claims.

We know that car crashes, motorcycle wrecks and ATV accidents change hundreds of lives every year. Victims may be killed or suffer debilitating injury, such as traumatic brain injury, brain damage, spinal cord injury, paraplegia, quadriplegia and paralysis.

If you’ve been involved in a Kalispell car accident, call me today at 406-752-6373 to schedule a free consultation and learn more about your options.

The study’s findings negate older reports which stated that only moderate or severe brain injuries led to dementia. The study raises concerns for current service men and women who have suffered from explosions in recent years.

Over the next seven years, more than 15 percent of those who had suffered a brain injury were diagnosed with dementia versus only 7 percent of the others – a more than doubled risk. Severity of the injury made no difference in the odds of developing dementia.

The importance of proper treatment following any head injury cannot be stressed enough. The fact is that brain injuries, even mild ones, can cause life-long damage that will impair your quality of life.