The rule governing summary judgments is Mont. R. Civ. P. 56(c), which provides that the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party has the burden of establishing the absence of any issues of material fact and that she is entitled to judgment as a matter of law.
The minor was struck and injured by an automobile operated by the driver. The accident occurred at night and the street was snow packed and icy, although the street was illuminated by streetlights. The minor, who was eight years old, ran out into the street after his older brother without looking first. A personal injury action was filed against the driver, to which the trial court entered summary judgment in favor of the driver.
On appeal, the minor argued that the trial court erred in granting summary judgment for the driver.
Was summary judgment in favour of the driver proper?
The court held that the summary judgment was erroneously granted on the pleadings, depositions, and discovery, which did not leave a record of the child's capacity for contributory negligence. The court held that the record contained insufficient evidence to support a finding that the child had the capacity for contributory negligence as a matter of law, which precluded summary judgment. The court held that the minor's actions could not have been found negligent until they were measured by some standard, and the minor's standard of care could not be determined until his capacity for contributory negligence was found.