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Craig v. Schell3/11/1999
d to cross-examining the plaintiff on the damage claims alleged in the pretrial order.
XLVI. Affirmed in part and reversed in part.
JIM REGNIER
We Concur:
J. A. TURNAGE
W. WILLIAM LEAPHART
JAMES C. NELSON
TERRY N. TRIEWEILER
WILLIAM E. HUNT, SR.
Justice Karla M. Gray, Dissenting.
. I respectfully Dissent from the Court's opinion. It is my view that, in its eagerness to clarify negligence per se, the Lyndes "involuntary action" rule and the "sudden emergency" doctrine in automobile accident cases, the Court ignores the arguments raised and briefed by the parties, departs from our proper role, and reverses the District Court in derogation of our longstanding rule that we will not overturn a trial court's decision on the basis of arguments not presented to that court. I cannot agree.
. Craig moved for partial summary judgment in the District Court on the issue of liability, asserting that Moseman had been negligent per se by violating ยง 61-8-321, MCA, when his vehicle crossed over the center line of the highway and collided with her vehicle. The thrust of Craig's motion was that no genuine issue of material fact existed as to Moseman's voluntary violation of the statute requiring a driver to drive on the right half of a roadway and, as a result, that the Lyndes involuntary action rule--under which an involuntary violation of the statute is only prima facie evidence of negligence--did not prevent Moseman's statutory violation from being negligence per se. Craig did not argue in the District Court that Lyndes should be overruled; she contended only that her evidence established Moseman's voluntary overcorrection of his vehicle, thereby making the Lyndes exception to negligence per se inapplicable. The District Court determined that Craig did not establish the absence of genuine issues of material fact regarding the voluntariness of Moseman's actions or that his conduct was not that of a reasonable and prudent driver, and denied Craig's motion for summary judgment on liability on that basis. On appeal, Craig contends only that the District Court misapplied Lyndes and Kudrna. That, then, is the issue before us.
. Rather than address Craig's actual arguments, however, and in its desire to correct what it considers an improperly expanded and misapplied rule of law, the Court raises--and resolves--its own issue regarding the continued viability of the Lyndes rule. In my view, this is an unwarranted departure from our proper role.
. This Court's duty is to decide cases based on the issues and arguments raised by the parties. Indeed, our system of appellate review is premised on providing parties with the opportunity to argue their positions and challenge the positions and legal authority propounded by their opponents, following which this Court can make a reasoned decision based on the issues and arguments raised by counsel.
While the temptation is often great to decide a case on the basis of the argument that "should have been made," but was not, in blind-siding an issue we run the very real risk of substituting advocacy for neutrality.
State v. Zabawa (1996), 279 Mont. 307, 318, 928 P.2d 151, 158 (Nelson, J., Concurring). Furthermore, to raise and determine issues sua sponte is unfair to litigants who find their cases resolved on unforeseen grounds and to district courts which find their decisions overturned on bases they never had an opportunity to address. Thus, while I do not disagree that our cases on negligence per se, the involuntary action rule and the sudden emergency doctrine are somewhat confusing and in
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