12/16/2025
DA 25-0036 Case Number: DA 25-0036
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 287
JENNIFER SHAHOOD,
Plaintiff and Appellee,
v.
CITY AND COUNTY OF BUTTE-SILVER BOW,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DV-19-400 Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Cynthia L. Walker, Christopher L. Decker, Boone Karlberg P.C., Missoula, Montana
For Appellee:
Patrick T. Fox, James G. Hunt, Hunt & Fox, PLLP, Helena, Montana
Submitted on Briefs: September 24, 2025
Decided: December 16, 2025
Filed:
__________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Jennifer Shahood filed suit against City and County of Butte-Silver Bow (“BSB”)
in the Second Judicial District Court, Butte-Silver Bow County, seeking to recover
damages arising from a motor vehicle accident in which a snow grader operated by BSB
backed into Shahood’s sedan at a low speed. After a jury found Shahood 54% negligent,
Shahood moved for a new trial. The District Court granted Shahood’s M. R. Civ. P. 59(a)
motion based on irregularity in the proceedings and insufficient evidence to support the
jury’s verdict. BSB appeals, asserting the District Court erred in ordering a new trial
because Shahood waived the arguments raised in her Rule 59 motion and because the jury’s
verdict was ultimately supported by substantial evidence. Additionally, BSB argues the
District Court erred in granting a directed verdict in favor of Shahood on the issues of
BSB’s negligence, negligence per se, and causation. BSB also contends the District Court
erred in denying its motion for partial summary judgment on Shahood’s negligence per se,
and in categorically excluding the admission of Shahood’s medical records. We reverse.
¶2 We consider the following dispositive issue on appeal:
Did the District Court err in granting Shahood a new trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On March 13, 2019, Brian Moe and Marty Hanley, employees of BSB, were using
road graders to perform snow removal operations when Moe backed a grader into
Shahood’s Mitsubishi Lancer at approximately 1 to 1.5 mph. The accident occurred on
Main Street in Butte, Montana, just north of the Front Street intersection.
2 ¶4 Shahood sued BSB for negligence and negligence per se based on Moe’s alleged
failure to exercise ordinary care and comply with Montana’s statutory traffic regulations.
BSB denied negligence and argued that the traffic regulations at issue did not apply to
equipment actively engaged in snow removal operations, pursuant to § 61-8-106(2), MCA.
Additionally, BSB asserted that Shahood was negligent for failing to yield to equipment
performing highway maintenance activities, as statutorily required by § 61-8-317, MCA.
¶5 A five-day jury trial commenced on May 28, 2024. Testimony established that at
the time of the accident, Moe and Hanley were working in tandem to remove snow from
the center line of Main Street by connecting the blades of their two graders together and
pushing the snow north, away from the Front Street intersection. To accomplish this, both
graders needed to be positioned to travel north. Thus, the front of Moe’s grader was
positioned to the north despite the grader occupying the southbound side of Main Street.
¶6 In his testimony, Moe explained that he was reversing his grader to meet Hanley at
the top of the snow windrow on the north side of the Front Street intersection when the
accident occurred. Moe testified that he checked his mirrors and back-up camera prior to
reversing to make sure no vehicles were behind him and that the light at the Front Street
intersection was green. Moe went on to state that after he confirmed that all was clear
behind him and that the light was green, he began to slowly back up, using the windrow of
snow to guide his position. Moe explained that when “you’re backing up . . . [y]ou don’t
want to be in the pile of snow and scattering it everywhere; and you don’t want to be away
from [it] because you have to be able to reach it with the grader.” Moe stated that it was
during this time—while he was already actively reversing—that Shahood’s vehicle began
3 approaching as it headed south on Main Street. Moe testified that Shahood proceeded to
pass him using the rightmost lane of the southbound side of Main Street (the lane furthest
to Moe’s left), and that “she was well outside” of the grader while doing so. Moe said that
he watched Shahood as she passed, stating, “I turned my head to watch her until I couldn’t
see her anymore.” Moe explained that he was lining up with Hanley’s grader and slowing
down to touch blades when he heard his grader strike Shahood’s vehicle, only seconds after
he saw Shahood pass by in the right lane. Given his location when Shahood had passed
him and the location where the accident occurred, Moe estimated that Shahood pulled into
the center lane approximately 10 to 15 feet behind the actively reversing grader.
¶7 Moe further testified that he had been in first gear while reversing and that the
grader’s top speed was therefore limited to 2 mph. Moe went on to explain that because
he was already in the process of stopping to connect the blades of the graders when the
accident occurred, he believed his speed to be about 1 mph at the time of impact.
Additionally, Moe and Hanley both averred that Moe’s grader had been displaying flashing
lights in compliance with the requirements set forth by the Montana Department of
Transportation and that the grader’s automatic back-up alarm had been sounding.
¶8 Shahood explained in her testimony that after she passed the grader in the right lane,
she merged to the center lane and came to a stop at a red light at the Front Street
intersection. Shahood stated that it was while her vehicle was stopped at the Front Street
intersection that the accident occurred. Shahood testified that she didn’t see any lights or
warning devices as she passed the graders and that she never heard any alarm.
Additionally, Shahood testified that she never saw the grader moving. When asked what
4 lane the grader was in, Shahood answered that it was in “the center; like, occupying both
the center – well, mostly, I’m sorry, the center and turning lane.” Shahood also stated that
she pulled into the center lane about “two car lengths” behind the grader. Shahood
explained that she had been concerned about moving into the center lane because she didn’t
know what the graders and equipment operators were doing. However, when asked
whether she was “paying attention at all to the road grader” after pulling in behind it,
Shahood replied, “I was not.”
¶9 The jury also heard from Sergeant Tymofichuk, who responded to the accident
scene after Shahood called 911. Tymofichuk stated that he considered the accident minor
in comparison to other accidents he investigated being that there appeared to be no injuries
and the damage appeared limited to a broken tail light. While Tymofichuk listed on the
police report that Moe’s inattentiveness was cause for the accident, he testified that if the
grader was actively backing up at the time Shahood passed it, Shahood would bear some
of the responsibility as well. Tymofichuk provided that motorists have “a duty to give
[working equipment] a wide berth and . . . give them room to work,” as well as a statutory
duty to yield the right-of-way to working equipment. Tymofichuk also testified that
Shahood had several options to avoid the working equipment, and had she taken those
options, the accident would not have occurred.
¶10 Shahood’s accident reconstructionist, Steve Harbinson, acknowledged that Moe’s
grader could have been moving slowly when Shahood passed him, and that if it was
moving, Moe would be actively engaged in highway maintenance work. Harbinson also
estimated Moe’s speed to be around 1.5 mph at the time of impact. Harbinson theorized
5 that based on photos of the crash scene, and a study of the forces involved in the collision,
Shahood’s vehicle was pushed 9 to 10 feet forward as the grader continued to reverse after
impact. However, Hanley testified to the contrary; because the blades of the two graders
were touching, Hanley explained, the clutch relief valve on his (Hanley’s) grader would
have engaged had Moe continued to reverse, and it never did.
¶11 On cross-examination, Harbinson agreed that a driver should use caution after
observing flashing lights on equipment. Harbinson also recognized that Shahood had an
obligation to pay attention to what other vehicles on the road were doing. Additionally,
Harbinson admitted that the speed at which the collision occurred was the lowest he’d ever
considered in more than 2,000 accident reconstructions and that he was unaware of any
other collisions of less than 2.5 mph causing neck injuries.
¶12 The jury also heard testimony from multiple witnesses regarding the injuries
Shahood allegedly suffered as a result of the collision. While Tymofichuk testified that no
injuries appeared to have resulted from the crash, Connor O’Neal, a responding EMT,
stated that Shahood mentioned that she was experiencing back pain, though she had
adamantly refused treatment at the scene. Additionally, the jury heard from a nurse
practitioner who testified to treating Shahood in the emergency room a few hours after the
accident for “left back, shoulder, and hip pain,” but not “neck pain,” and testimony from
Shahood’s primary care physician and chiropractor who both concluded that Shahood was
injured as a result of the crash. BSB challenged Shahood’s witnesses on cross-examination
regarding relevant preexisting physical and mental conditions. Dr. Martini, one of
Shahood’s treating physicians, admitted that during his deposition he had stated that the
6 “elephant in the room” was whether Shahood’s symptoms were the result of an injury or
the natural progression of her previous condition. Additionally, Dr. Martini acknowledged
that Spine Journal, a peer-reviewed and authoritative source for medical literature, recently
published an article recognizing that human volunteers could safely be exposed to rear
impacts of less than 18 kilometers per hour without any meaningful risk of injury.
¶13 After the close of evidence, Shahood moved for a partial directed verdict on BSB’s
negligence, negligence per se, and causation, but not on the issue of comparative
negligence. Shahood’s counsel stated to the court, “[Shahood] concedes [BSB’s] defense
[of comparative negligence] must remain on the verdict form if the [c]ourt grants
[Shahood’s] requested relief.” Shahood’s counsel explained further that by not seeking a
directed verdict on comparative negligence, the District Court would not be taking
comparative negligence out of the issue of causation, and that the jury would still have the
opportunity “to say Ms. Shahood caused injury to herself and that she’s 60 percent
negligent and she doesn’t recover anything.” The District Court agreed, recognizing that
“[t]he Montana Supreme Court has repeatedly affirmed that the factfinder should consider
a claim of plaintiff’s negligence, even if the defendant is found negligent per se.” The
District Court granted Shahood judgment as a matter of law on the issues of BSB’s
negligence, negligence per se, and causation. The District Court explained, “this judgment
as a matter of law requires a determination by the jury of the Plaintiff’s negligence if that
issue has not been decided as a matter of law, and it has not.”
¶14 Following the District Court’s order granting Shahood’s motion for directed verdict,
trial proceeded to closing arguments. During BSB’s closing argument, counsel stated that
7 “[Shahood] crowded the plow” and explained that a person exercising reasonable care
would not put themselves in the near path of a road grader. Counsel went on to reference
the agreed upon jury instruction, which provided that a motorist has a statutory duty to
yield to the right-of-way of working equipment, as well as a “duty to see, to look where
they are going and see that which is in plain sight.” BSB’s counsel also stated that Moe
was a “working man” in response to statements made by Shahood’s counsel attacking
Moe’s testimony as being inconsistent with parts of his initial accident report.1
Additionally, counsel for BSB stated, “I don’t know what was on [Shahood’s] mind,
whether she was distracted in some way,” in reference to Shahood’s decision to position
her vehicle where she had and her failure to notice the grader’s lights flashing and alarm
sounding.
¶15 Using the special verdict form proposed by Shahood, the jury returned a verdict
finding Shahood negligent. The jury apportioned 54% of the negligence to Shahood and
46% to BSB, effectively barring Shahood’s recovery under § 27-1-702, MCA.
¶16 Shahood filed a motion for new trial, pursuant to M. R. Civ. P. 59(a). The District
Court granted her motion, holding that irregularity in the proceedings prevented Shahood
from having a fair trial, and that the evidence was insufficient to support the jury’s finding
of Shahood’s comparative negligence.
1 BSB’s Vehicle Accident Reporting Form stated that Shahood had been in the “turning lane” (left lane), not the center lane, when the accident occurred. 8 STANDARDS OF REVIEW
¶17 Our standard of review as to a trial court’s decision regarding a Rule 59 motion for
new trial depends on the grounds of the motion. Fish v. Harris, 2008 MT 302, ¶ 8,
345 Mont. 527, 192 P.3d 238. Where a Rule 59 motion for a new trial is based on
irregularity in the proceedings, we review a district court’s decision to grant or deny the
motion for a manifest abuse of discretion. In re Guardianship of A.M.M., 2015 MT 250,
¶ 15, 380 Mont. 451, 356 P.3d 474. “A manifest abuse of discretion is one that is obvious,
evident, or unmistakable.” Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 12, 363 Mont. 41,
265 P.3d 1230. “The abuse of discretion must be so significant as to materially affect the
substantial rights of the complaining party.” In re Guardianship of A.M.M., ¶ 15.
¶18 Where a Rule 59 motion is based on the insufficiency of evidence to support
a verdict, we review de novo. Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338 Mont. 19,
162 P.3d 134. Like the trial court, “we only ask whether there is substantial credible
evidence in the record to support the jury’s verdict.” Stubblefield v. Town of W.
Yellowstone, 2013 MT 78, ¶ 15, 369 Mont. 322, 298 P.3d 419.
DISCUSSION
¶19 Did the District Court err in granting Shahood a new trial?
¶20 Rule 59(a) allows a district court to grant a new trial after a jury trial “for any reason
for which a new trial has heretofore been granted in an action at law in Montana state
court.” Section 25-11-102, MCA, sets forth various reasons for which a new trial may be
granted. Baxter v. Archie Cochrane Motors, Inc., 271 Mont. 286, 288, 895 P.2d 631, 632
(1995). Shahood relies specifically on §§ 25-11-102(1), and -102(6), MCA. Section
9 25-11-102(1), MCA, provides that a new trial may be granted based on “irregularity in the
proceedings of the court, jury, or adverse party or any order of the court or abuse of
discretion by which either party was prevented from having a fair trial.” Section
25-11-102(6), MCA, provides that a new trial may be granted based on the “insufficiency
of the evidence to justify the verdict.” We address in turn whether Shahood is entitled to
a new trial on either of these grounds.
Irregularity in the Proceedings
¶21 A trial court has a duty to prevent a miscarriage of justice and may grant a new trial
“if the misconduct of counsel was so pervasive that it prevented one of the parties from
receiving a fair trial, thereby materially affecting the party’s substantial rights.” United
Tool Rental, Inc. v. Riverside Contracting Inc., 2011 MT 213, ¶ 26, 361 Mont. 493,
260 P.3d 156. However, a party waives the right to claim improper comments as error on
appeal or in a motion for a new trial if the party fails to make a contemporaneous objection
to the allegedly improper comments during trial. Reno v. Erickstein, 209 Mont. 36, 40,
679 P.2d 1204, 1207 (1984). This is because an issue is only properly preserved for appeal
if the appealing party objected when the grounds for objection become apparent. Evans v.
Scanson, 2017 MT 157, ¶ 23, 388 Mont. 69, 369 P.3d 1284. “If defense counsel made []
allegedly inflammatory comments during closing argument, the grounds for objection
became apparent during the closing argument.” Evans, ¶ 23. Thus, if a party seeks a new
trial based on allegedly improper comments made by defense counsel during a closing
argument, the party must have properly preserved the issue by contemporaneously
objecting to the comments during closing argument. Evans, ¶ 23.
10 ¶22 Alternatively, “a motion in limine may relieve a party of the obligation to
contemporaneously object at trial provid[ed] that the motion is specific and articulates the
grounds for the objection.” State v. Ankeny, 2010 MT 224, ¶ 39, 358 Mont. 32, 243 P.3d
391. However, a motion in limine that sets forth broad and general objections will not
suffice; the motion must contain specific objections to whatever portions of testimony are
deemed inappropriate in order to relieve a party of their obligation to object. Ankeny, ¶ 37.
We have recognized that “[a] motion in limine has ‘special advantages’ and serves an
important strategic purpose.” Anderson v. BNSF Ry., 2015 MT 240, ¶ 77, 380 Mont. 319,
354 P.3d 1248 (citation omitted). By preserving an issue through a motion in limine, a
party may avoid drawing additional attention to improprieties by having to continually
object to alleged errors in the presence of the jury. Anderson, ¶ 77.
¶23 Thus, § 25-11-102(1), MCA, allows a district court to grant a motion for new trial
based on irregularity in the proceedings, but only if the moving party properly preserved
the issue by making a timely and specific objection to the alleged improprieties at trial
through contemporaneous objection, or through a motion in limine. See Anderson, ¶ 77;
Cooper v. Hanson, 2010 MT 113, ¶ 38, 356 Mont. 309, 234 P.3d 59.
¶24 In granting Shahood’s motion for a new trial based on irregularity in the
proceedings, the District Court concluded that the statements made by BSB’s counsel
during closing argument, together with the general environment of juror familiarity with
BSB employees displayed during voir dire, tainted the jury’s impressions such that
Shahood’s right to a fair trial was wrongly prejudiced. The statements specifically at issue
include BSB’s references to Moe as a “working man,” statements about there being value
11 in plowed streets, a statement suggesting that Shahood may have been distracted at the time
of the incident, and a reference to a legal obligation to stay out of the way of working
plows. Relying on our decision in Cooper, the District Court concluded BSB’s statements
resulted in cumulative prejudice and that Shahood’s failure to contemporaneously object
was excusable being that she wanted to avoid underscoring improper comments in front of
the jury. The District Court, however, erroneously overlooked Shahood’s failure to
preserve these issues through contemporaneous objection or a motion in limine.
¶25 In Cooper, we held that a district court abused its discretion in denying a plaintiff’s
motion for new trial where “cumulative prejudice, culminating in the Defendant’s unlawful
appeal to the passions and prejudices of the jury, denied the plaintiff a fair trial.” Cooper,
¶ 43. The plaintiff in that case, Cooper, argued they were entitled to a new trial because
the district court denied proper challenges for cause at voir dire and because defense
counsel made improper statements during closing argument. Cooper, ¶¶ 29-31. Notably,
Cooper filed motions in limine prior to trial seeking to prohibit defense counsel from
presenting improper argument to the jury regarding how “the defendant could have his
professional reputation or standing damaged,” how “the defendant could face
consequences concerning the right to practice medicine,” and, how, among other things,
“the defendant could or would be financially affected by any adverse verdict.” Cooper,
¶ 4. While the district court ultimately denied Cooper’s motions in limine as vague and
overbroad, defense counsel expressed offense at the suggestion that they would violate the
Rules of Evidence and assured the court they would not engage in improper argument.
Cooper, ¶ 5. However, despite their assurances, defense counsel stated during closing
12 argument that a verdict against the defendant would leave a “black mark” on the
defendant’s reputation, and that the community “was lucky” to have the defendant
providing services there. Cooper, ¶ 39. Though Cooper did not object to the comments at
trial, we recognized, “[u]understandably, Cooper wanted to avoid objecting to improper
arguments in front of the jury, as such objections only underscore the inappropriate points
made.” Cooper, ¶ 38. While the district court had denied Cooper’s motions in limine, we
concluded that the court erred by not reconsidering its prior rulings in the post-trial context
given defense counsel’s failure to avoid improper argument, as promised. Cooper,
¶¶ 41-43. Thus, the issues raised in Cooper’s motion for new trial were preserved by
Cooper’s motions in limine.
¶26 In Evans, we also considered a district court’s denial of a motion for new trial based
on several allegedly inflammatory comments made by defense counsel during closing
argument. Evans, ¶ 22. As in Cooper, the plaintiff, Evans, failed to contemporaneously
object to most of the allegedly impermissible comments at trial and argued the need to
object had been obviated by a motion in limine. Evans, ¶ 23. However, while counsel for
Evans had filed a motion in limine, the district court never ruled on the motion. Evans,
¶ 23. Recognizing that “[a] party may not preserve an issue for appeal, even if based on
an opponent’s violation of an order in limine, without the party first obtaining a definitive
ruling from the district court on the issue,” we held that Evans forfeited his right to claim
error regarding the statements absent contemporaneously objection at trial. Evans, ¶ 23.
¶27 Here, Shahood did not contemporaneously object to BSB’s statements at trial, and,
unlike the plaintiff in Cooper, Shahood did not receive a ruling on any motion in limine
13 addressing such issues. We need not consider the propriety of BSB’s statements during
closing argument or make any determination regarding the creation of cumulative
prejudice. Shahood did not preserve her right to raise these issues post-trial. Accordingly,
the District Court abused its discretion in granting Shahood a new trial on the grounds
provided by § 25-11-102(1), MCA (irregularity in the proceedings), being that its ruling
was premised entirely on objections Shahood forfeited at trial.
Sufficiency of Evidence
¶28 BSB asserts the District Court also erred in granting a new trial on the grounds
provided by § 25-11-102(6), MCA (insufficiency of the evidence to justify the verdict),
because Shahood conceded that the evidence was sufficient to submit the issue of
comparative negligence to the jury and thus, Shahood waived her right to seek a new trial
on that basis. Additionally, BSB argues that substantial evidence supports the jury’s
verdict and that the verdict must therefore be sustained.
¶29 In support of its waiver argument, BSB points to Shahood’s decision to move for a
directed verdict on every issue but comparative negligence and underscores counsel’s
statements specifically conceding that the issue of comparative negligence must be decided
by the jury. Furthermore, BSB notes the District Court’s acknowledgment that the issue
of “Shahood’s comparative negligence remains for a jury.” BSB contends that a litigant
cannot be allowed to submit an issue to a jury and then receive a mulligan or “do-over” if
it disagrees with the jury’s determination.
¶30 While it is certainly wise for a trial lawyer to move for a directed verdict where there
is insufficient evidence to support an opponent’s claim, a failure to do so does not deprive
14 a party of the right to have the question determined on a motion for new trial. Adami v.
Murphy, 118 Mont. 172, 180-81, 164 P.2d 150, 154 (1945). A party may, however, waive
the right to challenge a jury’s verdict by judicial admission. Kohne v. Yost, 250 Mont. 109,
112, 818 P.2d 360, 361-62 (1991).
¶31 A judicial admission is an explicit waiver made in court, by a party or a party’s
attorney, conceding the truth of an alleged fact for trial purposes. Kohne, 250 Mont. at
112, 818 P.2d at 362. A judicial admission has the effect of a confessory pleading, with its
main characteristic being its “conclusive effect upon the party making the admission.”
Kohne, 250 Mont. at 112, 818 P.2d at 362. Once a judicial admission has been made, “no
further evidence can be introduced to prove, disprove, or contradict the admitted fact.”
Kohne, 250 Mont. at 112, 818 P.2d at 362 (citation omitted).
¶32 To constitute a judicial admission: (1) there must be a statement made to the court;
(2) the statement must be made by a party or a party’s attorney; and (3) the statement must
be an unequivocal statement of fact. Bilesky v. Shopko Stores Operating Co., 2014 MT
300, ¶ 13, 377 Mont. 58, 338 P.3d 76. However, whether a statement qualifies as a judicial
admission is also highly dependent on the specific circumstances of the case. Kohne,
250 Mont. at 113, 818 P.2d at 362. A court’s analysis is informed by the twofold policy
that underpins the rule of judicial admissions. Bilesky, ¶ 20. “First, like other stipulations,
judicial admissions facilitate judicial efficiency and save the parties time, labor and
expense.” Bilesky, ¶ 20 (citation omitted). “Second, judicial admissions protect the
integrity of the judicial process by preventing parties from playing fast and loose with the
facts to suit the exigencies of self-interest.” Bilesky, ¶ 20. Accordingly, judicial admissions
15 serve to prevent unfair advantage by self-contradiction. Bilesky, ¶ 20. “A party may not
benefit from asserting one position and later assert a contrary position to the detriment of
its opponent at trial.” Bilesky, ¶ 20 (citation omitted).
¶33 In Kohne, we considered whether statements made by defense counsel constituted
judicial admissions, and if so, whether substantial evidence supported a jury’s
apportionment of 0% negligence to a defendant in light of such admissions. Kohne,
250 Mont. at 112-14, 818 P.2d at 361-63. The plaintiff, a 21-year-old man, brought suit
against a 13-year-old boy, alleging the boy had negligently shot him in the eye with a
BB pellet during a game of “combat.” Kohne, 250 Mont. at 110, 818 P.2d at 360. Defense
counsel argued comparative negligence on the part of the plaintiff, but in doing so, counsel
stated numerous times that the boy had also been at fault. Kohne, 250 Mont. at 111-12,
818 P.2d at 361. The jury ultimately returned a verdict finding that neither the plaintiff nor
the boy was negligent. Kohne, 250 Mont. at 112, 818 P.2d at 362. The plaintiff moved for
a new trial, arguing that based on defense counsel’s admission of fault, the boy was
negligent and the jury’s verdict was not supported by substantial evidence. Kohne,
250 Mont. at 112-13, 818 P.2d at 362. The defense countered that the statements were an
alternative legal theory that merely suggested the defendant’s negligence. Kohne,
250 Mont. at 113, 818 P.2d at 362. The district court denied the plaintiff’s motion for new
trial and we reversed, holding that the circumstances called for treating the statements as
judicial admissions given counsel’s failure to preface the statements as suggestions and
counsel’s intentional pursuit of comparative negligence as a defense theory, which had
16 been premised on the boy being at fault—just less at fault than the plaintiff. Kohne,
250 Mont. at 114-15, 818 P.2d at 362-63.
¶34 In Bilesky, we similarly found a defendant’s statements constituted judicial
admissions based on the defense counsel’s actions evidencing an “intentional, tactical
decision.” Bilesky, ¶ 28. The plaintiff, Bilesky, moved for sanctions against the defendant,
Shopko, for spoliation of video evidence depicting Bilesky’s slip and fall. Bilesky, ¶ 28.
In response to the motion, Shopko stated in their briefing that “the loss of the video []
resulted in no prejudice to the Plaintiff or unfair advantage to Shopko,” and that “the parties
substantially agree on what the video would have shown.” Bilesky, ¶ 7. The brief went on
to state that the “Plaintiff sets out in her brief what the video would have
shown. . . . Defendant will not disagree with these points.” Bilesky, ¶ 7. The statements
set forth by Bilesky and referenced by Shopko were unequivocal statements of fact, such
as, “[Bilesky’s] pants were visibly wet,” “[Bilesky] fell forward,” and “[Bilesky’s] gait was
altered.” Bilesky, ¶ 6. At trial, Bilesky requested that Shopko’s statements be read to the
jury and the corresponding statements be adopted as judicial admissions. Bilesky, ¶ 9.
Shopko argued that its statement in briefing was conditioned on the court finding sanctions
appropriate and was therefore not a statement of unequivocal fact. Bilesky, ¶ 29. The
district court denied Bilesky’s request, and we reversed, finding the circumstances
warranted holding the statement to be a judicial admission being that Shopko made it for
the purpose of avoiding sanctions. Bilesky, ¶¶ 28-31. Shopko expressly stipulated to
certain assertions about the contents of a video in an effort to remove any prejudice to
Bilesky. Bilesky, ¶ 28. Just as in Kohne, Shopko acted intentionally and tactically by
17 asserting one position to their benefit, only to later assert a contrary position to the
detriment of their opponent.
¶35 However, in Weaver v. State, 2013 MT 247, 371 Mont. 476, 310 P.3d 495, we found
that circumstances did not warrant finding a statement to be a judicial admission. Weaver,
¶ 26. In Weaver, plaintiff property owners sued the State claiming negligence and reverse
condemnation after their property was damaged as a result of wildfire containment
operations. Weaver, ¶ 9. In a trial brief addressing the reverse condemnation claim,
counsel for the property owners stated that the State’s actions were “reasonable and
necessary.” Weaver, ¶ 14. The State moved to dismiss the negligence action on the basis
that the statement admitted the backburn that damaged the property was reasonable and
necessary, and thus not negligent. Weaver, ¶ 14. The property owners promptly filed a
Notice of Errata to correct the language contained in the brief. Weaver, ¶ 14. The district
court denied the State’s motion to dismiss, holding that the statement was not made as an
unequivocal statement of fact, but rather was made in the context of pleading an alternative,
inconsistent claim, and that such a circumstance did not warrant treating the statement as a
judicial admission. Weaver, ¶ 22. We affirmed, holding that the statement’s use in the
context of an alternative pleading, and the fact that Weavers promptly corrected the
statement, indicated that the statement was not an admission of fact as to their alternative
theory of negligence. Weaver, ¶ 24.
¶36 Here, like Kohne and Bilesky, Shahood’s counsel intentionally and tactically
asserted a position to Shahood’s benefit. Counsel expressly stated to the District Court that
the issue of comparative negligence must go to the jury. In other words, counsel conceded
18 that reasonable jurors could disagree on the issue of comparative negligence.
Acknowledging that factual issues existed, Shahood conceded comparative negligence to
bolster her argument for a partially directed verdict by narrowing the issue and
underscoring that the remaining factual disputes were limited.
¶37 Further, Shahood’s concession regarding comparative negligence was clearly a
factor in the District Court’s ruling on her partial directed verdict. In granting the motion,
the District Court explained, “the [c]ourt doesn’t take this matter lightly, and in my 24 years
on the bench, I’ve never made a similar ruling at this point in a jury trial.” It also recognized
that while BSB did not offer evidence of an alternative cause, BSB’s evidence
on cross-examination supported reduced damages and it emphasized that Shahood’s
comparative negligence remained an issue for the jury.
¶38 Shahood cannot benefit from asserting one position—that is, her position that
reasonable jurors could disagree as to Shahood’s negligence—yet then assert a contrary
position post-trial to the detriment of BSB—that is, that there was no evidence of
Shahood’s negligence. See Bilesky, ¶ 20. The circumstances of this case warrant treating
Shahood’s concessions as a judicial admission. Accordingly, Shahood conceded that
reasonable jurors could disagree on the issue of comparative negligence and therefore
waived the right to challenge the sufficiency of evidence supporting the jury’s finding of
comparative negligence.
¶39 However, regardless of whether Shahood’s right to a new trial is precluded by
judicial admission, the jury’s finding of comparative negligence and its apportionment of
fault is supported by substantial evidence and cannot be overturned.
19 ¶40 A plaintiff is contributorily negligent when they fail to exercise reasonable care for
their own safety and their failure contributes to causing their injury. Giambra, ¶ 44.
Montana has adopted a comparative negligence scheme which compares “the conduct of
the parties ‘based on evidence and contributory negligence, as established by reasonable
and prudent person standards.’” Giambra, ¶ 44 (quoting Faulconbridge v. State, 2006 MT
198, ¶ 99, 333 Mont. 186, 142 P.3d 777). Under § 27-1-702, MCA, a plaintiff may not
recover if the plaintiff is found to be greater than fifty percent negligent. While a plaintiff
who is contributorily negligent may still recover if their contributory negligence was “not
greater than the negligence of the person or the combined negligence of all persons against
whom recovery is sought,” their recovery is reduced in proportion to the percentage
attributed to their contributory negligence. Section 27-1-702, MCA. “This standard
encompasses the principle that every person has a duty to exercise ordinary care for their
own safety.” Est. of Mabee v. Wheatland Cnty, 2025 MT 252, ¶ 15, ___ Mont. ___,
___ P.3d ___.
¶41 The issue of contributory negligence and the degree of comparative fault, if any, is
generally an issue for the jury or fact-finder to resolve, even where a defendant is negligent
as a matter of law. Peterson v. Eichhorn, 2008 MT 250, ¶ 32, 344 Mont. 540, 189 P.3d
615. “Whether a plaintiff was contributorily negligent is a question for the fact-finder,
unless reasonable minds could not draw different conclusions from the evidence.”
Peterson, ¶ 32.
¶42 Shahood argues that a new trial is warranted because there was insufficient evidence
to support the jury’s verdict. However, where substantial evidence supports a verdict, the
20 verdict generally cannot be overturned or vacated. Giambra, ¶ 26. Substantial evidence is
evidence that a reasonable mind might accept as adequate to support a conclusion; “it may
be less than a preponderance of evidence, but [it] must be more than a ‘mere scintilla.’”
Upky v. Marshall Mountain, LLC, 2008 MT 90, ¶ 22, 342 Mont. 273, 180 P.3d 651 (citation
omitted). Thus, “[a] jury’s verdict may be supported by substantial credible evidence even
if it is contradicted by other evidence or [is] inherently weak.” Stubblefield, ¶ 15. In
determining whether substantial evidence supports a verdict, we view the evidence in the
light most favorable to the party prevailing at trial and determine only whether substantial
credible evidence supports the jury’s verdict. Payne v. Knutson, 2004 MT 271, ¶ 25,
323 Mont. 165, 99 P.3d 200. “In the case of conflicting evidence, it is not our job to
second-guess the jury and retry the case.” Payne, ¶ 25 (citation omitted).
¶43 The District Court instructed the jury that a driver has a duty to “look to where they
are going and to see that which is in plain sight. . . . [A] motorist is presumed to see that
which he could see by looking” and explained that liability cannot be escaped “by saying
that he did not see that which was in plain view.” Additionally, pursuant to § 61-8-317,
MCA, the jury was instructed that “[t]he operator of a vehicle shall yield the right-of-way
to an authorized vehicle that is engaged in highway maintenance activities when the
authorized vehicle is displaying flashing lights that meet the requirements of the
department of transportation.” The instruction further provided that “Main Street in Butte
is a ‘highway’ and ‘right-of-way’ means the privilege of the immediate use of the
roadway.”
21 ¶44 Shahood asserts that there was no evidence that she breached any duty of care and,
thus, there was no evidence of contributory negligence. Shahood further argues that she
could not have foreseen that the grader would back up while spanning two lanes and
that its operator would not look behind it while doing so. Shahood did not however
challenge the jury instruction corresponding to § 61-8-317, MCA, or the jury instructions
regarding comparative negligence. Thus, we consider Shahood’s assertion regarding the
insufficiency of the evidence alongside the jury instructions as given, while viewing the
evidence in the light most favorable to BSB as the prevailing party.
¶45 Here, substantial evidence supports the jury’s finding of Shahood’s comparative
negligence. Moe and Hanley both testified that Moe was actively backing up when
Shahood passed him and that the grader’s back-up alarm and flashing lights were both
engaged. While Shahood stated that the grader appeared to be stationary and that she did
not see any lights or hear any alarm, the evidence—when viewed in the light most favorable
to BSB as the prevailing party—supports that the grader was reversing with both its
flashing lights and back-up alarm engaged. Further, Shahood testified that she saw the
grader in the center of the southbound side of Main Street as she approached, specifically
stating that the grader was “occupying both the center – well, mostly . . . the center and
turning lane.” Shahood also stated that she had been concerned about pulling into the
center lane because she was unsure of what the grader was doing. Yet, when Shahood was
asked, “were you paying attention at all to the grader?” Shahood answered, “I was not.”
Based on this evidence, a jury could reasonably accept that Shahood failed to exercise
22 ordinary care for her own safety when she positioned her vehicle only 15 to 20 feet behind
a reversing grader with its caution lights flashing and back-up alarm blaring.
¶46 A jury could also reasonably accept that Shahood was negligent by failing to yield
to the grader’s right-of-way. Testimony established that the lights were activated and that
Moe was actively backing up while performing road maintenance. Thus, a jury could
reasonably find that Moe had the right-of-way and that positioning a vehicle 15-20 feet
ahead of its direct path was a failure to yield. While Shahood argues this interpretation
places a duty on citizen drivers to anticipate an equipment operator’s next move, we
disagree. Based on Moe and Hanley’s testimony, the grader was actively reversing when
Shahood pulled in behind it. Accordingly, Shahood did not need to anticipate the
operator’s next move, she merely had a duty to yield to the operator’s established
right-of-way, which evidently the jury determined she failed to do. The jury’s verdict is
supported by substantial evidence.
CONCLUSION
¶47 For the foregoing reasons, we conclude the District Court erred in granting
Shahood’s motion for new trial. Because resolution of this issue is dispositive, we need
not address BSB’s additional claims regarding its pre-trial motions. Accordingly, the
District Court’s order granting Shahood’s motion for new trial is reversed and the jury’s
verdict reinstated.
/S/ INGRID GUSTAFSON
23 We Concur:
/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE