Montana Supreme Court Finds Plaintiff in Highway Safety Case May Not Sue Without Expert Testimony – Dubiel v. Montana Department of Transportation

By February 23, 2012 Auto Accidents

As a Missouri auto accident attorney, I know how difficult it is to sue a state agency. Defendants that are government agencies are free to make special rules to protect themselves from liability, usually meaning shorter deadlines to sue, special notice requirements and more. Because these cases often allege a negligent lack of focus on safety, they often require the support of expert testimony, which means plaintiffs also must ensure they have a safety expert who will explain the issues to a jury of laypersons and meet the court’s standards. This was the sticking point for Keevy Dubiel in Dubiel v. Montana Department of Transportation. She lost her husband, Jerome Dubiel, when he was temporarily stopped on the highway during a storm and a tree fell on his car. The Montana Supreme Court affirmed that Dubiel needed expert testimony to establish the standard of care the state should have used.
Jerome Dubiel was stopped on Montana’s Highway 35 because of a windstorm that had blown trees and power lines and poles onto the road. The Montana Department of Transportation was on the road clearing these obstacles, forcing him to wait. As he waited, however, another tree fell on his vehicle, killing him. Shortly afterward, the MDT closed the highway altogether, although it claims in this case that it did not know of the death when it made that decision. About 18 months later, Keevy Dubiel filed suit against the MDT on behalf of herself, the estate of her husband and their two minor children. She alleged that the MDT’s failure to close the road earlier was negligence that led to his death. She retained an expert to establish the family’s economic losses, but not one to establish the standard of care that the MDT should have used. The MDT eventually moved for summary judgment, saying Dubiel could not prove her case without an expert. Dubiel countered that no expert was required because the MDT’s own policies set forth the appropriate standard of care. The trial court found for the MDT and granted summary judgment.
The Montana Supreme Court upheld that decision, finding an expert is necessary to establish the standard of care for road closures. As with all negligence lawsuits, the court said, Dubiel must show the MDT owed her family a duty of care and breached that duty; this requires establishing a standard of care the agency breached. Dubiel argued that the standard is clearly laid out in MDT policies and procedures for road closures, which expressly mention high wind; she claims a jury does not need an expert to explain that conditions are not safe when high winds are blowing trees onto the road, where they land on cars. By contrast, the MDT argued that the average person cannot know what factors it must take into account when closing roads, including the capacity of other roads to handle rerouted traffic and the disruption to local travel. The high court agreed. The numerous interrelated factors affecting the MDT’s decisions aren’t readily obvious and can’t be derived from its official policy, the court said. Thus, the trial court was right to find that Dubiel cannot prove her case without an expert witness, the Supreme Court said.
As a St. Louis car crash lawyer, I sympathize with Dubiel’s position. For someone standing on a road with downed trees, the danger would indeed seem very obvious. The court found that factors other than those a motorist can easily observe also matter, however. The most damaging thing about this decision is that Dubiel may not now re-file her lawsuit and try again, because she has already lost it once. It’s only under rare circumstances that plaintiffs may pursue the same case more than once, and those circumstances are generally extraordinary, such as when they were victims of deception. As a result, it’s absolutely vital for plaintiffs and southern Illinois motor vehicle accident attorneys to make sure their cases are solid the first time around.


Carey, Danis & Lowe represents clients in Missouri and southern Illinois who were seriously hurt in a car crash that was no fault of their own. If you’d like to talk to us about your rights and your legal options, you can send us an email or call 1-877-678-3400 for a free, confidential consultation.
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