Plain-View Hazards on Icy Roads: Comparative Negligence for the Jury; No Default Spoliation for Pre‑Notice Telematics Loss

Introduction

In Fahrnow v. E-5 Oilfield Services, 2025 MT 220, the Montana Supreme Court reverses a defense summary judgment in a winter-road collision case and clarifies the limits of spoliation sanctions for lost vehicle data. The case arises from a chain of events on November 8, 2018, when an initial collision at a rural intersection left vehicles in the roadway; minutes later, an E-5 hot-oil truck approached, skidded on ice during a wide right turn, crossed into the opposite lane, and struck the plaintiff, Tristin Fahrnow. The district court granted summary judgment to E-5 on liability and denied two discovery-related motions: a request for default judgment as a sanction for alleged spoliation (lost telematics/EDR data and missing employment records) and a motion to compel an interrogatory seeking the defense’s comparative view of the parties’ medical experts’ credentials.

The Supreme Court’s opinion, authored by Justice Beth Baker, addresses three issues:

Whether the summary judgment record revealed a genuine dispute of material fact concerning comparative negligence between the E-5 driver and Fahrnow;
Whether default judgment was warranted as a spoliation sanction for lost truck data and missing employment files; and
Whether it was an abuse of discretion to deny an interrogatory compelling the defense to identify ways its expert’s qualifications exceeded the plaintiff’s expert’s.

The Court reverses on liability (remanding for trial) but affirms the discovery orders. The decision underscores Montana’s strong preference to submit negligence and comparative fault to juries where both sides present evidence of breach and causation. It also confirms that default spoliation sanctions require a duty to preserve, culpable loss, and significant prejudice—standards not met when vehicle telematics were auto-deleted before litigation was reasonably foreseeable and the truck was destroyed by an accidental fire. Finally, the Court approves a protective order against an interrogatory deemed cumulative where both experts’ disclosures and depositions were available.

Summary of the Opinion

Comparative negligence—triable issues: The Court holds that material factual disputes exist about whether the E-5 driver, Greg Brown, operated the hot-oil truck reasonably for icy conditions, including speed and lane discipline during a wide turn, and whether his conduct contributed to plaintiff’s injuries. Although plaintiff violated multiple traffic statutes after the initial crash (parking near an intersection, failing to display warning flags, and walking in the roadway), those violations do not entitle the defense to summary judgment where evidence supports negligence by both parties. Apportionment of fault remains for the factfinder.
Spoliation sanctions—no default judgment: Default judgment is inappropriate where (a) telematics/EDR/GPS data were auto-deleted by a third-party vendor within 90 days and the vehicle itself was destroyed by an accidental fire two months after the accident, both preceding service of the complaint; (b) the defendant lacked notice of litigation and did not act culpably; and (c) the plaintiff was not significantly prejudiced because other evidence (depositions and experts) could estimate speed. The loss of the driver’s physical employment file caused no prejudice, as E-5 admitted vicarious liability.
Discovery—expert-qualification interrogatory: The court did not abuse its discretion by denying a motion to compel and granting a protective order where the plaintiff already had both experts’ Rule 26 disclosures, CVs, reports, and depositions. Forcing the defense to articulate comparative credentials would have been cumulative and unduly burdensome beyond what Rule 26(b)(4) requires.

Analysis

Precedents Cited and Their Influence

Fisher v. Swift Transportation Co., 2008 MT 105—reiterates the elements of negligence (duty, breach, causation, damages) and the general inappropriateness of summary judgment in negligence cases. This frames the Court’s reluctance to decide contested negligence issues as a matter of law.
Tonner v. Cirian, 2012 MT 314 and Hajenga v. Schwein, 2007 MT 80—summary judgment standards, including that cross-motions do not eliminate genuine disputes and courts must draw reasonable inferences against the moving party. Both inform the Court’s de novo reevaluation of the record.
Walden v. Yellowstone Electric Co., 2021 MT 123 and Craig v. Schell, 1999 MT 40—drivers must anticipate and safely respond to hazards in “plain view” and operate at a speed “reasonable under the circumstances,” even within posted limits. Craig further highlights negligence per se for crossing into the opposite lane to avoid a hazard. These cases support submitting to the jury whether Brown, facing obvious roadway hazards and ice, failed to maintain control and violated lane rules.
Giambra v. Kelsey, 2007 MT 158 and Wenger v. State Farm, 2021 MT 37—a statutory violation establishes breach via negligence per se but does not end the analysis; the factfinder still compares parties’ negligence. This is central to rejecting summary judgment based solely on plaintiff’s statutory violations.
Dillard v. Doe, 251 Mont. 379 (1992)—even when a pedestrian violates traffic statutes, comparative negligence can remain a jury question if there is evidence of driver negligence, such as failing to drive prudently for conditions or to avoid a pedestrian in plain view. Dillard’s reasoning directly undercuts the district court’s ruling and strongly influences the reversal here.
Depositors Ins. Co. v. Sandidge, 2022 MT 33 and Alfson v. Allstate, 2013 MT 326—accident reports are hearsay for liability purposes and inadmissible at summary judgment; only admissible evidence counts. The Court excludes the crash report and relies on depositions and expert opinions instead.
Montana State Univ.–Bozeman v. First Judicial Dist. Court, 2018 MT 220—articulates spoliation elements (duty to preserve, breach, and significant prejudice) and constrains sanctions to cases with culpable conduct and prejudice. Applied to reject default where data loss preceded foreseeable litigation and prejudice was minimal.
Richardson v. State, 2006 MT 43 and Anheuser‑Busch, Inc. v. Natural Beverage Distributors—default is reserved for egregious, often intentional, destruction or discovery abuse. The facts here fall far short.
Culbertson‑Froid‑Bainville Health Care Corp. v. JP Stevens & Co., 2005 MT 245—default may be warranted when discovery noncompliance forces a case forward “under a cloud of uncertainty.” By contrast, the Court finds that other speed evidence is available here; hence no comparable “cloud.”
Hawkins v. Harney, 2003 MT 58—expert discovery’s purpose is to avoid surprise and enable effective cross-examination, but courts can limit cumulative or burdensome requests. Anchors the discovery ruling sustaining a protective order.

Legal Reasoning

1) Comparative negligence and the “plain-view/icy-road” duties

Two disputed fact clusters preclude summary judgment. First, speed and control: Brown testified he was turning at 2–3 mph, but both sides’ experts estimated pre‑impact speeds between 16–29 mph. Even within a posted limit, Montana law imposes a duty to proceed no faster than is reasonable “under the circumstances,” including ice. Second, lane position: Brown saw people and vehicles in the roadway and elected a wide right turn into the left (oncoming) lane, implicating § 61‑8‑321, MCA (drive on the right).

Against that, plaintiff’s statutory violations are undisputed—parking near an intersection without warning flags, and standing in the roadway. But under Giambra and Dillard, negligence per se by one party does not entitle the other to judgment as a matter of law if there is record evidence of mutual fault. The Court emphasizes that reacting to a “plain view” hazard does not excuse a driver’s statutory violations or failure to maintain control on ice; whether Brown’s avoidance maneuver and speed were reasonable is for the jury. In short, the respective causal contributions of Brown’s alleged breaches and Fahrnow’s admitted breaches are classic comparative negligence questions.

2) Spoliation: duty, culpability, and prejudice

The record shows the hot-oil truck was destroyed by fire two months after the crash and GPS/telematics data were auto‑deleted by a vendor after 90 days—both events predating service of the complaint by nearly three years. Without evidence of earlier reasonable foreseeability or notice, the duty to preserve had not yet attached. More importantly, there is no suggestion of intentional or negligent destruction by E-5; the loss stemmed from accidental fire and the vendor’s standard retention cycle.

The Court also finds minimal prejudice. While telematics might have yielded precise speed, comparable information is obtainable through Brown’s testimony and expert analyses. Because E-5 admitted vicarious liability, the missing employment file creates no prejudice at all. Default judgment—an “extreme remedy”—is therefore unwarranted.

3) Expert discovery: cumulative requests and protective orders

The plaintiff’s interrogatory asked the defense to identify any credentials Dr. Ericksen has that Dr. Donaldson lacks. By the time of the request, both sides had exchanged full Rule 26 disclosures, CVs, reports, and conducted depositions of both orthopedic surgeons. The district court, affirmed here, concluded the interrogatory was unreasonably cumulative and tantamount to compelling the other side’s impeachment strategy, exceeding what Rule 26(b)(4) requires. Under Rule 26(b)(2)(C), limiting such duplicative discovery was within the court’s discretion.

Impact and Implications

A. Negligence litigation in roadway and winter-condition cases

High bar for defense summary judgment: Even where a plaintiff violates multiple traffic laws, defendants will struggle to secure summary judgment if the record contains evidence they too breached duties—speed for conditions, lane discipline, or failure to address plain‑view hazards.
“Plain view” principle cuts both ways: The same doctrine used to hold drivers negligent as a matter of law (Walden, Craig) can still leave triable issues when the plaintiff’s own negligence is substantial. Plaintiffs seeking plaintiff‑side summary judgment must overcome comparative negligence evidence.
Admissible evidence at summary judgment: Accident reports are out for liability; parties should prioritize depositions, expert reconstructions, and admissible physical evidence.

B. Spoliation and vehicle data (EDR/telematics)

Preservation letters matter: Plaintiffs should send early litigation holds to motor carriers and telematics vendors. Absent notice or foreseeability, auto‑deletion by a vendor will not usually support default sanctions.
Accidental destruction ≠ default: Where loss is due to accident (e.g., vehicle fire) and vendor retention schedules, courts will look for intentionality and significant prejudice before imposing severe sanctions.
Alternative proof mitigates prejudice: When equivalent information can be reconstructed (driver testimony, expert estimates), prejudice is diminished.
Strategic admissions can limit sanctions exposure: E-5’s admission of course-and-scope mooted prejudice from lost employment records—an instructive tactic for corporate defendants.

C. Expert discovery practice

No duty to do your opponent’s comparative analysis: Parties are entitled to experts’ disclosures, CVs, reports, and depositions. Demands that the opponent itemize why their expert is “more qualified” are likely to be deemed cumulative or an improper request for work product/strategy.
Use depositions and CVs: The opinion confirms that the procedural framework in Rule 26(b)(4) is sufficient for qualification challenges and Daubert/M. R. Evid. 702 motions, without additional compelled “contention” analyses.

Complex Concepts Simplified

Negligence per se: When someone violates a safety statute (e.g., driving on the wrong side, failing to display required warnings), the violation automatically establishes breach of duty. The plaintiff still must prove causation and damages, and fault can be shared.
Comparative negligence: If both sides are negligent, the jury assigns percentages of fault. A statutory violation by either side does not end the case; it becomes part of the overall apportionment.
“Plain view” hazard: Drivers are presumed to see and appropriately react to hazards that are visible (e.g., animals, people, disabled vehicles, ice) and must travel at a speed and manner reasonable for those conditions.
Spoliation: Destruction or loss of evidence when litigation is foreseeable. Sanctions depend on a duty to preserve, a breach (often culpable), and significant prejudice. Default is reserved for egregious cases like intentional destruction.
EDR/Telematics: Electronic data from vehicles (speed, braking, GPS). Vendors often auto-delete after short periods; preservation letters can be critical to stop deletion.
Protective order (discovery): A court order limiting discovery that is cumulative, burdensome, or outside the permissible scope. Here, it prevented a party from being forced to articulate comparative expert qualifications beyond what rules already require.

Conclusion

Fahrnow reinforces three core principles in Montana civil practice. First, negligence and comparative fault are typically jury functions; even where a plaintiff committed statutory violations, defendants cannot secure summary judgment if evidence raises reasonable inferences of their own breach—particularly with “plain view” hazards and winter driving duties. Second, default spoliation sanctions require a demonstrated duty to preserve, culpable loss, and significant prejudice. Vendor-driven auto‑deletion and accidental destruction before litigation was reasonably foreseeable will not meet that threshold—especially when comparable evidence exists or strategic admissions remove prejudice. Third, Montana’s expert discovery regime does not obligate parties to supply adversarial commentary about comparative qualifications when Rule 26 disclosures and depositions already provide the factual basis for cross‑examination and admissibility challenges.

The decision will likely constrain summary judgment in roadway accident litigation featuring contested speed/control facts and shared statutory violations; it also provides pragmatic guidance for managing modern vehicle data and for keeping expert discovery within the bounds of Rule 26. Ultimately, Fahrnow channels these disputes to juries and encourages early, thoughtful preservation and discovery planning by both sides.