VIRGINIA HARMON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRANDON SCOTT HARMON, PLAINTIFF-APPELLANT,
v.
THE BILLINGS BENCH WATER USERS ASSOCIATION AND THE CITY OF BILLINGS, DEFENDANTS-APPELLEES
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The court denied the motion to withdraw its prior opinion, but modified the remand instructions to incorporate new Montana Supreme Court precedent.
The court previously affirmed in part and reversed in part a grant of summary judgment against a mother whose child drowned in an irrigation ditch. Su…
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Billings Bench Water Users Association brings an emergency motion urging us to withdraw and reconsider our published opinion of July 19, 1985, 765 F. 2d 1464 (9th Cir.1985), wherein we addressed a district court disposition granting summary judgment against the mother of a five-year-old who drowned in an irrigation ditch. We affirmed in part but reversed and remanded for trial on theories of attractive nuisance and negligence.
Two months after our opinion was filed, the Montana Supreme Court decided a case which cited our opinion and which abolished attractive nuisance with regard to artificial bodies of water such as irrigation ditches. Limberhand v. Big Ditch Company, et al., - Mont. -, 706 P. 2d 491, 42 St.Rep. 1460 (decided September 26, 1985).
In Harmon we remanded on theories of both attractive nuisance and negligence. Limberhand abolishes attractive nuisance by subsuming it within negligence. The district court will follow the rule of law enunciated in Limberhand v. Big Ditch Company, et al., by the Supreme Court of Montana to the extent that it differs from the rule of law set forth in our opinion.
We deny the motion to withdraw the opinion.
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- Harmon v. The Billings Bench Water Users Ass'n & the City of Billings, 765 F.2d 1464 (9th Cir. 1985)