No. 8 9 - 2 6 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
LESLIE D. KRIEG,
Plaintiff and Appellant,
DEWEY E. MASSEY, and FLORENCE E.
MASSEY, individually and d/b/a MASSEY
APPARTMENTS; and BETTY J. YOUNG, a/k/a
B.J. YOUNG,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. D. Peterson; Peterson, Schofield & Leckie, Billings,
Montana
For Respondent:
James R. Halverson; Herndon, Hartman, Sweeney and
Halverson, Billings, Montana
Submitted on Briefs: Aug. 1 7 , 1 9 8 9
Decided: October 24, 1989
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
The plaintiff, Leslie D. Krieg, brought this wrongful
death action founded on negligence for failure of defendants
to prevent the suicide of his 77 year-old uncle, Arthur
Leslie Van Hoose. The District Court for the Thirteenth
Judicial District, Yellowstone County granted defendants'
motion for summary judgment and dismissed the case with
prejudice. From this judgment, Mr. Krieg appeals. We
affirm.
The sole issue is: Did the District Court err in
granting summary judgment in favor of defendants?
Masseys are the owners and operators of the Massey
Apartments in Billings, Montana. When Mr. Van Hoose moved
into the Massey Apartments, Mr. Massey introduced Mr. Van
Hoose to the apartment manager, Mrs. Young, an elderly lady
in her seventies.
The next day, Mr. Van Hoose told Mrs. Young he was
having leg and stomach pain. Mrs. Young offered the use of
her phone to Mr. Van Hoose so that he could call a doctor.
He declined. She then offered to take him to the hospital to
see a doctor. He accepted this offer, however, Mrs. Young
told him she was expecting her daughter and would have to
wait until her daughter arrived.
Later, when Mrs. Young was walking past Mr. Van Hoose's
room, his door was open and she noticed he was walking around
the room holding a pistol. Mrs. Young told him not to point
the gun at her. He responded with, "Guns take care of all
problems." Mrs. Young stated, "It doesn't take care of
problems, it causes problems." She then took the pistol from
Mr. Van Hoose with the intention of taking it to her apart-
ment. When Mr. Van Hoose protested, she obtained a chair
from the kitchen, climbed up on the chair and put the pistol
on the top of a closet, thinking he would leave it alone.
Mr. Van Hoose appeared calmer and Mrs. Young repeated that
she would take him to the doctor, then left. She did nothing
else about the gun incident.
Approximately an hour later, Mrs. Young heard a loud
"thud." She was not concerned about the noise until the
thought occurred to her that Mr. Van Hoose may have climbed
up on the chair to get the pistol, and fallen off. She then
went back to his apartment and discovered he had killed
himself with the pistol.
Did the District Court err in granting summary judgment
in favor of defendants?
We begin by emphasizing that summary judgment is never a
substitute for a trial on the merits. Kronen v. Richter
(1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. It is only
appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from
the factual record must be resolved in favor of the party
opposing summary judgment. Simmons v. Jenkins (1988), 750
P.2d 1067, 45 St.Rep. 328.
In its summary judgment the District Court relied on the
general rule that:
Negligence actions for the suicide of another will
generally not lie since the act or suicide is
considered a deliberate intervening act exonerating
the defendant from legal responsibility, noted the
court, but two exceptions to this general rule
exist:
a. [W]here the defendant's tortious act causes a
mental condition in the decedent that proxi-
mately results in an uncontrollable impulse to
commit suicide or that prevents the decedent
from realizing the nature of his act;
b. [W]here there is a duty to prevent the
suicide, the situation typically arising when
someone is obligated to exercise custodial
care over the eventual decedent, is in a
position to know about the latter suicidal
potential, and is lax with respect to taking
preventive measures.
41 ALR 4th, 353.
The District Court then found that the relationship between
Mr. Van Hoose and Mrs. Young was non-custodial and that there
was no evidence that Mr. Van Hoose's suicide was a foresee-
able event. The court therefore concluded that Mrs. Young
owed no duty to prevent Mr. Van Hoose's suicide.
Plaintiff contends that when Mrs. Young entered Mr. Van
Hoose's room and attempted to take the pistol away, she
imposed upon herself a duty to prevent the suicide. Plain-
tiff urges that Mrs. Young breached this duty because she was
negligent in her intervention. He claims she could have
prevented the suicide of Mr. Van Hoose by removing the
pistol.
It is fundamental that an action for negligence requires
1) a legal duty, 2) a breach of the duty, 3) causation, and
4) damages. Prosser and Keeton on Torts, S 30, at 164-165
(5th ed. 1984); R.H. Schwartz Const. Specialties v. Hanrahan
(1983), 207 Mont. 105, 672 P.2d 1116. Traditionally, a
person is not liable for the actions of another and is under
no duty to protect another from harm in the absence of a
special relationship of custody or control. If originally,
no special relationship existed, but the defendant interjects
himself into the situation so as to create a special rela-
tionship of control, a duty may be imposed. Prosser and
Keeton on Torts, § 56 at 375-377, (5th ed. 1984).
Defendant relies on Pretty on Top v. Hardin (1979), 182
Mont. 311, 597 P.2d 58, as authority that no duty arose.
That case involved a custodial situation of a jailer and a
prisoner. When the prisoner committed suicide the wife
claimed the prison had a duty to prevent the suicide. Howev-
er, in Pretty on Top this Court affirmed the district court's
grant of summary judgment in favor of defendant since the
suicide of the prisoner was not foreseeable. Since foresee-
ability was lacking we stated that the district court was
required to follow the general rule that suicide is an inten-
tional act and grant defendant's motion for summary judgment.
Pretty on Top, 597 P.2d at 60.
The same rule applies even more forcefully in the
present case. The general rule, as relied upon by the Dis-
trict Court, in the area of civil Liability for suicide is
that " [nlegligence actions for the suicide of another will
generally not lie since the act or suicide is considered a
deliberate intervening act exonerating the defendant from
legal responsibility . . . " 41 ALR 4th, 353. Prosser and
Keeton on Torts fj 44 at 280-81 (4th ed. 1971); McPeake v.
Cannon Esquire, P.C. (Pa.Stiper. 1989), 553 A.2d 439;
McLaughlin v. Sullivan (N.H. 1983), 461 A.2d 123. We
expressly adopt this rule.
There are two narrow exceptions to this rule. The first
exception deals with causing another to commit suicide and is
not applicable to the present case. The second exception
allows the imposition of a duty to prevent suicide but only
in a custodial situation where suicide is foreseeable. These
situations typically involve hospitals or prisons. 41 ALR
4th at 353.
The facts of the present case clearly do not fit within
this exception to the general rule. As the District Court
found, Mrs. Young was not in a custodial relationship with
Mr. Van Hoose. He had lived in her apartment less than two
days and she had no control over him. Our research has
d i s c l o s e d no c a s e s h o l d i n g t h a t a l a n d l o r d t e n a n t r e l a t i o n -
s h i p i s a c u s t o d i a l r e l a t i o n s h i p which would impose a d u t y t o
p r e v e n t s u i c i d e . W a g r e e w i t h t h e D i s t r i c t Court t h a t t h e r e
e
a r e no g e n u i n e i s s u e s o f m a t e r i a l f a c t on t h e e x i s t e n c e o f a
custodial relationship. The f a c t t h a t t h e r e was no c u s t o d i a l
relationship or special circumstances, actually ends our
i n q u i r y b e c a u s e no d u t y can be e s t a b l i s h e d .
The D i s t r i c t C o u r t , however, went on t o d e t e r m i n e t h a t
the s u i c i d e i n t h i s c a s e was n o t foreseeable. Mrs. Young
t e s t i f i e d t h a t she d i d not think M r . Van Hoose s h o u l d have
t h e gun, b u t t h a t s h e d i d n o t t h i n k h e was p l a n n i n g on k i l l -
ing himself. When asked why s h e p u t t h e gun on t o p o f t h e
c l o s e t , s h e s a i d , " I f i g u r e d h e ' d l e a v e it a l o n e . " She t h e n
r e t u r n e d t o h e r own a p a r t m e n t . P l a i n t i f f failed t o present
any e v i d e n c e t o show t h a t M r . Van Hoose's s u i c i d a l t e n d e n c i e s
had been communicated t o M r s . Young. Further, nothing indi-
c a t e s t h a t s h e had any s p e c i a l t r a i n i n g t o f o r e s e e t h a t M r .
Van Hoose intended suicide. We conclude t h a t no g e n u i n e
issue of material fact existed regarding foreseeability.
Plaintiff, however, urges t h a t because M r s . Young " i n -
t e r j e c t e d h e r s e l f i n t o t h e s i t u a t i o n " by t a k i n g t h e gun from
Mr. Van Hoose, s h e imposed a d u t y upon h e r s e l f . He c o n t e n d s
t h a t s h e t h e n b r e a c h e d t h i s d u t y by n e g l i g e n t l y p l a c i n g t h e
gun on t o p o f t h e c a b i n e t r a t h e r t h a n removing i t . W de-
e
cline to affirm plaintiff's contention that Mrs. Young's
a c t i o n s c r e a t e d a duty t o prevent s u i c i d e s i n c e , a s previous-
l y stated, t h e g e n e r a l r u l e i s t h a t no d u t y e x i s t s i n t h i s
a r e a absent a c u s t o d i a l r e l a t i o n s h i p o r s p e c i a l circumstanc-
es. However, even i f a d u t y had a r i s e n , t h e a c t s of M r s .
Young p l a c e d M r . Van Hoose i n no worse p o s i t i o n t h a n b e f o r e
s h e t o o k t h e gun from him. W c o n c l u d e t h a t t h e r e a r e no
e
g e n u i n e i s s u e s of m a t e r i a l f a c t on t h e i s s u e of n e g l i g e n c e .
P l a i n t i f f f a i l e d t o p r e s e n t t h e D i s t r i c t C o u r t w i t h any f a c t s
which would establish either a duty or a breach. The general
rule that suicide is an intentional act which forecloses
civil liability is applicable, and the District Court was
correct granting summary judgment in favor of defendants. We
affirm the District Court's grant of summary judgment.
We concur: