NO. 95578
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
WADE KOLAR,
Plaintiff and Appellant,
v.
DENNIS, BERGO, LINDA BERGO,
DAVID SALVI, and RICHARD JERGESEN,
Defendants and Respondents.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James Stogsdill; Attorney at Law;
Lewistown, Montana
L. Randall Bishop; Jarussi & Bishop;
Billings, Montana
For Respondents:
Steven J. Harman; Brown, Gerbase, Cebull,
Fulton, Harman & Ross; Billings, Montana
(for Dennis Bergo)
Robert J. James; James, Gray & McCafferty;
Great Falls, Montana
(for Linda Bergo)
Carey E. Matovich; Matovich, Addy & Keller;
Billings, Montana
(for David Salvi)
Charles R. Johnson; Marra, Wenz, Johnson &
Hopkins; Great Falls, Montana
(for Richard Jergesen)
Submitted on Briefs: October 10, 1996
December 17, 1996
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Justice Charles E. Erdmann delivered the opinion of the Court.
Wade Kolar appeals from an order and memorandum issued by the
Tenth Judicial District Court, Fergus County, granting summary
judgment to defendants Linda Bergo and David Salvi. We reverse and
remand.
The sole issue on appeal is whether the District Court erred
in granting summary judgment to Linda Bergo and David Salvi.
FACTS
On the day of April 1, 1993, David Salvi and his children had
been playing practical jokes on each other, as it was April Fool's
Day. They decided to play a joke on Dennis Bergo since Dennis and
Linda Bergo were close family friends. The essence of the joke was
to make Dennis believe that nine-year-old Marie Salvi was home
alone, frightened, and in distress.
Marie called the Bergo residence and spoke with Linda who told
Marie that Dennis was not home but that she would try and locate
him. Linda called Dennis, who was at the house of his friend,
Richard Jergesen, and relayed Marie's message to him. Dennis had
gone over to Jergesen's in the afternoon and discovered that he and
some friends were working on a gravel moving project. Dennis had
a beer at Jergesen's, returned home to change clothes, and went
back to Jergesen's to help with the work. Later Jergesen ordered
pizza to reward his friends for their help and Dennis had three or
four more beers during that period of time.
2
1n the meantime, Marie had called Linda a second time and
asked for Dennis. She pretended that she was home alone, did not
know where her father was, and indicated she was becoming
increasingly anxious and afraid. Linda decided she should go over
to the Salvi residence as quickly as possible and when she arrived
she discovered that David and Marie were trying to play a practical
joke on Dennis.
While Linda and David were visiting in the kitchen, Marie
called Dennis herself at Jergesen's and told him she was home alone
and wanted him to come over. She was crying and sounded fearful
and in distress. Dennis rushed out of Jergesen's house, jumped
into his pick-up truck and headed over to the Salvi residence. In
his hurry to respond to Marie's call for help, Dennis failed to
adequately check traffic at the truck by-pass intersection 1.4
miles west of Lewistown. Dennis drove through a stop sign and
pulled directly in front of Wade Kolar, who was approaching the
intersection on his motorcycle. Kolar was seriously injured.
Kolar filed a complaint for negligence against Dennis and a
demand for jury trial. During discovery, Dennis blamed the
accident on the practical joke and his concern about getting over
to the Salvi residence. Kolar subsequently amended his complaint
and named Linda and David as additional defendants. He later filed
a second amended complaint alleging that Jergesen was also
responsible for the accident as a social host. Linda and David
3
each filed motions for summary judgment which the District Court
granted. This appeal followed.
STANDARD OF REVIEW
Our standard of review in appeals from summary judgment is
de now. Motarie v. Northern Montana Joint Refuse Disposal Dist.
(1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc.
(1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a
district court's grant of summary judgment, we apply the same
evaluation as the district court based on Rule 56, M.R.Civ.P.
Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d
901, 903.
DISCUSSION
Did the District Court err in granting summary judgment to
Linda Bergo and David Salvi?
The District Court stated that the only factual dispute before
the court was the extent of Dennis's concern and anxiety for Marie
when he left Jergesen's. The court determined that this dispute
was not a "material issue of genuine fact" prohibiting the granting
of summary judgment to Linda and David. Instead, the court focused
on foreseeability and stated that 'I [hlad the result been in any way
foreseeable, it is doubtful the practical joke would have ever been
played."
The court stated there was no reason for Linda and David to
believe that Dennis was consuming alcohol while he was at
Jergesen's and/or that he would not be able to drive to the Salvi
4
residence without being involved in an accident. The court held
that in this case reasonable minds could not differ as to the issue
of foreseeability and that, even though the results of the
practical joke were tragic, they were not in any way foreseeable by
Linda and David.
Kolar argues that it was Dennis, and not him, that brought
Linda and David into the case when Dennis defended the complaint by
stating that the practical joke was a superseding intervening cause
of the accident. Kolar claims that if we allow the District Court
to dismiss Linda and David as defendants, then his remaining claim
against Dennis will be compromised since the jury will undoubtedly
reduce Dennis's degree of fault due to the circumstances
surrounding the practical joke. According to Kolar, the jury will
know Dennis was a victim too.
Kolar argues that in responding to the motions for summary
judgment he met his burden to establish a genuine issue of material
fact concerning Dennis's state of mind when he left Jergesen's to
rush over to the Salvis'. Kolar claims that the court erred by
requiring him to prove that Linda and David were able to foresee
the specific scenario that resulted in the accident and his
injuries.
Kolar argues that public policy requires that liability be
imposed upon practical jokers when their acts lead in a natural and
continuous sequence to injury. He relies on § 444 of the
Restatement (Second) of Torts concerning acts done under an
5
impulsion of an emotional disturbance to argue that as a matter of
law, practical jokers cannot rely upon a foreseeability analysis to
break the chain of causation. Finally, Kolar argues that the
District Court erred in refusing to apply the "substantial factor"
test of causation.
Linda and David argue that no genuine issues of material fact
exist in this case to preclude summary judgment in their favor.
They claim that there can be no showing that the practical joke
constituted a danger from which a reasonable person could have been
expected to foresee any resulting risk of harm. They note that
neither of them dialed the telephone or spoke to Dennis from the
Salvi residence and that neither of them could have known that
Dennis had been drinking.
Linda and David further argue that they should not be held
strictly liable as practical jokers, and they claim that negligence
and foreseeability are the proper legal theories which should be
applied to this case. They argue that hindsight is not the measure
for determining foreseeability, but that the focus should be on
what a reasonably prudent person would have foreseen as likely to
happen at the time. Linda and David argue that § 444 of the
Restatement (Second) of Torts is not applicable to this case since
Dennis was acting under the influence of alcohol and not under an
impulsion of emotional disturbance. Finally, Linda and David claim
that dismissing them from this action does not compromise Kolar's
remaining claims.
6
This Court has repeatedly stated that the purpose of summary
judgment is to encourage judicial economy by eliminating
unnecessary trials, but that summary judgment is only proper when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See Nichols v. Corntassel
(1993), 258 Mont. 173, 852 P.2d 583; Kenyon v. Stillwater County
(1992), 254 Mont. 142, 835 P.2d 742; Cereck v. Albertson's, Inc.
(1981), 195 Mont. 409, 637 P.2d 509. The moving party has the
burden of showing a complete absence of any genuine issue as to all
facts considered material in light of the substantive principles
that entitle the moving party to judgment as a matter of law and
all reasonable inferences are to be drawn in favor of the party
opposing summary judgment. Nichols, 852 P.2d at 586.
Moreover, we have stated that ordinarily issues of negligence
are questions of fact not susceptible to summary judgment. Dillard
v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018. Liability
should not be determined upon a motion for summary judgment where
factual issues concerning negligence and causation are presented.
Dillard, 824 P.2d at 1018-19 (citing Duchesneau v. Silver Bow
County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931). In certain
cases, however, where reasonable minds could reach but one
conclusion as to the cause of an accident, questions of fact may be
determined as a matter of law. Dillard, 824 P.2d at 1019 (citing
Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70).
7
We determine that the present case is not one in which
reasonable minds could reach but one conclusion as to the cause of
the accident and Kolar's subsequent injuries. Nor are we convinced
that reasonable minds could not differ as to whether the accident
should have been foreseeable by Linda and David. Linda testified
that Dennis visited Jergesen's almost weekly and that he was
sometimes known to take a drink or two while there. Linda stated
that she expected Dennis to react to Marie's urgent telephone call
in much the same way she had done when she rushed over to the Salvi
residence. Linda knew that Dennis would have to use a highway
intersection which she stated "isn't a good intersection" and she
knew it was dark which made visibility even worse.
Dennis testified that Marie was crying over the telephone and
that it sounded real to him. He stated that when he rushed out of
Jergesen's house he was hyped-up and worried. Both Dennis and
Jergesen testified that it was the practical joke and not Dennis's
drinking that was the primary cause of the accident.
We conclude that, in this case, Dennis's state of mind when he
left Jergesen's house, and the extent to which Kolar's injuries
should have been foreseeable by Linda and David, are questions of
fact for the jury. However, we are not suggesting that instructions
beyond those referred to in Busta v. Columbus Hospital (Mont.
1996)) 916 P.2d 122, 53 St. Rep. 428, are necessary in order to
frame that issue.
8
Similar to Busts., this case involves allegations of
contributory negligence, multiple causes, and multiple defendants.
The use of the substantial factor test of causation is therefore
appropriate. In addition, we reject Linda's and David's contention
that they may rely upon the defense of superseding intervening
cause and determine that this affirmative defense is not available
to them as a matter of law. Neither Linda nor David have met their
burden of demonstrating that no genuine issues of material fact
exist, and we therefore hold that the District Court erred in
granting summary judgment in their favor.
Reversed and remanded for further proceedings consistent with
this opinion.
2
Justice
We concur: