NO. 95-431
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
LARRY R. LACOCK,
Plaintiff and Appellant,
v.
4B's RESTAURANTS, INC.,
a Montana Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harold H. Harrison, Attorney at Law, Helena, Montana
Gene A. Picotte, Attorney at Law, Helena, Montana
For Respondent:
Larry E. Riley, Susan P. Roy; Garlington, Lohn
& Robinson, Missoula, Montana
Submitted on Briefs: February 8, 1996
Decided: May 29, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Appellant, Larry R. Lacock (Lacock) appeals from the jury
verdict of the Fourth Judicial District Court, Missoula County,
concluding that negligence on the part of defendant, 4B's
Restaurant (4B's), was not the proximate cause of Lacock's damages.
We reverse.
The dispositive issue on appeal is whether the District Court
abused its discretion in giving the jury an instruction on
proximate cause which omitted the last sentence of Montana Pattern
Instruction No. 2.06.
BACKGROUND
In the early morning of February 27, 1990, Lacock patronized
the 4B's restaurant on East Broadway in Missoula, Montana. The
only other patron, Clifford Harper, shot and killed the janitor of
the 4B's and shot and wounded Lacock. Lacock brought a claim
against 4B's alleging that 4B's negligence was responsible for his
injuries. Lacock claimed that 4B's should have foreseen and
prevented the shooting. After a six-day trial, the jury returned
a verdict in favor of 4B's. The District Court denied Lacock's
motion for a new trial. Lacock appeals from this determination.
DISCUSSION
On appeal Lacock raises twenty issues, however, we will
address only the following dispositive issue:
Did the District Court abused its discretion in giving a
jury instruction on proximate cause which omitted the
last sentence of Montana Pattern Instruction No. 2.06?
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Lacock offered the following instruction based on Montana
Pattern Instruction (MPI) No. 2.06 on negligence and proximate
cause:
The Defendant is liable if its negligence was a cause of
fact and a proximate cause of plaintiff's injury. The
Defendant's conduct is a proximate cause of the
Plaintiff's injury if it appears from the facts and
circumstances surrounding the incident that an ordinarily
prudent person could have foreseen that injury to someone
situated as Plaintiff was would [sic] be a natural and
probable consequence of the conduct. However, the
specific injury [that1 actually occurred need not have
been foreseen. [Emphasis added.]
4B's objected to this instruction on two grounds. First, 4B's
argued that the last sentence was misleading. Second, 4B's
asserted that the instruction 4B's offered on proximate cause,
which excluded the final sentence, was a correct and complete
statement of the law taken directly from Kitchen Krafters, Inc. v.
Eastside Bank of Montana (1990), 242 Mont. 155, 169, 789 P.2d 567,
575. The court agreed and gave the following Instruction No. 14,
as proposed by 4B's:
Causation, for purposes of legal liability, consists of
two elements - cause in fact and proximate cause.
Defendant's conduct is a cause in fact if it helped
produce the damage to Plaintiff and if the damage would
not have occurred without it. In addition, for
Defendant's conduct to be the proximate cause of
Plaintiff's injury, it must appear from the facts and
circumstances surrounding Defendant's act that it, as an
ordinarily prudent person, could have foreseen that the
injury would be the natural and probable consequence of
the wrongful act. Both elements of causation must be
established by Plaintiff by a preponderance of the
evidence.
Thus, the last sentence in MPI No. 2.06 which states:
"However, the specific injury that actually occurred need not have
been foreseen," was not given to the jury. Lacock argues that this
3
sentence is essential to a correct statement of the law and without
it the jury was instructed that, in order to prevail on liability,
Lacock had to prove that 4B's could foresee the specific injury
that actually occurred. 4B's asserts that Instruction No. 15 cured
any error in Instruction No. 14. Instruction No. 15, as given to
the jury, states:
Proximate cause is analyzed in terms of foreseeability.
The Defendant is not liable for the independent
intervening act of another if such act was not reasonably
foreseeable. In order to impose liability on the 4B's,
you must determine that the 4B's reasonably should have
foreseen the sequence of events leading to the
Plaintiff's injuries. [Emphasis added.]
Clearly, Instruction No. 15 does not cure the court's failure to
instruct that "the specific injury that actually occurred need not
have been foreseen." MPI 2.06. To the contrary, it compounds the
problem by instructing the jury that the sequence of events leading
to Lacock's specific injury should have been foreseen.
Our standard of review for discretionary trial court rulings
is whether the district court abused its discretion. Ganz v. U.S.
Cycling Federation (1995), 273 Mont. 360, 367, 903 P.2d 212, 216;
Barthule v. Kannan (1994), 268 Mont. 477, 487, 886 P.2d 971, 977.
We have held that a district court has discretion regarding the
instructions it gives or refuses to give a jury and that we will
not reverse a district court on the basis of its instructions
absent an abuse of discretion. Cechovic v. Hardin & Assocs.
(19951, 273 Mont. 104, 116, 902 P.2d 520, 527. When we examine
whether jury instructions were properly given or refused, we
consider the instructions in their entirety, as well as in
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connection with the other instructions given and the evidence at
trial. Story v. City of Bozeman (19931, 259 Mont. 207, 222, 856
P.2d 202, 211. It is not reversible error for a district court to
refuse an offered instruction unless the refusal affects the
substantial rights of the party who proposed the instruction.
Ganz 903 P.2d at 216; Barthule, 886 P.2d at 977.
-I
In the instant case, we determine that the District Court's
elimination of the final sentence from MPI 2.06 did affect Lacock's
substantial rights. Considering Instruction No. 14 in conjunction
with Instruction No. 15, the District Court essentially instructed
the jury that in order to find liability it had to find that 4B's
foresaw the particular injury to Lacock. In other words, to prove
4B's liability, Lacock would have to prove that 4B's failed to act,
despite the fact that it could foresee specific injury to Lacock as
a result of its inaction. Such proof would be tantamount to
proving intentional rather than negligent conduct. That is, that
4B's failed to act knowing full well that its inaction would injure
Lacock in a particular manner. Montana law does not support such
a narrow instruction on foreseeability.
While 4B's characterization of the holding of Kitchen Krafters
is not incorrect, it is an incomplete characterization of Montana
law on proximate cause. In Kitchen Krafters we determined that a
proper instruction on proximate cause should be worded as follows:
In order for the defendant's negligence (failure to
disclose) to be the proximate cause of the plaintiff's
injury, it must appear from the facts and circumstances
surrounding the accident [the nondisclosure] that the
defendant as an ordinarily prudent person, could have
foreseen that the plaintiff's injurywouldbe the natural
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and probable consequence of the wrongful act. [Emphasis
added.]
Kitchen Krafters, 789 P.2d at 575.
However, Kitchen Krafters must be read in conjunction with §
27-1-317, MCA, which provides that:
For the breach of an obligation not arising from
contract, the measure of damages, except where otherwise
expressly provided by this code, is the amount which will
compensate for all the detriment proximately caused
thereby, whether it could have been anticipated or not.
[Emphasis added.]
The last sentence in MPI 2.06 reflects the statutory proposition
that the specific injury to a plaintiff need not have been
anticipated or foreseen. In the interest of coordinating Kitchen
Krafters and § 27-1-317, MCA, the Commission on Civil Jury
Instructions added the last sentence in MPI 2.06, "[hlowever, the
specific injury that actually occurred need not have been
foreseen." This sentence is crucial in incorporating the meaning
and intent of § 27-l-317, MCA. Without the last sentence of MPI
2.06 the jury will, as here, mistakenly be led to believe that the
defendant, in order to be held liable, must foresee the specific
injury to the plaintiff.
Recently, in Busta v. Columbus Hosp. Corp. (Mont. No. 95-050,
decided May 10, 1996) we clarified the law in Montana regarding the
role of foreseeability in the law of negligence. The instant case
must be retried pursuant to our holding in Busta. See Galarneau v.
Porter (Mont. 1996), 911 P.2d 1143, 1149-50, 53 St.Rep. 99, 102-03
(concerning the retroactivity of judicial decisions). In Busta, we
held that foreseeability should be addressed as an element of duty
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and not as an element of causation. Busta does, however, carve an
exception for addressing foreseeability in cases in which an
intervening cause is alleged. In intervening cause cases, it will
be necessary for the court to discuss foreseeability in the course
of explaining to the jury which intervening causes sever the chain
of causation and which do not. In doing so, it will be necessary
to instruct the jury consistently with the provisions of 5 27-l-
317, MCA, that is, that the specific injury to a plaintiff need not
have been foreseen.
Here, the instruction offered by Lacock, and specifically the
last sentence of MPI 2.06, was objected to by 4B's and withdrawn by
the court. An instruction that was neither a Montana Pattern
Instruction nor the exact wording from Kitchen Krafters was given.
The deletion of the last sentence of MPI 2.06 was not cured by the
content of other instructions, rather, its absence was exacerbated
by the wording of Instruction No. 15. We hold that giving a
intervening cause instruction without advising the jury that "the
specific injury that actually occurred need not have been foreseen"
amounted to an incomplete and misleading instruction on the law.
The failure to instruct that a defendant can be liable for damages
whether the specific injury to the plaintiff could have been
anticipated or not, affected Lacock's substantial rights,
particularly since the jury found that 4B's was negligent, that
4B's negligence was the cause in fact of Lacock's damages, but that
4B's negligence was not the proximate cause of Lacock's damages.
Consequently, the District Court abused its discretion in failing
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to instruct the jury that the specific injury that actually
occurred need not have been foreseen.
Reversed and remanded for proceedings consistent with this
opinion.
We concur: