Busta Ex Rel. Busta v. Columbus Hospital Corp.

NO. 95-050

IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

IDA 0. BUSTA, as Personal Representative
of the Estate of Delbert F. Busta, on
behalf of the heirs of Delbert F. Busta,
Plaintiff and Respondent,

COLUMBUS HOSPITAL CORPORATION,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
James R. Walsh and Dennis P. Clarke, Smith,
Walsh, Clarke & Gregoire, Great Falls, Montana
For Respondent:
Dennis Patrick Conner, Attorney at Law,
Great Falls, Montana

Submitted on Briefs: January 17, 1996
Decided: 10, 1 9 9 6
M ~ Y
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Ida 0 . Busta, filed her complaint in the
District Court for the Eighth Judicial District in Cascade County
in which she sought compensation for damages to Delbert F. Busta
pursuant to 5 27-1-501, MCA, and to his heirs pursuant to
5 27-1-513, MCA, based on her allegation that Delbert's death was
caused by the negligence of the defendant, Columbus Hospital
Corporation. Following trial of the issues raised by the parties'
pleadings, a Cascade County jury returned its verdict in which it
found that Delbert's injuries and death were caused by the
negligence of Columbus and the contributory negligence of Delbert
and apportioned seventy percent of fault to the Hospital and thirty
percent of fault to Delbert. The jury found that Delbert and his
estate were damaged in the amount of $5,000 and that his heirs were
damaged in the amount of $800,000 as a result of his death. Based
on the jury's apportionment of liability, the District Court
entered judgment in favor of Delbert's estate in the amount of
$3,500 and in favor of his heirs in the amount of $560,000.
Columbus appeals from the judgment of the District Court, from the
order of the District Court denying its motion for a new trial, and
from the District Court's denial of its motion for offset against
the judgment pursuant to 5 27-1-308, MCA. We affirm the judgment
and orders of the District Court.
The issues raised by Columbus on appeal are as follows:
 1. Did the District Court err when it admitted a
photographic exhibit offered by the plaintiff which depicted the
decedent, Delbert Busta, and included a tribute from his
granddaughter?
2. Did the District Court err when it refused to admit the
defendant's proposed exhibit which consisted of a letter written by
the plaintiff's attorney to the Veterans' Administration which
attributed Delbert Busta's death to a military-related mental
illness?
3. Did the District Court err when it refused to give the
defendant's proposed instructions which defined proximate cause and
stated the requirement that the decedent's injuries be foreseeable
before causation could be established?
4. Did the District Court err when it refused to offset
benefits received by Ida Busta from the Veterans1 Administration
against the damages awarded for the decedent's wrongful death?
DISCUSSION
Delbert Busta was an American veteran who had been captured by
the Japanese Army, forced to participate in the Bataan Death March,
and was subsequently imprisoned in a Japanese prisoner of war camp
for over three years.
Subsequent to his release as a prisoner of war and his return
to the United States, he was treated for his mental and physical
debilitation and discharged from the Army. At the time of his
discharge, he was diagnosed with simple schizophrenia, and on that
basis was awarded a service-related disability by the Veteransr
Administration. Testimony given at this trial explained that at
that time the diagnosis of simple schizophrenia was ascribed to
someone who had become withdrawn and uninterested in social
interaction. It did not indicate the kind of bizarre behavior or
delusions that are commonly associated with other forms of
schizophrenia. At any rate, the undisputed testimony was that from
then until the date of his death on December 1, 1991, Delbert
displayed no outward indication of mental or emotional problems and
that not even his wife and children were aware of the basis for his
service-related disability benefits.
On November 26, 1991, Delbert was admitted to the Columbus
Hospital in Great Falls for surgical treatment of prostate cancer
and inguinal hernia repair. Surgery was performed on that date.
Following successful surgery, Delbert was transferred to a
room on what was designated the third floor of the hospital,
although the floor was actually four stories above ground level as
viewed from the outside. During the early morning hours of
December 1, Delbert cut himself free from his Foley catheter,
pulled out the tubings from his IVs, tied two sheets and a hospital
gown together, attached one end of the makeshift rope to a clothing
hook, and attempted to leave the hospital through his third floor
window. He was found on the ground below his window a short time
later suffering from injuries caused by his fall. He died from
those injuries later that day.
 Kathy Fitzgerald was the nurse who was employed by and on duty
at Columbus Hospital on the evening of November 30 and the morning
of December 1, and who was assigned to care for Delbert. She
testified that he was normally a cooperative patient, but that on
her last visit with him on the evening of November 30 he had
refused to take his medication, refused to be repositioned,
requested that the sequential compression devices be removed from
his legs, and asked to be left alone. She also noted that at the
time Delbert's blood pressure was elevated and his pulse rate was
abnormally rapid. He was experiencing a condition known as
tachycardia. However, Fitzgerald did not report Delbert's change
in attitude or his constellation of symptoms to his treating
physician, and after observing at midnight that he appeared to be
asleep, she did not check his blood pressure or pulse again.
At the time, Delbert was being treated with ten regular
medications and three medications which were administered "as
needed."
Delbert attempted to leave the hospital through the three foot
by four foot opening in his third floor window at approximately
2:15 a.m. on December 1.
Peter Horst, M.D., was the surgeon who admitted Delbert to the
hospital and performed prostate cancer surgery on November 26. He
acknowledgedthat confusion, psychosis, and anxiety are listed side
effects for several of the medications which were being
administered. He admitted that given the constellation of findings
reported in Fitzgerald's notes, Delbert's condition should have
been medically assessed on November 30, and that had he been
advised of those findings, he would have performed various tests to
see whether Delbert's oxygenation was adequate and his electrolytes
were normal. He would also have tried to determine whether Delbert
was rational or irrational. However, he was not notified.
Ida's complaint was filed on October 7, 1993. In her
complaint she alleged that as a result of mind-altering medication
following his surgery, Delbert suffered from delirium, confusion,
and disorientation; that he was inadequately supervised and cared
for at the hospital; and that the hospital failed to maintain its
facilities in a safe condition. She alleged that the hospital's
omissions were negligent and that its negligence was the cause of
her husband's injuries and death.
In response, the hospital denied that it was negligent and
alleged that any claim by Ida was barred by Delbert's own
contributory fault, the contributory fault of unspecified third
parties, and her own failure to advise the hospital of Delbert's
preexisting mental condition. In its pretrial contentions, the
hospital specifically alleged that Delbert's death was caused by
his preexisting mental illness.
At trial, plaintiff called as a witness Richard Rada, M.D.,
who had extensive experience as a psychiatrist and hospital
administrator. He had been asked to review Delbert's medical
records in an effort to determine what caused him to leave the
hospital through the window on the night of his death. He reviewed
Delbert's Veterans' Administration records, as well as his records
from the Great Falls Clinic where he had been treated over the
years and his records from Columbus Hospital. He formed the
opinion that at the time Delbert attempted to leave the hospital he
was suffering from delirium or an acute confusional state caused by
the fact that his brain was receiving inadequate oxygen and
possibly contributed to by the numerous medications which were
being administered. He explained that delirium is a common side
effect in hospitals and is experienced by about fifteen percent of
all patients. It leads to altered behavior, including panic, fear,
hallucination, delusions, and aggressive behavior.
Dr. Rada explained that by definition, simple schizophrenia is
not characterized by hallucination or delusions. He therefore
ruled out any preexisting mental illness as a cause of Delbert's
behavior on the night of his death.
Dr. Rada expressed the opinion that Fitzgerald was negligent
by failing to adequately monitor Delbert on the night before his
death and by failing to report his constellation of signs and
symptoms to his treating physician. He also expressed the opinion
that the hospital was negligent by providing a window on a third
floor patient's room that could be opened to the extent that a
patient could either intentionally or inadvertently fall from the
window.
 His opinion regarding the standard of care for Fitzgerald was
corroborated by Wendy Haack, a clinical nurse specialist from
Portland, Oregon, who had been a Montana college instructor on the
subject of critical care nursing and physical assessment. Dr.
Rada's opinion regarding the inadequacy of the window design at the
hospital was corroborated by J. Armand Burgun, a New York architect
who specializes in hospital design.
It was Dr. Rada's opinion that Delbert ' s death could have been
prevented by proper care and proper window design.
Horatio Bales, M.D.,who is a staff physician at the Veterans'
Administration Hospital at Fort Harrison, also testified. He
explained that he had performed surgical hernia repair on Delbert
in September 1991 and that during the time that he treated him at
the VA hospital he observed no signs of mental or emotional
problems. In fact, he found Delbert's demeanor very pleasant and
testified that he did not appear to be suffering from any form of
schizophrenia.
Other than doctors Horst, Rada, and Bales, no other medical
testimony was offered. Specifically, there was no qualified
medical opinion testimony to the effect that any preexisting mental
condition contributed to or caused Delbert Busta to leave his room
through the third floor window on December 1, 1991.
William J. Downer, Jr., was the President and Chief Executive
of Columbus Hospital on the date of Delbert's fall and death. He
testified that Columbus is accredited as a hospital by the Joint
Commission for the Accreditation of Health Care Organizations and
that in order to maintain its accreditation, teams of investigators
periodically visit the hospital to inspect its facilities and
evaluate its services. The Commission's last inspection prior to
Delbert's death occurred on approximately July 18, 1991. The
inspection team consisted of an administrator, a doctor, and a
nurse.
During his meeting with the inspection team following that
visit, Downer was told "to restrict the opening of your patient
room windows, so that patients cannot inadvertently fall or jump
from the windows." That meeting was followed by a written report
from the Commission which was received by the hospital on
September 26, 1991, and was offered as an exhibit at the time of
trial. The written report noted that high priority should be given
to the problem that room windows lacked stops which would prevent
a patient from falling or jumping from the window. The Commission
recommended that high priority attention be given to the problem.
However, nothing was done about the recommendation from the time it
was made until Delbert died.
Downer admitted that if the hospital had considered window
stops a priority, as the Commission did, it would have been
feasible to put them in. In fact, the cost for doing so would have
been about fifty cents per window, plus labor.
 At the time of his fall from his third floor room, Delbert's
window could be opened to a width of three feet and a height of
four feet.
J. Armand Burgun is an architect who specializes in hospital
design. He is the past president of the American Association for
Hospital Planning and has chaired the Design and Construction
Committee for the American Hospital Association. He has authored
several books and articles on hospital design, hospital safety, and
fire safety. He was consulted by the plaintiff regarding the
design of the windows at Columbus Hospital and his testimony was
offered at the time of trial. It was his opinion that as it
existed at the time of Delbert's death, the window design was
unsafe and did not meet code requirements. He testified that one
way to have made the windows safer was to put stops on the windows
which prevented them from being opened far enough for a person to
pass through the opening and that it would have been exceedingly
easy for the hospital to do so. He testified that the type of
incident which caused Delbert's death was foreseeable and well
known within the hospital care industry by 1991 at the time that
Delbert fell. He also testified that if the windows had been
properly designed, the fall and injuries could not have occurred.
The only other expert testimony offered regarding the adequacy
of the hospital's windows was provided by John Rigdon, an architect
from Bellevue, Washington, who also specializes in designing health
care facilities. His firm had designed a rehabilitation unit that
was added to the hospital in 1989. He was listed by the hospital
as an expert witness. However, it was the plaintiff who took his
deposition and offered his testimony over the defendant's
objection.
He admitted that based on current standards the window through
which Delbert attempted to escape was unsafe and that the windows
in the rehab unit which his firm designed would not have permitted
a person to accidentally or intentionally pass through the window.
He testified that escape or suicide in a hospital is a known and
foreseeable consequence, and that although he had participated in
the design of 50 to 100 patient room window systems for hospitals,
he had never personally used one like the one used in Delbert's
room.
Rigdon testified that he normally designed windows with vents
that could be activated by a special tool kept at the nurses'
station, but that in those designs which allowed a patient to open
a window by himself, the window could not be opened more than about
three inches. He testified that by 1987 the knowledge of suicide
and escape risk was incorporated into the formal guidelines for
hospital design, but that he had been using restricted access
windows for patient rooms during his entire thirty years of
architectural practice. It was his opinion that that is what a
reasonable architect would do when designing a third floor
post-surgical hospital patient room window.
 Columbus Hospital offered testimony from Debra Gaspar, a
registered nurse from Billings, who testified that based on her
review of the records, Fitzgerald had complied with the standard of
care applicable to post-surgical nurses at the time and date in
quest ion. However, the hospital offered no expert opinion
regarding the reason that Delbert attempted to leave the hospital
through the third floor window, nor did it offer expert testimony
to the effect that the incident which caused Delbert's injuries and
death was unforeseeable from the perspective of a hospital
administrator or a hospital architect.
The jury's verdict and the court's orders were as previously
stated. With this background, we will discuss the issues raised by
the hospital on appeal.
ISSUE 1
Did the District Court err when it admitted a photographic
exhibit offered by the plaintiff which depicted the decedent,
Delbert Busta, and included a tribute from his granddaughter?
During the testimony of Charles Busta, Delbert's son, a
photograph of Delbert was offered as an exhibit. Attached to the
photograph was a poetic tribute to Delbert by his granddaughter.
The poem had apparently been submitted as part of a school project
because next to it was a grade and a handwritten note which stated:
"1 can tell your Grandpa was very special to you!" At the time the

photo was offered, the attorney for the hospital objected to its
admission on the basis that "it was written by a person who is not
an interested party to this lawsuit." When the attorney for the
plaintiff offered to call the person who had written the poem, the
hospital's attorney stated: "I'll stipulate that she wrote it.
You won't have to call her. That's not my objection."
The photograph was then admitted without further objection and
viewed by the jury.
William Busta, Delbert's other son, and one of the heirs for
whom wrongful death damages were being sought, later testified that
one of the reasons his father's loss was significant to him was
because of the contributions that his father made to his own family
and that his daughter's poem had tried to capture what his father
meant to the entire family.
We review a district court's evidentiary rulings to determine
whether there has been an abuse of discretion. In re Seizure of $23,691.00

(Mont. 1995), 52 St. Rep. 1063, 1065, 905 P.2d 148, 152 (citing State

v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380). The

district court has broad discretion to determine if evidence is
admissible. Accordingly, absent an abuse of discretion, this Court
will not overturn the district court ' s determination. In re $23,691.00,

52 St. Rep. at 1065, 905 P.2d at 152.
Furthermore, we will not reverse a district court's admission
of evidence for reasons which have not been clearly set forth by
objection at the time of trial. Rule 103 (a)(I), M.R.Evid.,
provides that:
 (a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or a motion to strike
appears on the record, statinq the specific around of the
obiection, if the specific ground was not apparent from
the context.
(Emphasis added.)
As we stated in Scofieldv.EstateofWood (1984), 211 Mont. 59, 63,

683 P.2d 1300, 1302, "laln objection raised for the first time on
appeal is not timely. Unless a timely objection to evidence or
testimony is raised at the trial level, it cannot be considered on
appeal. (Citations omitted.)
On appeal, the hospital contends that the photograph of
Delbert should have been excluded for the reason that it included
hearsay in violation of Rule 801, M. R.Evid. ; for the reason that it
was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason
that it was unduly prejudicial in violation of Rule 403, M.R.Evid.
However, the hospital's hearsay objection was not stated at
the time that the exhibit was offered and was specifically waived
when the plaintiff's attorney offered to call the author and the
defendant's attorney stated that it would be unnecessary. Undue
prejudice in violation of Rule 403 was also specifically waived
because it was not stated as a basis of the defendant's objection
at the time the exhibit was offered
Although irrelevance was not specifically stated as a basis
for the defendant's objection to the plaintiff's photographic
exhibit, we will construe its objection to the effect that the
author of the message on the exhibit was not a party to mean that
the exhibit was therefore irrelevant. However, even by liberally
interpreting the hospital's objection, we are unable to conclude
that the District Court abused its discretion by admission of the
exhibit.
The jury was instructed, without objection, that the award to
Delbert's heirs should include the value of his companionship and
reasonable compensation for their grief, sorrow, and mental anguish
resulting from his death. William Busta testified that a good deal
of his grief and sorrow which resulted from the loss of his father
was because of the impact that it had on William's own children to
whom Delbert had been an exemplary grandparent. His daughter's
tribute to Delbert was probative of that relationship. Therefore,
we conclude that it was not irrelevant and that the District Court
did not abuse its discretion by admitting the plaintiff's
photographic depiction of Delbert, which included his
granddaughter's tribute.
ISSUE 2
Did the District Court err when it refused to admit the
defendant's proposed exhibit which consisted of a letter written by
the plaintiff's attorney to the Veterans' Administration which
attributed Delbert Busta's death to a military-related mental
illness?
 During his life following his discharge from military service,
Delbert received a small pension due to his diagnosis of simple
schizophrenia. The jury was fully informed of that fact.
Subsequent to Delbert ' s death, his surviving spouse Ida, after
learning of the basis for his disability benefits, applied for
death benefits which apparently were denied. For that reason, the
same attorney who represented her in this case wrote to the
Department of Veterans' Affairs on July 10, 1992, and requested
that the denial be reconsidered. This letter was written over two
years before Dr. Richard Rada was first retained and consulted on
August 22, 1994.
In his letter, the plaintiff's attorney provided copies of
Delbert's records and referred to his prisoner of war experience,
his subsequent medical diagnosis, and extensive summaries of his
Veterans' Administration medical records since the date of his
discharge. At the conclusion of the five-page letter, plaintiff's
attorney expressed the opinion that based on that medical history
and Delbert's apparent attempt to escape from the hospital and some
perceived danger, his death was probably related to his
service-connected condition, and he requested that the Department
reconsider the denial of Ida's claim for benefits.
Copies of the medical records referred to in the letter were
provided to the defendant and were offered as exhibits without
objection. However, the defendant also sought to admit the
five-page letter written by the plaintiff's attorney. When the
objection was stated that the letter was inadmissible pursuant to
Allers v. WiNis (l982), 197 Mont. 499, 643 P.2d 592, because it related

to a collateral source, the defendant sought to admit the letter
after deleting the identity of the recipient and the reference to
death benefits. However, the District Court held that because the
letter was on plaintiff's attorney's letterhead, the potential for
prejudice from its admission outweighed its probative value and
denied its admission. The court did offer to allow the defendant
to produce other evidence of the letter's contents. The defendant
indicated it would call Ida Busta for the purpose of offering such
evidence. However, when the District Court stated that that would
be acceptable, the defendant declined to do so.
On appeal, the defendant contends that its proffered letter
from the plaintiff's attorney should have been admitted as an
admission by the plaintiff that Delbert died as a result of his
preexisting mental condition, rather than because of Columbus
Hospital's negligence. It contends that because it was not
informed of his preexisting mental condition at the time of his
admission to the hospital, it could not reasonably have been
expected to protect him from harming himself.
As stated previously, we review a district court's evidentiary
ruling to determine whether there has been an abuse of discretion.
Inre$23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we

will uphold a district court's decision, if correct, even though
its reason for that decision may have been incorrect. Normanv. City
of Whitejish (l993), 258 Mont. 26, 30, 852 P.2d 533, 535; DistrictNo. 55v.

MusselshellCounty (IggO), 245 Mont. 525, 527, 802 P.2d 1252, 1253.

The District Court held that the letter, as modified by the
defendant, was inadmissible for several reasons. It concluded that
it was an offer of compromise, and therefore inadmissible pursuant
to Rule 408, M.R.Evid.; that it was evidence of a collateral
source; and that when altered to exclude evidence of a collateral
source, it was incomplete, and therefore, that its prejudicial
impact outweighed any probative value.
The defendant contends that the reasons given by the District
Court for excluding its proposed exhibit lack merit and that the
letter was relevant pursuant to Rule 401, M.R.Evid., because it had
a tendency to make more probable the hospital's claim that Delbert
died as a result of his preexisting mental infirmity.
We conclude, however, that because the author of the proposed
letter had no qualification for expressing a medical opinion
regarding the cause of Delbert's behavior on December 1, the letter
had little probative value and that the District Court did not
abuse its discretion when it refused to admit the letter pursuant
to Rule 403, M.R.Evid. Rule 403 provides that:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
 In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held

that an attorney is not qualified to express an expert medical
opinion regarding a party's condition or prognosis for recovery.
We held in that case that when the opinion was offered in the form
of an affidavit it should have been rejected by the district court
which should have, instead, relied on expert testimony. Maulding,

257 Mont. at 27, 847 P.2d at 298.
Had plaintiff's attorney been called as a witness at trial to
express an opinion regarding the medical explanation for Delbert's
departure from the hospital through his third floor window, the
District Court would necessarily have had to exclude the testimony
because he was unqualified to express such an opinion in a court of
law. For that reason, his unqualified opinion expressed in
correspondence to the Veterans' Administration over two years prior
to the receipt of contrary information from a qualified expert had
no probative value to any relevant issue in this case. On the
other hand, simply because the proposed exhibit was authored by the
plaintiff's attorney, it presented substantial potential for
confusing or misleading the jury. The defendant had an opportunity
to present qualified evidence that Delbert ' s injuries and death
were contributed to or caused by his preexisting mental condition.
In fact, the District Court gave the defendant great latitude
toward that end. However, the defendant presented no qualified
evidence from any medical expert or any observation by any lay
witness that Delbert's preexisting mental condition contributed in
any way to his behavior on the morning of December 1, 1991, or that
the preexisting mental condition affected his behavior at any other
time from the date on which he was discharged from military service
until the date of his death
For these reasons, we conclude that the District Court did not
abuse its discretion when it excluded the defendant's proposed
exhibit which included statements from the plaintiff's attorney
regarding Delberttsmental condition on the evening of his death.
ISSUE 3
Did the District Court err when it refused to give the
defendant's proposed instructions which defined proximate cause and
stated the requirement that the decedent's injuries be foreseeable
before causation could be established?
The hospital proposed, by its Instruction No. 20, that the
District Court instruct the jury regarding the following definition
of proximate cause:
The proximate cause of an injury is that cause
which, as a natural and continuous sequence, unbroken by
any new and independent cause, produces the injury, and
without which it would not have occurred.
The hospital's proposed instructions numbered 21 and 22
suggested the following requirements regarding foreseeability as it
relates to proximate cause:
DEFENDANT'S PROPOSED INSTRUCTION NO. 21
If you find that the Defendant Columbus Hospital was
negligent, in order for its negligence to be the
proximate cause of Delbert Busta's injuries and death, it
must appear from the facts and circumstances surrounding
the accident that the Columbus Hospital, as an ordinarily
 prudent entity, could have reasonably foreseen that
Delbert Busta's injury would be the natural and probable
consequence of the hospital's actions.
DEFENDANT'S PROPOSED INSTRUCTION NO. 22
If you find the consequences of the hospital's
actions were not reasonably foreseeable or were generally
freakish, bizarre, or unpredictable, the actions of the
hospital were not the proximate cause of decedent Busta's
injuries and death.
The plaintiff proposed that the jury be instructed on the
issue of causation in a format similar to the format suggested by
our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (199 , 242
0)

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed
instruction referred to cause-in-fact as a "substantial factor."
The defendant objected on that basis and plaintiff's proposed
instruction on causation was withdrawn
The District Court rejected the hospital's proposed
instructions numbered 20, 21, and 22 on the basis that they did not
satisfy the format required by Kitchen Krafters, and therefore, no

instruction which defined proximate cause was submitted to the
jury.
After the District Court indicated which instructions it would
give and which instructions were refused, it asked whether the
defendant had any objections. No objection was stated at that time
to the court ' s failure to provide any instruction to the jury which
defined proximate cause.
The jury was instructed that both parties had the burden of
proving that the other was negligent and that the other party's
negligence was a proximate cause of Delbert's injuries. It was
explained to the jury that a person is negligent if he or she fails
to act as an ordinarily careful person would act under the
circumstances. The jury was also instructed by the court that when
it considered whether a hospital's premises were safe, it should
consider the type of person who could reasonably be expected to be
a patient there.
Pursuant to these instructions, the jury, by its verdict,
found that both the hospital and Delbert were negligent and that
each party's negligence contributed as a proximate cause to
Delbert's injuries and death. It apportioned seventy percent of
the total fault for his injuries to the hospital and thirty percent
to Delbert.
Following entry of judgment for the plaintiff, the hospital
moved for a new trial for several reasons, including the District
Court's failure to define proximate cause in its instructions to
the jury. That basis for the hospital's motion was rejected by the
District Court. In explanation of its order, the District Court
stated that the defendant had failed to offer a proximate cause
instruction which adequately addressed the facts in this case and
failed to object to the court's failure to define proximate cause
until after the jury returned its verdict. The court added that to
the extent it erred by not defining proximate cause for the jury,
that error was harmless because the fact that this type of accident
could happen from the failure to secure hospital windows was
indisputably foreseeable and there was no evidence of intervening
acts by third parties which would interrupt the chain of causation.
Finally, the District Court noted that part of the confusion which
resulted in its failure to define proximate cause was attributable

to the difficulty that district courts have dealing with that issue
since this Court ' s decision in Kitchen Krafters and respectfully

requested that this Court better settle the requirements for
instruction of juries on the subject of causation in future cases.
On appeal, the hospital contends that because the District
Court referred to "proximate causeM in other instructions, it was
necessary that the term be explained to the jury. The hospital
further contends that because this Court included foreseeability as
an element of proximate cause in Kitchen Krafters and because the

foreseeability of Delbert's conduct on December 1, 1991, was a
specific issue, it was important that the jury be specifically
instructed regarding foreseeability.
In response, the plaintiff contends that the defendant waived
its objection to the District Court's failure to instruct on the
issue of proximate cause by its failure to bring the court's
omission to its attention before the jury's verdict was returned.
The plaintiff further contends that even if the District Court
erred, the error was harmless because causation was established by
the undisputed evidence, and therefore, as a matter of law.
A district court has discretion when it decides how to
instruct a jury and we will not reverse a district court ' s decision
absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont. 1995),

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review
instructions to a jury to determine whether they were properly
given or refused, we consider the instructions in their entirety,
as well as in connection with the other instructions given and the
,
evidence at trial. Story v. City ofBozemaw (1993) 259 Mont. 207, 222,

When we review a district court's refusal to give an offered
instruction, the following rules apply:
~t is not reversible error for a trial court to
refuse an offered instruction unless such refusal affects
the substantial rights of the party proposing the
instruction, thereby prejudicing him.
A party is not prejudiced by a refusal of his
proposed instructions where the subject matter of the
instruction is not applicable to the pleadings and facts,
or not supported by the evidence introduced at trial, or
the subject matter is adequately covered by other
instructions submitted to the jury.
Kingv. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting

Cottrellv. Bur1ingtonNorthernR.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d

3 81, 38 7 ; see also Ganz v. United States Cycling Fed'n (Mont. 1995) , 903 P .2d

212, 216, 52 St. Rep. 1030, 1033)
The law of foreseeability, as it relates to liability law in
Montana, has had a tortuous history. Based on the concerns
expressed by the District Court in this case and similar sentiments
reflected by amicuscuriae who have submitted briefs on this issue, we

conclude that in the interest of clarifying issues involved in
litigation where negligence is alleged, it is appropriate that we
address the role of foreseeability and the appropriate manner for
instructing juries on the issue of causation.
Any discussion of foreseeability as it relates to liability
law begins with the oft-cited decision of the Court of Appeals of
New York in Palsgrafv. Long Island Railroad Co. (N.Y. 1928), 162 N.E . 99. In

that case, the plaintiff was standing on a platform of the
defendant's railroad when a guard attempted to assist another
passenger aboard the departing train. In doing so, he dislodged a
package from the passenger's hand which contained fireworks. The
contents exploded when the package hit the ground. The shock from
the explosion knocked down scales many feet away. The falling
scales struck the plaintiff, and she was injured. On appeal from
a judgment in favor of the plaintiff, Chief Justice Cardozo,
writing for a four-person majority, reversed that judgment on the
basis that absent a foreseeable injury to the plaintiff there was
no duty and that absent a duty there was no negligence. In
language that formed the basis for a number of subsequent decisions
in Montana, Cardozo wrote that:
The risk reasonably to be perceived defines the duty to
be obeyed, and risk imports relation; it is risk to
another or to others within the range of apprehension.
. . . This does not mean, of course, that one who
launches a destructive force is always relieved of
liability, if the force, though known to be destructive,
pursues an unexpected path. "It was not necessary that
the defendant should have had notice of the particular
method in which an accident would occur, if the
possibility of an accident was clear to the ordinarily
prudent eye."
Palsgraf, 1 6 2 N.E. at 100.
 Writing in dissent, Justice Andrews disagreed that duty
requires a foreseeable plaintiff, but instead contended that all
persons have a duty of care to the world at large. He took the
position that if foreseeability has a place as a limitation on an
individual's liability for damages, it is in the context of
proximate cause. He stated that:
What we do mean by the word "proximate" is that, because
of convenience, of public policy, of a rough sense of
justice, the law arbitrarily declines to trace a series
of events beyond a certain point. This is not logic. It
is practical politics.
Palsgraf, 162 N . E . at 103 (Andrews, J., dissenting)

Andrews went on to state that in analyzing proximate cause,
[tlhe court must ask itself whether there was a natural
and continuous sequence between cause and effect. Was
the one a substantial factor in producing the other? Was
there a direct connection between them, without too many
intervening causes? Is the effect of cause on result not
too attenuated? Is the cause likely, in the usual
judgment of mankind, to produce the result? Or, by the
exercise of prudent foresight, could the result be
foreseen?
Palsgraf, 1 6 2 N . E . at 104 (Andrews, J., dissenting) .

Therefore, from an early point in American jurisprudence there
was disagreement among knowledgeable scholars regarding the role of
foreseeability in the formulation of negligence law. The
conviction, as expressed by Cardozo, was that without
foreseeability there was no duty, and without duty there could be
no liability. The view as expressed by Andrews was that
foreseeability was an element of proximate cause and reflected the
practical political judgment of whether effect of cause on result
was too attenuated. Neither, however, suggested that
foreseeability should be considered on a redundant basis as part of
both duty and proximate cause.
We have, as a Court, considered foreseeability in our
discussions of proximate cause. However, originally those
discussions were limited to situations where it was alleged that
acts of independent third parties intervened following the
defendant's act to sever the causal relationship between one
person's conduct and another person's damage. L n i n v. Long (1961)
ecoi ,

139 Mont. 135, 139, 361 P.2d 455, 457.

Other than in the context of intervening acts by third
parties, our early decisions clearly chose to follow the majority
view from P l g a .
asrf In Mangv.Eliasson (1969), 153 Mont. 431, 437, 458

P.2d 777, 781, we cited Palsgrafwith approval and held that:

As a classic opinion states: "The risk reasonably to
be perceived defines the duty to be obeyed." P l g a v Long
asrf.
IslandR.Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R.
1253. That is to say, defendant owes a duty with respect
to those risks or hazards whose likelihood made the
conduct unreasonably dangerous, and hence negligent in
the first instance.
In Mang, the plaintiff brought an action to recover damages

for a reduced yield of alfalfa seed caused by weeds which the
defendant allowed to be blown from his property to the plaintiff's
property. Following a verdict for the plaintiff, the defendant
argued on appeal that it had breached no legal duty to the
plaintiff. This Court agreed and explained that to prove
actionable negligence a party must prove "existence of a duty, the
breach thereof and a resulting injury." Mang, 153 Mont. at 435,

458 P.2d at 780. We explained the role of foreseeability, as it
relates to duty, as follows:
Foreseeability is of prime importance in
establishing the element of duty, and the question of
defendants' negligence, if any, must of necessity hinge
on the finding of a breach of that duty. If a reasonably
prudent defendant can foresee neither any danger of
direct injury nor any risk from an intervening cause he
is simply not negligent.
If the chief element in determining whether
defendant owes a duty or obligation to plaintiff is the
foreseeability of the risk then that factor will be of
prime concern in every case. Further, because it is
inherently intertwined with foreseeability, such duty or
obligation must necessarily be adjudicated only upon a
case-to-case basis. Therefore, we do not now
predetermine defendants' obligations in every situation
by a fixed category; no immutable rule can be established
to determine the extent of that obligation for every
circumstance of the future. We do, however, define
guidelines which will aid in the resolution of such an
issue as is presented in the instant case.

. . The obligation of defendants turns on whether:
" . . . the offending conduct foreseeably
involved unreasonably great risk of harm to
the interests of someone other than the actor.
. . . Duty, in other words, is measured by the
scope of the risk which negligent conduct
foreseeably entails."
. . . And absent foreseeability, there is no duty owed by
defendants to plaintiff. . . .
In view of our holding that plaintiff failed to show
a breach of duty owed by defendants, thus failing to
establish that defendants were negligent in the first
instance, he has failed to establish any claim upon which
relief may be granted and accordingly, it is unnecessary
to dwell on the law of causation. . . .
 We may assume without deciding that negligence, not
at large or in the abstract but in relation to the
plaintiff, would entail Liability for any and all
consequence however novel or extraordinary. Palsgraf v.
Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101.
However, the consequences to be followed must first be
rooted in a wrong.

Mang, 153 Mont. at 437-39, 458 P.2d at 781-82.

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we

declined to apply the foreseeability requirement set forth in Mang

in a manner which would require that the specific accident which
resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d at 563.

However, we did, from the time that Mang was decided until our

decision in Kitchen Krafters, consistently relate the notion of

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple

(1972), 161 Mont. 56, 504 P.2d 686; Willliamsv. M o n t a n a M B a n k (1975),

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592

P.2d 493; Pretty0nTopv.CityofHardin (1979), 182 Mont. 311, 597 P.2d 58;

Ambroginiv. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State

(1982), 199 Mont. 451, 649 P.2d 752.

In fact, our earlier decisions discuss causation in terms of

cause-in-fact or the "but for" test, and discuss proximate cause

only as it relates to continued liability following an intervening

act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont.

at 30, 534 P.2d at 1250.
In Youngv. FlatheadCounty (l988), 232 Mont. 274, 757 P.2d 772, we

held for the first time that proof of proximate cause requires more
than proof of cause-in-fact or satisfaction of the "but forn test.
However, once again, that discussion occurred in the context of
this Court's conclusion that the chain of causation had been broken
by independent intervening causes. We specifically reversed the
district court because " [nlumerous interruptions in the chain of
events occurred that could be considered the injury causing
damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although

intervening cause was not analyzed in the typical fashion, Young was

clearly an intervening cause case.
The first time that the word "foreseeable" ever appeared in
the context of "proximate cause" in one of our opinions, other than
as related to intervening causes, was in Kitchen KraJiers, Inc. v. Eastside Bank

ofMontana (l99O), 242 Mont. 155, 789 P.2d 567. In that case, we

affirmed the two-tiered analysis of causation set forth in Young.

We explained that the cause-in-fact requirement is normally
established by the "but for" test by proving that a party's injury
would not have occurred "but for" the other party's conduct. We
also reaffirmed prior decisions in which we held that if two or
more causes concur to bring about an event, then cause-in-fact is
established by the "substantial factor" test which we had
previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that

when either the "but foru test or the "substantial factoru test was
satisfied, a party has established that the other party's conduct
was the cause-in-fact of an injury. We then went on to add,
however, that once cause-in-fact is proven, "proximate causation"
must also be established. We held for the first time that:
Proximate cause is normally analyzed in terms of
foreseeability. Simply stated, one is only liable for
consequences which are considered to be reasonably
foreseeable. Prosser & Keeton at § 43. If the
consequences of one's wrongful act are not reasonably
foreseeable, then it follows that it was not proximately
caused by that act. Using this analysis, one must look
forward through the chain of causation in order to
determine whether the events which occurred were
foreseeable. If they were, the element of proximate
cause is satisfied and liability will attach. Prosser &
Keeton at § 43.
Kitchen Krafters, 242 Mont. at 168, 789 P.2d at 575

Having added a requirement that foreseeability be established
as part of causation in addition to the previous requirement that
it be considered in determination of duty, we then went on to hold
that juries must be specifically so instructed. We held that:
In order to be properly instructed on proximate cause,
the jury must be directed to look forward through the
chain of causation, and to determine whether events which
occurred subsequent to Eastside's wrongful act were
foreseeable. 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 injury would be the natural
and probable consequence of the wrongful act.
Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575 (alteration in

original)
 We repeated the requirement from the Kitchen Kraffers opinion that

foreseeability be considered as part of proximate cause in Thayerv.

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UnitedStates Fidelityand

G u a r a n t y C o . ~Camp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv.
.

State (19931, 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone

County (1994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of
these cases, other than Logan, involved issues regarding the

foreseeability of intervening causes. In such situations we have
traditionally held that foreseeability is an issue related to
causation. SeeHalseyv. Uithof (19751, 166 Mont. 319, 328, 532 P.2d 686,

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d

629, it is interesting that we noted:

Foreseeability can be determined in one of two ways.
Some courts analyze the issue under the element of duty.
These courts take the view that the scope of defendant's
duty is determined by a foreseeability of any harm which
may arise as a result of his negligent conduct. See e.g.
Palsgrafv. LongIslandRailroadCo. (1928), 248 N . Y . 339, 162 N.E.
99, 100. Other courts have analyzed foreseeability under
the issue of proximate cause. In doing so, they have
taken the view that all persons owe a duty to the world
at large to act reasonably in order to prevent injury to
their fellow man. Palsgraf, 162 N.E. at 104 (Andrews
dissenting). If this duty is breached, it then becomes
necessary to determine whether the consequences of the
breach were reasonably foreseeable to the defendant. If
the consequences were reasonably foreseeable, proximate
cause is established and liability will follow.
Sizemore, 246 Mont. at 46, 803 P.2d at 635.

Since Sizemore involved allegations of a superseding intervening

event, we analyzed foreseeability as part of proximate cause in

that case. We made no mention of the fact that since Kitchen Krafters,

Montana has two concurrent lines of authority--one which analyzes
foreseeability as part of duty, and a second which considers it as
part of proximate cause.
Therefore, as the law in Montana currently stands, the issue
of foreseeability is considered twice in our analysis of liability
for a negligent act. It is first considered as part of the
analysis of duty and negligence pursuant to our decision in Mang,

153 Mont. 431, 458 P.2d 777. It is then considered as part of a
two-pronged approach to causation pursuant to our decision in Kitchen

Krafters, 242 Mont. 155, 789 P.2d 567.

Although we acknowledge that there are other jurisdictions
which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M.

1990), 792 P.2d 36; McCain v. Florida Power Carp. (Fla. l992), 593 So. 2d

500 ; Nelson b Tatum v: Commonwealth Edison Co.
y ( I11 . App . 2d 1984) , 465

~ . E . 2 d 513), knowledgeable writers and the better-reasoned
decisions of other jurisdictions criticize such a redundant
consideration of foreseeability. For example, in Modern Tort Law
the authors state that:
Much confusion has resulted from the erroneous
application of the requirement of foreseeability to
causation. In referring to proximate cause, many
decisions have confused the element of fault and have
 employed foreseeability, properly an element of fault but
not of causation.
1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153
(rev. ed. 1990)
At § 5.02 the same authors point out that:
There is, unfortunately, substantial and respectable
authoritythat foreseeability is an element of causation.
. . .
This application of foreseeability has long been the
subject of criticism by courts and legal scholars.
Foreseeability does not touch on the causal element.
Foreseeability relates only to the element of fault.

. . . As an early Minnesota case pointed out, "What
a man may reasonably anticipate is important, and may be
decisive, in determining whether an act is negligent, but
is not at all decisive in determining whether that act is
the proximate cause of an injury which ensues."
[ h i t a s nv. Chicago S.P., & 0. Ry. Co. (Minn. 1896) , 69 N .W .
Crsino t M.
640.1 And the Wisconsin court has stated:
This court is definitely committed to the
principle that, while foreseeability is an
element to be considered by the jury in
determining negligence, it has no part in the
jury's decision of whether particular
negligence found by it is causal. [Shahlendorfv.
Walgreen Co. (Wis. 1962), 114 N.W.2d 823 .I

Dean Prosser stated:
It is simpler, and no doubt more accurate, to
state the problems in terms of "duty:" is the
defendant under a legal obligation to protect
the plaintiff against such unforeseeable
consequences of his own negligent acts?
[William L. Prosser, Law of Torts 289 (3d ed.
1964) .I
And Harper and James said: "Foreseeability of damage
is altogether irrelevant in determining the existence of
the cause in fact relationship." [2 Harper & James,
of Torts 1135 (1956).I
 Professor Leon Green, a persistent critic of the
foreseeability test, as it is used in connection with
proximate cause, remarked, "Clearly the issue of causal
relation between the defendant's conduct and the
plaintiff's injury is not determined by foreseeability."
[Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich.
L . Rev. 543, 549 (1962).] The element of cause becomes
operative only if a duty is breached and damages result,
whereupon the defendant becomes liable for the damages
directly caused by his breach of duty. . . . "Causal
relation is a neutral issue, blind to right and wrong.''
[Green, 60 Mich. L. Rev. at 549.1

Unfortunately, however, the application of the
foreseeability test to causation has had a firm hold in
legal literature, and some recent cases continue to
compound the error. Thus, the problem of causation,
difficult as it is, has been made more complex by
employing foreseeability as a test of legal cause, when
foreseeability should be restricted to the issue of
negligence.
1 Modern Tort Law § 5.02 at 159-62
In the Law of Torts, the authors state that:
It is obvious that under such an analysis of the duty
problem, foreseeability is distinctly a factor that puts
a considerable limitation on the extent of liability,
even though it should be held to play no part whatever in
determining the issue of proximate cause. It is also
clear that if this analysis of the duty problem is
accepted, no good, but only confusion, can result from
repeating the same inquiries as to foreseeability under
the cause issue as were asked and answered (or should
have been) under the duty issue.
4 Fowler V . Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed.
1986) (footnotes omitted)
Finally, in Prosser and Keeton on Torts the authors state:
Once it is established that the defendant's conduct
has in fact been one of the causes of the plaintiff's
injury, there remains the question whether the defendant
should be legally responsible for the injury. Unlike the
fact of causation, with which it is often hopelessly
 confused, this is primarily a problem of law. It is
sometimes said to depend on whether the conduct has been
so significant and important a cause that the defendant
should be legally responsible. But both significance and
importance turn upon conclusions in terms of legal
policy, so that they depend essentially on whether the
policy of the law will extend the responsibility for the
conduct to the consequences which have in fact occurred.
Quite often this has been stated, and properly so, as an
issue of whether the defendant is under any duty to the
plaintiff, or whether the duty includes protection
against such consequences. This is not a question of
causation, or even a question of fact, but quite far
removed from both; and the attempt to deal with it in
such terms has led and can lead only to utter confusion.
The term "proximate cause" is applied by the courts
to those more or less undefined considerations which
limit liability even where the fact of causation is
clearly established. The word "proximate" is a legacy of
Lord Chancellor Bacon, who in his time committed other
sins. The word means nothing more than near or
immediate; and when it was first taken up by the courts
it had connotations of proximity in time and space which
have long since disappeared. It is an unfortunate word,
which places an entirely wrong emphasis upon the factor
of physical or mechanical closeness. . . .

It is quite possible to state every question which
arises in connection with "proximate cause" in the form
of a single question: was the defendant under a duty to
protect the plaintiff against the event which did in fact
occur? . . .

. . . "Proximate cause," in short, has been an
extraordinarily changeable concept. "Having no
integrated meaning of its own, its chameleon quality
permits it to be substituted for any one of the elements
of a negligence case when decision on that element
becomes difficult. . . . No other formula . . . so nearly
does the work of Aladdin's lamp." [Leon Green, Proximate
CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950). I

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76
(5th ed. 1984)
 Many courts have eliminated this redundant analysis and
simplified the jury's responsibility by limiting the analysis of
foreseeability to a determination of whether there is negligence in
the first place, and then dealing with cause as simply
cause-in-fact. Two of the jurisdictions in our own area which have
done so are the states of Washington and Oregon. In Rikstadv. Holmberg

(Wash. 1969), 456 P.2d 355, the Washington Supreme Court stated
that:
The better considered authorities do not regard
foreseeability as the handmaiden of proximate cause. To
connect them leads to too many false premises and
confusing conclusions. Foreseeability is, rather, one of
the elements of negligence; it is more appropriately
attached to the issues of whether defendant owed
plaintiff a duty, and, if so, whether the duty imposed by
the risk embraces that conduct which resulted in injury
to plaintiff. The hazard that brought about or assisted
in bringing about the result must be among the hazards to
be perceived reasonably, and with respect to which
defendant's conduct was negligent. See Restatement
(Second) of Torts 5 435, comment c (1965). . . .
It is the misuse of foreseeability--that is,
discussion of the improbable nature of the accident in
relation to proximate cause--that led the trial judge, in
the instant case, to conclude that the challenge should
be sustained.

The comment in the Restatement (Second) of Torts referred to
in the Washington Court's opinion is part of the Restatement's
analysis of foreseeability under its section on causation. The
authors there state:
Strictly, the problem before the court is one of
determining whether the duty imposed on the actor was
designed to protect the one harmed from the risk of harm
 from the hazard in question. (See § 281, comment e , and
§ 449.) However, courts frequently treat such problems
as problems of causation. (See § 281, comment e , and
§ 430, comment a . )

Restatement (Second) of Torts § 435 cmt. c (1965).
Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966),

409 P.2d 897, and Brennenv. CityofEugene (Or. 1979), 591 P.2d 719.

We agree with the Washington Court and with the cited authors
that the better-reasoned authorities address foreseeability as part
of the analysis of "duty,"rather than "proximate cause," and that
to analyze it under both issues leads only to confusion which can
be easily avoided.
However, the arguments quoted from the previous authors and
the reasoning of the Washington Court are even more compelling
based on Montana's statutory framework for determining liability.
Section 1-1-204(1), MCA, defines negligence as "a want of attention
to the nature or probable consequences of the act or omission that
a prudent man would ordinarily give in acting in his own concerns."
(Emphasis added.) This definition suggests that foreseeability is
an element of negligence, and therefore, properly considered with
the existence of a duty.
On the other hand, 5 27-1-317, MCA, which discusses the
damages for which a negligent actor is responsible, defines those
damages as "the amount which will compensate for all the detriment
proximately caused thereby, whether it could have been anticipated
or not. " (Emphasis added. ) By equating damages "proximately caused
thereby" with actual damages, whether they "could have been
anticipated or not," our statutory scheme specifically precludes
the applicability of a foreseeability requirement to the issue of
proximate cause.
We therefore reverse that part of our decision in Kitchen Krafters,

Inc.v.EastsideBankofMontana (1990), 242 Mont. 155, 789 P.2d 567, which

requires a two-tiered analysis of causation which includes
consideration of foreseeability in cases other than those cases
where there has been an allegation that the chain of causation is
severed by an independent intervening cause. There are several
reasons which compel this result. First, that part of the opinion
which suggests language for a proximate cause instruction
erroneously requires proof of an intentional act, rather than a
negligent act, when it suggests the following language:
[Ilt must appear from the facts and circumstances
surrounding the accident . . . that defendant as an
ordinarily prudent person, could have foreseen that
plaintiff's injury would be the natural and probable
consequence of the wrongful act.
Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575

Second, the requirement that foreseeability be considered as
part of proximate cause is redundant with the existing requirement
that foreseeability be considered as part of the analysis of duty.
Third, our statutory scheme of laws relating to liability
requires that foreseeability be considered as part of the
negligence analysis and that it not be considered as part of
proximate cause.
 Fourth, legal concepts such as "proximate cause" and
"foreseeability" are best left to arguments between attorneys for
consideration by judges or justices; they are not terms which are
properly submitted to a lay jury, and when submitted can only serve
to confuse jurors and distract them from deciding cases based on
their merits.
In those cases which do not involve issues of intervening
cause, proof of causation is satisfied by proof that a party's
conduct was a cause-in-fact of the damage alleged. As stated in
Prosser and Keeton on Torts § 41, at 266 (5th ed. 1984), a party's
conduct is a cause-in-fact of an event if "the event would not have
occurred but for that conduct; conversely, the defendant's conduct
is not a cause of the event, if the event would have occurred
without it."
We hold that with the exception of those cases involving
allegations of independent intervening cause or multiple causes, it
is sufficient to instruct the jury, as recommended in 1989 by the
Montana Supreme Court Commission on Civil Jury Instructions, that:
"The defendant's conduct is a cause of (injury/death/damage) if it
helped produce it and if the (injury/death/damage) would not have
occurred without it." Montana Pattern Instruction 2.08 (rev.
11/1/89).
In those cases where chain of causation is an issue (e.g.,
where there is an allegation of an independent intervening cause),
we recommend, as didthe Commissionin1989, the following instruction:
 The defendant's conduct is a cause of the (injury/
death/damage) if, in a natural and continuous sequence,
it helped produce it and if the (injury/death/damage)
would not have occurred without it.
Montana Pattern Instruction 2.08 (rev. 11/1/89).
In those cases where there are allegations that the acts of
more than one person combined to produce a result (e.g.,when the
plaintiff alleges negligence and the defendant alleges contributory
negligence, or when there are multiple defendants), we acknowledge
that the recommended cause-in-fact instruction would be confusing
and misleading. Therefore, in those cases, we recommend continued
use of the substantial factor instruction approved in Rudeck v. Wright

(l985), 218 Mont. 41, 709 P.2d 621, and Kyrissv.State (1985), 218 Mont.

162, 707 P.2d 5. We further recommend that terms such as
"proximate cause" or "legal causeu and "reasonable foreseeability,"
which have some significance to lawyers and judges, not be allowed
to confuse jurors by the inclusion of those terms in jury
instructions. To the extent that foreseeability raises a jury
issue, it is adequately addressed by the definition of negligence
included in Montana Pattern Instruction 2.00.' To the extent that
foreseeability raises issues of public policy, such as those about
which Justice Andrews expressed concern in his dissent in Palsgraf,

the subject is properly dealt with as an issue of law.

'Montana Pattern Instruction 2.00 (rev. 2/7/91) defines
negligence as "the failure to use reasonable care. Negligence may
consist of action or inaction. A person is negligent if he fails
to act as an ordinarily prudent person would act under the
circumstances."
 We agree with the conclusion of the California Supreme Court,
as stated in Mitchellv. Gonzales (Cal. 1991), 819 P.2d 872, that:

It is reasonably likely that when jurors hear the
term "proximate cause1' they may misunderstand its meaning
or improperly limit their discussion of what constitutes
a cause in fact. Prosser and Keeton's concern that the
word "proximate" improperly imputes a spatial or temporal
connotation is well founded. Webster's Third New
International Dictionary (1981) page 1828, defines
proximate as "very near," "next," "immediately preceding
or following." Yet, "[plroximity in point of time or
space is no part of the definition [of proximate cause]
. . . except as it may afford evidence for or against
proximity of causation. [Citation. I (Osborn v. Ct of
I' iy
Whittier (1951) 103 Cal.App.2d 609, 616, 230 P.2d 132.)

Given the foregoing criticism, it is not surprising
that a jury instruction incorporating the term "proximate
cause" would come under attack from courts, litigants,
and commentators. . . .
The misunderstanding engendered by the term
"proximate cause' has been documented. In a scholarly
study of 14 jury instructions, BAJI No. 3.75 produced
proportionally the most misunderstanding among lay
persons. ( Charrow, Making Legal Language Understandable: A
Psycholinguistic Study ofJury Instructions ( 1979) 79 Colum .L .Rev. 1306,
1353 (hereafter Psycholinguistic Study) . ) . . in one
experiment, "the term 'proximate cause' was misunderstood
by 23% of the subjects. . . . They interpreted it as
'approximate cause,' 'estimated cause,' or some
fabrication."
Mitchell, 819 P.2d at 877-78 (alterations in original; footnotes

omitted).
The point we wish to make is that the only purpose which is
properly served by instructions to the jury is to assure a decision
consistent with the evidence and the law. This can only be
accomplished when the instructions are as plain, clear, concise,
and as brief as possible. Instructions should never be proposed or
given for the purpose of creating one more obstacle to a resolution
of a case on its merits.
Based on the aforementioned analysis, and our reversal of the
requirement in Kitchen Krafters that causation instructions include a

discussion of foreseeability, we conclude that the District Court's
failure to define proximate cause was at most harmless error and
affirm the District Court's denial of the hospital's motion for a
new trial based on instructional error.
Although the hospital makes occasional reference in its
appellate brief and argument to independent intervening causes,
there was no proof offered at the time of trial that any person
contributed as a cause of Delbert's injury and death other than
Delbert and the defendant hospital. Therefore, a proper
instruction to the jury in this case on the subject of causation
would have related solely to cause-in-fact as articulated by the
substantial factor instruction. However, as we held in Davis v. Church

ofJesusChristofLatterDaySaints (1990), 244 Mont. 61, 71, 796 P.2d 181,

186, we will not reverse a district court for failure to provide a
necessary instruction to the jury unless the court's omission
affected the substantial rights of the complaining party. In this
case, there was no prejudice to the hospital by the District
Court's failure to instruct the jury on cause-in-fact. First,
cause-in-fact is a simple concept that most lay people are capable
of understanding. Second, there was no disagreement with
plaintiff's contention that the design of the hospital's windows
contributed to Delbert's fall and injuries. The issue was simply
whether the hospital was negligent by allowing its windows to
remain in a condition which would permit a patient to either escape
or fall through them. That issue was decided in Ida Busta's favor
based on proper instructions to the jury and was supported by
substantial and virtually uncontroverted evidence
For these reasons, we conclude that the District Court did not
err when it refused to give the defendant's proposed instructions
which defined proximate cause and which stated the requirement that
decedent's injuries be foreseeable before causation could be
established; and that the District Court's failure to instruct the
jury regarding the meaning of cause-in-fact was harmless error
ISSUE 4
Did the District Court err when it refused to offset benefits
received by Ida Busta from the Veterans' Administration against the
damages awarded for the decedent's wrongful death?
Following trial, the hospital moved the court pursuant to
5 27-1-308, MCA, to deduct from the plaintiff's judgment that
amount Ida Busta received from the Veterans' Administration due to
her husband's death. Section 27-1-308, MCA, provides in relevant
part that :
(1) In an action arising from bodily injury or death when
the total award against all defendants is in excess of
$50,000 and the plaintiff will be fully compensated for
his damages, exclusive of court costs and attorney fees,
a plaintiff's recovery must be reduced by any amount paid
or payable from a collateral source that does not have a
subrogation right.
 Section 27-1-307(1), MCA, defines "collateral source" as :
[A] payment for something that is later included in a
tort award and which is made to or for the benefit of a
plaintiff or is otherwise available to the plaintiff:
(a) for medical expenses and disability payments
under the federal Social Security Act, any federal,
state, or local income disability act, or any other
public program;
. . . .
(e) any other source, except the assets of the
plaintiff or of his immediate family if he is obligated
to repay a member of his immediate family.
The District Court denied the hospital's motion for offset for
the following reasons:
1. The court found that the heirs will not be fully
compensated for their damages, due to the reduction of their award
based on contributory fault;
2. The court found that the Veterans' Administration
benefits received by Ida Busta were not medical expenses or
disability payments, and therefore, not "collateral source" as
defined in § 27-1-307, MCA; and
3. The court found that the general nature of the
defendant's verdict form makes it impossible to determine what, if
any, amounts were awarded by the jury for a loss against which the
collateral source should be offset.
On appeal, the hospital contends that the death benefits that
Ida Busta received were included in the definition of "collateral
source" at subsection (1)(e) of § 27-1-307, MCA, by its reference
to "any other source.''
 However, it is not necessary that we resolve whether death
benefits from the Veterans' Administration are included within the
statutory definition of "collateral source," or whether the
plaintiff has been fully compensated where her judgment has been
reduced by comparative negligence. Section 27-1-308, MCA, clearly
provides for reduction of only that part of a recovery which has
previously been compensated by a collateral source. In this case,
Ida Busta was awarded death benefits by the Veterans'
Administration for the economic loss which resulted from her
husband's death. The jury, on the other hand, was instructed that
its wrongful death damage award should include damages for not only
financial support which the heirs lost, but also for "the value of
the society, comfort, guidance, education, care, protection and
companionship which Ida Busta, William Busta and Charles Busta have
lost by reason of the death," and that its award should "include
reasonable compensation to them [the heirs] for their grief, sorrow
and mental anguish resulting from the death."
The jury returned a special verdict which awarded damages to
the heirs in the amount of $800,000. There is no indication from
the verdict form what, if any, amount of the verdict was for the
loss of Delbert's financial support. Therefore, there was no
method by which the District Court could calculate what, if any
amount, the hospital was entitled to offset by the amount of
previous Veterans' Administration death benefits awarded to Ida.
Because there was no factual basis upon which the District Court
could properly grant the hospital's motion for offset, the motion
was properly denied. For these reasons, we affirm the District
Court's denial of the hospital's motion for statutory offset
pursuant to § 27-1-308, MCA.

Based on our discussion of and holding regarding each of the
issues raised, we affirm the judgment of the District Court.

We concur:

Chief Justice

Justices
Justice Karla M. Gray, specially concurring

I concur in the Court's opinion on issues one and two and
specially concur on issues three and four.
With regard to issue three, which relates to the District
Court's failure to instruct on proximate cause, I agree with the
result the Court reaches on the issue and with most of its
discussion of our case law and other authorities vis-a-vis
foreseeability as an element of proximate cause. My one
disagreement with the Court in this regard is in its interpretation
of § 27-1-317, MCA. I do not read the statute as precluding the
consideration of foreseeability as part of causation. Conversely,
however, the statute certainly does not require us to consider
foreseeability in analyzing causation. Thus, I am persuaded by the
remainder of the authorities cited by the Court that we erred in
doing so in Kitchen Krafters where no intervening cause issue
required its inclusion.
With regard to issue four, whether the hospital was entitled
to offset the VA benefits Ida Busta received against the wrongful
death damages awarded, I concur in the Court's opinion. I
specially concur only to add that the hospital prepared the Special
Verdict which was submitted to the jury and which rendered it
impossible for the District Court to calculate whether any offset
was authorized (even assuming that the VA benefits met the
statutory definition of collateral source). If the hospital wanted
to assert entitlement to the offset, it was incumbent upon the
hospital to structure a verdict form which would make such a
Justice Charles E. Erdmann concurring in part and dissenting in
part.
I concur in the majority's opinion on Issues 1, 2, and 4, but
write separately to dissent on Issue 3.
I disagree with the majority's holding that the District
Court's failure to instruct on proximate cause was harmless error.
1 am convinced that the failure to define proximate cause for the
jury was reversible error. In fact, the jury received no
instructions at all which defined causation. Furthermore, I
disagree with the majority's analysis of foreseeability as applied
to proximate cause and therefore dissent from the majority's
decision to overrule the requirement in Kitchen Krafters v.
Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567, that
causation instructions include a discussion of foreseeability.
In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181,
we held that it was error for the lower court to not instruct on
proximate cause and stated that the question of proximate cause is
an issue of fact to be decided by the jury. Davis, 796 P.2d at
186. In order to constitute reversible error, the lower court's
actions must affect the substantial rights of the complaining
party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (1989), 235
Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant
was not prejudiced by the court's failure to instruct on proximate
cause and therefore held the error to be harmless. Davis, 796 P.2d
at 187.
 However, under the circumstances of the present case, I would
hold that the District Court erred in not instructing the jury on
proximate cause. A number of instructions given by the District
Court contained the phrase "proximate cause," but the jury was not
given the benefit of any guidance from the court on this crucial
concept. It is the duty of the court to instruct the jurors fully
and correctly on all applicable laws. Billings Leasing Co. v.
Payne (1978), 176 Mont. 217, 224, 577 P.2d 386, 390. As this Court
noted in Billinss Leasins Co.:
" * * * In instructing the jurors, we must
assume that they have no knowledge of the
rules of law and that therefore, they must be
instructed on all points of law which, under
any reasonable theory, might be involved in
their deliberations, to the end that their
decision will be according to the law and the
evidence and untinged by any private and
possibly false opinion of the law that they
entertain."

Jury instructions are crucial to a jury's
understanding of the case and, unfortunately, counsel
cannot always be relied upon to provide those
instructions. . . .
"It is the inescapable duty of the trial
judge to instruct the jurors, fully and
correctly, on the applicable law of the case,
and to guide, direct, and assist them toward
an intelligent understanding of the legal and
factual issues involved in their search for
truth. The court must instruct the jury properly on the
controlling issues in the case even though there has been
no request for an instruction or the
instruction requested is defective."
Billinss Leasinq Co., 577 P.2d at 390-91 (quoting McBride, The Art
of Instructins the Jurv at 17 (1969), and Wright & Miller, Federal
Practice and Procedure, Civil § 2556).
In the present case, the hospital offered an instruction on
proximate cause which was refused by the District Court. The
plaintiff withdrew her instructions defining causation. As a
result, the jury was not instructed on the crucial concept of
proximate cause which is a key element in all negligence actions.
After analyzing foreseeability and proximate cause, the majority
determines this to be harmless error. I differ with the majority's
analysis and position on foreseeability and proximate cause and
conclude that the District Court's failure to define proximate
cause for the jury in this case was reversible error.
The majority claims it is redundant and confusing to jurors to
focus on foreseeability when analyzing both the "duty" element and
"proximate cause" element of the tort of negligence. On the
contrary, I believe that such a dual analysis of foreseeability is
a necessary and reasonable analysis which has, unfortunately, been
complicated in Montana by the confusing wording of the Kitchen
Krafters instruction.
In Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and
its progeny, we determined that the concept of foreseeability was
a part of the "duty" element. See Ford v. Rupple (1972), 161 Mont.
56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167
Mont. 24, 534 P.2d 1247; Schafer v. State (1979), 181 Mont. 102,
592 P.2d 493; Pretty On Top v . City of Hardin (l979), 182 Mont.
311, 597 P.2d 58; Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d

1013; Belue v. State (l982), 199 Mont. 451, 649 P.2d 752. The
majority agrees with the rationale of this line of cases but
concludes that, with the exception of cases involving intervening
superseding events, foreseeability should be restricted to the
analysis.
In Kitchen Krafters we applied the concept of foreseeability
to the element of causation and stated that " [plroximate cause is
normally analyzed in terms of foreseeability. Simply stated, one
is only liable for consequences which are considered to be
reasonably foreseeable." Kitchen Krafters, 789 P.2d at 575 (citing
Prosser and Keeton on Torts § 43 (5th ed. 1984). The line of cases
which followed Kitchen Krafters, and which were not overruled by
the majority, repeated the requirement that foreseeability be
considered as part of proximate cause. See Thayer v. Hicks (1990),
243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457,
802 P.2d 1248; U.S.F.& G v. Camp (1992), 253 Mont. 64, 831 P.2d
586; King v. State (1993), 259 Mont. 393, 856 P.2d 954; Logan v.
Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v.
Mather (1995), 270 Mont. 188, 890 P.2d 1277.
As noted, the majority concludes it is unnecessary to address
foreseeability as part of the causation element, except in cases of
intervening superseding events. I disagree and submit that the
concept of foreseeability has a proper and distinct place in the
analysis of both "duty" and "causation" elements--both of which
must be satisfied in order to establish the prima facie case for
negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36;
McCain v. Florida Power Corp. (Fla. 1992), 593 So. 2d 500; Nelson
by Tatum v. Com. Edison Co. (Ill. App. 2d 1984), 465 N.E.2d 513.
The analysis of foreseeability in the "duty" context focuses
on whether or not the plaintiff was in the zone of danger to be
protected from the defendant's actions. As the New Mexico Supreme
Court has recently stated:
This case raises issues of duty and proximate cause.
Integral in both elements is a question of
foreseeability. In determining duty, it must be
determined that the injured party was a foreseeable
plaintiff--that he was within the zone of danger created
by respondent's actions; in other words, to whom was the
duty owed?
Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of
danger there was no duty and therefore no negligence. The Florida
Supreme Court has recently held that:
[F]oreseeability relates to duty and proximate causation
in different ways and to different ends. The duty
element of negligence focuses on whether the defendant's
conduct foreseeably created a broader "zone of risk" that
poses a general threat of harm to others.
McCain, 593 So. 2d at 502.
Foreseeability in the "causation" context requires an analysis
of whether the circumstances surrounding the actual occurrence of
the plaintiff's injury were a foreseeable result of the defendant's
breach. It is only after a duty and breach of that duty has been
established that the "ca~sation~~
element is analyzed with its
distinct application of the foreseeability concept. As the
Calkins Court stated:
 In determining proximate cause, an element of
foreseeability is also present--the question then is
whether the injury to petitioner was a foreseeable result
of respondent's breach, i.e., what manner of harm is
foreseeable?
Calkins, 792 P.2d at 38. The McCain Court stated:
The proximate causation element, on the other hand, is
concerned with whether and to what extent the defendant's
conduct foreseeably and substantially causedthe specific
injury that actually occurred. In other words, the
former [duty elementl is a minimal threshold legal
requirement for opening the courthouse doors, whereas the
latter [causation element] is part of the much more
specific factual requirement that must be proved to win the
case once the courthouse doors are open. As is obvious,
a defendant might be under a legal duty of care to a
specific plaintiff, but still not be liable for
negligence because proximate causation cannot be proven.
It might seem theoretically more appealing to
confine all questions of foreseeability within either the
element of duty or the element of proximate causation.
However, precedent, public policy, and common sense
dictate that this is not possible. Foreseeability
clearly is crucial in defining the scope of general duty
placed on every person to avoid negligent acts or
omissions. . . ,

On the question of proximate causation, the legal
concept of foreseeability also is crucial, but in a
different way. In this context, foreseeability is
concerned with the specific, narrow factual details of
the case, not with the broader zone of risk the defendant
created.
McCain, 593 So. 2d at 502-03.
Both arenas of the foreseeability analysis are independent and
distinct from one another. Foreseeability applied to the "dutyu
element must be decided as a matter of law by the judge using
established legal policy to determine whether a duty was owed to
the plaintiff. On the other hand, foreseeability applied to the
"causationu element is a question of fact. See Calkins, 792 P.2d
at 38.
Without such a dual approach to the foreseeability analysis,
the determination of whether the "causationu element is satisfied
is reduced to a bare-bones question of cause-in-fact. In removing
foreseeability fromthe causation analysis, the majority's approach
results in a situation where once duty and breach are established,
a "but-for"or "substantial factor" analysis is all that remains in
order to satisfy the causation element--I submit that such an
inquiry will invariably be answered in the affirmative,
particularly when it is obvious or conceded that a duty has been
breached.
I must also address the majority's argument that Montana's
statutory framework for determining liability reinforces its
position. Section 1-1-204, MCA, does include the concept of
foreseeability in the "duty" element when it defines negligence as
"a want of the attention to the nature or probable consequences of
the act or omission that a prudent man would ordinarily give in
acting in his own concerns." However, I fail to follow the
majority's logic when it states that the language of § 27-1-317,

MCA, set forth below, specifically precludes the applicability of
a foreseeability requirement to the issue of proximate cause.
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.
This statute addresses damages and the language simply means that
if the injury was foreseeable it makes no difference whether the
damages were also foreseeable.
Finally, I am not persuaded by the majority's position that
lay jury members are confused by concepts such as foreseeability
and proximate cause and therefore that they are distracted from
their duty to decide cases based on their merits. I submit that
such concepts are not only necessary to establish the prima facie
case for negligence but are also, when accurately defined, the
proper tools to enable the jury to do its job. In my view it is
better to explain these concepts and define how they are to be used
by the jury rather than to leave the juries' understanding of them
to chance and differing definitions.
In conclusion, I would be the first to admit that the language
contained in the Kitchen Krafters instruction has caused problems
for judges and practitioners alike. The adequacy of the
instruction needed to be addressed and revised. However, I am not
convinced that in remedying the instruction it is necessary to
abandon the concept of foreseeability and its dual application to
the analysis of both the "duty" and "causation" elements in
negligence actions.

az@2L Justice

Chief Justice J. A. Turnage joins in the foregoing concurring and
dissenting opinion.

Chief Justice
 NO. 95-050

IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

IDA 0 . BUSTA, as Personal Representative
of the Estate of Delbert F. Busta, on
behalf of the heirs of Delbert F. Busta,
Plaintiff and Respondent,
v.
COLUMBUS HOSPITAL CORPORATION,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
R.
~ a m e s WaJsh and Dennis P. Clarke, Smith,
Walsh, Clarke & Gregoire, Great Falls, Montana
For ~es-pond~nt
:

Dennis Patrick Conner, Attorney at Law,
Great Falls, Montana

Submitted on Briefs: January 17, 1996
Decided: M ~ Y1 0 , 1996
Filed:
 Columbus Hospital offered testimony from Debra Gaspar, a
registered nurse from Billings, who testified that based on her
review of the records, Fitzgerald had complied with the standard of
care applicable to post-surgical nurses at the time and date in
question. However, the hospital offered no expert opinion
regarding the reason that Delbert attempted to leave the hospital
through the third floor window, nor did it offer expert testimony
to the effect that the incident which caused Delbert's injuries and
death was unforeseeable from the perspective of a hospital
administrator or a hospital architect
The jury's verdict and the court's orders were as previously
stated. With this background, we will discuss the issues raised by
the hospital on appeal.
ISSUE 1
Did the District Court err when it admitted a photographic
exhibit offered by the plaintiff which depicted the decedent,

..
Delbert Busta, and included a tribute from his granddaughter?
,r
During the testimony of Charles Busta, Delbert's son, a
photograph of Delbert was offered as an exhibit. Attached to the
photograph was a poetic tribute to Delbert by his granddaughter.
The poem had apparently been submitted as part of a school project
because next to it was a grade and a handwritten note which stated:
"1 can tell your Grandpa was very special to you!" At the time the

photo was offered, the attorney for the hospital objected to its
admission on the basis that "it was written by a person who is not
 (a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or a motion to strike
appears on the record, statina the suecific around of the
objection, if the specific ground was not apparent from
the context.
(Emphasis added.)
As we stated in Scojeldv. EstateofWood (1984), 211 Mont. 59, 63,

683 P.2d 1300, 1302, "[aln objection raised for the first time on
appeal is not timely. Unless a timely objection to evidence or
testimony is raised at the trial level, it cannot be considered on
appeal." (Citations omitted.)
On appeal, the hospital contends that the photograph of
Delbert should have been excluded for the reason that it included
hearsay in violation of Rule 801, M.R.Evid.; for the reason that it
was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason
that it was unduly prejudicial in violation of Rule 403, M.R.Evid.
However, the hoqpital's hearsay objection was not stated at
the time that the exhibit was offered and was specifically waived
when the plaintiff's attorney offered to call the author and the
defendant's attorney stated that it would be unnecessary. Undue
prejudice in violation of Rule 403 was also specifically waived
because it was not stated as a basis of the defendant's objection
at the time the exhibit was offered.
Although irrelevance was not specifically stated as a basis
for the defendant's objection to the plaintiff's photographic
 During his life following his discharge from military service,
Delbert received a small pension due to his diagnosis of simple
schizophrenia. The jury was fully informed of that fact.
Subsequent to Delbert's death, his surviving spouse Ida, after
learning of the basis for his disability benefits, applied for
death benefits which apparently were denied. For that reason, the
same attorney who represented her in this case wrote to the
Department of Veterans' Affairs on July 10, 1992, and requested
that the denial be reconsidered. This letter was written over two
years before Dr. Richard Rada was first retained and consulted on
August 22, 1994.
In his letter, the plaintiff's attorney provided copies of
Delbert's records and referred to his prisoner of war experience,
his subsequent medical diagnosis, and extensive summaries of his
Veterans' Administration medical records since the date of his
discharge. At the conclusion of the five-page letter, plaintiff's
attorney expressed the opinion that based on that medical history
,.
and Delbert's apparent attempt to escape from the hospital and some
perceived danger, his death was probably related to his
service-connected condition, and he requested that the Department
reconsider the denial of Ida's claim for benefits.
Copies of the medical records referred to in the letter were
provided to the defendant and were offered as exhibits without
objection. However, the defendant also sought to admit the
five-page letter written by the plaintiff's attorney. When the
objection was stated that the letter was inadmissible pursuant to
Allersv. Willis (1982), 197 Mont. 499, 643 P.2d 592, because it related

to a collateral source, the defendant sought to admit the letter
after deleting the identity of the recipient and the reference to
death benefits. However, the District Court held that because the
letter was on plaintiff's attorney's letterhead, the potential for
prejudice from its admission outweighed its probative value and
denied its admission. The court did offer to allow the defendant
to produce other evidence of the letter's contents. The defendant
indicated it would call Ida Busta for the purpose of offering such
evidence. However, when the District Court stated that that would
be acceptable, the defendant declined to do so.
On appeal, the defendant contends that its proffered letter
from the plaintiff's attorney should have been admitted as an
admission by the plaintiff that Delbert died as a result of his
preexisting mental condition, rather than because of Columbus
Hospital's negligence. It contends that because it was not
,

informed of his preexisting mental condition at the time of his
admission to the hospital, it could not reasonably have been
expected to protect him from harming himself.
As stated previously, we review a district court's evidentiary
ruling to determine whether there has been an abuse of discretion.
Inre $23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we
-
will uphold a district court's decision, if correct, even though
its reason for that decision may have been incorrect. Normanv.City
o Whitefih (lP93), 2 5 8 Mont. 2 6 , 3 0 , 8 5 2 P.2d 5 3 3 ,
f 535; DistrictNo. 5 5 )
.1.

Musselshell County ( 1 9 9 0 ) , 245 Mont. 525, 527, 802 P . 2d 1 2 5 2 , 1253.

The District Court held that the leEter, as modified by the
defendant, was inadmissible for several reasons. it concluded that
it was an offer of compromise, and therefore inadmissible pursuant
to Rule 408, M.R.Evid.; that it was evidence of a collateral
source; and that when altered to exclude evidence of a collateral
source, it was incomplete, and therefore, that its prejudicial
impact outweighed any probative value.
The defendant contends that the reasons given by the District
Court for excluding its proposed exhibit lack merit and that the
letter was relevant pursuant to Rule 401, M.R.Evid,, because it had
a tendency to make more probable the hospital's claim that Delbert
died as a result of his preexisting mental infirmity.
We conclude, however, that because the author of the proposed
letter had no qualification for expressing a medical opinion
regarding the cause .ofDelbert Is behavior on December 1, the letter
had l i t t l e probative value and that the District Court did not:

abuse its discretion when it refused to admit the letter pursuant
to Rule 403, M.R.Evid. Rule 403 provides that:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
 In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held

that an attorney is not qualified to express an expert medical
opinion regarding.a party's condition or prognosis for recovery.
We held in that case that when the opinion was offered in the form
of an affidavit it should have been rejected by the district court
which should have, instead, relied on expert testimony. Maulding,

257 Mont. at 27, 847 P.2d at 298.
Had plaintiff's attorney been called as a witness at trial to
express an opinion regarding the medical explanation for Delbert's
departure from the hospital through his third floor window, the
District Court would necessarily have had to exclude the testimony
because he was unqualified to express such an opinion in a court of
law. For that reason, his unqualified opinion expressed in
correspondence to the Veterans' Administration over two years prior
to the receipt of contrary information from a qualified expert had
no probative value to any relevant issue in this case. On the
other hand, simply because the proposed exhibit was authored by the
I
,
.

plaintiff's attorney, it presented substantial potential for
confusing or misleading the jury. The defendant had an opportunity
to present qualified evidence that Delbert's injuries and death
were contributed to or caused by his preexisting mental condition.
In fact, the District Court gave the defendant great latitude
toward that end. However, the defendant presented. no qualified
evidence from any medical expert or any observation by any lay
witness that Delbert's preexisting mental condition contributed in
any way to his behavior on the morning of December 1, 1991, or that
the preexisting mental condition affected his behavior at any other
time from the date on which he was discharged from military service
until the date of his death.
Fox these reasons, we conclude that the District Court did not
abuse its discretion when it excluded the defendant's proposed
exhibit which included statements from the plaintiff's attorney
regarding Delbert's mental condition on the evening of his death.
ISSUE 3
Did the District Court e r r when it refused to give the
defendant's proposed instructions which defined proximate cause and
stated the requirement that the decedent's injuries be foreseeable
before causation could be established?
The hospital proposed, by its Instruction No. 20, that the
District Court instruct the jury regarding the following definition
of proximate cause:
The proximate cause of an injury is that cause
which, as a natural and continuous sequence, unbroken by
any new and independent cause, produces the injury, and
without which it would not have occurred.
The hospital ' s proposed instructions numbered 21 and 22
suggested the following requirements regarding foreseeability as it
relates to proximate cause:
DEFENDANT'S PROPOSED INSTRUCTION NO. 21
If you find that the Defendant Columbus Hospital was
negligent, in order for its -negligence to be the
proximate cause of Delbezl-tBustal injuries and death, it
s
must appear from the facts and circumstances surrounding
the accident that the Columbus Hospital, as an ordinarily
 prudent entity, could have reasonably foreseen that
Delbert Busta's injury would be the natural and probable
consequence of the hospital's actions.
DEFENDANT'S PROPOSED INSTRUCTION NO. 22
If you find the consequences of the hospital's
actions were not reasonably foreseeable or were generally
freakish, bizarre, or unpredictable, the actions of the
hospital were not the proximate cause of decedent Busta's
injuries and death.
The plaintiff proposed that the jury be instructed on the
issue of causation in a format similar to the format suggested by
our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed
instruction referred to cause-in-fact as a "substantial factor."
The defendant objected on that basis and plaintiff's proposed
instruction on causation was withdrawn.
The District Court rejected the hospital's proposed

instructions numbered 20, 21, and 22 on the basis that they did not
satisfy the format required by Kitchen Krafters, and therefore, no

instruction which defined proximate cause was submitted to the
.I

jury.
After the District Court indicated which instructions it would
give and which instructions were refused, it asked whether the
defendant had any objections. No objection was stated at that time
to the court's failure to provide any instruction to the jury which
defined proximate cause.
The jury was instructed that both parties had the burden of
proving that the other was negligent and that the other party's
indisputably foreseeable and there was no evidence of intervening
acts by third parties which would interrupt the chain of causation.
Finally, the District Court noted that part of the confusion which
resulted in its failure to define proximate cause was attributable
to the difficulty that district courts have dealing with that issue

since this Court's decision in Kitchen Krapers and respectfully

requested that this Court better settle the requirements for
instruction of juries on the subject of causation in future cases.
On appeal, the hospital contends that because the District
Court referred to llproximatecause" in other instructions, it was
necessary that the term be explained to the jury. The hospital
further contends that because this Court included foreseeability as
an element of proximate cause in Kitchen Krapers and because the

foreseeability of Delbert's conduct on December 1, 1991, was a
specific issue, it was important that the jury be specifically
instructed regarding foreseeability.
In response, the plaintiff contends that the defendant waived
..I

its objection to the District Court's failure to instruct on the
issue of proximate cause by its failure to bring the court's
omission to its attention before the jury's verdict was returned.
The plaintiff further contends that even if the District Court
erred, the error was harmless because causation was established by
the undisputed evidence, and therefore, as a matter of law.
A district court has discretion when it decides how to
instruct a jury and we will not reverse a district court's decision
absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont. 1995),

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review
instructions to a jury to determine whether they were properly
given or refused, we consider the instructions in their entirety,
as well as in connection with the other instructions given and the
evidence at trial. Storyv. City ofBozeman (1993), 259 Mont. 207, 222,

When we review a district court's refusal to give an offered
instruction, the following rules apply:
It is 'not reversible error for a trial court to
refuse an offeredinstruction unless such refusal affects
the substantial rights of the party proposing the
instruction, thereby prejudicing him.
A party is not prejudiced by a refusal of his
proposed instructions where the subject matter of the
instruction is not applicable to the pleadings and facts,
or not supported by the evidence introduced at trial, or
the subject matter is adequately covered by other
instructions submitted to the jury.
Kingv.Zimn?erman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting

Cottrellv. BurlingtonNor1hernR.R. Co. (19931, 261 Mont. 296, 306, 863 P.2d

381, 387; seealso Ganzv. UnitedStatesCyclingFed'n (Mont. 1995), 903 P.2d

212, 216, 52 St. Rep. 1030, 1033).
The law of foreseeability, as it relates to liability law in
Montana, has had a tortuous history. Based on the concerns
expressed by the District Court in this case and similar sentiments
reflected by anzicus curiae who have submitted briefs on this issue, we

conclude that in the interest of clarifying issues involved in
litigation where negligence is alleged, it is appropriate that we
24
address the role of foreseeability and the appropriate manner for
instructing juries on the issue of causation.
Any discussion of foreseeability as it relates to liability
law begins with the oft-cited decision of the Court of Appeals of
New York in Palsgrafv.LongIslandRailroadCo. (N.Y. 1928), 162 N.E. 99. In

that case, the plaintiff was standing on a platform of the
defendant's railroad when a guard attempted to assist another
passenger aboard the departing train. In doing so, he dislodged a
package from the passenger's hand which contained fireworks. The
contents exploded when the package hit the ground. The shock from
the explosion knocked down scales many feet away. The falling
scales struck the plaintiff, and she was injured. On appeal from
a judgment in favor of the plaintiff, Chief Justice Cardozo,
writing for a four-person majority, reversed that judgment on the
basis that absent a foreseeable injury to the plaintiff there was
no duty and that absent a duty there was no negligence. In
language that formed.the basis for a number of subsequent decisions
,.
in Montana, Cardozo wrote that:
The risk reasonably to be perceived defines the duty to
be obeyed, and risk imports relation; it is risk to
another or to others within the range of apprehension.
. . . This does not mean, of course, that one who
launches a destructive force is always relieved of
liability, if the force, though known to be destructive,
pursues an unexpected path. "It was not necessary that
the defendant should have had notice of the particular
method in which an accident would occur, if the
possibility of an accident was clear to the ordinarily
prudent eye."
Palsgraf, 162 N.E. at 100.
 Writing in dissent, Justice Andrews disagreed that duty
requires a foreseeable plaintiff, but instead contended that all
persons have a duty of care to the world at large. He took the
position that if foreseeability has a place as a limitation on an
individual's liability for damages, it is in the context of
proximate cause. He stated that:
What we do mean by the word "proximateu is that, because
of convenience, of public policy, of a rough sense of
justice, the law arbitrarily declines to trace a series
of events beyond a certain point. This is not logic. It
is practical politics.
Palsgraf, 1 6 2 N . E . at 103 (Andrews, J., dissenting)

Andrews went on to state that in analyzing proximate cause,
[tlhe court must ask itself whether there was a natural
and continuous sequence between cause and effect. Was
the one a substantial factor in producing the other? Was
there a direct connection between them, without too many
intervening causes? Is the effect of cause on result not
too attenuated? Is the cause likely, in the usual
judgment of mankind, to produce the result? Or, by the
exercise of prudent foresight, could the result be
foreseen?
Palsgraf, 1 6 2 N . E . at 1 0 4 (Andrews, J., dissenting) .

Therefore, from an early point in American jurisprudence there
was disagreement among knowledgeable scholars regarding the role of
foreseeability in the formulation of negligence law. The
conviction, as expressed by Cardozo, was that without
foreseeability there was no duty, and without duty there could be
no liability. The view as expressed by Andrews was that
foreseeability was an element of proximate cause and reflected the
practical political judgment of whether effect of cause on result
was too attenuated. Neither, however, suggested that
foreseeability should be considered on a redundant basis as part of
both duty and proximate cause.
We have, as a Court, considered foreseeability in our
discussions of proximate cause. However, originally those
discussions were limited to situations where it was alleged that
acts of independent third parties intervened following the
defendant's act to sever the causal relationship between one
person's conduct and another person's damage. L n i n v. Long (1961),
ecoi

139 Mont. 135, 139, 361 P.2d 455, 457.

Other than in the context of intervening acts by third
parties, our early decisions clearly chose to follow the majority
view from P l g a .
asrf In Mangv.E i s o (1969), 153 Mont. 431, 437, 458
lasn

P.2d 777, 781, we cited Palsgrafwith approval and held that:

As a classic opinion states: "The risk reasonably to
be perceived defines the duty to be obeyed.I' P l g a v Long
asrf.
I l n R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R.
sad
1253. That is t,o say, defendant owes a duty with respect
to those risks or hazards whose likelihood made the
conduct unreasonably dangerous, and hence negligent in
the first instance.
In Mang, the plaintiff brought an action to recover damages

for a reduced yield of alfalfa seed caused by weeds which the
defendant allowed to be blown from his property to the plaintiff's
property. Following a verdict for the plaintiff, the defendant
argued on appeal that it had breached no legal duty to the
plaintiff. This Court agreed and explained that to prove
actionable negligence a party must prove "existence of a duty, the

27
breach thereof and a resulting injury." Mang, 153 Mont. at 435,
458 P.2d at 780. We explained the role of foreseeability, as it
relates to duty, as follows:
Foreseeability is of prime importance in
establishing the element of duty, and the question of
defendants' negligence, if any, must of necessity hinge
on the finding of a breach of that duty. If a reasonably
prudent defendant can foresee neither any danger of
direct injury nor any risk from an intervening cause he
is simply not negligent.
If the chief element in determining whether
defendant owes a duty or obligation to plaintiff is the
foreseeability of the risk then that factor will be of
prime concern in every case. Further, because it is
inherently intertwined with foreseeability, such duty or
obligation must necessarily be adjudicated only upon a
case-to-case basis. Therefore, we do not now
predetermine defendants' obligations in every situation
by a fixed category; no immutable rule can be established
to determine the extent of that obligation for every
circumstance of the future. We do, however, define
guidelines which will aid in the resolution of such an
issue as is presented in the instant case.

. . . The obligation of defendants turns on whether:
" . .,. the offending conduct foreseeably
involved"unreasonably great risk of harm to
the interests of someone other than the actor.
. . . Duty, in other words, is measured by the
scope of the risk which negligent conduct
foreseeably entails."
. . . And absent foreseeability, there is no duty owed by
defendants to plaintiff. . . .
In view of our holding that plaintiff failed to show
a breach of duty owed by defendants, thus failing to
establish that defendants were negligent in the first
instance, he has failed to establish any claim upon which
relief may be granted and accordingly, it is unnecessary
to dwell on the law of causation. . . .
 We may assume without deciding that negligence, not
at large or in the abstract but in relation to the
plaintiff, would entail liability for any and all
consequence however novel or extraordinary. Palsgraf v.
Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101.
However, the consequences to be followed must first be
rooted in a wrong.
Mang, 153 Mont. at 437-39, 458 P.2d at 781-82.

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we .

declined to apply the foreseeability requirement set forth in Mang

in a manner which would require that the specific accident which
resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d +t 563.

However, we did, from the time that Mang was decided until our

decision in Kitchen Krafters, consistently relate the notion of

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple

(1972), 161 Mont. 56, 504 P . 2 d 686; Williamsv. MontanaNat11Bank (1975),

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592

P.2d 493; PretiyOnTopv. CiiyofHardin (1979), 182 Mont. 311, 597 P.2d 58;

Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State
.s
,

(1982), 199 Mont. 451, 649 P.2d 752.
In fact, our earlier decisions discuss causation in terms of
cause-in-fact or the "but for" test, and discuss proximate cause
only as it relates to continued liability following an intervening
act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont.

at 30, 534 P.2d at 1250.
In Youngv. FIatheadCounty (1988), 232 Mont. 274, 757 P.2d 772, we

held for the first time that proof of proximate cause requires more

29
than proof of cause-in-fact or satisfaction of the "but foru test.
However, once again, that discussion occurred in the context of
this Court's conclusion that the chain of causation had been broken
by independent intervening causes. We specifically reversed the
district court because " [nlumerous interruptions in the chain of
events occurred that could be considered the injury causing
damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although

intervening cause was not analyzed in the typical fashion, Young was

clearly an intervening cause case.
The first time that the word "foreseeablen ever appeared in
the context of "proximate cause" in one of our opinions, other than
as related to intervening causes, was in Kitchen Kraftrs, Inc. v. Eastside Bank

ofMontana (1990), 242 Mont. 155, 789 P.2d 567. In that case, we

affirmed the two-tiered analysis of causation set forth in Young.

We explained that the cause-in-fact requirement is normally
established by the "but for" test by proving that a party's injury
would not have occuGred "but for" the other party's conduct. We
also reaffirmed prior decisions in which we held that if two or
more causes concur to bring about an event, then cause-in-fact is
established by the "substantial factor" test which we had
previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that

when either the "but foru test or the "substantial factor" test was
satisfied, a party has established that the other party's conduct
was the cause-in-fact of an injury. We then went on to add,
however, that once cause-in-fact is proven, "proximate causation"
must also be established. we held for the first time that:
Proximate cause is normally analyzed in terms of
foreseeability. Simply stated, one is only liable for
consequences which are considered to be reasonably
foreseeable. Prosser & Keeton at 5 43. If the
consequences of one's wrongful act are not reasonably
foreseeable, then it follows that it was not proximately
caused by that act. Using this analysis, one must look
forward through the chain of causation in order to
determine whether the events which occurred were
foreseeable. If they were, the element of proximate
cause is satisfied and liability will attach. Prosser &
Keeton at § 43.
KitchenKraJers, 242 Mont. at 168, 789 P.2d at 575

Having added a requirement that foreseeability be established
as part of causation in addition to the previous requirement that
it be considered in determination of duty, we then went on to hold
that juries must be specifically so instructed. We held that:
In order to be properly instructed on proximate cause,
the jury must be directed to look forward through the
chain of causation, and to determine whether events which
occurred subsequent to Eastside's wrongful act were
foreseeable. +'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 nondisclosurel that the
defendant as an ordinarily prudent person, could have
foreseen that the plaintiff's injury would be the natural
and probable consequence of the wrongful act.
Kitchen Krajers, 2 4 2 Mont. at 169, 789 P.2d at 5 7 5 (alteration in

original) .
 We repeated the requirement from the Kitchen Kraflers opinion that

foreseeability be considered as part of proximate cause in Thayerv.

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UniledStatesFidelipand

Guaranty Co. v. Catnp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv.

,
Stale (1993) 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone

County (l994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of
these cases, other than Logan, involved issues regarding the

foreseeability of intervening causes. In such situations we have
traditionally held that foreseeability is an issue related to
causation. See Halseyv. Uithof (l975), 166 Mont. 319, 328, 532 P.2d 686,

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d

629, it is interesting that we noted:
Foreseeability can be determined in one of two ways.
Some courts anhlyze the issue under the element of duty.
These courts take the view that the scope of defendant's
duty is determined by a foreseeability of any harm which
may arise as a result of his negligent conduct. See e.g.
Palsgrafv. LongIslandRailroadCo. (1928), 248 N.Y. 339, 162 N.E.
99, 100. Other courts have analyzed foreseeabilityunder
the issue of proximate cause. In doing so, they have
taken the view that all persons owe a duty to the world
at large to act reasonably in order to prevent injury to
their fellow man. Palsgraf, 162 N.E. at 104 (Andrews
dissenting). If this duty is breached, it then becomes
necessary to determine whether the consequences of the
breach were reasonably foreseeable to the defendant. If
the consequences were reasonably foreseeable, proximate
cause is established and liability will follow.
Sizemore, 246 Mont. at 46, 803 P.2d at 635.

Since Sizemore involved allegations of a superseding intervening

event, we analyzed foreseeability as part of proximate cause in
that case. We made no mention of the fact that since Kitchen Krafrers,

Montana has two concurrent lines of authority--one which analyzes
foreseeability as part of duty, and a second which considers it as
part of proximate cause
Therefore, as the law in Montana currently stands, the issue
of foreseeability is considered twice in our analysis of liability
for a negligent act. It is first considered as part of the
analysis of duty and negligence pursuant to our decision in Mang,

153 Mont. 431, 458 P.2d 777. It is then considered as part of a
two-pronged approach to causation pursuant to our decision in Kitchen

Krajiers, 242 Mont. 155, 789 P.2d 567.

Although we acknowledge that there are other jurisdictions

which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M.
.'

1990), 792 P.2d 36;' McCain v. Florida Power Corp. (Fla. 1992), 593 So. 2d

5 0 0 ; Nelson by Tatum v: Cornmonweal~hEdison Co. (Ill. App . 2d 1984) , 465
N.E.2d 513), knowledgeable writers and the better-reasoned
decisions of other jurisdictions criticize such a redundant
consideration of foreseeability. For example, in Modern Tort Law
the authors state that:
Much confusion has resulted from the erroneous
application of the requirement of foreseeability to
causation. In referring to proximate cause, many
decisions have confused the element of fault and have
 employed foreseeability, properly an element of fault but
not of causation.
1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153
(rev. ed. 1990).
At § 5.02 the same authors point out that:
There is, unfortunately, substantial and respectable
authoritythat foreseeability is an element of causation.
. . .
This application of foreseeability has long been the
subject of criticism by courts and legal scholars.
Foreseeability does not touch on the causal element.
Foreseeability relates only to the element of fault.

. . .
As an early Minnesota case pointed out, "What
a man may reasonably anticipate is important, and may be
decisive, in determining whether an act is negligent, but
is not at all decisive in determining whether that act is
the proximate cause of an injury which ensues."
[Christianson v. Chicago St. P., M. & 0. Ry. Co. (Minn. 1896) , 69 N .W .
640.1 And the Wisconsin court has stated:
This court is definitely committed to the
principle that, while foreseeability is an
element to be considered by the jury in
determining negligence, it has no part in the
jury's decision of whether particular
negligenc&' found by it is causal. [Stmhlendorfv.
WalgreenCo. (Wis. 1962), 114 N.W.2d 823.1

Dean Prosser stated:
It is simpler, and no doubt more accurate, to
state the problems in terms of "duty:" is the
defendant under a legal obligation to protect
the plaintiff against such unforeseeable
consequences of his own negligent acts?
[William L. Prosser, Law of Torts 289 (3d ed.
1964) . I
And Harper and James said: o ore see ability of damage
is altogether irrelevant in determining the existence of
the cause in fact relationship." [2 Harper & James, Law
of Torts 1135 (1956). I
 Professor Leon Green, a persistent critic of the
foreseeability test, as it is used in connection with
proximate cause, remarked, "Clearly the issue of causal
relation between the defendant's conduct and the
plaintiff's injury is not determined by foreseeability."
[Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich.
L. Rev. 543, 549 (1962).] The element of cause becomes
operative only if a duty is breached and damages result,
whereupon the defendant becomes liable for the damages
directly caused by his breach of duty. . . . "Causal
relation is a neutral issue, blind to right and wrong."
[Green, 60 Mich. L. Rev. at 549.1

Unfortunately, however, the application of the
foreseeability test to causation has had a firm hold in
legal literature, and some recent cases continue to
compound the error. Thus, the problem of causation,
difficult as it is, has been made more complex by
employing foreseeability as a test of legal cause, when
foreseeability should be restricted to the issue of
negligence.
1 Modern Tort Law 5 5.02 at 159-62.
In the Law of Torts, the authors state that:
It is obvious that under such an analysis of the duty
problem, foreseeability is distinctly a factor that puts
a considerable limitation on the extent of liability,
even though it should be held to play no part whatever in
determining the issue of proximate cause. It is also
clear that i.f' this analysis of the duty problem is
accepted, no good, but only confusion, can result from
repeating the same inquiries as to foreseeability under
the cause issue as were asked and answered (or should
have been) under the duty issue.
4 Fowler V. Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed.
1986) (footnotes omitted).
Finally, in Prosser and Keeton on Torts the authors state:
Once it is established that the defendant's conduct
has in fact been one of the causes of the plaintiff's
injury, there remains the question whether the defendant
should be legally responsible for the injury. Unlike the
fact of causation, with which it is often hopelessly
 confused, this is primarily a problem of law. It is
sometimes said to depend on whether the conduct has been
so significant and important a cause that the defendant
should be legally responsible. But both significance and
importance turn upon conclusions in terms of legal
policy, so that they depend essentially on whether the
policy of the law will extend the responsibility for the
conduct to the consequences which have in fact occurred.
Quite often this has been stated, and properly so, as an
issue of whether the defendant is under any duty to the
plaintiff, or whether the duty includes protection
against such consequences. This is not a question of
causation, or even a question of fact, but quite far
removed from both; and the attempt to deal with it in
such terms has led and can lead only to utter confusion.
The term "proximate cause" is applied by the courts
to those more or less undefined considerations which
limit liability even where the fact of. causation is
clearly established. The word "proximate" is a legacy of
Lord Chancellor Bacon, who in his time committed other
sins. The word means nothing more than near or
immediate; and when it was first taken up by the courts
it had connotations of proximity in time and space which
have long since disappeared. It is an unfortunate word,
which places an entirely wrong emphasis upon the factor
of physical or mechanical closeness. . . .

It is quite possible to state every question which
arises in connection with "proximate cause" in the form
of a single question: was the defendant under a duty to
protect the plaintiff against the event which did in fact
occur? . . .

. . . "Proximate cause," in short, has been an
extraordinarily changeable concept. "Having no
integrated meaning of its own, its chameleon quality
permits it to be substituted for any one of the elements
of a negligence case when decision on that element
becomes difficult. . . . No other formula . . . so nearly
does the work of Aladdin's lamp." [Leon Green, Proximate
CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950). I

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76
(5th ed. 1984)
 Many courts have eliminated this redundant analysis and
simplified the jury's responsibility by limiting the analysis of
foreseeability to a determination of whether there is negligence in
the first place, and then dealing with cause as simply
cause-in-fact. Two of the jurisdictions in our own area which have
done so are the states of Washington and Oregon. In Rikstudv. Holmberg

(Wash. 1969), 456 P.2d 355, the Washington Supreme Court stated
that :
The better considered authorities do not regard
foreseeability as the handmaiden of proximate cause. To
connect them leads to too many false premises and
confusing conclusions. Foreseeability is, rather, one of
the elements of negligence; it is more appropriately
attached to the issues of whether defendant owed
plaintiff a duty, and, if so, whether the duty imposed by
the risk embraces that conduct which resulted in injury
to plaintiff. The hazard that brought about or assisted
in bringing about the result must be among the hazards to
be perceived reasonably, and with respect to which
defendant's conduct was negligent. See Restatement
(Second) of Torts 5 435, comment c (1965). . . .
It is the misuse of foreseeability--that is,
discussion of the improbable nature of the accident in
relation to proximate cause--that led the trial judge, in
the instant case, to conclude that the challenge should
be sustained.
Rikstud, 456 P.2d at 358.

The comment in the Restatement (Second) of Torts referred to
in the Washington Court's opinion is part of the Restatement's
analysis of foreseeability under its section on causation. The
authors there state:
Strictly, the problem before the court is one of
determining whether the duty imposed on the actor was
designed to protect the one harmed from the risk of harm

37
 from the hazard in question. (See § 281, comment e , and
§ 449.) However, courts frequently treat such problems
as problems of causation. (See § 281, comment e, and
§ 430, comment a . )

Restatement (Second) of Torts 5 435 cmt. c (1965).
Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966),

409 P.2d 897, and Brennen v. CilyofEugene (Or. 1979), 591 P.2d 719.

We agree with the Washington Court and with the cited authors
that the better-reasoned authorities address foreseeability as part
of the analysis of "duty," rather than "proximate cause," and that
to analyze it under both issues leads only to confusion which can
be easily avoided.
However, the arguments quoted from the previous authors and
the reasoning of the Washington Court are even more compelling
based on Montana's statutory framework for determining liability.
,
Section 1-1-204(1) MCA, defines negligence as "a want of attention
to the nature or probable consequences of the act or omission that
a prudent man would ordinarily give in acting in his own concerns. "
(Emphasis added.) This definition suggests that foreseeability is
an element of .negligence,and therefore, properly considered with
the existence of a duty.
On the other hand, § 27-1-317, MCA, which discusses the
damages for which a negligent actor is responsible, defines those
damages as "the amount which will compensate for all the detriment
proximately caused thereby, whether it-could have been anticiuated
or not. " (Emphasis added.) By equating damages "proximately caused
thereby" with actual damages, whether they "could have been
anticipated or not," our statutory scheme specifically precludes
the applicability of a foreseeability requirement to the issue of
proximate cause.
We therefore reverse that part of our decision in Kitchen Krajiers,

Inc.v.EastsideBunkofMontanu (1990), 242 Mont. 155, 789 P.2d 567, which

requires a two-tiered analysis of causation which includes
consideration of foreseeability in cases other than those cases
where there has been an allegation that the chain of causation is
severed by an independent intervening cause. There are several
reasons which compel this result. First, that part of the opinion
which suggests language for a proximate cause instruction
erroneously requires proof of an intentional act, rather than a
negligent act, when it suggests the following language:
[I]t must appear from the facts and circumstances
surrounding the accident . . . that defendant as an
ordinarily prudent person, could have foreseen that
plaintiff's injury would be the natural and probable
consequence of.the wrongful act.
Kitchen Krajiers, 242 Mont. at 169, 789 P.2d at 575.

Second, the requirement that foreseeability be considered as
part of proximate cause is redundant with the existing requirement
that foreseeability be considered as part of the analysis of duty.
Third, our statutory scheme of laws relating to liability
requires that foreseeability be considered as part of the
negligence analysis and that it not be considered as part of
proximate cause
 Fourth, legal concepts such as "proximate causeM and
"foreseeability" are best left to arguments between attorneys for
consideration by judges or justices; they are not terms which are
properly submitted to a lay jury, and when submitted can only serve
to confuse jurors and distract them from deciding cases based on
their merits.
In those cases which do not involve issues of intervening
cause, proof of causation is satisfied by proof that a party's
conduct was a cause-in-fact of the damage alleged. As stated in
Prosser and Keeton on Torts 5 41, at 266 (5th ed. 1984), a party's
conduct is a cause-in-fact of an event if "the event would not have
occurred but for that conduct; conversely, the defendant's conduct
is not a cause of the event, if the event would have occurred
without it."
We hold that with the exception of those cases involving
allegations of independent intervening cause or multiple causes, it
is sufficient to instruct the jury, as recommended in 1989 by the
,.
Montana Supreme Court Commission on Civil Jury Instructions, that:
"The defendant's conduct is a cause of (injury/death/damage) if it
helped produce it and if the (injury/death/damage) would not have
occurred without it." Montana Pattern Instruction 2.08 (rev.
11/1/89).
In those cases where chain of causation is an issue (e.g.,
where there is an allegation of an independent intervening cause),
we recommend, as did the Commissionin1989, the following instruction:
 The defendant's conduct is a cause of the (injury/
death/damage) if, in a natural and continuous sequence,
it helped produce it and if the (injury/death/damage)
would not have occurred without it.
Montana Pattern Instruction 2.08 (rev. 11/1/89).
In those cases where there are allegations that the acts of
more than one person combined to produce a result (e.g., when the
plaintiff alleges negligence and the defendant alleges contributory
negligence, or when there are multiple defendants), we acknowledge
that the recommended cause-in-fact instruction would be confusing
and misleading. Therefore, in those cases, we recommend continued
use of the substantial factor instruction approved in Rudeck v. Wright

(19851, 218 Mont. 41, 709 P.2d 621, and Kyrissv.State (l985), 218 Mont.

162, 707 P.2d 5. We further recommend that terms such as
cause" or If legal cause" and "reasonable foreseeability,
trproximate
which have some significance to lawyers and judges, not be allowed
to confuse jurors by the inclusion of those terms in jury
instructions. To the extent that foreseeability raises a jury
issue, it is adequdtely addressed by the definition of negligence
included in Montana Pattern Instruction 2.00.l To the extent that
foreseeability raises issues of public policy, such as those about
which Justice Andrews expressed concern in his dissent in P l g a ,
asrf

the subject is properly dealt with as an issue of law.

'Montana Pattern Instruction 2-.00 (rev. 2/7/91) defines
negligence as "the failure to use reasonable care. Negligence may
consist of action or inaction. A person is negligent if he fails
to act as an ordinarily prudent person would act under the
circumstances."
contributed to Delbert's fall and injuries. The issue was simply
whether the hospital was negligent by allowing its windows to
remain in a condition which would permit a patient to either escape
or fall through them. That issue was decided in Ida Bustals favor
based on proper instructions to the jury and was supported by
substantial and virtually uncontroverted evidence.
For these reasons, we conclude that the District Court did not
err when it refused to give the defendant's proposed instructions
which defined proximate cause and which stated the requirement that
decedent's injuries be foreseeable before causation could be
established; and that the District Court's failure to instruct the
jury regarding the meaning of cause-in-fact was harmless error.
ISSUE 4
Did the District Court err when it refused to offset benefits
received by Ida Busta from the Veterans' Administration against the
damages awarded for the decedent's wrongful death?
Following trial, the hospital moved the court pursuant to
,.
5 27-1-308, MCA, to deduct from the plaintiff's judgment that
amount Ida Busta received from the Veterans' Administration due to
her husband's death. Section 27-1-308, MCA, provides in relevant
part that :
(1) In an action arising from bodily injury or death when
the total award against all defendants is in excess of
$50,000 and the plaintiff will be fully compensated for
his damages, exclusive of court costs and attorney fees,
a plaintiff's recovery must be reduced by any amount paid
or payable from a collateral source that does not have a
subrogation right.
 Section 27-1-307(1), MCA, defines "collateral sourceu as:
[A] payment for something that is later included in a
tort award and which is made to or for the benefit of a
plaintiff or is otherwise available to the plaintiff:
(a) for medical expenses and disability payments
under the federal Social Security Act, any federal,
state, or local income disability act, or any other
public program;
. . . .
(e) any other source, except the assets of the
plaintiff or of his immediate family if he is obligated
to repay a member of his immediate family.
The District Court denied the hospital's motion for offset for
the following reasons:
1. The court found that the heirs will not be fully
compensated for their damages, due to the reduction of their award
based on contributory fault;
2. The court found that the Veterans' Administration
benefits received by Ida Busta were not medical expenses or
disability payments, and therefore, not "collateral source" as
defined in § 27-1-307, MCA; and
3. The court found that the general nature of the
defendant's verdict form makes it impossible to determine what, if
any, amounts were awarded by the jury for a loss against which the
collateral source should be offset.
On appeal, the hospital contends that the death benefits that
Ida Busta received were included in the definition of "collateral
source" at subsection (1)(e) of § 27-1-307, MCA, by its reference
to "any other source."
 However, it is not necessary that we resolve whether death
benefits from the Veterans1 Administration are included within the
statutory definition of "collateral source," or whether the
plaintiff has been fully compensated where her judgment has been
reduced by comparative negligence. Section 27-1-308, MCA, clearly
provides for reduction of only that part of a recovery which has
previously been compensated by a collateral source. In this case,
Ida Busta was awarded death benefits by the Veterans1
Administration for the economic loss which resulted from her
husband's death. The jury, on the other hand, was instructed that
its wrongful death damage award should include damages for not only
financial support which the heirs lost, but also for "the value of
the society, comfort, guidance, education, care, protection and
companionship which Ida Busta, William Busta and Charles Busta have
lost by reason of the death," and that its award should "include
reasonable compensation to them [the heirs] for their grief, sorrow
and mental anguish resulting from the death."
The jury returned a special verdict which awarded damages to
the heirs in the amount of $800,000. There is no indication from
the verdict form what, if any, amount of the verdict was for the
loss of Delbert's financial support. Therefore, there was no
method by which the District Court could calculate what, if any
amount, the hospital was entitled to offset by the amount of
previous Veterans' Administration death benefits awarded to Ida.
Because there was no factual basis upon which the District Court
could properly grant the hospital's motion for offset, the motion
was properly denied. For these reasons, we affirm the District
Court's denial of the hospital's motion for statutory offset
pursuant to § 27-1-308, MCA.
Based on our discussion of and holding regarding each of the
issues raised, we affirm the judgment of the District Court.

We concur:

Chief Justice

Justices
Justice Karla M. Gray, specially concurring

I concur in the Court's opinion on issues one and two and

specially concur on issues three and four.
With regard to issue three, which relates to the District
Court's failure to instruct on proximate cause, I agree with the
result the Court reaches on the issue and with most of its
discussion of our case law and other authorities vis-a-vis
foreseeability as an element of proximate cause. My one
disagreement with the Court in this regard is in its interpretation
of § 27-1-317, MCA. I do not read the statute as precluding the
consideration of foreseeability as part of causation. Conversely,
however, the statute certainly does not require us to consider
foreseeability in analyzing causation. Thus, I am persuaded by the
remainder of the authorities cited by the Court that we erred in
doing so in Kitchen Krafters where no intervening cause issue
required its inclusion.
With regard to issue four, whether the hospital was entitled
to offset the VA benefits Ida Busta received against the wrongful
death damages awarded, I concur in the Court's opinion. I
specially concur only to add that the hospital prepared the Special
Verdict which was submitted to the jury and which rendered it
impossible for the District Court to calculate whether any offset
was authorized (even assuming that the VA benefits met the
statutory definition of collateral source). If the hospital wanted
to assert entitlement to the offset, it was incumbent upon the
hospital to structure a verdict form which would make such a
1
Justice Charles E. Erdmann concurring in part and dissenting in
part.
T concur in the majority's opinion on Issues 1, 2, and 4, but
write separately to dissent on Issue 3.
I disagree with the majority's holding that the District
Court's failure to instruct on proximate cause was harmless error.
I am convinced that the failure to define proximate cause for the
jury was reversible error. In fact, the jury received no
instructions at all which defined causation. Furthermore, I
disagree with the majority's analysis of foreseeability as applied
to proximate cause and therefore dissent from the majority's
decision to overrule the requirement in Kitchen Krafters v.
Eastsi.de Bank of Montana (1990),242 Mont. 155, 789 P.2d 567, that
causation instructions include a discussion of foreseeability.
In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181,
we held that it was error for the lower court to not instruct on
proximate cause and stated that the question of proximate cause is
an issue of fact to be decided by the jury. Davis, 796 P.2d at
186.. In order to constitute reversible error, the lower court's
actions must affect the substantial rights of the complaining
party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (l989), 235
Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant
was not prejudiced by the court's failure to instruct on proximate
cause and therefore held the error to be harmless. Davis, 796 P.2d
at 187.
 However, under the circumstances of the present case, I would
hold that the District Court erred in not instructing the jury on
proximate cause. A number of instructions given by the District
Court contained the phrase "proximate cause," but the jury was not
given the benefit of any guidance from the court on this crucial
concept. It is the duty of the court to instruct the jurors fully
and correctly on all applicable laws. Billings Leasing Co. v.
Payne ( 1 9 7 8 ) , 176 Mont. 2 1 7 , 2 2 4 , 577 P.2d 386, 390. As this Court
noted in Billinss Leasins Co.:
'I* * * In instructing the jurors, we must
assume that they have no knowledge of the
rules of law and that therefore, they must be
instructed on all points of law which, under
any reasonable theory, might be involved in
their deliberations, to the end that their
decision will be according to the law and the
evidence and untinged by any private and
possibly false opinion of the law that they
entertain."

Jury instructions are crucial to a jury's
understanding of the case and, unfortunately, counsel
cannot always" be relied upon to provide those
instructions. . . .
"It is the inescapable duty of the trial
judge to instruct the jurors, fully and
correctly, on the applicable law of the case,
and to guide, direct, and assist them toward
an intelligent understanding of the legal and
factual issues involved in their search for
truth. The cuurr must inshuct the jury properly on ll7e
controlling issues in the case even though there has been
no request for an instruction or the
instruction requested is defective."
Billinss Leasins Co., 577 P.2d at 390-91 (quoting McBride, The Art
of Instructins the Jury at 17 (1969), and Wright & Miller, Federal
Practice and Procedure, Civil § 2556).

In the present case, the hospital offered an instruction on
proximate cause which was refused by the District Court. The
plaintiff withdrew h e r instructions defining causation. As a
result, the jury was not instructed on the crucial concept of
proximate cause which is a key element in all negligence actions.
After analyzing foreseeability and proximate cause, the majority
determines this to be harmless error. I differ with the majority's
analysis and position on foreseeability and proximate cause and
conclude that the District Court's failure to define proximate
cause for the jury in this case was reversible error.
The majority claims it is redundant and confusing to j u r o r s to
f o c u s on foreseeability when analyzing both the "duty" element and

'Iproximate causen element of t h e tort of negligence. On t h e
contrary, I believe that such a dual analysis of foreseeability is
a necessary and reasonable analysis which has, unfortunately, been
complicated in Montana by the confusing wording of the Kitchen
Krafters instruction.
In Mang v . Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and
its progeny, we determined that the concept of foreseeability was
a part of the "dutyI1element. Ford v. Rupple (1972), 161 Mont.
56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167

Mont. 24, 534 P.2d 1247; Schafex v. State (1979), 181 Mont. 102,
592 P.2d 493; Pretty On Top v . City of Hardin (l979), 182 Mont.
311, 597 P.2d 58; Ambrogini v. Todd (l982), 197 Mont. 111, 642 P.2d
1013; Belue v. State (1982), 199 Mont. 451, 649 P.2d 752. The
majority agrees with the rationale of this line of cases but
concludes that, with the exception of cases involving intervening
superseding events, foreseeability should be restricted to the
"duty" analysis.
In Kitchen Krafters we applied the concept of foreseeability
to the element of causation and stated that "[plroximate cause is
normally analyzed in terms of foreseeability. Simply stated, one
is only liable for consequences which are considered to be
reasonably foreseeable." Kitchen Krafters, 789 P.2d at 575 (citing
Prosser and Keeton on Torts § 43 (5th ed. 1984) . The line of cases
which followed Kitchen Krafters, and which were not overruled by
the majority, repeated the requirement that foreseeability be
considered as part of proximate cause. See Thayer v. Hicks (19901,
243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457,
802 P.2d 1248; U.S.F.& G v. Camp (l99Z), 253 Mont. 64, 831 P.2d
586; King v. State (19931, 259 Mont. 393, 856 P.2d 954; Logan v.
Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v.
Mather (1995), 270 Mont. 188, 890 P.2d 1277.
As noted, the majority concludes it is unnecessary to address
foreseeability as part of the causation element, except in cases of
intervening superseding events. I disagree and submit that the
concept of foreseeability has a proper and distinct place in the
analysis of both "duty" and "causation" elements--both of which
must be satisfied in order to establish the prima facie case for

52
negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36;
McCain v. Florida Power Corp. (Fla. 19921, 593 So. 2d 500; Nelson
by Tatum v. Com. Edison Co. (111. App. 2d 1984), 465 N.E.2d 513.
The analysis of foreseeability in the "duty" context focuses
on whether or not the plaintiff was in the zone of danger to be
protected from the defendant's actions. As the New Mexico Supreme
Court has recently stated:
This case raises issues of duty and proximate cause.
Integral in both elements is a question of
foreseeability. In determining duty, it must be
determined that the injured party was a foreseeable
plaintiff--that he was within the zone of danger created
by respondent's actions; in other words, to whom was the
duty owed?
Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of
danger there was no duty and therefore no negligence. The Florida
Supreme Court has recently held that:
[Floreseeability relates to duty and proximate causation
in different ways and to different ends. The duty
element of negligence focuses on whether the defendant's
conduct foreseeably created a broader "zone of risk" that
poses a genera1,threat of harm to others.

McCain, 593 So. 2d at 502
Foreseeability in the "causation" context requires an analysis
of whether the circumstances surrounding the actual occurrence of
the plaintiff's injury were a foreseeable result of the defendant's
breach. It is only after a duty and breach of that duty has been
established that the "ca~sation~~
element is analyzed with its
distinct application of the foreseeability concept. As the
Calkins Court stated:
 In determining proximate cause, an element of
goreseeability is also present--the question then is
whether the injury to petitioner was a foreseeable result
of respondent's breach, i.e., what manner of harm is
foreseeable?
Calkins, 792 P.2d at 38. The McCain Court stated:
The proximake causation element, on the other hand, is
concerned with whether and to what extent the defendant s
conduct foreseeably and substantially causedthe specific
injury that actually occurred. In other words, the
former [duty element] is a minimal threshold legal
requirement for opening the courthouse doors, whereas the
latter [causation element] is part of the much more
specific factual requirement that must be proved to win the
case once the courthouse doors are open. As is obvious,
a defendant might be under a legal duty of care to a
specific plaintiff, but still not be liable for
negligence because proximate causation cannot be proven.
It might seem theoretically more appealing to
confine all questions of foreseeability within either the
element of duty or the element of proximate causation.
However, precedent, public policy, and common sense
dictate that this is not possible. Foreseeability
clearly is crucial in defining the scope of general duty
placed on every person to avoid negligent acts or
omissions. . . .

On the question of proximate causation, the legal
concept of fbkeseeability also is crucial, but :n a i
different way. In this context, foreseeability is
concerned with the specific, narrow factual details of
the case, not with the broader zone of risk the defendant
created.
McCain, 593 So. 2d at 502-03.
Both arenas of the foreseeability analysis are independent and
distinct from one another. Foreseeability applied to the "dutyl1
element must be decided as a matter of law by the judge using
established legal policy to determine whether a duty was owed to
the plaintiff. On the other hand, foreseeability applied to the
"causation" element is a question of fact. See Calkins, 792 P.2d
at 38.
Without such a dual approach to the foreseeability analysis,
the determination of whether the "causation" element is satisfied
is reduced to a bare-bones question of cause-in-fact. In removing
foreseeability from the causation analysis, the majority's approach
results in a situation where once duty and breach are established,
a "but-for" or "substantial factor" analysis is all that remains in
order to satisfy the causation element--I submit that such an
inquiry will invariably be answered in the affirmative,
particularly when it is obvious or conceded that a duty has been
breached.
1 must also address the majority's argument that Montana's

statutory framework for determining liability reinforces its
position. Section 1-1-204, MCA, does include the concept of
foreseeability in the "duty" element when it defines negligence as
"a want of the attention to the nature or probable consequences of
the act or omission that a prudent man would ordinarily give in
acting in his own concerns." However, I fail. to follow the
majority's logic when it states that the language of 8 27-1-317,
MCA, set forth below, specifically precludes the applicability of
a foreseeability requirement to the issue of proximate cause.
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.
This statute addresses damages and the language simply means that
if the injury was foreseeable it makes no difference whether the
damages were also foreseeable.
Finally, I am not persuaded by the majority's position that
lay jury members are confused by concepts such as foreseeability
and proximate cause and therefore that they are distracted from
their duty to decide cases based on their merits. I submit that
such concepts are not only necessary to establish the prima facie
case for negligence but are also, when accurately defined, the
proper tools to enable the jury to do its job. In my view it is
better to explain these concepts and define how they are to be used
by the jury rather than to leave the juries' understanding of them
to chance and differing definitions.
In conclusion, I would be the first to admit that the language
contained in the Kitchen Krafters instruction has caused problems
for judges and practitioners alike. The adequacy of the
instruction needed to be addressed and revised. However, I am not
- 2

convinced that in remedying the instruction it is necessary to
abandon the concept of foreseeability and its dual application to
the analysis of both the "duty" and "causationu elements in

Chief Justice J. A. Turnage joins in the foregoing concurring and
dissenting opinion.

Chief Justice