LaTray v. City of Havre

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No. 99-286

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 119

299 Mont. 449

999 P. 2d 1010

DEBRA LaTRAY and

MARLIN LaTRAY,

Plaintiffs and Appellants,

v.

CITY OF HAVRE, MONTANA,

Defendant and Respondent.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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William D. Jacobsen, Thompson, Jacobsen & Potts, Great Falls, Montana

For Respondent:

Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze, Havre, Montana

Submitted on Briefs: November 12, 1999

Decided: May 4, 2000

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Debra and Marlin LaTray (the LaTrays) appeal from the grant of summary judgment in
favor of the City of Havre (the City) by the Twelfth Judicial District Court, Hill County. In
bringing suit against the City, the LaTrays alleged that the City's police officers had acted
negligently in failing to exercise proper control over an intoxicated female whom they had
transported to the Northern Montana Hospital, thus allowing her to intentionally assault
and injure Debra LaTray (LaTray), a nurse at the hospital. The District Court held that
since the assault was not reasonably foreseeable, the City owed no duty to LaTray. We
reverse and remand for trial.

¶2 The LaTrays raise two issues on appeal:

¶3 (1) Did the District Court err in awarding summary judgment to the City on the ground
that the individual's attack on LaTray was unforeseeable as a matter of law?

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¶(4 (2) Should the trial of this case be moved to another county on remand?

FACTUAL AND PROCEDURAL HISTORY

¶5 This case was initially tried before a jury in Hill County in June of 1998. At the close of
the evidence in the first trial, the City made a motion for a directed verdict on the ground
that the assault was unforeseeable. The District Court denied this motion, ruling that there
was sufficient evidence of foreseeability to raise a jury issue. Ultimately, the jury returned
a verdict in favor of the City. However, the District Court subsequently ordered a new trial
because of juror misconduct. Following the award of a new trial, the City disqualified the
trial judge and then moved for summary judgment. The LaTrays moved for a change of
venue for the retrial based on the allegedly prejudicial publicity that had surrounded the
first trial. The new trial judge denied the LaTrays' motion for a change of venue on retrial,
and subsequently granted the City's motion for summary judgment.

¶6 The facts giving rise to this dispute occurred on June 25, 1991. Those facts, viewed in a
light most favorable to the LaTrays, reveal the following. At approximately 9:00 a.m., the
City's police dispatcher received a call from a citizen reporting that there were two girls
fighting in downtown Havre. Two police officers, Lt. Gene Harada and Sgt. Michael Ritz
(the officers), responded to the call in separate squad cars. Upon arriving at the scene of
the fight almost simultaneously, the officers observed two large girls yelling at each other.
The officers did not know the girls and had no prior knowledge of their criminal history or
background. One of the girls, later identified as Marsha Cochran (Marsha), was attempting
to leave the scene, while the other girl, later identified as her sister, Shawn Cochran
(Shawn), was attempting to restrain Marsha.

¶7 There was blood visible on both girls. The officers immediately separated the two girls.
Both officers testified that it was standard police procedure for officers, when responding
to reports of physical disputes between citizens, to separate the combative parties and keep
them separate. After separating the two girls, the officers learned that the girls were sisters
and that Marsha had cut her wrists in an attempt to commit suicide. The officers also noted
that both girls had been drinking; their police report later characterized Marsha and Shawn
as having been "intoxicated."

¶8 The officers decided to place Marsha in protective custody and transport her to the
hospital for medical and psychological evaluation. The officers had no basis for taking
Shawn into custody. Although it was not necessary, the officers decided to transport

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Shawn to the hospital as well and made plans to take the two girls to the hospital in
separate squad cars. The officers testified, again, that it was standard police procedure to
keep reported combatants separated. However, Shawn did not want to ride separately from
her sister and resisted the officers' efforts to make her ride in a separate squad car.
Notwithstanding the dictates of their training, the officers ultimately gave in to Shawn and
allowed her to ride together with Marsha. One of the officers testified that in failing to
keep the two girls separate, they were acting contrary to proper police procedure and were
taking a risk that the girls might behave unpredictably.

¶9 During the ride to the hospital, the girls occasionally argued with each other. Upon
arriving at the hospital emergency room driveway, one of the officers attempted to remove
Marsha from the squad car but she resisted his efforts. At this point, Shawn began to act in
an increasingly agitated manner. Although it was contrary to standard police practice, the
officers allowed Shawn, who was unrestrained, to engage in the use of force to remove
Marsha from the squad car. Shawn initially attempted to push Marsha out of the squad car.
She then reached into the car and grabbed Marsha by the hair in an effort to forcibly drag
her out of the vehicle. The officers made no attempt to remove or physically restrain
Shawn, who appeared increasingly impatient with the situation. Finally, one of the officers
was able to remove Marsha from the squad car. Shawn then grabbed hold of Marsha but
the other officer told her to let go and she complied with his request.

¶10 At about this time, LaTray, who was working as a nurse in the emergency room of the
hospital, came out of the emergency room. Seeing the officers and an injured person in the
emergency room driveway, LaTray went over to render assistance. The officers did not
request assistance from LaTray. While it was not common practice for nurses to come
outside into the driveway when police arrived, one of the officers observed LaTray
approaching and saw nothing improper with LaTray coming over to render assistance.
When LaTray approached, Marsha screamed profanities at LaTray. LaTray could also
hear Shawn yelling at her from the background.

¶11 When LaTray reached out to grab Marsha's arm and inspect her injuries, Shawn
suddenly and without warning took a swing at LaTray and struck her in the jaw. The force
of the blow caused LaTray to fall backwards against the open door of the squad car, thus
injuring her back. Immediately after the incident, the officers had to wrestle Shawn to the
ground. Shawn violently resisted and screamed profanities. With the assistance of other
police officers, Shawn was finally restrained and placed in a squad car; however, Shawn
then began kicking the door of the squad car with such force that it bowed outwards

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several inches with each kick.

¶12 At trial, the LaTrays presented testimony from an expert in police procedures, Sam
Damon (Damon), who stated that the officers committed numerous errors in their handling
of the situation on June 25, 1991. Damon testified that the officers made the following
errors: the officers failed to maintain control over the situation and, beginning with
Shawn's refusal to ride in a separate squad car, had in fact allowed the girls to assume
control over the situation; the officers failed to keep the girls separated from each other
notwithstanding that the girls had been reported fighting and the officers' observations that
the girls had been drinking; and the officers failed to deter or remove Shawn from the
vicinity of the emergency room driveway when she began using force against her sister in
an effort to extract her from the squad car. Damon also testified that, based upon the
conduct of the girls, the officers should have foreseen that the failure to follow proper
police procedures could create a potential for harm to persons in the vicinity.

DISCUSSION

¶13 (1) Did the District Court err in awarding summary judgment to the City on the
ground that the individual's attack on LaTray was unforeseeable as a matter of law?

¶14 We review a grant of summary judgment de novo, applying the same evaluation as the
district court based on Rule 56, M.R.Civ.P. Summary judgment is proper only where the
record reveals no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. See Rule 56(c), M.R.Civ.P. The party seeking summary
judgment has the initial burden of establishing the complete absence of genuine issues of
material fact. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 436, 901
P.2d 116, 118. Only where the moving party has carried its initial burden does the burden
then shift to the non-moving party to show, by more than mere denial, speculation, or
conclusory statements, that a genuine issue of material fact exists. Bruner v. Yellowstone
County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

¶15 In a summary judgment proceeding, the evidence must be viewed in the light most
favorable to the non-moving party. Bowen v. McDonald (1996), 276 Mont. 193, 199, 915
P.2d 201, 205. In reviewing the record, all reasonable inferences will be drawn in favor of
the party opposing summary judgment. Porter v. Galarneau (1996), 275 Mont. 174, 179,
911 P.2d 1143, 1146. Ordinarily, questions of negligence are poorly suited to adjudication
by summary judgment and are better left for jury determination at trial. Scott v. Henrich,

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1998 MT 118, ¶ 13, 288 Mont. 489, ¶ 13, 958 P.2d 709, ¶ 13; Kolar v. Bergo (1996), 280
Mont. 262, 266, 929 P.2d 867, 869; Wiley v. City of Glendive (1995), 272 Mont. 213,
216, 900 P.2d 310, 312; Pappas v. Midwest Motor Express, Inc. (1994), 268 Mont. 347,
350, 886 P.2d 918, 920; Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018;
Hendrickson v. Neiman (1983), 204 Mont. 367, 371, 665 P.2d 219, 222; Brown v. Merrill
Lynch, Pierce, Fenner & Smith, Inc. (1982), 197 Mont. 1, 10, 640 P.2d 453, 458.

¶16 The parties in this case agree that the assault committed on LaTray was purposeful
and knowing. The District Court held that since the intentional assault was unforeseeable
as a matter of law, the City owed LaTray no duty. Thus, akin to the issue we faced
recently in Lopez v. Great Falls Pre-Release Servs., Inc., 1999 MT 199, 295 Mont. 416,
986 P.2d 1081, this case presents a dispute as to whether the intervening criminal attack
by Shawn was an act that the City should reasonably have anticipated and taken
precautions against. If the City had no reason to foresee the intervening criminal act of
Shawn, then it cannot be held liable to LaTray. For "[i]t is axiomatic that in the absence of
foreseeability, there is no duty; in the absence of duty, there is no negligence." Lopez, ¶
26.

¶17 Intervening criminal acts of third persons are not automatically unforeseeable as a
matter of law, but rather, must be addressed in the foreseeability context on a case-by-case
basis. Starkenburg v. State (1997), 282 Mont. 1, 11, 934 P.2d 1018, 1023 (citing Estate of
Strever v. Cline (1996), 278 Mont. 165, 178-79, 924 P.2d 666, 674). Moreover, although
foreseeability is ordinarily analyzed only under the duty element of negligence, we
explained in Lopez that in cases involving a dispute over the intervening criminal act of a
third party, as here, foreseeability must be analyzed twice: first, with regard to the
existence of a legal duty, and second, with regard to proximate causation. See Lopez, ¶¶
27-28, 32. We discuss each component of foreseeability below.

Foreseeability and the Existence of a Legal Duty

¶18 The existence of a legal duty is a matter of law to be determined in the first instance
by the trial court. Nautilus Ins. Co. v. First Nat'l Ins., Inc. (1992), 254 Mont. 296, 299, 837
P.2d 409, 411. We review a district court's conclusion of law to determine whether it is
correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d
601, 603.

¶19 At this point, it becomes necessary to address the City's contention that absent a

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special relationship, it owed LaTray no duty of care. In making its claim that no special
relationship existed here, the City relies on Phillips v. City of Billings (1988), 233 Mont.
249, 758 P.2d 772, in which we said:

The majority rule states that [a police officer's] general duty to protect does not give
rise to liability for a particular individual's injury absent a greater duty imposed by a
special relationship. Under the facts of this case, we . . . refuse to find a duty based
on the officers' general duty to protect the . . . public.

Phillips, 233 Mont. at 253, 758 P.2d at 775 (citation omitted); see also Nelson v. Driscoll,
1999 MT 193, 295 Mont. 363, 983 P.2d 972 (discussing Phillips, the "public duty
doctrine" governing police officers, and the special relationship exception to that
doctrine). According to the City, the LaTrays have not claimed the existence of a special
relationship or otherwise shown that the officers owed LaTray a greater duty of care than
that owed to the general public.

¶20 Phillips involved a negligence claim by the occupants of a vehicle which was struck
by an intoxicated motorist who ran a red light. The intoxicated motorist had been
approached two hours prior to the accident and questioned by Billings police officers, who
declined at that time to arrest him despite having observed the smell of alcohol on his
breath and empty beer cans in his parked vehicle. The plaintiffs sued the City of Billings,
claiming that the officers were under a duty to control the potentially dangerous actions of
the intoxicated motorist, which duty they had allegedly breached by failing to arrest him
earlier in the day. This Court, as noted above, rejected the plaintiffs' assertion that the
officers were under a duty of care notwithstanding the absence of a special relationship.
We reasoned that the imposition of a legal duty depended upon the officers' "ability to
control the third person." Phillips, 233 Mont. at 252, 758 P.2d at 775 (citing Restatement
(Second) of Torts § 319 (1965)) (emphasis added). Because the officers did not have
probable cause to arrest the intoxicated motorist when they had detained him earlier in the
day, we held that they had no ability to control him and, thus, that no special relationship
existed giving rise to a duty to the plaintiffs. Phillips, 233 Mont. at 252, 758 P.2d at 775.

¶21 In Lopez, we put forth the following, relevant passage:

As a general rule, there is no duty to protect others against harm from third persons.
W. Page Keeton & William Prosser, Prosser and Keeton on the Law of Torts § 56,
at 385 (5th ed. 1984). "Traditionally," as we have recognized, "a person is not liable

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for the actions of another and is under no duty to protect another from harm in the
absence of a special relationship of custody or control." Krieg v. Massey (1989),
239 Mont. 469, 472, 781 P.2d 277, 279 (citing Prosser and Keeton on the Law of
Torts § 56 (5th ed. 1984)) (emphasis added). Such a duty may arise where, as here,
the special relationship is "custodial by nature," thus requiring the defendant to
exercise reasonable control over his or her charge so as to prevent foreseeable harm
to others. See Prosser and Keeton on the Law of Torts § 56, at 383-84 (5th ed. 1984).

Lopez, ¶ 24.

¶22 Moreover, we recently addressed the Phillips decision, clarifying that a police officer
does not owe a duty to protect a third person, such as LaTray, from the actions of an
individual absent a "custodial relationship" between the officer and the individual. See
Nelson, ¶ 28. Thus, a duty to protect third persons arises "only when a police officer
actually makes an arrest, or otherwise takes possession or custody of an individual."
Nelson, ¶ 29 (emphasis added).

¶23 Here, in contrast to the situation presented in Phillips, the City's police officers
entered into a "special relationship of custody or control" over Shawn, thus giving rise to a
duty of care to third persons. See Krieg, 239 Mont. at 472, 781 P.2d at 279. While it is true
that the officers did not actually arrest Shawn or otherwise have a basis for taking her into
legal custody, they voluntarily undertook "possession or custody" of Shawn in
transporting her to the hospital. See Nelson, ¶ 29. In so doing, they "took charge" of her
person and, consequently, harbored the "ability to control" her actions to prevent an
unreasonable risk of harm to third persons. See Nelson, ¶ 28; Phillips, 233 Mont. at 252,
758 P.2d at 775.

¶24 With respect to foreseeability in the context of duty, we have ascertained that duty is
defined by the " 'scope of the risk which negligent conduct foreseeably entails.' " Busta v.
Columbus Hosp. Corp. (1996), 276 Mont. 342, 363, 916 P.2d 122, 134 (quoting Mang v.
Eliasson (1969), 153 Mont. 431, 438, 458 P.2d 777, 781). "[I]n analyzing foreseeability in
the duty context," as we said in Lopez, "we look to whether or not the injured party was
within the scope of risk created by the alleged negligence of the tortfeasor--that is, was the
injured party a foreseeable plaintiff?" Lopez, ¶ 28.

¶25 The special relationship that existed between the officers and Shawn gave rise to a
duty of care to foreseeable plaintiffs like LaTray. If a reasonably prudent defendant has no

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reason to foresee "'any danger of direct injury [to the plaintiff] nor any risk from an
intervening cause,'" then the defendant is not negligent. Starkenburg, 282 Mont. at 17, 934
P.2d at 1027 (quoting Busta, 276 Mont. at 362, 916 P.2d at 134) (emphasis added). Based
upon Shawn's combative and agitated demeanor on the day in question, a reasonably
prudent defendant would have foreseen that a failure to adequately restrain or otherwise
control Shawn could pose an unreasonable risk of harm to others in her vicinity.
Furthermore, both of the officers testified that the standard police practice of separating
reported combatants, from which they departed in this case, is designed in part for the
protection and safety of bystanders who happen to be in the vicinity of the incident. We
determine that by voluntarily assuming custody of Shawn and transporting her to the
hospital, the officers assumed the "ability to control" her actions to prevent harm to
bystanders, like LaTray, who fall within the scope of the risk which negligent supervision
would foreseeably entail. See Phillips, 233 Mont. at 252, 758 P.2d at 775.

¶26 The existence of a legal duty is a matter of law. Lopez, ¶ 31 (citing Nautilus, 254
Mont. at 299, 837 P.2d at 411). We hold, as a matter of law, that the City owed a duty of
reasonable care to adequately supervise Shawn so as to prevent harm to any person, like
LaTray, who would foreseeably be placed within the scope of risk arising from negligent
supervision. Whether the City breached that legal duty, however, is an issue to be
determined by the jury upon retrial. See Estate of Strever, 278 Mont. at 175, 924 P.2d at
672 (stating that breach of a legal duty is a question of fact suitable for resolution by the
fact finder at trial).

Foreseeability and Proximate Cause

¶27 The causal issue of intervening acts of third parties normally involves questions of
fact more properly left to the fact finder for resolution and, therefore, it is only when
reasonable minds could reach but one conclusion regarding foreseeability that it is
appropriate for a court to determine the issue as a matter of law. Lopez, ¶¶ 34-35 (quoting
Estate of Strever, 278 Mont. at 178, 924 P.2d at 674; Kiger v. State (1990), 245 Mont.
457, 462, 802 P.2d 1248, 1251).

¶28 Here, as in Lopez, we are concerned with whether Shawn's assault was a superseding
cause of the harm incurred by LaTray which, if not reasonably foreseeable, would break
the chain of causation and absolve the City of liability. See Lopez, ¶ 33. In analyzing
foreseeability in the context of proximate cause, this Court elucidated in Lopez that "we
are concerned with whether and to what extent the defendant's conduct foreseeably and

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substantially caused the specific injury incurred by the plaintiff." Lopez, ¶ 32. The conduct
at issue here, as the City suggests, was the officers' decision to allow Shawn to accompany
them to the hospital and their alleged failure to control Shawn while at the hospital.

¶29 The City contends that even if a legal duty existed, summary judgment was still
properly granted because the LaTrays have failed to establish causation. Specifically, the
City argues that since the officers testified that they had no reason to believe that Shawn
would become aggressive or violent upon their arrival at the hospital, it was not
reasonably foreseeable that a failure to adequately control Shawn would result in an
intentional assault on LaTray. Therefore, the City asserts that based upon the record,
reasonable minds could reach but one conclusion regarding foreseeability and proximate
cause. We disagree.

¶30 As the LaTrays correctly indicate, this Court has held that summary judgment is
improper where, as here, the credibility of a defendant's affiant may be crucial to
adjudication of a material fact:

"[W]here . . . credibility, including that of the defendant, is crucial, summary
judgment becomes improper and a trial indispensable. It will not do, in such a case,
to say that, since the plaintiff, in the matter presented by his [or her] affidavits, has
offered nothing which discredits the honesty of the defendant, the latter's deposition
must be accepted as true. We think that Rule 56 was not designed thus to foreclose
plaintiff's privilege of examining defendant at trial, especially as to matters
peculiarly within defendant's knowledge." [Emphasis added.]

Morrow v. FBS Ins. Montana-Hoiness LaBar, Inc. (1988), 230 Mont. 262, 265, 749 P.2d
1073, 1075 (quoting Arnstein v. Porter (2d Cir. 1946), 154 F.2d 464, 471).

¶31 As the LaTrays point out, the only individuals who observed the majority of events
leading up to the assault were the two girls and the officers. The girls could not be located
and did not testify at trial. LaTray herself witnessed only the events immediately
preceding her injury, and during that time her attention was focused on Marsha rather than
Shawn. Thus, the City's argument regarding lack of foreseeability is premised entirely
upon the testimony of the officers that Shawn's conduct prior to the assault was
cooperative, non-violent, and gave no indication that she posed any danger to those around
her. As in Morrow, because most of the events leading up to the assault were matters
peculiarly within the knowledge of the City's affiants and crucially dependent upon their

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veracity and believability, summary judgment was improper and a trial indispensable.

¶32 Furthermore, when viewing the evidence in a light most favorable to the LaTrays, we
determine that summary judgment was improvidently granted because there was sufficient
evidence of Shawn's irascible conduct on the day in question to raise a jury question as to
whether Shawn posed a danger to those around her. First, the officers received a report of
two girls fighting in downtown Havre, and observed two girls yelling at each other upon
arriving at the scene. Second, according to the officers' police report, the girls were
"intoxicated." Third, even after a degree of force was applied, Shawn steadfastly refused
to obey the officers' directive to ride in a separate squad car from her sister. Fourth, during
the short drive to the hospital, the two girls continued to argue with each other. Fifth, once
at the hospital, the officers observed Shawn attempt to extricate her sister from the squad
car by physically pushing against her, and then by pulling her hair. Sixth, one of the
officers observed that just prior to the assault, Shawn appeared increasingly impatient with
the situation at the hospital. Lastly, Marsha was screaming profanities when LaTray
approached her, and LaTray further recounted hearing Shawn yelling in the background
immediately preceding the assault. The LaTrays also presented expert testimony that, in
view of the aforementioned facts, the officers should have known that Shawn presented a
foreseeable risk of harm to bystanders.

¶33 The evidence in this case amply raises a jury question. Based on the record,
reasonable jurors clearly could differ as to whether Shawn presented a foreseeable risk of
injury to persons in her immediate vicinity, including LaTray. We hold that the District
Court erred in granting summary judgment. There are contested issues of material fact
which preclude the granting of judgment as a matter of law. Where, as here, the facts of a
given case suggest that the intervening criminal act of a third party is one which the
defendant might reasonably foresee, " 'then there is no reason why the fact finder should
not decide causation the same as with any other intervening causation case.' " Starkenburg,
282 Mont. at 10, 934 P.2d at 1023 (quoting Estate of Strever, 278 Mont. at 178, 924 P.2d
at 674).

¶34 (2) Should the trial of this case be moved to another county on remand?

¶35 The LaTrays filed this case in Hill County because it is the sole place of proper venue
pursuant to § 25-2-126(3), MCA(1997). Although the first trial of this case resulted in a
jury verdict for the City, the then-presiding judge ordered a new trial because he
concluded that the initial verdict had been tainted by the jury's exposure to media publicity

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during the trial. Both during and after the first trial, there were several newspaper articles
and radio news reports in Havre concerning the legal dispute between the City and the
LaTrays. The replacement judge in this case denied the LaTrays' motion for a change of
venue on retrial. We review a district court's ruling on a motion for change of venue for an
abuse of discretion. Mannix v. Butte Water Co. (1993), 259 Mont. 79, 89, 854 P.2d 834,
840.

¶36 Under § 25-2-201, MCA, a change of venue is required "when there is reason to
believe that an impartial trial cannot be had" in the current venue. Section 25-2-201(2),
MCA. Due to the "widespread publicity" concerning the trial in Hill County, the LaTrays
claim that this Court should order a change of venue on remand to protect the impartiality
of the jury and the fairness of the proceedings on retrial. However, the LaTrays concede
that the media coverage of this trial has been "balanced and factual," rather than "biased or
inflammatory."

¶37 As the City argues, a party seeking a change of venue on the grounds of prejudicial
pre-trial publicity must prove two elements: (1) that the media publicity surrounding the
case was inflammatory; and (2) that the publicity actually inflamed the prejudice of the
community to the extent that a reasonable possibility exists that the party will not receive a
fair trial. State v. Fuhrmann (1996), 278 Mont. 396, 409, 925 P.2d 1162, 1170 (citing State
v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832). Moreover, inflammatory
publicity consists of " 'editorializing on the part of the media or any calculated attempt to
prejudice public opinion . . . .' " Fuhrmann, 278 Mont. at 409, 925 P.2d at 1170 (quoting
State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 173-74). However, news
accounts containing factual reports of court filings or events, which are " 'devoid of
editorializing,' " do not rise to the level of inflammatory publicity, even where the reports
contain information unfavorable to the party seeking the change of venue. See Fuhrmann,
278 Mont. at 410, 925 P.2d at 1170-71.

¶38 The LaTrays' speculative attempt to create the appearance of impropriety on the basis
of balanced and factual pre-trial publicity does not amount to a "showing that there are
reasonable grounds to believe that prejudice actually exists which creates a reasonable
apprehension that a fair and impartial trial cannot be held in the current venue." Mannix,
259 Mont. at 88-89, 854 P.2d at 840 (citing State v. Pease (1987), 227 Mont. 424, 432,
740 P.2d 659, 664). We hold, therefore, that the District Court did not abuse its discretion
in denying the LaTrays' motion for change of venue on retrial.

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¶39 The District Court's grant of summary judgment in favor of the City is reversed, and
this case is remanded for a new trial. The District Court's denial of the LaTrays' motion for
change of venue is affirmed.

¶40 Reversed and remanded

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

Justice W. William Leaphart, specially concurring.

¶41 I concur with the Court's analysis on the question of legal duty and the question of
proper venue. I specially concur that the District Court should have granted summary
judgment on the question of whether the incident was foreseeable in the context of
causation.

¶42 The Court employs two rationales for its conclusion that summary judgment was
inappropriate as to whether there was foreseeability as to causation: (1) summary
judgment is inappropriate where the credibility of a defendant's affiant may be crucial to
adjudication of a material fact, and (2) the evidence in the record raises questions of fact
as to whether Shawn presented a foreseeable risk of injury to third persons. I agree with
the Court's conclusion that there was "sufficient evidence of Shawn's irascible conduct on
the day in question to raise a jury question as to whether Shawn posed a danger to those
around her." That rationale is more than a sufficient basis for denying summary judgment
and the Court need go no further.

¶43 For the reasons set forth in my dissenting and concurring opinion in Mickelson v.
Montana Rail Link, Inc., 2000 Mont. 111, I disagree with the broad proposition that, any
time a party's motion for summary judgment is dependent upon the veracity of that party's
affiant, summary judgment is inappropriate. As I state in Mickelson, unless the party
opposing summary judgment can raises an issue as to a material fact, summary judgment
is appropriate. Summary judgment cannot be defeated (as in Mickelson) by raising a
question as to credibility on a non-material, extraneous fact nor by merely assuming,
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without any basis for doing so, that affiant's unchallenged testimony is, or may be, false.

/S/ W. WILLIAM LEAPHART

Chief Justice J. A. Turnage joins in the foregoing special concurrence.

/S/ J. A. TURNAGE

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