Pula v. State

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No. 99-315

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 9

WENDY MICHAEL PULA,

Plaintiff and Appellant,

v.

STATE OF MONTANA,

Defendant and Respondent.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Blaine,

Honorable John C. McKeon, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Robert M. Peterson, Peterson Law Office, Havre, Montana

Daniel A. Boucher, Altman & Boucher, Havre, Montana

For Respondent:

Dana L. Christensen, Christensen, Moore, Cockrell, Cummings

& Axelberg, P.C., Kalispell, Montana

Submitted on Briefs: February 27, 2001

Decided: January 25, 2002

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Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Wendy M. Pula (Pula) appeals the verdict and judgment in favor of the State of
Montana (State), in the Seventeenth Judicial District Court, Blaine County. Pula contends
that the District Court erred when it denied her motion in limine to exclude evidence of
third party misconduct, that there is insufficient evidence to support the jury's verdict and
that the District Court improperly instructed the jury on intervening and superseding
cause. We affirm the verdict and judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 This matter arises out of a suit filed in United States District Court by Pula against the
State of Montana, the City of Chinook, three Chinook police officers, Blaine County, and
the Sheriff of Blaine County. All claims against the City of Chinook, Blaine County, and
their officers and employees were dismissed following settlement with Pula. The United
States District Court dismissed the pendant claim for negligence against the State of
Montana, allowing Pula to refile in state court. Pula then sued the State in Blaine County,
alleging negligence in the incarceration, monitoring and control of Montana State Prison
inmate Chester Bauer. Bauer has a history of sexual assaults against women and had been
serving sentences at the Montana State Prison for sexual intercourse without consent,
aggravated assault and felony intimidation. However, after being assaulted by fellow
inmates and testifying against them, the State arranged to have Bauer housed in the Blaine
County Jail for his own protection.

¶3 The record indicates that Bauer came to be on quite friendly terms with his jailers in
Blaine County. He was allowed to roam the facility at will, had access to keys and was
permitted to work in and outside the jail wearing civilian clothes. He also ran errands for
the jail staff.

¶4 Pula, a twenty-year-old female, had been ticketed for minor in possession of alcohol.

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After failing to appear in court for the ticket, she was picked up by police and taken to the
Blaine County Jail. For whatever reason, either because she had no money or was afraid or
unwilling to call a friend or relative for assistance, Pula could not post bond and was jailed
pending an appearance before a judge. Because all cells in the women's block were full,
officers put Pula in one of the jail's solitary confinement cells.

¶5 The next day, Bauer came to visit Pula in her cell. He introduced himself, asked if she
was okay, and asked her if there was anything he could do to help her. Pula later testified
at trial that, since Bauer was dressed in civilian clothes and seemed to have free run of the
place, she believed that he worked at the jail. She also remembered seeing him around the
grocery store where she worked.

¶6 During the course of the day, May 26, 1995, Bauer and Pula exchanged a series of
notes. Later that night, at approximately 3:00 a.m., Bauer came back to Pula's cell. Using
the jail keys, he unlocked her cell and invited her to his, ostensibly to watch TV. Pula went
willingly. While in his cell, however, Bauer began to fondle Pula. When she protested he
told her that he had stolen the keys and, if anyone found out she was out of her cell, she
would go to prison for ten years for escape. Bauer then raped her. Afterwards, he returned
Pula to her cell and locked her in. Pula said nothing about the incident to jail officials but
reported the rape to friends the next day.

¶7 In the ensuing criminal trial, Bauer was convicted of sexual intercourse without
consent, intimidation and misdemeanor escape. Pula also filed a civil complaint in the
United States District Court alleging negligence and violation of 42 U.S.C. § 1983 against
the City of Chinook, three Chinook police officers, Blaine County, the Sheriff of Blaine
County, and the State of Montana. All claims against parties other than the State were
dismissed following settlement with those parties. The United States District Court
dismissed the § 1983 claim against the State and then ruled that it was without jurisdiction
to hear the pendent negligence claim. Pula then refiled her negligence claim against the
State in the Seventeenth Judicial District Court, Blaine County.

¶8 In her complaint, Pula alleged that the State breached its duty of care in the
incarceration, supervision and control of Bauer and that this breach resulted in Bauer's
attack and Pula's resulting psychological and economic damages. The State denied
negligence and argued that any damages sustained by Pula were the result of independent
and unforeseeable intervening acts: in particular, the negligence of the other defendants
named in the original federal suit, the contributory negligence of Pula herself and Bauer's

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intentional act.

¶9 At trial Pula sought to prevent the State from presenting evidence concerning the
negligence, fault, or conduct of non-parties to her complaint, including but not limited to
Blaine County, the City of Chinook, Blaine County officials and Bauer, himself. She
contended that such evidence represented an impermissible attempt to apportion liability
to non-parties. The State argued that such evidence was admissible as proof of an
intervening cause of Pula's injuries. The District Court denied Pula's motion in limine,
allowing such evidence for the purpose of demonstrating an intervening or superseding
cause for Pula's claimed injuries but not for the purpose of attempting to allocate liability
to non-parties.

¶10 At the close of trial, the District Court submitted its own proposed jury instructions.
These included instructions on the meaning of intervening and superseding cause, to
which Pula objected. In addition, the District Court submitted a special verdict form which
required the jury to first decide if the State was negligent and, if so, whether that
negligence was a cause of any injury or damage to Pula. If the jury answered no to the
causation question, it was instructed to go no further. If it answered yes, it was to
determine whether there was an intervening or superseding cause. The jury determined
that the State was negligent but that its negligence was not a cause of Pula's injuries.

¶11 Pula raises the following issues on appeal:

¶12 Issue 1. Did the District Court err when it denied Pula's motion in limine to exclude
evidence of intervening and superseding causes of Pula's injuries?

¶13 Issue 2. Was there sufficient evidence to submit the case to the jury?

¶14 Issue 3. Did the District Court's jury instructions and verdict form incorrectly instruct
the jury on the law of intervening and superseding cause?

DISCUSSION

Issue 1. Did the District Court err when it denied Pula's motion in limine to exclude
evidence of intervening and superseding causes of Pula's injuries?

¶15 We review a District Court's grant or denial of a motion in limine for an abuse of
discretion. Bramble v. State Dept. of Justice, Motor Vehicle Div., 1999 MT 132, ¶ 16, 294
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Mont. 501, ¶ 16, 982 P.2d 464, ¶ 16; Dill v. Montana Thirteenth Judicial Dist. Ct., 1999
MT 85, ¶ 8, 294 Mont. 134, ¶ 8, 979 P.2d 188, ¶ 8. The District Court has broad discretion
to determine if evidence is admissible. Accordingly, absent an abuse of discretion, we will
not overturn the District Court's determination. Busta v. Columbus Hospital Corp. (1996),
276 Mont. 342, 353, 916 P.2d 122, 130.

¶16 Pula contended at trial and argues now on appeal that introduction of evidence
concerning the actions of Blaine County permitted the State to apportion blame or
responsibility to non-party defendants. She cites our decision in Plumb v. Fourth Judicial
Dist. Ct. (1996), 279 Mont. 363, 379, 927 P.2d 1011, 1021, for the proposition that such
third party defenses violate substantive due process because juries are likely to assign a
dispro-portionate share of liability to unrepresented parties-thereby reducing the recovery
from the named defendant. While we concur with her statement of our holding in Plumb,
we find it inapplicable to Pula's case.

¶17 In Plumb, we concluded that portions of the 1995 amendments to § 27-1-703, MCA,
which allowed apportionment of liability to parties who are not named in the lawsuit,
violated substantive due process. Plumb, 279 Mont. at 379, 927 P.2d at 1021. The issue in
this case, however, is not how to apportion blame among several liable parties but
whether, because of the intervening negligence of another, the State's acts or omissions
could be said to be the cause of Pula's injuries. Our decision in Plumb did not disturb the
validity of the intervening cause exception to the general test for causation, and we have
repeatedly upheld its validity-even after our decision in Plumb. See State v. Schipman,
2000 MT 102, 299 Mont. 273, 2 P.3d 223; Gentry v. Douglas Hereford Ranch, Inc., 1998
MT 182, 290 Mont. 126, 962 P.2d 1205. Evidence of the conduct of Blaine County and
Bauer was relevant to the issue of causation in Pula's negligence claim and was properly
admitted by the District Court.

Issue 2. Was there sufficient evidence to submit the case to the jury?

¶18 Prior to submission of the case to the jury, the District Court denied Pula's motion for
judgment as a matter of law. Motions for judgment as a matter of law are governed by
Rule 50(a), M.R.Civ.P., which provides:

If during a trial by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on that
issue, the court may determine the issue against that party and may grant a motion

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for judgment as a matter of law against the party with respect to a claim or defense
that cannot under the controlling law be maintained or defeated without a favorable
finding on that issue.

¶19 Considering all evidence in the light most favorable to the opposing party, judgment
as a matter of law is properly granted only when there is a complete absence of any
evidence which would justify submitting an issue to the jury. Armstrong v. Gondeiro,
2000 MT 326, ¶ 26, 303 Mont. 37, ¶ 26, 15 P.3d 386, ¶ 26.

¶20 Pula argues that, absent what she considers to be improperly admitted intervening
cause evidence, the State presented no evidence to counter her claims of duty, breach,
causation and damages. Our review of the trial record does not support this contention.

¶21 The State presented substantial evidence that the damages suffered by Pula were not
the result of its negligent acts or omissions. Its case included testimony and documentary
evidence that it did not breach any relevant standard of care, that its acts or omissions
were not the actual or proximate cause of Pula's injuries and that many of the economic
damages for which Pula sought recovery may have been related to events that occurred
prior to the rape. The State presented evidence that it transferred Bauer to Blaine County
for legitimate penological reasons and did so knowing that the county jail was a secure
modern facility. It offered testimony that it provided Blaine County officials with timely
and appropriate guidelines for Bauer's incarceration.

¶22 There was evidence that, despite the State's guidelines, Sheriff Harrington, shortly
after Bauer's transfer to Blaine County, unilaterally decided to treat Bauer as a "trustee."
Without any authorization from the State, Harrington allowed Bauer to work outside the
jail and to wear civilian clothing. On September 9, 1994, approximately three months after
Bauer was transferred, Blaine County Jailer Jim Doyle faxed a letter to Warden Mahoney
requesting permission for Bauer to work outside the jail. Bauer's prison supervisor, Bill
Pohjola, called Doyle and left a message which Doyle acknowledges having received. The
message advised Doyle that Bill Pohjola from the prison had called stating that the prison
would not "OK" Bauer to work outside the jail at that time.

¶23 Approximately six months later, in March of 1995, Ed Schmidt, Havre Probation and
Parole Officer, learned that Bauer was being treated as a "trustee." Schmidt was concerned
about this state of affairs and contacted his supervisor who, in turn, contacted officials at
MSP. As a result, Schmidt was asked to conduct a more thorough review, which he did.

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He subsequently filed a report with Classification Manager Candyce Neubauer and spoke
with her on the telephone. Neubauer, Pohjola and Mahoney determined that Bauer could
stay in Blaine County if they were assured that Blaine County would appropriately and
safely incarcerate Bauer.

¶24 Neubauer contacted Jailer Doyle and relayed her concerns about Bauer's status. Doyle
assured her that Blaine County would appropriately and safely incarcerate Bauer. Schmidt
personally met with Sheriff Harrington, Jailer Doyle and Undersheriff Murdock and was
assured that Bauer would be properly housed.

¶25 On April 4, 1995, Neubauer sent two letters to Blaine County, one to the Sheriff and
one to Jailer Doyle setting forth the State's concerns regarding Bauer's incarceration. In
particular, the letter reiterated that MSP officials had become "very concerned that Chester
[Bauer] was allowed into the community unsupervised." The letter concluded with the
following admonition:

Because Bauer is considered a Special Management inmate and not a Trusty, we can
not allow him to have access to the community. We sure would like to keep Bauer
there if you don't have problems with restricting his access to the community. He is
not to be allowed out of the jail area unsupervised.

¶26 Some 24 days later, on April 28, 1995, Jailer Jim Doyle distributed the following
memo to all jail employees:

Control Officers:

We need to establish some rules in dealing with Chester. First of all, everyone
remember that he is still an inmate. He can not be hanging around in dispatch and
the jailers office visiting. This has been happening a lot, especially at night. He
comes out and hangs around dispatch when Kara is working. I don't think this is a
good idea. The general public is not allowed to do this, so for sure an inmate
shouldn't be. There are a lot of things that he is not supposed to see. The jail roster
for one, information on the teletype for another. Lately if he needs the garage
opened he just walks in and opens it. This cannot happen. There may be evidence or
something in there that needs to be kept secure.

I also found out that a few nights ago, Chester was given the jail keys to go turn the

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radio off in male cell block. Do not give Chester the keys. The whole next day, all I
heard from the other inmates, is how come an inmate has the jail keys, and that we
should let them have them also. If word about this ever got to the public, it could
really cause some problems. Chester is an inmate. What would have prevented him
from unlocking the other inmates if he wanted to. We would have had some serious
problems. I realize Chester is a nice person and is doing well here, and everybody
likes him, but he is not an employee. He is a MSP inmate[.]

Remember, Chester is not to be outside of the Sheriff's Dept. without supervision.
He must be monitored at all times if outside of this office. The prison has already
said that if something were to happen, we would be responsible.

We will probably be getting another trustee from the prison one of these days. If he
sees Chester acting like an employee, then he is going to act the same way. We don't
need that.

I have already talked to him about the deal with the jail keys, and hanging around in
the offices. Lets not let this kind of stuff happen. We don't want something to go
wrong and end causing up some problems that we can't deal with.

Also Chester received his paperwork today from MSP, he was denied parole. So
keep an extra close eye on him. I don't think he would try to leave, but I didn't think
Bigby would either. I know this will be a let down for him.

Jim L. Doyle

¶27 The dissent argues that since the State knew that Bauer had access to the jailhouse
keys, the threat to Pula was foreseeable. This contention is based upon Warden Mahoney's
testimony that, in late March of 1995, Officer Schmidt brought it to his attention that
Bauer had access to the keys. It is significant, however, that Warden Mahoney's testimony
in this regard was inconsistent with the testimony of Officer Schmidt. Officer Schmidt
testified as follows:

Q: Did you know that he had access to keys?

A: No, I did not.

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Q: Did you ever know that?

A. No.

¶28 Candyce Neubauer also testified that she did not know that Bauer had access to the
jail keys. Jailer Doyle did not learn of Bauer's access to keys until April 26 or 27, 1995,
and, even then, he did not advise anyone from the State of that fact. He did, however,
circulate the above memo, dated April 28, 1995, in which he specifically and emphatically
advises his staff that Bauer was a MSP inmate and was not to have access to the keys.
Clearly there was ample evidence before the jury from which it could conclude that
Warden Mahoney was mistaken when he said that he had been advised by Schmidt in
March of 1995 that Bauer had access to the keys. The above evidence would also explain
why Neubauer's letter of April 4 did not address the issue of Bauer's access to the keys.
First of all, there was no evidence that there had been an access to keys problem prior to
April 4; secondly, Neubauer was never aware that Bauer had access to keys; and finally,
even the jailer was not aware of this until April 27 or 28.

¶29 We conclude that the State offered sufficient evidence to submit the issue to the jury.
Judgment as a matter of law was not appropriate. The District Court correctly denied
Pula's Rule 50(a), M.R.Civ.P., motion.

Issue 3. Did the District Court's jury instructions and verdict form incorrectly
instruct the jury on the law of intervening and superseding cause?

¶30 This Court reviews jury instructions to determine whether the instructions as a whole
fully and fairly instruct the jury on the law applicable to the case. State v. Martin, 2001
MT 83, ¶ 23, 305 Mont. 123, ¶ 23, 23 P.3d 216, ¶ 23.

¶31 Pula argues that the District Court's instructions on independent intervening causation
were incorrect statements of the law as established by this Court in Busta. Whatever the
merits of this argument, it is clear from the jury's verdict that it never even reached the
question of an intervening or superseding cause.

¶32 Like the standard jury verdict form proposed by Pula herself, the District Court's
special verdict form required the jurors to answer a series of questions on breach of duty,
causation and damages; moving on to succeeding questions depending on their answer to
the preceding question. On the first question-whether the State was negligent-the jury

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answered "yes." However, in response to the next question on the special verdict form-
whether the State's negligence was a cause of any injury or damage to Pula-the jury
answered "no." Having answered this causation question in the negative, the form
instructed the jury not to consider the third question-whether there was an intervening
cause. Instead it instructed the jury to simply sign the form and notify the bailiff that it had
reached its verdict.

¶33 The dissent contends that the jury verdict only makes sense if the jury, despite not
having answered the special verdict question, found that the County's or Bauer's conduct
was an independent intervening cause, thereby superseding the State's negligence. That,
however, is not the only plausible explanation for the verdict. If the jury found that the
letters from Neubauer to Blaine County officials (specifying no unsupervised community
access) and the memo from the Blaine County jailer to his staff (to treat Bauer as an
inmate with no more access to the jail keys) cut off any causal connection between the
State's negligence and the attack on Pula, there was no necessity for the jury to go further
and address the question of independent intervening cause.

¶34 Since the jury did not consider the issue of intervening cause in reaching its verdict,
we conclude that the District Court's instructions on intervening cause had no effect on the
outcome of the trial.

¶35 We will not reverse a civil cause by reason of any error where the record shows that
the same result would have been attained had the error not been committed. Rule 14, M.R.
App.P. See also Stenberg v. Neel (1980), 188 Mont. 333, 339, 613 P.2d 1007, 1011 (where
the jury does not reach the issue of damages, no error can be predicated on damage
instructions). The record indicates that the jury did not reach the question of intervening
cause. Therefore, we will not assign error to the instructions addressing that issue.

CONCLUSION

¶36 We conclude that the District Court properly denied Pula's motion in limine to
exclude the State's evidence of an independent intervening cause of Pula's injuries. The
State presented sufficient evidence on the issues of breach and causation to warrant
sending the case to the jury and Pula's motion for a directed verdict was properly denied.
Finally, the District Court's jury instruction on intervening cause, while not conforming to
our suggestion in Busta, had no effect on the outcome of the trial. The verdict and
judgment are affirmed.

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/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/DOROTHY McCARTER

Honorable Dorothy McCarter, District

Judge, sitting in place of Justice Patricia Cotter

/S/ ED McLEAN

Honorable Ed McLean, District Judge,

sitting in the vacant seat of the Court

as of the date of submission

Justice Terry N. Trieweiler dissents.

¶37 I dissent from the majority's conclusions that there was sufficient evidence to submit
the issue of independent intervening cause to the jury and that the Plaintiff suffered no
harm from those instructions.

¶38 The jury found the State of Montana negligent. The only facts alleged as a basis for
the State's negligence were that it failed to protect the Plaintiff by adequately controlling
and supervising Chester Bauer, an inmate for whom the State was responsible. It is not
logically possible for the State to have been negligent in the manner alleged and for that
negligence not to have been a contributing cause of damage to the young woman that
Bauer raped while under the State's presumed control. The only basis for finding that the
State's omissions were not the cause of Plaintiff's damages was the Court's instruction that
the chain of causation could be severed by the independent, intervening omissions of the

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county or acts of Chester Bauer. Those instructions should not have been given because
the intervening acts and omissions relied on by the State were completely foreseeable.
Because they were given, the bizarre and unjust result in this case should be reversed.

FACTUAL BACKGROUND

¶39 Chester Bauer is a sexual predator who was convicted of sexual intercourse without
consent in 1983 and sentenced to the Montana State Prison. While at the Montana State
Prison, in 1991, he was convicted of intimidation for trying to extort sexual favors from
the wife of a prison employee by threatening her and her children. In addition to these two
offenses, he was serving a ten-year sentence for aggravated assault and ten years for use of
a dangerous weapon when, in 1994, he was transferred by the State of Montana to the
Blaine County jail. Presumably because of the threat that he posed to others, he was
denied parole on nine occasions-eight times prior to his transfer to Blaine County. Blaine
County prison officials were advised that he had been classified as a minimum security
inmate and they treated him accordingly by making him a trustee.

¶40 His freedom and mobility while in Blaine County first came to the attention of
Montana State Prison officials after he was observed in street clothes, roaming freely
about the Blaine County courthouse by Edward Schmidt, a state probation and parole
officer. On March 21, 1995, he wrote to Mike Gersack, his supervisor, and sent a copy of
his letter to Candyce Neubauer who was in charge of classification of Montana State
Prison inmates. In his letter, he advised Gersack and Neubauer that Bauer was being
treated as a trustee at the Blaine County jail and in that status, worked at various jobs in
the city of Chinook. His work included repairs to private vehicles for which he received
payment. He had no particular hours by which he had to return to the prison facility and,
in fact, had a private vehicle at his disposal which had been loaned to him by one of the
jailers.

¶41 Schmidt pointed out that when he observed Bauer, he was dressed in civilian clothes
and that he had been advised by the undersheriff in Blaine County that Bauer had access to
go and come as he pleased.

¶42 This information, as well as the fact that Bauer had access to jailhouse keys, was
communicated to Mike Mahoney, the warden at the Montana State Prison. Mahoney
admitted that he had knowledge of this information prior to Bauer's attack of Pula and that
Bauer in fact was the State's responsibility. Mahoney gave the following testimony:

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Q. This matter regarding Mr. Bauer's detention up here came to your attention in
March of 1995, correct?

A. I believe that's correct.

Q. And it was brought to your attention because adult probation and parole officer
Ed Schmidt expressed concerns about the fact that Mr. Bauer was even up here,
didn't he?

A. My recollection is, Mr. Schmidt had made personal contact with inmate Bauer
and was deeply troubled by the issues that he attended to in that conversation and
notified the department of his concern.

Q. He saw a Montana State Prison inmate running around like a trustee, didn't he?

A. I believe that would be a fair observation or assessment, yeah.

Q. The prison requested him to look into it further and he reported back to you, did
he not?

A. Yes, he did.

Q. And isn't it true that the information that was provided to you indicated that Mr.
Bauer had freedom to come and go as he pleased?

A. In essence, that would probably be fair.

Q. And that he had complete access inside the jail and outside the jail at that point?

A. Again, with the custody level a lot to be desired.

Q. So he was free to roam around inside the jail, wasn't he?

A. From what I recall, yes, it sounds like he was.

Q. And you were aware of that?

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A. At that point in time, yes, I was.

Q. And as well, he could leave the jail and go out into the community, correct?

A. Again, at that point in time, yes.

Q. And you also had concerns because there were problems with his access to keys,
correct?

A. That's correct as well.

Q. And that came to your attention during this period in late March of 1995, correct?

A. All of those issues pretty much stemmed from Officer Schmidt's contact.

Q. And those concerns prompted a review by you and Candyce Neubauer and
William Pohjola at the prison, correct?

A. That's correct.

Q. That resulted in the classification summary or a re-classification document; is
that correct?

A. That's correct.

....

Q. Okay. And your recommendation after going through this was what, Mr.
Mahoney?

A. If you're referring to the face sheet?

Q. Yes.

A. I wrote at the bottom that it would appear that the placement does not accurately
address public safety and recommend we re-evaluate and potentially return to the
Montana State Prison.

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Q. And that decision never was pursued, was it?

A. No, sir, it was not.

Q. Mr. Bauer was maintained at the Blaine County jail, correct?

A. That's correct.

Q. And the concerns that you had regarding his freedom inside and outside the jail,
they formed the basis for this recommendation of yours, didn't they?

A. Initially, yes, they did.

Q. And that would include not just the freedom, but his access to keys, correct?

A. Basic security practices.

Q. And the freedom to go inside the jail and outside the jail whenever he wanted,
that's a fundamental breakdown in a detention facility, would you agree?

A. That would probably be a fair assessment, that's correct.

....

Q. That inmate is still your responsibility, he's a Montana State Prison inmate,
correct?

A. Still an inmate.

Q. Okay. You can't change that status, can you, by transferring him to another
facility?

A. No, sir, I cannot.

Q. And you can't also change his court commitment by transferring him to another
facility?

A. No, that certainly exceeds the bounds and authority of the warden.

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Q. Now, the response that was given to these concerns about access to keys and
complete freedom up here in Blaine County, that ended up being Candyce
Neubauer's letter to Sheriff Harrington, correct?

A. I believe that's correct.

....

Q. And that letter indicates that the concern of the prison is his ability to access the
community, correct?

A. I think the public safety issue was the theme, that would be correct.

Q. There's nothing in that letter that addressed or dealt with the problems with Mr.
Bauer's access to keys at this facility, is there?

A. No, there's nothing in here that states specifically keys.

Q. And that's a concern that as a prison official you would agree that you should
specifically address with the detention facility?

A. Most definitely it's to be addressed. It just wasn't placed in there.

Q. And, in fact, it wasn't placed in any written document, was it?

A. To the best of my knowledge, no, it was not.

¶43 In other words, the State of Montana admitted responsibility for the detention and
supervision of Chester Bauer. It admitted that those responsible for him knew he was not
being detained in a secure fashion and had freedom to not only move about the community
but freedom to roam the jail facility and access to keys at the jail. It admitted that these
breaches of security were a threat to public safety and it admitted that the only activity it
made any effort to curtail was Bauer's freedom of movement within the community of
Chinook.

¶44 This was the situation to which Wendy Pula was exposed when brought by force to be
locked in a cell with no freedom of movement on May 25, 1995, for failing to appear on a
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charge of possessing alcohol as a minor, an offense for which we have since held a minor
cannot be jailed. State v Bauer, 2001 MT 248, ¶ 33, 307 Mont. 105, ¶ 33, 36 P.3d 892, ¶
33.

¶45 However, because of Bauer's freedom of movement, he was able to retrieve jailhouse
keys, open the cell door of a minor, take her to his jail cell and force her to have
intercourse with him without consent. How, under these circumstances, can it be seriously
argued that the acts of this sexual predator were unforeseeable is mystifying.

¶46 The State's response is that because of Candyce Neubauer's letter, it had a right to
assume that Bauer was under proper supervision and his freedom of movement had been
curtailed. However, Neubauer's letter was written on April 4, 1995, and as acknowledged
by Mahoney, was limited in its criticism to Bauer's unsupervised presence in the
community. It made no suggestion that his freedom of movement at the Blaine County jail
be restricted or that his access to Blaine County jail keys be denied.

¶47 We have previously held that intervening criminal acts are not always unforeseeable,
Estate of Strever v. Kline (1996), 278 Mont. 165, 178-79, 924 P.2d 666, 673-74, and that
sometimes intervening acts are foreseeable as a matter of law, Cusenbary v. Mortensen,
1999 MT 221, ¶ 37, 296 Mont. 25, ¶ 7, 987 P.2d 351, ¶ 37.

¶48 In Mills v. Mather (1995), 270 Mont. 188, 198, 890 P.2d 1277, 1283-84, we noted that:

There are . . . situations in which the actor, as a reasonable man, is required to
anticipate and guard against the intentional, or even criminal, misconduct of others.
In general, these situations arise where the actor is under a special responsibility
toward the one who suffers the harm, which includes the duty to protect him against
such intentional misconduct . . . .

(Quoting Restatement (Second) of Torts § 302B cmt. e (1965)).

¶49 The facts in this case present just such a circumstance. The State of Montana had a
special responsibility to protect Pula and other potential victims from the harm that Bauer
inflicted by his intentional conduct.

¶50 Furthermore, based on the previously mentioned admissions by the State, the threat
posed by Bauer was completely foreseeable and the county's total failure to protect others

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from him was well known to the State. Therefore, neither Bauer's conduct nor the county's
conduct could have served as an independent intervening cause protecting the State from
liability for its negligence.

¶51 For example, in Cusenbary the plaintiff was injured when an intoxicated patron left
the bar, got in his vehicle and drove the vehicle into the bar. The defendant bar owner
proposed that the district court instruct the jury that an independent intervening cause
severed the chain of causation. The district court declined to do so and the jury returned a
verdict for the plaintiff. On appeal, we affirmed the district court and stated that:

[T]his case involves the allegation that the chain of causation was severed by an
independent intervening act. However, not all intervening acts are independent.
Those that are foreseeable do not break the chain of causation. In other words, if one
of the reasons that makes a defendant's act negligent is a greater risk of a particular
harmful result occurring, and that harmful result does occur, the defendant is
generally liable. The test is based on foreseeability. [Citation omitted.]

....

In this case, unlike the act of leaving a vehicle unlocked, the act of Mortensen in
serving alcohol to Wells is the very act which caused the conduct that resulted in the
injury to Cusenbary. The consequences of serving alcohol to a person who is visibly
intoxicated are reasonably foreseeable precisely because of the causal relationship
between serving alcohol and drunken conduct. Wells' drunken conduct was not
freakish, bizarre, or unpredictable as Mortensen asserts. Rather, drunken conduct is
the expected, predictable, and therefore reasonably foreseeable outcome of serving
alcohol to a person who is already intoxicated.

Cusenbary, 296 Mont. at 32-33, 987 P.2d at 355-56.

Accordingly, we conclude that as a matter of law Wells' conduct of driving a vehicle
while intoxicated, through the wall of the Town Tavern, was a foreseeable
intervening cause that did not serve to supersede or break the causal chain between
Mortensen's original negligence and the injury to Cusenbary.

Cusenbary, 296 Mont. at 37, 987 P.2d at 358.

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¶52 Likewise in this case, the lack of proper supervision of Bauer, a known rapist, who
was denied parole on nine occasions because of the known risk that he presented, was the
very omission that allowed him to assault the Plaintiff. The consequences of failing to
supervise him and of permitting him to freely roam the jailhouse were reasonably
foreseeable because they were the exact reason that he had been imprisoned in the first
place.

¶53 Finally, it is not correct that the Plaintiff suffered no prejudice from the District
Court's erroneous instructions on intervening cause. The jury was instructed that:

If you find that a negligent act of any other person or entity caused the injury and
damage to plaintiff and that this negligent act of other persons or entities occurred
after any negligent act of Defendant State of Montana and that this negligent act . . .
could not reasonably be foreseen by Defendant State of Montana to happen in the
natural sequence of events, the later negligent conduct of this third person or entity
is an independent intervening and superseding cause of the plaintiff's injury and
damage.

If you find that the conduct of the third person or entity was the intervening and
superseding cause of injury and damage to plaintiff, then you must return your
verdict for Defendant State of Montana.

Court's Instruction No. 18.

¶54 Supersede is defined in Webster's Ninth New Collegiate Dictionary as " 2: to take the
place, room, or position of; 3: to displace in favor of another." We have in fact stated in
our opinions that an independent intervening cause cuts off the chain of causation. Based
on either the standard definition of "supersede" or our own case law, it was perfectly
consistent for the jury to conclude that if the county's or Bauer's conduct was an
independent intervening cause, then the State's negligence was not the cause of Pula's
damages. It does not matter that the jury did not get to the final question about
independent intervening causes. The Court's instruction was prejudicial and was the only
possible explanation for the jury's finding that the State negligently failed to supervise
Bauer but that while he was roaming freely about the jail with access to keys, that failure
to supervise did not cause his assault on Wendy Pula.

¶55 The facts of this case shockingly demonstrate an avoidable tragedy caused by the

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failure of state and local prison officials to protect a young woman from a known sexual
predator who had been placed in the State's custody because of a series of violent criminal
offenses. Wendy Pula was an underage girl imprisoned because she was unable to post
bond to secure her appearance on a charge of being a minor in possession of alcohol. Had
she been convicted of being a minor in possession of alcohol, she could not have been
imprisoned for that offense. See Bauer, ¶ 33. Yet while she was in prison for her inability
to post bond, she was raped and assaulted by a dangerous predator for whom the State was
responsible only to be told that in spite of the State's negligence, she is entitled to no
damages. This result cannot be explained on any evidentiary or logical basis. I conclude
that it can only be attributable to the District Court's erroneous instruction to the jury that
the State could be relieved of liability by an intervening independent act. Since there was
no intervening act which was "unforeseeable," the defense was inapplicable and the
District Court erred by submitting those instructions to the jury. For these reasons, I would
reverse the judgment of the District Court and I dissent from the majority's decision to do
otherwise.

/S/ TERRY N. TRIEWEILER

Justice James C. Nelson joins in the foregoing dissent.

/S/ JAMES C. NELSON

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