Larchick v. Diocese of Great Falls-Billings

May 19 2009

DA 07-0418

IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 175

ANGELA LARCHICK, Conservator of
JORDAN LARCHICK, a minor,

Plaintiff and Appellant,

v.

DIOCESE OF GREAT FALLS-BILLINGS,
d/b/a BILLINGS CATHOLIC SCHOOLS,
a/k/a BILLINGS CENTRAL HIGH SCHOOL,

Defendants, Appellees and Cross-Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 05-0761
Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elizabeth A. Halverson; Elizabeth A. Halverson, P.C.; Billings, Montana

James R. Halverson; Halverson & Gilbert, P.C.; Billings, Montana

For Appellees:

Leonard Hudson Smith; Crowley Fleck PLLP; Billings, Montana

Submitted on Briefs: December 10, 2008

Decided: May 19, 2009

Filed:

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

¶1 Angela Larchick, Conservator for Jordan Larchick, a minor (collectively

“Larchick”), brought this negligence action against the Diocese of Great Falls-Billings,

d/b/a Billings Catholic Schools, a/k/a Billings Central Catholic High School (collectively

the “Diocese”) to recover damages for injuries Jordan sustained while participating in

P.E. class at Billings Central Catholic High School (“Central”). A jury sitting in the

Thirteenth Judicial District Court, Yellowstone County, found in favor of the Diocese.

Following the verdict, Larchick filed several post-trial motions, including a motion for a

new trial on the basis of newly discovered evidence and for fees and costs or entry of

judgment on liability. The District Court denied Larchick’s motions. Larchick appeals.

The Diocese cross-appeals from several of the District Court’s rulings, including the

District Court’s award of partial summary judgment in favor of Larchick on the issue of

intervening cause and comparative negligence. For the reasons set forth below, we

affirm in part, reverse in part, and remand for a new trial.

¶2 Larchick raises the following issues on appeal, restated as follows:

¶3 I. Did the District Court err in denying Larchick’s motion for a new trial under
§ 25-11-102(4), MCA, on the basis of newly discovered evidence?

¶4 II. Did the District Court err in denying Larchick’s motion for a mistrial?

¶5 III. Did the District Court err in denying Larchick’s motion for a new trial under
§ 25-11-102(1), (7), MCA, on the basis of the District Court’s exclusion of post-accident
evidence which allegedly shows that defense counsel solicited and relied upon false
affidavits?

¶6 IV. Did the District Court err in denying Larchick a new trial or entry of default
judgment on liability on the basis of defense counsel’s alleged misconduct?

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¶7 V. Did the District Court err in denying Larchick’s motion for costs and fees on
the basis of defense counsel’s alleged misconduct?

¶8 The Diocese raises the following issues on cross-appeal, restated as follows:

¶9 VI. Did the District Court err in concluding that Powers’s act of striking Larchick
was foreseeable as a matter of law and not an intervening force that severed the causal
chain?

¶10 VII. Did the District Court err in granting Larchick’s motion in limine to exclude
all evidence, argument, or suggestion at trial that Powers was at fault for Larchick’s
injury?

¶11 VIII. Did the District Court err in granting Larchick’s motion for partial summary
judgment on the issue of comparative negligence?

FACTUAL AND PROCEDURAL BACKGROUND

¶12 On February 6, 2004, Larchick was injured while participating in a lacrosse game

during P.E. class as a freshman at Central. While the facts leading up to Larchick’s

injuries are somewhat disputed, it is undisputed that Larchick sustained immediate and

permanent vision loss in his right eye when he was hit with a lacrosse stick by another

student, Alex Powers (“Powers”). The Diocese alleged that Larchick precipitated the

strike by hitting Powers on the shin with his lacrosse stick and that the incident occurred

“away from the play of the game.” Powers disclaimed any intent to injure Larchick,

although several students stated that it appeared to them as if Powers’s actions were

intentional. The game, described as “soft lacrosse” by the Diocese, was held in Central’s

gymnasium. Prior to participating in the game, students were instructed by P.E. teacher

John Hardenbrook (“Hardenbrook”) that physical contact (a.k.a. body checking) was not

allowed. The students were not provided with helmets, face guards, or other protective

equipment.

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¶13 Larchick filed this negligence action in July of 2005, after the completion of his

sophomore year at Central. The Diocese was not named as a defendant in the original

complaint. Larchick subsequently moved to Wyoming to live with his grandparents and

attend school. In February of 2006, the complaint was amended to include the current

defendants. Larchick maintained that the school negligently supervised, negligently

instructed, or negligently failed to provide protective equipment and requested punitive

damages. The Diocese sought to defend, in part, on a theory that Larchick was

comparatively negligent and that Powers’s act of striking Larchick was an intervening

cause.

¶14 Central’s Principal, Sheldon Hanser (“Hanser”), was deposed in December 2005.

During the deposition, Hanser stated that the school did not blame Larchick for his

injures. Hanser also stated that the school did not blame Powers for Larchick’s injuries.

Thereafter, Larchick moved for partial summary judgment on the Diocese’s affirmative

defenses of comparative fault and intervening cause. Larchick argued that there was no

evidence to support a comparative fault theory. In support of this position, Larchick cited

Hanser’s statement that he did not blame Larchick for his injuries. The District Court

granted Larchick’s motion, concluding that there was no evidence that Larchick breached

any duty owed to the defendants or acted negligently. The District Court also granted

Larchick’s motion for partial summary judgment on the issue of intervening cause. The

District Court concluded that it was “foreseeable that intentional or reactive striking”

would occur and that Powers’s strike of Larchick was not an intervening cause. In the

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same order, the District Court granted the Diocese’s motion for partial summary

judgment on Larchick’s punitive damages claim.

¶15 Prior to trial, Larchick filed a motion in limine to exclude evidence, argument, or

suggestion at trial that Powers was at fault. Larchick cited Hanser’s deposition testimony

in which Hanser stated that the school did not blame Powers for Larchick’s injuries.

Larchick also noted that Hanser was deposed for a second time in February 2007, this

time as the individual designated by the Diocese to speak on its behalf under M. R. Civ.

P. 30(b)(6). During this deposition, Hanser stated that his December 2005 testimony was

still true and correct. The District Court granted Larchick’s motion in limine, and thereby

excluded evidence at trial that Powers was at fault.

¶16 A jury trial was held on February 22 through March 2, 2007. A key issue at trial

was whether Hardenbrook was present in the gymnasium at the time Larchick was

injured. Hardenbrook testified that he was present but that he did not see the incident

occur because his back was turned when it happened. Several students in Hardenbrook’s

P.E. class on the day of the incident testified that he was in the gymnasium, although

other students, including Larchick, testified that Hardenbrook was not. Also significant

on appeal is defense counsel’s alleged reference to a collateral source during the trial. On

the fifth day of the trial, Angela Larchick (Larchick’s mother) testified that she always

thought Hardenbrook was not in the gym and that it troubled her and weighed on her and

that she did not want her son in an environment she could not trust. On cross-

examination, defense counsel asked Angela Larchick the following question: “When you

filed your first lawsuit, you didn’t even sue the school, did you?” In response, Angela

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Larchick stated that she did not know anything about that. Larchick’s counsel moved for

an immediate mistrial, claiming that defense counsel, in alluding to superseded pleadings,

impermissibly referenced a collateral source of recovery. Defense counsel suggested that

the reference did not imply anything and that Larchick could have sued any number of

people. The District Court denied Larchick’s motion for a mistrial. On a separate matter,

Larchick also claimed that the Diocese violated the District Court’s Post Final Pre-trial

Order excluding evidence, argument, or suggestion that Powers was at fault for

Larchick’s injuries. Larchick claimed the Diocese violated the order by suggesting at

trial that Powers may have been responsible for Larchick’s injuries.

¶17 On May 2, 2007, the jury returned a verdict in favor of the Diocese. The jury did

not reach issues of causation or damages, determining only that the Diocese was not

negligent. Following the verdict, one of Larchick’s attorneys, Elizabeth Halverson

(“Halverson”), received a phone call from a man who identified himself as “John

Peterson.” The man told Halverson that he was Hardenbrook’s friend and that he was

very concerned about Hardenbrook. He also told Halverson that Hardenbrook was upset

about the trial and that Hardenbrook told him (“Peterson”) that he had lied under oath

about his presence in the gymnasium when Larchick was injured. In sum, Hardenbrook

evidently told Peterson who told Halverson that he had been pressured to say he was in

the gymnasium when he was not. Halverson received the phone call from “John

Peterson” on April 25, 2007. Halverson subsequently obtained a copy of the official

telephone record, which indicated that the call had been placed from Hardenbrook’s cell

phone.

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¶18 Halverson notified the District Court about the phone call shortly thereafter. The

District Court held an emergency hearing on April 27, 2007. During the hearing,

Halverson told the court about the phone call and produced a copy of the phone record.

The District Court scheduled a hearing on the issue of Hardenbrook’s testimony and

issued subpoenas for Hardenbrook and “John Peterson” to testify. The District Court also

granted the Diocese’s motion for a protective order and sealed all information pertaining

to the issues raised at the hearing.

¶19 A hearing on Hardenbrook’s testimony was conducted on May 7, 2007.

Hardenbrook was present and represented by his own counsel. Hardenbrook testified

during the hearing but invoked his Fifth Amendment privilege against self-incrimination

to the majority of the questions. Essentially, Hardenbrook would only confirm that he

was in possession of his cell phone the day Halverson received the phone call from “Mr.

Peterson.” These proceedings were also sealed by the District Court.

¶20 Thereafter, Larchick filed an amended motion for a new trial “based upon the new

evidence showing that contrary to all earlier evidence from Defendant, its teacher John

Hardenbrook was not present in the gym when [Larchick] was injured, was pressured to

testify falsely that he was present, and has told others since trial that his testimony was

not truthful.” (Emphasis omitted.) Larchick introduced an affidavit from Halverson in

support of the motion for a new trial. Larchick also argued that defense counsel engaged

in misconduct by soliciting false affidavits which stated that Hardenbrook was in the

gymnasium at the time Larchick was injured. Although these affidavits were never

introduced to the jury, Larchick argued that the defense relied upon them during the trial.

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Larchick also claimed that a negative inference could be drawn from Hardenbrook’s

refusal to testify at the hearing, and that independent evidence in the record supported the

inference. In earlier post-trial motions, Larchick also requested fees, costs, and a new

trial or entry of default judgment on liability on the basis of defense counsel’s alleged

misconduct. The District Court denied Larchick’s post-trial motions on May 17, 2007.

¶21 Following the denial of the post-trial motions, Larchick filed an application for a

writ of supervisory control to unseal the portions of the transcript relating to

Hardenbrook’s testimony at the hearing on May 7, 2007. We granted the application and

ordered the District Court to vacate its order sealing the partial transcript. Larchick filed

this timely appeal from the judgment entered on the jury verdict, the District Court’s

denial of the motion for a mistrial, the District Court’s Order and Decision on May 17,

2007, denying Larchick’s post-trial motions, and the District Court’s October 27, 2006,

order granting summary judgment to the Diocese on Larchick’s punitive damages claim.

However, we determined that the District Court’s oral ruling on March 1, 2007, denying

Larchick’s motion for a mistrial and its May 17, 2007, Ruling on Post-Trial Motions did

not provide this Court with a sufficient basis to conduct a meaningful review of several of

the issues raised by Larchick on appeal. Accordingly, we remanded this case to the

District Court “for the limited purpose of allowing the District Court, at its earliest

convenience, to enter specific findings of fact and conclusions of law” on the following

issues:

1. Is Larchick entitled to a new trial on the basis of newly discovered evidence
under § 25-11-102(4), MCA?

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 2. Is Larchick entitled to a new trial under § 25-11-102(1), (7), MCA, based
on the District Court’s exclusion of post-accident evidence which allegedly
shows that defense counsel solicited and relied upon false affidavits?
3. Is Larchick entitled to costs, fees, and a new trial or entry of default
judgment on liability based on defense counsel’s alleged misconduct?
4. Did the District Court err in denying Larchick’s motion for a mistrial?

¶22 The District Court addressed these issues in its Response to Remand on September

26, 2008. The District Court concluded that Larchick was not entitled to a new trial

under § 25-11-102(4), MCA, stating that the evidence was not material and that it was

merely cumulative and impeaching. The District Court also concluded that Larchick

opened the door to the question about why she did not sue the Diocese in her first lawsuit

by expressing misgivings about Central from the beginning. Finally, the District Court

concluded that defense counsel did not rely upon or solicit false affidavits or

unreasonably multiply the proceedings.

¶23 Additional facts and proceedings will be addressed as necessary throughout the

following Opinion.

DISCUSSION

¶24 I. Did the District Court err in denying Larchick’s motion for a new trial
under § 25-11-102(4), MCA, on the basis of newly discovered evidence?

¶25 The decision to grant or deny a new trial on the basis of newly discovered

evidence is within the discretion of the trial judge. Groves v. Clark, 1999 MT 117, ¶ 32,

294 Mont. 417, 982 P.2d 446. We will not disturb that decision absent a showing of a

manifest abuse of discretion. Groves, ¶ 32. Ultimately, the abuse of discretion must be

so significant that it materially affects the substantial rights of the complaining party.

Graveley Simmental Ranch Co. v. Quigley, 2003 MT 34, ¶ 20, 314 Mont. 226, 65 P.3d

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225. To the extent the district court makes factual findings to determine whether a new

trial is warranted, we review those findings for clear error. State v. Clark, 2005 MT 330,

¶ 39, 330 Mont. 8, 125 P.3d 1099 (“Clark I”).

¶26 The circumstances in which a new trial may be granted are set forth in § 25-11-

102(1) through (7), MCA. Subsection (4), the subsection relevant to the present appeal,

provides a basis for a new trial when there is “newly discovered evidence material for the

party making the application which he could not, with reasonable diligence, have

discovered and produced at the trial.” In Clark I, we clarified the five factors that must

be satisfied before a party can prevail on a motion for new trial on the basis of newly

discovered evidence. As articulated in Clark I, the moving party must satisfy each of the

following factors:

1. the evidence must have been discovered since the defendant’s trial;
2. the failure to discover the evidence sooner must not be the result of a lack
of diligence on the defendant’s part;
3. the evidence must be material to the issues at trial;
4. the evidence must be neither cumulative nor merely impeaching; and
5. the evidence must indicate that a new trial has a reasonable probability of
resulting in a different outcome.

Clark I, ¶ 34.

¶27 On remand, the District Court found that factors (1) and (2) were established,

stating that the events relating to the new evidence “were, obviously, discovered since the

trial and could not have been discovered before trial.” We agree with the District Court

that factors (1) and (2) are clearly established in this case. The evidence provides that

Halverson (Larchick’s counsel) received the telephone call from “John Peterson” on

April 25, 2007—nearly two months after the trial. Further, there is no evidence to

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suggest that there was any lack of diligence in the discovery of the evidence. Therefore,

we conclude that the District Court did not err in finding that factors (1) and (2) were

established. However, while we agree with the District Court’s conclusion that the

evidence is “new evidence” sufficient to establish factors (1) and (2), we disagree with

the court’s conclusions on the remaining factors, which we address in turn below.

¶28 In addressing factor (3), which requires the newly discovered evidence to be

material to the issues at trial, the District Court focused on the difference between the

trial testimony that Hardenbrook was in the gymnasium versus post-trial evidence that

Hardenbrook was not present and concluded that factor (3) could not be established. In

reaching this conclusion, the District Court determined that the newly discovered

evidence put Hardenbrook only about eight to twelve feet further away from what the

evidence suggested at trial. Therefore, according to the court, the newly discovered

evidence was “not materially different from what Mr. Hardenbrook said at trial.”

¶29 Larchick contends that the District Court erred in concluding that evidence

Hardenbrook was not in the gymnasium at the time of the incident was not material to the

issues at trial. Larchick argues that the Diocese hinged its entire case on Hardenbrook’s

presence in the gymnasium and that “every defense liability witnesses” testified that the

P.E. teacher must be present in order to “control the manner of play and prevent injury to

the students.” The Diocese, on the other hand, argues that evidence cannot be material if

it is inadmissible. Here, the Diocese argues that Halverson’s affidavit submitted in

support of the motion for a new trial contains hearsay and is neither admissible nor

material to the issues at trial. According to the Diocese, the evidence is merely a

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statement concerning Halverson’s recollection of an alleged telephone conversation that

she had with a “Mr. Peterson” about Hardenbrook.

¶30 In this case, however, it is evident from the record that a significant issue at trial

was whether the school provided adequate supervision of Larchick’s P.E. class. The

Diocese consistently maintained that the school provided such supervision and that

Hardenbrook was present in the gymnasium at the time of the incident. At trial,

Hardenbrook specifically testified that he was in the gymnasium when Larchick was

injured. Evidence that Hardenbrook was not, in fact present is undoubtedly material to

the issue of whether the school provided adequate supervision. The District Court erred

in determining otherwise and we conclude that factor (3), requiring the newly discovered

evidence to be material to the issues at trial, is satisfied.

¶31 Furthermore, despite the Diocese’s argument to the contrary, the District Court did

not err in determining that Halverson’s affidavit was admissible even though it contained

hearsay. Under the residual exception to the general prohibition on hearsay, a statement

is admissible even though it is not specifically covered by the other exceptions on hearsay

if it has “comparable circumstantial guarantees of trustworthiness.” M. R. Evid. 803(24).

This exception “looks to the circumstances surrounding a hearsay statement when it is

made—the circumstantial guarantees of trustworthiness that lend reliability to the hearsay

statement in lieu of cross-examination.” State v. Hocevar, 2000 MT 157, ¶ 50, 300 Mont.

167, 7 P.3d 329. (Internal quotations omitted.) While the residual exception “should be

used sparingly, and only in exceptional circumstances,” we conclude that Halverson’s

affidavit was admissible as a trustworthy statement of an officer of Court under M. R.

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Evid. 803(24). Hocevar, ¶ 50 (citing State v. Brown, 231 Mont. 334, 338, 752 P.2d 204,

207 (1988). Significantly, the Diocese does not necessarily dispute Halverson’s

description of the phone call from “Mr. Peterson” or the phone record which indicates

that the call was placed from Hardenbrook’s cell phone.

¶32 As to factor (4), the District Court concluded that the newly discovered evidence

was “somewhat cumulative to other testimony” that put Hardenbrook off the gymnasium

floor. Although the District Court agreed that Hardenbrook would be subject to being

impeached, it reasoned that “new evidence that is merely impeaching is not [a] sufficient

basis for a new trial.” Thus, the District Court concluded that Larchick could not

establish factor (4), which requires the evidence to be neither cumulative nor merely

impeaching.

¶33 Under § 26-1-102(4), MCA, evidence is “cumulative” when there is “additional

evidence of the same character to the same point.” Evidence is “merely impeaching”

when “it is collateral in nature and does not have a direct bearing on the merits of the trial

under review.” State v. Clark, 2008 MT 391, ¶ 25, 347 Mont. 113, 197 P.3d 977

(“Clark II”). On remand, the District Court did not elaborate on what it considered to be

“other testimony.” Presumably the court was referring to the testimony of those students

who stated that Hardenbrook was not in the gymnasium when Larchick was injured. In

this case, however, we do not agree that the newly discovered evidence is simply

“additional evidence of the same character to the same point” or that is it “collateral in

nature.” The newly discovered evidence that Hardenbrook was not in the gymnasium is

non-cumulative given Hardenbrook’s crucial role in the litigation and the potential

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significance of the evidence. Unlike a casual observer witness, Hardenbrook was

employed by the Diocese as the responsible teacher on duty at the time Larchick was

injured. As the record demonstrates, Hardenbrook was in charge of selecting the P.E.

activities and ensuring a safe and appropriate environment for those activities to occur.

Both the Diocese and Larchick argued throughout the proceedings that Hardenbrook’s

whereabouts at the time of the incident was significant, seeking to establish that

Hardenbrook was either in or outside the gymnasium. It follows that Hardenbrook’s

version of the events carries added weight and is more significant to the present issues

than the version set forth from the student witnesses. Further, Hardenbrook’s

whereabouts has a direct bearing on Larchick’s claim that the school failed to provide

adequate supervision and on the Diocese’s defense that it did. Notably, evidence from

Hardenbrook himself that he was not present in the gymnasium at the time of the incident

now runs counter to his employer’s position in the litigation regarding adequate

supervision. Therefore, we conclude that the newly discovered evidence regarding

Hardenbrook’s whereabouts is non-cumulative, and that the District Court erred in

determining that factor (4) was not satisfied.

¶34 We now turn to a discussion of the fifth and final factor of the five-part test for a

new trial based on newly discovered evidence. Under factor (5) “the evidence must

indicate that a new trial has a reasonable probability of resulting in a different outcome.”

Clark I, ¶ 34. We have stated that this factor “is most likely to be the crux of any district

court’s evaluation of new trial motions based on new evidence.” Clark I, ¶ 36. When

making this determination, the trial judge should evaluate the weight and credibility of

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the newly discovered evidence and “consider what impact, looking prospectively at a

new trial with a new jury, this evidence may have on that new jury.” Clark I, ¶ 36. In

addressing this factor on remand, the District Court noted that while the evidence “could

have some impact on Mr. Hardenbrook’s credibility,” there was no reasonable probability

of it producing a different outcome. The District Court found that “[e]ven if Mr.

Hardenbrook had been on the gym floor itself, Jordan Larchick was injured away from

the ball and the flow of play.”

¶35 The Diocese argues that the District Court properly evaluated the evidence and its

probable impact on a new jury. Nevertheless, based on our analysis with respect to

factors (3) and (4) above, we cannot reasonably conclude that the outcome would not be

different in a new trial with a new jury. As noted above, a significant issue at trial was

whether Hardenbrook was present in the gymnasium at the time Larchick was injured.

The Diocese introduced considerable evidence at trial that Hardenbrook was present,

including testimony from a number of students who stated that Hardenbrook was in the

gymnasium when Larchick was injured. Further, the Diocese’s expert witness Arthur

Miller relied on student affidavits stating that Hardenbrook was present. Most

importantly, however, Hardenbrook himself testified that he was present. Given the

relevance of the new evidence to the issue of whether the school provided adequate

supervision, we conclude that there is at least a reasonable probability that the newly

discovered evidence would produce a different outcome at a new trial.

¶36 To summarize, we conclude that the District Court manifestly abused its discretion

in denying Larchick’s motion for a new trial under § 25-11-102(4), MCA. The five-

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factor test for a new trial on the basis of newly discovered evidence is satisfied. Thus, we

reverse and remand for a new trial. Since we reverse and remand for a new trial under

Issue I, we need not address Larchick’s Issues II, III, and IV.

¶37 V. Did the District Court err in denying Larchick’s motion for costs and fees
on the basis of defense counsel’s alleged misconduct?

¶38 Larchick argues on appeal that the District Court erred in denying her motion for

costs and fees under § 37-61-421, MCA, and under Rule 56(g) of the Montana Rules of

Civil Procedure. Under § 37-61-421, MCA, “[a]n attorney or party to any court

proceeding who, in the determination of the court, multiplies the proceedings in any case

unreasonably and vexatiously may be required by the court to satisfy personally the

excess costs, expenses, and attorney fees reasonably incurred because of such conduct.”

Under Rule 56(g) a party may obtain costs and fees when affidavits have been “presented

in bad faith or solely for the purpose of delay . . . .” If a court determines that Rule 56(g)

applies, the offending party is required to pay “the amount of the reasonable expenses

which the filing of the affidavits caused the other party to incur . . . .”

¶39 We review a district court’s determination to award costs and fees under § 37-61-

421, MCA, or Rule 56(g) for an abuse of discretion. Tigart v. Thompson, 244 Mont. 156,

159-60, 796 P.2d 582, 584 (1990); see also Denton v. First Interstate Bank of Com., 2006

MT 193, ¶ 19, 333 Mont. 169, 142 P.3d 797. A district court abuses its discretion when

it acts arbitrarily without conscientious judgment or exceeds the bounds of reason

resulting in substantial injustice. In re G.M., 2009 MT 59, ¶ 11, 349 Mont. 320, 203 P.3d

818. The party seeking to reverse a ruling carries the burden to demonstrate the abuse of

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discretion. In re G.M., ¶ 11. Because the district court is in the best position to know the

nature and extent of any alleged violation, we generally defer to the district court’s

discretion in addressing costs and fees under § 37-61-421, MCA. McKenzie v. Scheeler,

285 Mont. 500, 506, 949 P.2d 1168, 1172 (1997).

¶40 On remand, the District Court determined that “defense counsel did not multiply

the proceedings in this case at all, much less unreasonably, vexatiously, or otherwise.”

Consequently, the District Court determined that Larchick was “not entitled to costs,

expenses or fees pursuant to [§ 37-61-421, MCA] or any other law.” The District Court

also concluded that attorney conduct in this case “was well within the bounds of normal

and usual adversarial proceedings.” The District Court did not specifically address

whether Larchick was entitled to costs or fees under Rule 56(g), although the court noted

in its Ruling on Post-Trial Motions that Larchick’s contentions with respect to the

affidavits were not supported by the evidence.

¶41 Larchick argues on appeal that defense counsel engaged in numerous acts of

unreasonable conduct, including that defense counsel submitted false affidavits from two

students who were present at the time Larchick was injured, Patrick Macpherson

(“Macpherson”) and Nicholas Watson (“Watson”). Specifically, Larchick contends that

Macpherson and Watson signed affidavits stating that Hardenbrook was in the

gymnasium when Larchick was injured and that both students later refuted these

statements in depositions taken prior to trial. Macpherson stated during his deposition

that he twice told defense counsel that Hardenbrook was not in the gymnasium at the

time of the incident but that defense counsel nonetheless insisted that he sign affidavits

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stating that Hardenbrook was present. As with Macpherson, Watson also signed an

affidavit stating that Hardenbrook was in the gymnasium. He too later refuted this

statement in a deposition, maintaining that he told defense counsel prior to signing the

affidavit that Hardenbrook was in the weight room, not the gymnasium. While these

affidavits were not introduced at trial, Larchick claims that defense counsel’s actions

needlessly multiplied court proceedings in violation of § 37-61-421, MCA. Larchick also

alleges that defense counsel’s actions justified costs and fees under Rule 56(g).

¶42 Larchick’s arguments fail to convince this Court that the District Court acted

arbitrarily or without conscientious judgment when it denied Larchick’s motion for costs

and fees under § 37-61-421, MCA. While Larchick argues that defense counsel’s

conduct was questionable, even inappropriate, Larchick does not demonstrate how those

alleged actions multiplied the proceedings in a vexatious or unreasonable manner.

Moreover, we note that that the District Court is in the best position to determine whether

costs and fees are appropriate. Here, the District Court determined that the proceedings

in this case were “well within the bounds of normal and usual adversarial proceedings.”

Because Larchick does not present evidence to demonstrate how the proceedings were

multiplied either unreasonably or vexatiously, we conclude that the District Court did not

err in denying Larchick’s motion for costs and fees pursuant to § 37-61-421, MCA.

¶43 In addition, we are not persuaded by Larchick’s argument that costs and fees are

justified under Rule 56(g) of the Montana Rules of Civil Procedure. A party may obtain

costs and fees under Rule 56(g) if, in the context of a motion for summary judgment,

affidavits have been “presented in bad faith or solely for the purpose of delay.” Costs

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and fees include the “amount of the reasonable expenses which the filing of the affidavits

caused the other party to incur, including reasonable attorney’s fees . . . .”

¶44 Here, defense counsel does not dispute that Macpherson’s and Watson’s affidavits

were submitted to the court in the context of a motion for summary judgment. Larchick,

however, has failed to demonstrate that defense counsel submitted the affidavits in bad

faith or solely for purposes of delay. According to the record, Macpherson admitted

during Larchick’s offer of proof at trial that defense counsel allowed him to read the

affidavits and make any necessary changes prior to signing them. Macpherson also

admitted that he did not request any changes to the affidavits prior to signing them and

that his father was present when defense counsel conducted the interview about the

incident. Similarly, at trial, Watson could not remember exactly where Hardenbrook was

located when Larchick was injured; Watson equivocated, testifying that he remembered

“seeing [Hardenbrook] in the gym—or I mean the weight room” and that he did not

“know where exactly he was.” In addition, defense counsel submitted numerous other

affidavits from students who consistently maintained throughout the proceedings that

Hardenbrook was in the gymnasium. Most significantly, Larchick has failed to point to

any specific evidence in support of the contention that defense counsel knowingly

submitted these affidavits in bad faith. Accordingly, we conclude that Larchick is not

entitled to costs and fees pursuant to M. R. Civ. P. 56(g).

CROSS-APPEAL

¶45 VI. Did the District Court err in concluding that Powers’s act of striking
Larchick was foreseeable as a matter of law and not an intervening force that
severed the causal chain?

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¶46 We review a district court’s grant of summary judgment de novo. Fisher v. Swift

Transp. Co., Inc., 2008 MT 105, ¶ 12, 342 Mont. 335, 181 P.3d 601. Summary judgment

is appropriate when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” M. R. Civ. P. 56(c). To avoid summary judgment after the moving party has met

this burden, the non-moving party must present substantial evidence that raises a genuine

issue of material fact. Fisher, ¶ 12.

¶47 On appeal, the Diocese contends that Powers’s “act of purposefully and

spontaneously striking [Larchick] with his lacrosse stick, away from the play of the game

and in contravention of class rules” was unforeseeable as a matter of law. Thus,

according to the Diocese, Powers’s act was an independent, intervening cause which cut

off its liability for Larchick’s injuries. The Diocese contends that Larchick must establish

something more than a mere possibility of occurrence in order to establish foreseeability,

and that while the specific injury need not be foreseeable, an objectively reasonable

person must be able to expect it. Here the Diocese claims that Powers’s act was a

“freakish,” “bizarre,” “spontaneous,” and “unpredictable” act that Central could not have

foreseen. Finally, the Diocese claims that “[a]t minimum, the question should have been

left to the jury.” Larchick, however, argues that the Diocese “foresaw injury when it

gave 4’ metal sticks to a group of freshman PE students” and that the Diocese “knew

ahead of time that the students could hit and injure each other.” Larchick maintains that

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the District Court did not err in determining as a matter of law that intentional or reactive

striking would occur. Larchick also argues that the Diocese is bound by previous

admissions by Principal Hanser that it did “not blame” Powers for Larchick’s injuries—a

statement Hanser made during a deposition in 2005.

¶48 We have held in prior opinions that an intervening act is a force that comes into

motion after the defendant’s negligent act which combines with the negligent act to cause

injury to the plaintiff. Cusenbary v. Mortensen, 1999 MT 221, ¶ 26, 296 Mont. 25, 987

P.2d 351. An intervening act may sever the chain of liability for the defendant in certain

situations. However, an intervening act will not sever the chain of liability if the

“intervening act is one that the defendant might reasonably foresee as probable or one

that the defendant might reasonably anticipate under the circumstances.” Fisher, ¶ 41.

Therefore, the ultimate focus in determining whether the chain of liability has been

severed is foreseeability. In determining foreseeability, the inquiry is whether the

“defendant could have reasonably foreseen that his or her conduct could have resulted in

an injury to the plaintiff.” Fisher, ¶ 40. The defendant need not have foreseen the

specific injury to the plaintiff. Fisher, ¶ 40. Typically, determinations of foreseeability

in the context of intervening cause involve questions of fact properly reserved for the

jury. Fisher, ¶ 42; see also Prindel v. Ravalli County, 2006 MT 62, ¶ 45, 331 Mont. 338,

133 P.3d 165. However, a district court may properly award summary judgment and

determine foreseeability as a matter of law on issues of intervening cause when

reasonable minds may reach but one conclusion. Fisher, ¶ 42; Prindel, ¶ 45.

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¶49 In awarding partial summary judgment in favor of Larchick on the issue of

intervening cause, the District Court determined that “[s]ome incidental contact between

bodies and between bodies and sticks was expected[,]” and that at least part of the

activity involved “striking another’s [l]acrosse stick to dislodge the ball.” The District

Court also determined that some physical contact was foreseeable and that students

would “hit and be hit with sticks.” According to the court, the existence of penalties

indicated that “exceeding the bounds of the game was contemplated and expected to

occur, at least occasionally.” The District Court also noted that the majority of

Larchick’s P.E. class “was made up of teenage, male, high school-age freshman with

little, if any, experience with P.E. [l]acrosse.” Based on the foregoing, the District Court

concluded that “[s]ince it was or should have been foreseeable that intentional or reactive

striking of another with a [l]across[e] stick would occur, when it did come to occur, it

was not a superseding, intervening cause.”

¶50 We agree with the District Court that it was clearly foreseeable that intentional or

reactive striking between students would occur during the P.E. class which primarily

consisted of 14-year-old freshman boys. As the District Court noted in its order granting

partial summary judgment in favor of Larchick, the game involved running and required

the students to attempt to dislodge the ball from the net on an opposing player’s lacrosse

stick. By the very nature of the game, physical contact was not only foreseeable but

clearly expected. While Hardenbrook evidently instructed the students that “body

checking” was not allowed, obviously one could foresee that some physical contact, if

not more, would occur under the circumstances. The existence of penalties for those who

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broke the rules of the lacrosse game is additional evidence that Hardenbrook expected

that there would be instances where students would exceed the bounds of the game. By

the Diocese’s own admissions at trial and through its expert witness Arthur Miller, it was

imperative for students to be supervised during the lacrosse activity. While there are

numerous reasons why students should be supervised during P.E. activities, the most

logical reason is to ensure that a safe and appropriate environment exists and that students

are not injured while participating. Based on the foregoing, we conclude that it was

reasonably foreseeable that intentional or reactive striking could occur under the

circumstances. Thus, Powers’s act of striking Larchick was not an intervening cause

sufficient to break the causal chain. The District Court did not err in awarding partial

summary judgment in favor of Larchick on this issue.

¶51 VII. Did the District Court err in granting Larchick’s motion in limine to
exclude all evidence, argument, or suggestion at trial that Powers was at fault for
Larchick’s injury?

¶52 We review a district court’s grant or denial of a motion in limine for an abuse of

discretion. Grover v. Cornerstone Constr. N.W., Inc., 2004 MT 148, ¶ 10, 321 Mont.

477, 91 P.3d 1278. As stated above, a district court abuses its discretion when it “acts

arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in

substantial injustice.” Grover, ¶ 10. In this regard, the question is “not whether the

reviewing court agrees with the trial court, but rather whether the trial court acted

arbitrarily.” In re G.M., ¶ 11. Again, the party seeking to reverse a ruling carries the

burden to demonstrate the abuse of discretion. In re G.M., ¶ 11.

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¶53 In granting Larchick’s motion in limine to exclude all evidence, argument, or

suggestion at trial that Powers was fault for Larchick’s injury, the District Court focused

on the 2005 deposition testimony provided by Principal Hanser in which he stated that

the school did not blame Powers for Larchick’s injury. According to the District Court, it

would have been confusing and legally inconsistent in light of this testimony to allow the

Diocese to argue that Powers, a non-party to the proceedings, was at fault. However, in

Faulconbridge v. State, 2006 MT 198, 333 Mont. 186, 142 P.3d 777, we clarified when

non-party conduct is admissible at trial. Under our decision in Faulconbridge, “a

defendant may introduce non-party conduct only for the purpose of demonstrating that

the non-party conduct was a superseding intervening cause of plaintiff’s damages.”

Faulconbridge, ¶ 81. As we noted above, an intervening cause is “an unforeseeable

event that occurs after the defendant’s original act of negligence . . . [which] will

generally serve to cut off defendant’s liability.” Faulconbridge, ¶ 81. In Thayer v. Hicks,

243 Mont. 138, 793 P.2d 784 (1990), we concluded that a “defendant’s liability for his

wrongful act will not be severed by an intervening cause if the intervening cause is one

that the defendant might reasonably foresee as probable or one that the defendant might

reasonably anticipate under the circumstances.” In our analysis of the preceding issue,

we concluded that Powers’s act of striking Larchick was not an intervening cause

sufficient to break the causal chain. In other words, we concluded that Powers’s act was

not unforeseeable. Since Powers’s conduct was not unforeseeable under the

circumstances and thus, not a superseding intervening cause, the presentation of any

evidence, argument, or suggestion at trial that Powers was at fault for Larchick’s injury

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would have been improper. Therefore, we conclude that the District Court did not err

when it granted Larchick’s motion in limine to exclude evidence at trial that Powers was

at fault for Larchick’s injury.

¶54 VIII. Did the District Court err in granting Larchick’s motion for partial
summary judgment on the issue of comparative negligence?

¶55 In Montana, a plaintiff’s contributory negligence may be raised as a defense to a

negligence claim. However, contributory negligence does not bar a plaintiff from

recovering damages “if the contributory negligence was not greater than the negligence

of the person or the combined negligence of all persons against whom recovery is

sought.” Section 27-1-702, MCA. The recovery of damages will be barred only if the

plaintiff is more than fifty percent negligent. Peterson v. Eichhorn, 2008 MT 250, ¶ 31-

33, 344 Mont. 540, 189 P.3d 615. As with foreseeability in the context of intervening

cause discussed above, “the issue of contributory negligence on the part of the plaintiff

and the degree of comparative negligence, if any, is normally an issue for the jury or fact-

finder to resolve.” Peterson, ¶ 32. However, as we have noted in previous opinions,

summary judgment on the issue of comparative negligence is appropriate when

reasonable minds “could not draw different conclusions from the evidence.” Peterson,

¶ 32. We review a district court’s decision to grant or deny a party’s motion for summary

judgment de novo. Fisher, ¶ 12.

¶56 In this case, the District Court found that some incidental contact between the

players and sticks was anticipated and that there was “no evidence to suggest that when

Jordan Larchick struck Alex Powers on the shin with his [l]acrosse stick, it was anything

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other than expected, incidental contact.” The District Court also stated that there was no

evidence that Larchick “breached any duty owing to the defendants.”

¶57 The Diocese argues that that the District Court erred in reaching this conclusion.

It contends that Larchick actively participated in unreasonable conduct immediately

before Powers hit Larchick with his lacrosse stick and that a disputed issue of fact exists

as to whether Larchick was comparatively negligent. Specifically, the Diocese claims

that Larchick hit Powers “in the ankle area with his lacrosse stick, and shoved and pushed

[Powers] immediately preceding, if not precipitating, [Powers’s] strike of [Larchick].

¶58 However, despite these claims, the Diocese identifies no material issues of fact to

preclude summary judgment on the issue of comparative negligence. The only

substantive argument made by the Diocese on appeal regarding this issue is that it offered

evidence to the District Court that Larchick shoved or hit Powers in the ankle before

Powers hit Larchick in the face with his lacrosse stick. We fail to see how this presents a

material issue of fact precluding summary judgment on the issue of comparative

negligence. Even assuming that Larchick hit Powers in the ankle, as the Diocese argues,

the District Court found no evidence to suggest that Larchick’s actions were anything

other than incidental conduct which occurred during a P.E. activity. After reviewing the

record and evidence in this case, we agree with the District Court that there is no

evidence to suggest that Larchick acted negligently during the activity. We note that the

Diocese’s argument is particularly unpersuasive given that Principal Hanser stated that

the school did not blame Larchick. We conclude that reasonable minds could not reach a

different conclusion in light of the evidence presented in this case. The District Court did

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not err in granting Larchick’s motion for partial summary judgment on the issue of

comparative negligence.

CONCLUSION

¶59 In sum, the District Court erred by denying Larchick’s motion for a new trial

under § 24-11-102(4), MCA, on the basis of newly discovered evidence. In light of this

decision, we do not address Larchick’s Issues II, III, and IV. The District Court did not

err in denying Larchick’s motion for costs and fees on the basis of defense counsel’s

alleged misconduct. With respect to the Diocese’s cross-appeal issues, we hold that the

District Court did not err in concluding that Powers’s act of striking Larchick was not an

intervening cause sufficient to sever the causal chain, in granting Larchick’s motion in

limine to exclude evidence of non-party fault, or in granting Larchick’s motion for partial

summary judgment on the issue of comparative fault.

¶60 Affirmed in part, reversed in part, and remanded for a new trial.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE

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