Allers v. Riley

No. 94-581
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

THEODORE R. ALLERS,
Plaintiff and Respondent,
-v-
MICHAEL D. RILEY,
Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Kelly M. Wills, Michael C. Prezeau, Garlington, Lohn
& Robinson, Missoula, Montana

For Respondent:
Laurie Wallace, David K . Lauridsen, Bothe &
Lauridsen, eolurnbia Fails, Montana
(j

Submitted on Briefs: March 16, 1995
Decided: September
Filed:
justice Jaines C. Nelson delivered the Opinion of the Court.

Appellant Michael Riley (Riley) appeals the decision of the
Eleventh Judicial District Court, Flathead County, denying his
post-trial motion for a new trial. We reverse and remand for
further proceedings consistent with this opinion.
Riley raises the following issue on appeal:
Did the District Court err when it denied Riley's motion for
a new trial on the grounds of juror and bailiff misconduct?
This case arises from a traffic accident that occurred near
Whitefish, Montana on September 2, 1992. Respondent Theodore
Allers (Allers) was injured when the motorcycle he was riding
collided with a pickup driven by Riley. The accident occurred when
Riley turned left at the same time that Allers was attempting to
pass several vehicles, including Riley's pickup. Allers sued
Riley, claiming that Riley had been negligent in initiating a turn
while Allers was making his pass. Riley answered, denying that
Allers' pass had been initiated when Riley started to turn and
claiming that Allers had been negligent by attempting to pass in an
unsafe manner.
A jury trial began on June 27, 1994. Following deliberations,
the jury returned a verdict finding that: (1) Allers suffered
$280,000 in damages; (2) ALlers was 45 percent comparatively
negligent; and (3) Riley was 55 percent comparatively negligent.
After the verdict had been returned, Riley's counsel learned
that, during the jury's deliberations, the jury foreperson
requested the bailiff to provide a dictionary and that the bailiff

2
complied without informing or obtaining the permission of the
court. Riley's counsel interviewed several jurors who confirmed
that the bailiff had provided both a legal dictionary and an
ordinary dictionary. The jury used the dictionaries to look up the
terms "proximate cause" and "prudent." The dictionary definitions
relating to causation did not contain the foreseeability element
which was contained in Instruction No. 14 given by the District
Court.
Both parties obtained affidavits from different jurors
regarding the use of the dictionaries. Allers also obtained an
affidavit from the bailiff stating that he had provided the jury
with the dictionaries. Riley filed a post-trial motion for
judgment notwithstanding the verdict or, alternatively, for a new
trial. The District Court denied the motions. Riley
appeals.
Did the District Court err when it denied Riley's motion for
a new trial on the grounds of juror and bailiff misconduct?
Section 25-11-102, FICA, enumerates the grounds upon which a
new trial may be granted:
The former verdict or other decision may be vacated and
a new trial granted on the application of the party
aggrieved for any of the following causes materially
affecting the substantial rights of such party:
1 irregularity in the proceedings of the . . .
jury . . by which either party was prevented from
having a fair trial;
(2) misconduct of the jury.

In this case, Riley moved for a new trial on the grounds of bailiff
and jury misconduct pursuant to subsections (1) and (2) of the
statute.
 On appeal, the parties provide different standards by which
this Court should review a district court's grant or denial of a
motion for new trial under § 25-11-102(13 and (2), MCA. Allers
cites Schmoyer v. Bourdeau (19661, 148 Mont. 340, 343, 420 P.2d
316, 317, in which this Court held:

[Olnce the District Court has considered the matter [of
jury misconduct], however it is raised . . . this Court
will not lightly disturb that ruling. To overthrow it
this Court must be shown by evidence that is clear,
convincing, and practically free from doubt, of the error
of the trial court's ruling.
Riley points out that, in reviewing cases like the one at bar, this
Court has employed a variety of standards, including a "practically
free from doubtn standard, Easterday v. Canty 11986), 219 Mont.
420, 423, 712 P.2d 1305, 1307, and a "clear and convincing"
standard, Ahmann v. American Federal Savings & Loan Assln (1988),
235 Mont. 184, 191, 766 P.2d 853, 857. Riley requests that we
clarify the standard of review.
In the two most recent civil cases in which this Court has
reviewed a district court's grant or denial of a motion for a new
trial on the grounds of jury and/or bailiff misconduct, we
enunciated the following standard of review: The decision to grant
or deny a new trial is within the sound discretion of the trial
judge and will not be disturbed absent a showing of manifest abuse
of that discretion. Geiger v. Sherrodd, Inc. (1993), 262 Mont.
505, 508, 866 P.2d 1106, 1108; Henrichs v. Todd (1990), 245 Mont.

286, 291, 600 P.2d 710, 713. We will continue to employ this
standard of review when allegations of jury and/or bailiff
misconduct are raised as grounds for a motion for a new trial.
4
Those cases which articulate a different standard of review are
overruled to that extent.
We will give considerable weight to the determination of the
district court because it is in the best position to observe the

jurors and determine the potential for prejudice when allegations
of jury or bailiff misconduct are raised, and the district court
will have significant latitude when ruling on these matters.
Easterdav, 712 P.2d at 1307; see State v. Gollehon (1993), 262
Mont. 293, 303, 864 P.2d 1257, 1263-64; State v. Eagan (1978), 178
Mont. 67, 76, 582 P.2d 1195, 1200.

Riley and Allers agree that jury misconduct occurred.
However, Allers does not agree with Riley that the jury's

misconduct materially affected a substantial right of Riley, as
required by § 25-11-102, MCA. The District Court found that
" [wlithout invading the jury's decisions [sic] making process to
determine that the dictionary definitions affected their
deliberations, there is no evidence of any irregularity or
misconduct materially affecting the substantial rights of [Riley]. "
As to the bailiff's actions, Allers and Riley disagree. Riley
asserts that the bailiff ' s actions went beyond the limits set forth
in § 25-7-403, MCA, and thus created an irregularity in proceedings

under 25-11-102(1), MCA. Allers counters that the bailiff's
actions did not constitute an irregularity in proceedings because
those actions did not materially affect Riley's substantial rights.
Allers appears to base that argument on the bailiff's lack of
corninunicatioil with the jury when providing the dictionaries to
them. Section 25-7-403, MCA, provides in pertinent part:

Unless by order of the court, the officer having [the
jury] under his charge must not suffer any communication
to be made to them or make any himself, except to ask
them if they or two-thirds of them are agreed upon a
verdict . . . .
The statute strictly limits the interaction that is allowed
between the jury and the bailiff. In its rationale for denying
Riley's motion for new trial, the District Court concluded that,
while "it was inappropriate for the bailiff to have complied with

the jury's request. . . . " the bailiff nevertheless did not commit
any error which substantially affected the right of Riley. We

agree that, by providing the jury with extraneous materials without
the permission of the court, the bailiff violated § 25-7-403,MCA.
Nevertheless, since we determine that Riley is entitled to a new
trial because of the misconduct of the jurors, we need not address
further the effect of the bailiff's misconduct as regards Riley's
motion for new trial
We start from the premise that under the Constitution of
Montana both the plaintiff and the defendant have a right to a fair
trial. In Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717, we
stated:
The guiding principle of our legal system is fairness.
We must tenaciously adhere to the ideal that both sides
of a lawsuit be guaranteed a fair trial. Sec 27, Art.
111, Montana Constitution. [Now Sec 17, Art. 111.
m, 410 P.2d at 722. See also Brockie v. Omo Const., Inc.

i1992i, 215 Mont. 495, 499, 844 P.2d 61, 64

Riley argues that, pursuant to w,
jury or bailiff

misconduct creates a rebuttable presumption of prejudice. w,
410 P.2d at 721. In , a civil case, Putro was injured when

the car she was driving collided with the truck that Baker was
driving. Two passengers in Putro's car died as a result of the
accident. In a separate criminal proceeding, Baker pled guilty to
charges of manslaughter. Prior to trial in the civil proceeding,
the parties stipulated to exclude any reference to the criminal
proceeding. On the day that the civil case was to be given to the

jury, an article appeared in the local paper stating that Baker had
pled guilty to manslaughter. Baker moved for a mistrial or a new
trial on the grounds that at least some of the jurors must have
read the article that morning, thereby tainting the verdict. The
district court took the motion under advisement and decided to
submit the case to the jury and to poll the jury members after they

reached a verdict to determine if the article influenced them.

When the district court polled the jury, it was discovered that all
of the jurors had been exposed to the article because one of the

jurors had clipped it out and brought it into the jury room.
Several jurors said that they refused to read it before reaching a
final verdict. All of the jurors told the district court that the
article had no influence on their verdict. The district court then
denied the motion for mistrial or a new trial. On appeal, we
reversed, stating that we were not satisfied that the article did
not prejudicially influence the jury's verdict. w , at
410 P.2d

721. We stated:
It was established early in our law . . . that "if
misconduct be shown tending to injure defendant,
prejudice to the defendant is presumed, but not
absolutely." The presumption may be rebutted by the use
7
 of testimony of the jurors "to show facts which prove
that prejudice or injury did not or could not occur."
But, "this court, however, has never held, and does not
now hold, that, if the contact of the juror with outside,
prejudicial influences be clearly demonstrated and
uncontroverted, the juror may purge himself by testifying
that such influences did not affect his judgment in
forming his verdict." The ultimate inquiry is for the
court to decide upon the facts of each particular case.

Our holding in m,with regard to the testimony of jurors,
has been qualified, however, because of the 1977 adoption of Rule
606(b), M.R.Evid., which provides that juror testimony--including

affidavits and other evidence--that concerns the juror's thoughts,
concerns, emotions, statements, mental processes, or any other
matter pertaining to the jury's deliberations is inadmissible in
determining the validity of the verdict. Under that Rule, a juror

may provide testimony in only three circumstances:
[To determine1 (1) whether extraneous prejudicial
information was improperly brought to the jury's
attention; or ( 2 ) whether any outside influence was
brought to bear upon any juror; or ( 3 ) whether any juror
has been induced to assent to any general or special
verdict, or finding on any question submitted to them by
the court, by a resort to the determination of chance.
Rule 606 (b), M.R.Evid; Harry v. Elderkin (1981), 196 Mont. 1, 7,
637 P.2d 809, 813.
Here, it is clear from its order denying Riley's motion for
new trial that the District Court was cognizant of the restrictions

imposed on the use of juror affidavits. The court, in accordance
with our case law, determined that, while it could consider such
affidavits for the limited purpose of showing that external

irifluences and extraneous prejudicial information were brougnc co
the jury's attention, it was, nevertheless, barred from considering
a, if at all, such information affected those deliberations or
the jury's decision making processes. See Estate of Spicher v.
Miller (1993!, 260 Mont. 504, 861 P.2d 183; Boyd v. State Medical
Oxygen & Supply, Inc. (1990), 246 Mont. 247, 805 P.2d 1282. Since
the District Court could not inquire into the jury's thought
processes, it concluded that there was no evidence of prejudice--
i.e., that the jury's use of the dictionary definitions affected
its determination of proximate cause and cause in fact. Moreover,
having declined to presume prejudice, the court concluded that
Riley's substantial rights were not affected and that his motion
for new trial must be denied.
In determining whether the substantial rights of the
complaining party have been affected, we have, however,
acknowledged that "[glenerally, courts in both civil and criminal
cases have held that to warrant a new trial, the misconduct must be
such that actual or potential injury results to the losing party."
Brockie, 844 P.2d at 64. (Emphasis added.) In Brockie, Brockie's
son was killed when the car he was a passenger in skidded near an
icy bridge and struck a flasher board that was located in the
median. At trial, defendant's expert testified as to the distance
between the flasher board and the interstate at the time of the
accident. He based his analysis on motion theory and kinematics.
Brockie gave no expert testimony to rebut defendant's expert. The

location of the fiasher board at the time of the accident was
pivotal in the case. Affidavits submitted by two jurors stated
that the jury foreperson told them that he conducted independent
research on motion theory and kinematics and that his research
confirmed the defendant's expert's testimony. The district court
denied Brockie's motion for a new trial. We reversed, concluding
that the district court abused its discretion. We found that the
jury foreperson's research, and the report of that research to two
other jurors, was misconduct as defined by 5 25-11-102(21, MCA. We
also found that probable prejudice resulted from that conduct. In
essence, the jury foreperson became a witness to the other jurors
by corroborating defendant's expert's testimony with reports of his
own independent research. Brockie, 844 P.2d at 64-65
The situation in the present case is analogous, and the same

result obtains. Here, the jury panel conducted independent
research on extraneous material which redefined the critical
element of causation by effectively eliminating from Instruction
No. 14 any reference to foreseeability. Such conduct is sufficient
to demonstrate probable prejudice and potential injury to the
losing party. See Brockie, 844 P.2d at 64.
Allers' arguments that the jury did not present any questions

to the court regarding foreseeability; that foreseeability was not
an element in this case; and that if the court had felt that the
element of foreseeability had not been proven it would have granted
Riley a new trial, are beside the point. Instruction No. 14
correctly set forth Montana law on causation, and the jury was
obligated ro determine proximate cause in accordance with that
instruction. Foreseeability was an element of proximate cause in
Lhe law given ro i h jury, and the jury was not at liberty to
re
simply ignore the court's instruction and to redefine causation by

eliminating the foreseeability element. It is pure speculation to
attempt to divine whether, and if so, to what extent the concept of
foreseeability entered into the jury's determination of causation.
As the District Judge acknowledged, he could not determine the
prejudicial effect of the jury's conduct without invading the
internal mechanisms of its decision making processes--something
that he was precluded from doing under Rule 606(b), M.R.Evid.
Since the trial court was barred from inquiring into the jurors'

thought processes, there was no practicable method to determine
whether the outcome of the trial would have been different had the
misconduct not occurred. See m,410 P.2d at 722, and Brockie,
844 P.2d at 64.

As Riley points out in his brief on appeal:
This was a difficult case, involving complex issues
of negligence, causation, and comparative negligence.
The jury deliberated for nearly seven hours, and it is
clear that it struggled with the evidence and the law,
ultimately finding that Riley's negligence exceeded
Allers's negligence by only 10%.

In m,we stated that a rebuttable presumption of prejudice
exists when jury misconduct stems from extraneous influence; that
the misconduct in question must show a "natural tendency" to
prejudice; and that -,he presumption is not absolute. m,410
P.2d at 721-22. As we have indicated above, our discussion in
Futro has been somewhat qualified by the adoption of Rule 606(b).
M.R.Evid., and by our interpretations of that Rule. However, given

the facts of this case, we conclude that there was, at the very
I1
least, a reasonable probability that the jurors' misconduct
influenced their decision; that probable prejudice and potential
injury was apparent from the fact that the jury used extraneous
materials--two dictionaries--toredefine a critical element of this
negligence case--proximate cause--that was already correctly
defined in the court's instructions; and that, as a consequence,
Riley's substantial rights were compromised along with his
constitutional right to a fair trial.
While not dealing with juror misconduct, we, nevertheless,

made an observation in a case involving improper argument of
counsel that is germane to our resolution of the issue raised here.
In Kuhnke v. Fisher (1984), 210 Mont. 114, 126, 683 P.2d 916, 922,
we observed that there is no way to measure how a prejudicial

argi?ment may affect an adverse pa-rty. We stated that "[tlhe only
way to be sure which, if any, of the defendants should be
exonerated or whether plaintiff should recover at all is to grant
a new trial." Kuhnke, 683 P.2d at 922. See also m, 410 P.2d
at 722, where this Court stated:
[Wle also realize that unexplained prejudicial
references to important matters in litigation may have a
"natural tendency" to infect the proceedings with an
unfairness that can be corrected only by starting anew
the legal contest.
Similarly, the prejudice to a party occasioned by the jurors taking

it upon themselves to redefine a term of art in a critical jury
instruction from their review of extraneous materials can hardly be
measured either--especiallywhere the trial court is barred by rule
from obtaining he very evidence that might resolve that issue one
way or the other. The only cure for such mischief and for the
potential prejudice and injury resulting therefrom is to grant a
new trial.
Accordingly, we hold that the District Court manifestly abused
its discretion in denying Riley's motion for new trial, and we
reverse and remand for further proceedings consistent with this
opinion.

We Concur:

Justice Fred J. Weber signed the majority opinion on June 20, 1995.
Justice William E. Hunt, Sr., dissenting.
I dissent from the majority opinion.
I do not disagree with the majority's analysis concerning the
misconduct of the bailiff and the jury in this case; and I agree
that both parties are entitled to a fair trial; and that it may
always be difficult to determine whether or not that misconduct was
prejudicial to one or both parties.
What I have trouble with is the conclusion reached by the
majority that the District Court committed a manifest abuse of
discretion by not granting a new trial in this case. The District
Court found that there was misconduct, but that none of Riley's
substantial rights were materially affected by the misconduct of
the jury. We have stated that " [nlot every act of jury misconduct
. . mandates a new trial." Erickson v. Perrett (1977), 175 Mont,
87, 91, 572 P.2d 518, 520. When the jury requested and examined a
dictionary for a definition, I do not find a material affect on
Riley's substantial rights resulting from this misconduct.
The District Court stated in its rationale for denying Riley's
motion for a new trial that " [ilt was inappropriate for the bailiff
to have complied with the jury request . . . . " It was
inappropriate, but I agree with the District Court that not every
act of bailiff misconduct will mandate a new trial. See Ahmann,
766 P.2d at 857. The record in this case does not show that any of
Riley's substantial rights were materially affected by the
bailiff's actions.
 The inquiry for courts is whether the misconduct was such that
actual or potential injury occurred to the losing party, materially
affecting their substantial rights. Brockie v. Omo Construction
(19921, 255 Mont. 495, 498-99, 844 P.2d 61, 64.
In this case, the District Court found no evidence of
prejudice to Riley. In a review of the dictionary definitions in
question, I do not find them to be prejudicial. They do not show
a "tendency to injury." The record indicates that the District
Court examined the definitions in the context of the surrounding
circumstances and satisfied itself that Riley was not prejudiced.
The court reached this conclusion from the advantage of its
position at the trial, and from that position, properly concluded
that there was no material affect on substantial rights by actual
or potential injury. I do not find a manifest abuse of discretion
by the District Court, and therefore, I conclude that the District
Court should be affirmed.

Justice Terry N. Trieweiler joins in the foregoing dissenting
opinion.
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Reversing the jury's verdict which was arrived at following
four days of trial and seven hours of deliberation is no
insignificant matter. It should never be done based on purely
academic notions of technical irregularity which had no bearing on
the outcome of the case. Yet, that is exactly what the majority
has done in this case.
The defendant complains because the jury, in its conscientious
effort to resolve the issues in this case on their merits, referred
to the dictionary for a definition of proximate cause. However,
the only discrepancy between the dictionary definition and the
court's Instruction No. 14 was that the dictionary definition did
not include a discussion of foreseeability. That fact made
absolutely no difference to the outcome in this case, because
foreseeability was not an issue in this case. It was not even
mentioned in the issues as framed in the pretrial order, and
obviously did not come up during the course of the trial. Not only
has the appellant failed to cite this Court to any fact in this
case which would have made foreseeability an issue, the appellant
has not even provided this Court with a transcript of the District
Court proceedings so that this Court could, on its own, examine the
record to conclude whether foreseeability was an issue. None of
that, however, is a deterrent to the majority's determination to
make an example of this bailiff and this jury by reversing a
substantial verdict over an issue that had absolutely nothing to do
with the case.
The majority pontificates that "iilt is pure speculation to
attempt to divine whether, and if so, to what extent the concept of
foreseeability entered into the jury's determination of causation."
Then, with absolutely no reference to the record, no suggestion of
how foreseeability might have been an issue in this case, and no
discussion of the actual issues in this case, the majority
concludes that there was "a reasonable probability that the jurors'
misconduct influenced their decision . . . . " Frankly, this is a
shocking misapplication of the law that pertains to appellate
review.
The only record presented to this Court on appeal consisted of
the pleadings and the jury instructions. The pleadings give
absolutely no indication that foreseeability was an Issue in this
case. The majority may feel good because they have sent a message
to this bailiff and this jury. However, the only person really
affected by this decision is the prevailing party who had nothing
to do with the misconduct. In the process, the losing party is
rewarded because of "misconduct" which had absolutely no bearing on
the outcome of this case. As it turns out, the best thing that
happened to the defendant in this case was when the jury tried to
figure out what proximate cause meant.
It is in recognition of the time and effort that goes into the
jury process that two important rules control our review of jury
verdicts in civil cases. First, a verdict should never be reversed
based on an irregularity or misconduct unless the act complained of
materially affects the substantial rights of the aggrieved party.
Second, in arriving at the first determination, the law
acknowledges that the district judge who sat through the trial and
personally observed and heard the evidence is in the best position
to determine whether an irregularity or misconduct adversely
affects one of the parties.
Therefore, we have established the rule that the decision to
grant or deny a motion for new trial on one of these bases is
within the sound discretion of the trial judge and will not be
disturbed absent a manifest abuse of that discretion. In this
case, I conclude that neither requirement has been established.
Furthermore, it bears repeating that this Court has not even
been provided the benefit of a transcript of the District Court
proceedings. The majority does not know what testimony was given.
The majority is unaware of any arguments that were made to the
jury. The majority does not know what motions were made to the
District Court, nor the factual bases for those motions. Yet, it
has concluded that it knows, better than the District Judge,
whether this admittedly improper conduct was prejudicial to the
defendant.
It occurs to me that the only prejudice that occurred in this
case, occurred when the District Court gave its Instruction No. 14
which pertained to proximate cause and was mandated by our decision
in KifchenKrirfiers,Inc. v. EustsideBmk (1990), 2 4 2 Mont. 155, 759 P.2d 567.

That instruction is a convoluted, incomprehensible and irrelevant

18
description of an abstract legal notion which did not belong in the
jury instructions in the first place. To suggest that one of the
parties was prejudiced when the jury tried to overcome this
considerable judicially-created obstacle by trying to understand
the relatively simple concept of causation through other means,
carries the detached, misguided and esoteric notions of Kitchen K~wjiem

to a new extreme.
The District Court instructed the jury on the subject of
proximate cause in its instruction No. 14. The affidavits of the
jurors indicate that they sought guidance from dictionary
definitions of proximate cause because of their inability to
understand Instruction No. 14. However, the only discrepancy
between the dictionary definitions and the court's instruction
which is complained of by the defendant is the fact that the
dictionary definitions do not include the concept of
"foreseeability." I conclude that the absence of foreseeability in
the dictionary definitions created absolutely no prejudice to the
defendant for the following reasons.
First, foreseeability was not an issue in this case. This
case was not, as suggested in the majority opinion, a complex form
of litigation. it was a simple motor vehicle accident involving
two vehicles, two drivers and one collision. The plaintiff accused
the defendant of making an improper left hand turn. The defendant
accused the plaintiff of making an improper pass. There is no
indication from the meager record presented to us that either party
ever argued that if he had done what he was accused of doing, harm

19
to another person was unforeseeable. In fact, the contentions and
issues raised in the pretrial order never even discuss the issue of
proximate cause, much less the sub-issue of foreseeability. The
issues were set forth in the pretrial order as follows:
ISSUES OF FACT
The following issues of fact and no others remain to
be litigated upon the trial:
1. Whether the September 2, 1992, accident was
caused by Defendant's negligence.
2. Whether the September 2, 1992, accident was
caused by Plaintiff's negligence.
3. The percentage of fault or negligence
attributed to each party, if any, which was a cause of
the September 2, 1992, accident.
4. The amount of money, if any, to which Plaintiff
is entitled to compensate him for his damages.
The majority's concern, therefore, about foreseeability is much to
do about nothing.
Second, if either party did what he was accused of doing,
foreseeability was assumed as a matter of law. Therefore, it was
unnecessary to instruct the jury on the issue of foreseeability in
the first place. For example, Riley was accused of making an
unsafe turn in violation of § 61-8-336,MCA. Allers was accused of
making an unsafe pass, which would be a violation of § 61-8-325,
MCA .
[Wle have long been committed to the doctrine that the
violation of a statute enacted for the safety of the
public is negligence perse . . . .

Kudr~zuv.Come! Corp. (1977!, 175 Mont. 29, 39, 572 P.2d 183, 188
 In this case, the jury was specifically instructed that
violation of motor vehicle laws is negligence per se, and it found
that both parties were negligent. Negligence has four elements:
(1) duty; 12) breach of duty; (3) causation; and (4) damages.
However, there can be no "duty" unless harm from an act or omission
is "foreseeable." As we stated in Shaferv.DepartmenlofInstiiutions (1979),

181 Mont. 102, 105, 592 P.2d 493, 495:
The crux of this case is the element of negligence
known as foreseeability. This element serves as a limit
on liability for acts which might, under other
circumstances, be negligent. The substance of
foreseeability as it relates to negligence is that a
defendant who could not foresee any danger of injury from
his conduct or any risk from an intervening force is not
negligent. Mang v. Eliasson (l969), 153 Mont. 431, 436,
458 P.2d 777, 780. Absent foreseeabilitv, there is no
dutv; absent dutv, there is no neqliqence.
(Emphasis added.)
When we have held, as we have on many occasions in the past,
that violation of a motor vehicle statute is negligence as a matter
of law, we have held that such a violation constitutes a breach of
each motorist's duty to others. By concluding as a matter of law
that violation of a motor vehicle statute is a breach of duty, we
have held as a matter of law that injury to others is foreseeable
from such a violation. Therefore, it was completely unnecessary to
re-instruct the jury on the subject of foreseeability as an elemect
of causation. It was not only unnecessary, it caused confusion
which should have been avoided if this case was to be decided on
its merits. For these reasons, the jury's mere consultation of
other definitions which did not include the concept of
"foreseeability" could not possibly have prejudiced the defendant.
To hold otherwise ignores the simple reality presented by the facts
in this case and the common law by which it must be decided
Finally, I conclude that the Kitchen Kru@ersl proximate cause

instruction is itself prejudicial to any party charged with proving
causation. It is redundant with regard to the subject of
"foreseeability" which is already implicit in the negligence
instructions; the subject of "foreseeability" is more appropriately
dealt with under the issue of negligence; the concept is
incomprehensible to the average jury; and by perpetuating this
practice (which to my knowledge is unique to this jurisdictioni,
this Court has made it more difficult to resolve civil claims on
their merits. Therefore, it is time for the Court to admit that it
made a huge mistake when, in its KitchenKrufters case, it imposed upon

the district courts of this state the obligation to interject
archaic, redundant and most often irrelevant legal notions into
instructions to a lay jury on an issue which in most cases is
relatively simple and can be decided based on common sense.
In a negligence action, such as this one, the subject of
foreseeability is repetitious of the duty imposed under the
standard negligence instruction which provides that:
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A Person
is neqliaent if he fails to act as an ordinarily careful
person would act under the circumstances.
(Emphasis added.i
 How an ordinarily careful person would act under the
circumstances takes into consideration whether or not harm to
someone is foreseeable
The fact that discussion of "foreseeability" as part of
proximate cause results in repetition is evident from our earlier
cases which, as already mentioned, include foreseeability as an
element of the "duty" which has to be present before negligence can
be found.
For example, in Shafer v. Department afInstitutions (1979) 181 Mont . 102,
,
592 P.2d 493, the victim was on leave from the Mountain View School

for Girls when she was involved in an automobile accident and
injured. The state was sued under the theory that Mountain View
was negligent by failing to properly supervise the victim. We held
that the state was not negligent, based upon unforeseeability of
the manner in which the injury occurred. However, we did not do so
under a diszussion of "proximate cause" but rather under the
discussion of the defendant's "duty." In addition to the
previously quoted language, we stated that:
Foreseeability is measured on a scale of
reasonableness; it is not measured abstractly. Fordv. Ruple
(19721, 161 Mont. 56, 64, 504 P.2d 686, 691. The
perspective is from the time of the allegedly negligent
act :
. , . in weighing the likelihood of harm, the
seriousness of injury and the value of the
interest to be sacrificed--thelaw judges the
actor's conduct in the light of the situation
as it would have appeared to the reasonable
man in his shoes at the time of the act or
omission complained of. Not what actually
happened, but what the reasonably prudent
 person would then have foreseen as 11kely to happen, is the
key to the question of reasonableness. Mangv
Eliasson, 153 Mont. at 436-37, 458 P.2d at 780.

Shafer, 592 P.2d at 495.

Foreseeability was also imposed as an element of duty in Pretly

on%pv.CityofHardin (19791, 182 Mont. 311, 597 P.2d 58. In that case,

we pointed out that:
Actionable negligence arises only from a breach of
legal duty, and to sustain an action for damages
resulting from negligence, the complaint must allege the
duty, its breach, the damages, and that the breach of
duty was the proximate cause of the injury. Ritchie v.
~orthernPacificRail~~ayCo.
(1954), 128 Mont. 218, 272 P.2d 728.
Related to these basic rules of negligence law is the
rule that a defendant who could not reasonably foresee
any danger of direct injury resulting from his conduct or
any risk from an intervening force is not negligent.
hirngv. Eliasson (1969), 153 Mont. 431, 458 P.2d 777.

As a result of these cases, in combination with the Kitchen

Krufers decision, we now analyze foreseeability in determining

whether there is negligence, and then re-analyze foreseeability in
determining whether there was "proximate cause."
Many courts have eliminated this redundant analysis and
simplified the jury's responsibility by limiting the analysis of
foreseeability to a determination of whether there is negligence in
the first place, and then dealing with cause as simply cause-in-
fact. Two of the jurisdictions in our own area which have done so
are the states of Washington and Oregon.
 In Rickstadv. Holmberg (Wash. 1969), 456 P.2d 355, the Washington

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

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

Restatement (Second) of Torts § 435, comment c (1965)
How to deal with foreseeability in the jury instructions when
analyzed as part of "duty" is illustrated in Wills v. City qf Vutzcouver

(Wash. 1970), 467 P.2d 292
 Similar analyses in Oregon occurred in Sworden b3. Gross (Ore.

1966), 409 P.2d 897, and W n a n v . CiiyofEugene (Ore. l979), 591 P.2d

I agree with the Washington court that the better reasoned
authorities address foreseeability as part of their analysis of
"duty" rather than "proximate cause." In addition to the
Restatement (Second) of Torts, W. Page Keeton et al., Prosser and
Keeton on the Law of Torts 5 43 (5th Ed. 1984), states as follows:
Negligence, it must be repeated, is conduct which
falls below the standard established by law for the
protection of others against unreasonable risk. It
necessarily involves a foreseeable risk, a threatened
danger of injury, and conduct unreasonable in proportion
to the danger. If one could not reasonably foresee any
injury as the result of one's act, or if one's conduct
was reasonable in light of what one could anticipate,
there would be no negligence, and no liability. . . .
. . . At the risk of becoming wearisome, it must be
repeated that the question is primarily not one of
causation, and never arises until causation has been
established. It is rather one of the fundamental policy
of the law, as to whether the defendant's responsibility
should extend to such results. In so far as the
defendant is held liable for consequences which do not
lie within the original risk which the defendant has
created, a strict liability without fault is superimposed
upon the liability that is logically to be attributed to
the negligence itself. It is simpler, and no doubt more
accurate, to state the problem in terms of legal
responsibility: [Ils the defendant legally responsible
to protect the plaintiff against such unforeseeable
consequences of the defendant's own negligent acts? . . .
Whether there is to be such legal responsibility is a
matter of policy, of the end to be accomplished; and when
we say, for example, that the defendant is or is not
under a "duty" to protect the plaintiff against such
consequences, "duty" is only a word with which we state
our conclusion and no more.
Prosser and Keeton on the Law of Torts § 43 at pp. 280-81.
 The classic case in this country that dealt with the issue of
foreseeability was Palsgruf v. Long IslandRailrucrdCo. (N.Y. 1928), 162 N.E.

99. In the majority opinion authored by Justice Cardozo, liability
was defeated because the injury that was alleged was
"unforeseeable." However, the issue of foreseeability was
considered in the court's analysis of whether or not the defendant
had a duty to the plaintiff. In summarizing that decision, Prosser
and Keeton state:
In this situation Judge Cardozo, speaking for a
majority of four, held that there was no liability,
because there was no negligence toward the plaintiff.
Negligence, he said, was a matter of relation between the
parties, which must be founded upon the foreseeability of
harm to the person in fact injured. The defendant's
conduct was not a wrong toward her merely because it was
negligence toward someone else. She must "sue in her own
right for a wrong personal to her, and not as the
vicarious beneficiary of a breach of duty to another."
Prosser and Keeton on the Law of Torts 8 43 at p. 285.
I believe that we can accomplish the same social objectives
for which the requirement of foreseeability was established without
dealing with the issue redundantly and thereby unnecessarily
complicating the resolution of disputes. The way to do so is to
deal with the issue of foreseeability in the analysis of negligence
alone.
For all of these reasons, then, I conclude that there was no
prejudice to the defendant by the jury's consideration of
definitions of proximate cause which did not include the concept of
*foreseeability." Furthermore, because there was no prejudice to
the defendant, the District Court did not manifestly abuse its
discretion when it denied the defendant's motion for new trial
In summary, § 25-11-102, MCA, provides that a new trial may
only be granted when the complaining party's "substantial rights"
have been materially affected by an irregularity in the proceedings
or misconduct of the jury. Rule 61, M.R.Civ.P., provides that:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with
substantial justice. The court at every staae of the
proceedinq must disreqard any error or defect in the
proceedinq which does not affect the substantial riqhts
of the parties.
(Emphasis added.
We have repeatedly held that we will not reverse jury verdicts
or decisions of the district court based on error which was
harmless. R.H.Crover,Inc.v.F~:nnIns.Co. !1989), 238 Mont. 278, 284-85,

777 P.2d 338, 342; Gilesv. Flint VulleyForestProds. (1979), 179 Mont. 382,

387-88, 588 P.2d 535, 538-39. The majority in this case has,
however, established a new rule. That rule seems to be that if the
conduct complained of by the aggrieved party is offensive enough to
the majority, then the absence of prejudice is irrelevant. Since
symbolic messages are not the true function of this Court, I
dissent from that course of action.
Aside from the legal analysis set forth above, the most
amazing thing to me about che result arrived at by the majority is
that without the benefit of having heard the evidence or even
reviewed a transcript of the evidence, it holds as a matter of law
that the District Court Judge who heard all of the evidence
manifestly abused his discretion when he held that:
This court determines that any influence the dictionary
definitions may have had on the jury did not affect the
rights of the defendant.
Under the circumstances in this case, this decision renders a
three to four-day trial, the service performed by a jury, and the
role of the District Court all meaningless.
For these reasons, I dissent from the majority opinion.

Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
 September 5, 1995

CERTIFICATE OF SERVICQ

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Kelly M. Wills, Michael C. Prezeau
GARLINGTON, LOHN & ROBINSON
Box 7909
Missouta MT 59807-7909

Laurie Wallace
BOTHE & LAURIDSEN, P.C.
Box 2020
Columbia Falls MT 59912-2020

ED SMITH
CLERK OF THE SUPREME COURT