NO. 95-053
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
THE ESTATE OF ROBERT J. STREVER,
and JOLLEEN STREVER, Individually,
and as Personal Representative of
said Estate,
STEVEN CLINE, a minor; THOMAS
MORRIS, a minor; BOWEN RACINE,
a minor; and TOM E. SUSANJ;
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Craig W. Holt, Billings, Montana
For Respondent:
Michael B. 'Anderson (argued) & V. Ann Liechty,
Gannett, Anderson & Liechty, Billings, Montana
Heard: December12, 1995
Submitted: January 30, 1996
Decided.: June 27, 1996
Filed: .-.
Clefk
Justice James C. Nelson delivered the Opinion of the Court.
Eleven-year-old Robert Strever died May 3, 1992, as a result
of a single gunshot wound to the head. Robert was shot with a
handgun that he and several companions had stolen from a vehicle.
Robert's mother brought an action against the owner of the vehicle
and the three boys present at the time of the shooting. The
District Court for the Thirteenth Judicial District, Yellowstone
County, granted summary judgment in favor of the vehicle owner and
one of the boys and entered default against the remaining two boys.
The District Court subsequently granted Plaintiffs' Motion for Rule
54(b) Certification to this Court. We affirm.
The issues presented for review are:
1. Whether the District Court erred in determining that
Thomas Susanj did not owe a legal duty to Robert Strever.
2. Whether the District Court erred in determining that, even
if Thomas Susanj owed a legal duty to Robert Strever, the breach of
that duty was not a proximate cause of Robert's death.
Background Facts
On Friday, May 1, 1992, Robert contacted his mother at work
and requested permission to go on a weekend fishing trip with his
friend, Brent McKellip. Robert's mother instructed him to contact
his grandmother, Josephine Strever, and have her speak with Brent's
father to get the details of the trip. Josephine called the
McKellip home and spoke with an individual who represented himself
as Mr. McKellip. He stated that the boys would be leaving for the
fishing trip on Friday evening and that they would return to
2
Billings on either Saturday or Sunday.
When the boys came to collect Robert's clothing for the
weekend trip, Josephine expressed her suspicions of Mr. McKellip's
youthful sounding voice. Robert and Brent told her that it was due
to Mr. McKellip having a sore throat. After Robert's death, it
came to light that the fishing trip was a ruse and that fourteen-
year-old Steven Cline pretended to be Mr. McKellip to obtain
permission for Robert to spend the weekend with Brent.
On Saturday evening, May Znd, Robert, Cline and another boy,
Bowen Racine, attended a movie. After leaving the movie theater,
the boys decided to enter several parked vehicles in the
neighborhood and steal their contents.
Tom Susanj was in Billings that weekend to visit his father
who had been transferred to St. Vincent's Hospital for medical
care. Susanj had parked his pickup on the street in front of a
relative's home and had left it for the night. Located in the cab
of his pickup were a Spectrum radar detector, keys, a micro
cassette recorder, jumper cables, a Black & Decker car light,
Bushnell binoculars, a Shakespeare fishing rod and case, a tape
case with 30 cassette tapes, a small tool box, and a Fujica camera.
Underneath the seat of the pickup, in a white bag, was a Ruger 22-
caliber semiautomatic pistol and ammunition.
1n the early morning hours of May 3rd, the three boys entered
Susanj's pickup and removed several items. Although Susanj
testified that it was his normal practice to lock his pickup, there
was no evidence of forced entry. Susanj was not aware, nor had he
3
reason to be aware, of a crime problem, if any, in that
neighborhood.
Sixteen-year-old Thomas Morris joined Robert, Cline and Racine
after noticing them near Susanj's pickup. All four boys then
returned to the pickup to search for more items to steal. Morris
took the white bag from under the driver's seat and discovered that
it contained the handgun and ammunition. An animated discussion
ensued over who should have the gun. After removing the gun from
the bag, Morris either handed the gun to Cline at Cline's request
or Cline took the gun from Morris. Either way, Cline gained
control of the gun. Prior to the incident Cline had been smoking
marijuana and had informed Morris he was "high".
Morris testified that Cline waved the gun around while his
finger continually rested on the trigger. In the process of
examining the gun, Cline ejected a live shell from the chamber.
Cline was attempting to remove the ammunition clip from the gun
when the gun discharged, the bullet striking Robert in the head.
Susanj later testified that he did not keep the clip in the gun.
However, Morris and Cline testified that the clip was in the gun
when they took it from the bag.
After Robert fell to the ground, the other boys panicked.
Morris and Racine ran down an alley and Cline followed, still
carrying the gun. Morris and Racine urged Cline to put the gun
down and he complied. Cline went to a nearby convenience store and
called the police. The police later retrieved the gun from the
spot where Cline placed it. Cline was convicted of negligent
4
homicide for the death of Robert Strever.
Plaintiffs brought a civil action against the vehicle owner,
Susanj, claiming that his negligent act of leaving his vehicle
unattended and unlocked in a public thoroughfare contributed to the
wrongful death of Robert Strever. Plaintiffs claimed that Robert's
three companions, Morris, Cline and Racine, should also be held
liable for Robert's death because they were involved in stealing
the handgun from Susanj's pickup. Plaintiffs claimed that Morris,
as the oldest of the boys and the one with some familiarity of
handguns, was negligent in failing to prevent harm to Robert and in
failing to warn Robert of the danger involved with a loaded gun.
The District Court granted summary judgment in favor of Susanj
and Morris on the grounds that neither of them owed a duty to
Robert. The District Court further held that even if Susanj and
Morris owed a duty to Robert, their actions or inactions were not
the proximate cause of Robert's death. The District Court entered
default against the remaining two defendants, Cline and Racine, for
failure to appear.
Upon motion by Plaintiffs and without objection by Morris and
Susanj, the District Court granted Plaintiff's Motion for Rule
54(b) r M.R.Civ.P., Certification to this Court. Morris was
subsequently dismissed from-the appeal.
Standard of Review
Our standard of review in appeals from summary judgment
rulings is de nova. Mead v. M.S.B., Inc. (1994), 264 Mont. 465,
470, 872 P.2d 782, 785. When we review a district court's grant of
5
summary judgment, we apply the same evaluation as the district
court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County
(1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we said:
The movant must demonstrate
that no genuine issues of
material fact exist. omitted.]
[Citation Once this has
been accomplished, the burden then shifts to the non-
moving party to prove, by more than mere denial and
speculation, that a genuine issue does exist. [Citation
omitted.] Having determined that genuine issues of fact
do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law.
[Citation omitted.] We review the legal determinations
made by a district court as to whether the court erred.
[Citation omitted.]
Bruner, 900 P.2d at 903.
Discussion
In order to sustain a negligence action, the plaintiff must
establish a legal duty, breach of that duty, and damages
proximately caused by that breach. Whitfield v. Therriault Corp.
(1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127
Ordinarily, issues of negligence are issues of fact not
susceptible to summary' adjudication. Brohman v. State
(1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However,
actionable negligence arises only from the breach of a
legal duty; the existence of a legal duty is a question
of law to be determined by the district court. Nautilus
Insurance Co. v. First National Insurance (19921, 254
Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802,
803.
Yager v. Deane (1993), 258 Mont. 453, 456, 853 P.2d 1214, 1216.
Issue 1
Whether the District Court erred in determining that Thomas
Susanj did not owe a legal duty to Robert Strever.
The District Court determined that Susanj did not owe a legal
duty to Robert because Susanj was unaware of previous thefts in
6
that area of Billings that would compel him to lock his vehicle,
because Susanj did not permit the boys to enter his vehicle,
because Susanj did not have an open display of his firearm to lure
the boys into entering his vehicle and stealing the firearm, and
because Robert was not an innocent party but, rather, was a
participant in the burglary.
Plaintiffs contend that Susanj had a legal duty to the general
public to lock his vehicle to prevent the gun from falling into
"improper hands." Susanj argues that vehicle owners have no duty
to protect burglars from injuries they inflict upon themselves in
the course of their criminal acts. We conclude that Susanj did owe
a duty to not only Robert but also to the public in general to
store his firearm and ammunition in a safe and prudent manner.
Negligence denotes "a want of the attention to the nature or
probable consequences of the act or omission that a prudent man
would ordinarily give in acting in his own concerns." Section l-l-
204(4), MCA. Moreover, every person is bound, without contract, to
abstain from injuring the person or property of another or
infringing upon any of his rights. Section 28-l-201, MCA.
At common law, a property owner's potential liability for
injuries suffered by one who entered onto his land was determined
by the injured party's status as an invitee, licensee or
trespasser.
A trespasser is one who enters the property of another
without any right, lawful authority, or express or
implied invitation, permission, or license, not in the
performance of any duties to the owner, but merely for
his own purposes, pleasure or convenience.
Williams v. Bill's Custom Fit, Inc. (Tex. Ct. App. 1991), 821
S.W.2d 432, 433. Although most cases have involved trespassers on
land, these same rules have been applied to trespassers on personal
property. Williams, 821 S.W.2d at 433 (citing Prosser and Keeton,
The Law of Torts § 58 (5th 'ed. 1984)).
A trespasser could recover under the common law "only for
intentional, wanton, or willful injury or the maintenance of a
hidden engine of destruction." Alston v. Baltimore & Ohio Railroad
Co. (D.D.C. 1977), 433 F.Supp. 553, 560. In those states still
adhering to the common-law classifications of licensee, invitee and
trespasser, the general rule is that while a landowner cannot
intentionally injure or lay traps for a trespasser upon his land,
he owes no other duty to a trespasser. McKinsey v. Wade (Ga. Ct.
App. 1975), 220 S.E.2d 30, 32 (where a storekeeper set a trap with
dynamite in a vending machine and a sixteen-year-old boy was killed
in the act of stealing from-the machine).
While many jurisdictions still adhere to this concept, many,
including Montana, have abandoned the common-law classifications of
invitee, licensee and trespasser and have adopted a uniform
standard of reasonable care under the circumstances. Yalowizer v.
Husky Oil Co. (Wyo. 1981), 629 P.2d 465, 467.
In Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 140, 706
P.2d 491, 496, this Court held that the test for determining the
duty owed by a landowner to an injured party is "not the status of
the injured party but the exercise of ordinary care in the
circumstances by the landowner." In Limberhand, we cited § 27-l-
8
701, MCA, which provides:
Liability for negligence as well as willful acts.
Except as otherwise provided by law, everyone is
responsible not only for the results of his willful acts
but also for an injury occasioned to another by his want
of ordinary care or skill in the management of his
property or person except so far as the latter has
willfully or by want of ordinary care brought the injury
upon himself.
Limberhand, 706 P.2d at 496. Thus, the question in the case before
us becomes, did Susanj exercise ordinary care in storing his gun
and ammunition clip under the seat of his unlocked pickup.
The existence of a duty of care depends upon the
foreseeability of the risk and upon a weighing of policy
considerations for and against the imposition of liability.
Maguire v. State (1992), 254 Mont. 178, 189, 835 P.2d 755, 762.
The policy considerations to be weighed in determining whether to
impose a duty include: (1) the moral blame attached to the
defendant's conduct; (2) the desire to prevent future harm; (3) the
extent of the burden to the defendant and the consequences to the
community of imposing a duty to exercise care with resulting
liability for breach; and (4) the availability, cost and prevalence
of insurance for the risk involved. Phillips v. City of Billings
(1988), 233 Mont. 249, 253, 758 P.2d 772, 775.
Applying these policy- considerations in the present case,
reasonable minds could attach moral blame to Susanj's act of
storing his gun and ammunition in an unlocked vehicle on a public
street with numerous other items of attractive personal property in
plain view easily accessible to thieves or simply to curious small
children. In addition, requiring a gun owner to safely store his
9
firearm (for example, in this case, by merely locking the vehicle,
locking the gun in the glove compartment or removing the gun and
ammunition from the vehicle) would not impose an undue burden upon
the gun owner in light of the danger involved and the necessity of
preventing thefts of firearms or accidental shootings. Finally,
various types of liability insurance policies are readily available
at a reasonable cost and cover the risks inherent in the negligent
use and storage of firearms.
Moreover, in our recent opinion of Busta v. Columbus Hosp.
Corp. (Mont. 1996), 916 P.2d 122, 53 St.Rep. 428, we stated that
duty "is measured by the scope of the risk which negligent conduct
foreseeably entails." Busta
-I 916 P.2d at 134 (quoting Mang v.
Eliasson (1969), 153 Mont. 431, 438, 458 P.2d 777, 781).
In like manner, in Prosser and Keeton on Torts the authors
state:
The amount of care demanded by the standard of
reasonable conduct must be in proportion to the apparent
risk. As the danger becomes greater, the actor is
required to exercise caution commensurate with it. Those
who deal with instrumentalities that are known to be
dangerous must exercise a great amount of care
because the risk is great. They may be required to take
every reasonable precaution suggested by experience or
prudence.
W. Page Keeton et al., Prosser and Keeton on Torts § 34, at 208
(5th ed. 1984). We cited with approval this same rule in Manq when
we said:
As a classic opinion states: "The risk reasonably
to be perceived defines the duty to be obeyed." Palsgraf
v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59
A.L.R. 1253. That is to say, defendant owes a duty with
respect to those risks or hazards whose likelihood made
the conduct unreasonably dangerous, and hence negligent
10
in the first instance.
Manq, 458 P.2d at 781
A firearm, particularly one that is loaded or has ammunition
in close proximity, is considered a dangerous instrumentality and
therefore requires a higher degree of care in its use or handling.
This concept is set out in the Restatement (Second) of Torts, which
provides:
Care required. The care required is always
reasonable care. This standard never varies, but the
care which it is reasonable to require of the actor
varies with the danger involved in his act, and is
proportionate to it. The greater the danger, the greater
the care which must be exercised.
As in all cases where the reasonable character of
the actor's conduct is in question, its utility is to be
weighed against the magnitude of the risk which it
involves. [Citation omitted.] The amount of attention
and caution required varies with the magnitude of the
harm likely to be done if care is not exercised, and with
the utility of the act. Therefore, if the act has little
or no social value and is likely to cause any serious
harm, it is reasonable to require close attention and
caution. so too, if the act involves a risk of death or
serious bodily harm, and particularly if it is capable of
causing such results to a number of persons, the highest
attention and caution are required even if the act has a
very considerable utility. Thus those who deal with
firearms . . . are required to exercise the closest
attention and the most careful precautions, not only in
preparing for their use but in using them. [Emphasis
added.]
Restatement (Second) of Torts § 298 cmt. b (1965).
Accordingly, given the'foreseeability of the risk involved in
the improper and unsafe use and storage of a firearm; given the
strong policy considerations favoring safe and prudent use and
storage; and on the basis of the law as set forth in §§ l-l-204,
27-l-701 and 28-l-201, MCA, our decisions in Limberhand, Maquire,
Phillips, Manq and Busta and the above referred to standards of
11
care set forth in Presser and Keeton on Torts and in comment b to
§ 298 of the Restatement, we hold that, as a matter of law, the
owner of a firearm has a duty to the general public to use and to
store the firearm in a safe and prudent manner taking into
consideration the type of firearm, whether it is loaded or
unloaded, whether the ammunition is in close proximity or easily
attainable, and the location and circumstances of its use and
storage.
Because we conclude that Susanj owed a legal duty to the
general public to store his firearm and ammunition in a manner
consistent with this standard of care, on the material facts here,
we reverse the District Court's legal conclusion that Susanj owed
no legal duty to Robert.
Issue 2
Whether the District Court erred in determining that, even if
Thomas Susanj owed a legal duty to Robert Strever, the breach of
that duty was not a proximate cause of Robert's death.
Implicit in the District Court's ruling that Susanj's conduct
did not cause Robert's death is the conclusion that Susanj did not
breach any duty of care that he might have had to Robert. Breach
of a legal duty is a question of fact that is properly determined
by the fact finder. Similarly, causation requires a determination-
-ordinarily by the fact finder--that defendant's conduct helped
produce the injury and that the injury would not have occurred
without it. Proximate cause is proved by establishing cause in
fact, i.e., the "but for" test or "substantial factor" test.
12
Presser and Keeton on Torts 5 41, at 263-72.
We recently determined in Busta v. Columbus Hosp. Corp. (Mont.
1996), 916 P.2d 122, 138, 53 St.Rep. 428, 441, that ordinarily
foreseeability is part of the analysis of "duty," rather than
"proximate cause," and that to analyze it under both issues leads
only to confusion. In Busta
-I we overruled that part of OUT
decision in Kitchen Krafters v. Eastside Bank (1990), 242 Mont.
155, 789 P.2d 567, that required a two-tiered analysis of causation
in cases other than those where there has been an allegation that
the chain of causation is 'severed by an independent intervening
cause. Since the case before us is just such an intervening
causation case, foreseeability is properly considered with respect
to causation on that basis, and, under the facts here, we conclude
that failure of proof of causation can be determined as a matter of
law.
We have previously stated that a defendant's liability for his
wrongful act will not be severed by the intervening act of a third
party 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. Thayer v. Hicks
(lPPO), 243 Mont. 138, 155,. 793 P.2d 784, 795 (citing Nehring v.
LaCounte (1986), 219 Mont. 462, 470, 712 P.2d 1329, 1334).
As to intervening acts by third parties in relation to a
def iendant's conduct, Presser and Keeton state:
The question is always one of whether the defendant is to
be relieved of responsibility, and the defendant's
liability superseded, by the subsequent event. 1n
general, this has been determined by asking whether the
13
intervention of the later cause is a significant part of
the risk involved in the defendant's conduct, or is so
reasonably connected with it that the responsibility
should not be terminated. It is therefore said that the
defendant is to be held liable if, but only if, the
intervening cause is "foreseeable."
Prosser and Keeton on Torts § 44, at 302.
In Mills v. Mather (1995), 270 Mont. 188, 890 P.2d 1277, we
recognized that although most negligence actions contemplate some
action on the part of a defendant which is the actual and proximate
cause of the plaintiff's damages, failure to act can also form the
basis for a claim of negligence.
There are . . situations in which the actor, as a
reasonable man, is required to anticipate and guard
against the intentional, or even criminal, misconduct of
others. In general, these situations arise where the
actor is under a special responsibility toward the one
who suffers the harm, which includes the duty to protect
him against such intentional misconduct . . .
Mills, 890 P.2d at 1283-84 (quoting Restatement (Second) of Torts
§ 302B cmt. e (1965)). .
However, we have also stated that the criminal or intentional
actions of a third person may not be foreseeable. Sizemore v.
Montana Power Co. (19901, 246 Mont. 37, 47, 803 P.2d 629, 635-36
(citing Cole v. German Savings and Loan Society (8th Cir. 1903),
124 F. 113). Similarly, a grossly negligent act on the part of a
plaintiff may also be considered unforeseeable. Sizemore, 803 P.2d
at 636.
Along these same lines, in Presser and Keeton on Torts the
authors state:
There is normally much less reason to anticipate
acts on the part of others which are malicious and
intentionally damaging than those which are merely
14
negligent; and this is all the more true where, as is
usually the case, such acts are criminal. Under all
ordinary and normal circumstances, in the absence of any
reason to expect the contrary, the actor may reasonably
proceed upon the assumption that others will obey the
criminal law.
Presser and Keeton on Torts 5 33, at 201. With that in mind, a
review of some of our prior cases involving intervening criminal
acts by third parties is appropriate.
In 1990, the relatives of a minor killed by an ex-convict sued
the State of Montana over the convict's release. VanLuchene v.
State (1990), 244 Mont. 397,. 797 P.2d 932. Plaintiffs claimed that
the state has a duty to avoid the release of prisoners whose mental
illnesses render them dangerous to society. The District Court
found that plaintiffs' theories of proximate cause were too
speculative and that the state's acts were not the proximate cause
of plaintiffs' injuries. Although this case involved an
intervening act by a third party, we did not reach that point in
our analysis since we held that the state did not owe a duty to
plaintiffs because once the inmates' sentence had expired, the
state had no choice but to release him.
Three months later, in Kiger v. State (lPPO), 245 Mont. 457,
802 P.2d 1248, we were faced with a similar situation when the
state was again sued over the release of a Montana State Prison
inmate. In Kiqer, several days after his release on parole, a
former prison inmate shot a woman while attempting to steal her
car. Plaintiff claimed the state was negligent in releasing the
parolee. In Kiser we analyzed proximate cause in terms of
foreseeability because of the intervening act and we said that in
15
this case "there are too many 'what ifs' that are superseding
events that break the chain of causation." Kiqer, 802 P.2d at
1251.
Two years later, in U.S. Fidelity and Guar. Co. v. Camp
(1992), 253 Mont. 64, 70, 831 P.2d 586, 589, we said that not all
intervening causes will act so as to absolve the defendant of
liability. The plaintiff in Camp brought an action in negligence
to recover moneys paid to its insured for damages resulting from a
fire in an apartment building. In Camp, we said:
The chain of causation will only be broken, thereby
cutting off the defendant's liability, if the intervening
cause is reasonably unforeseeable. Thaver, 793 P.2d at
795. However, 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, then the intervening act does not absolve
the defendant of liability. Nehring v. LaCounte (1986),
219 Mont. 462, 712 P.2d 1329.
Camp, 831 P.2d at 589. .
The following year in King v. State (1993), 259 Mont. 393, 856
P.2d 954, the parents of a young man murdered by a former mental
patient of the Montana State Hospital brought suit against the
state for negligence in releasing the patient to the community. In
Kinq, we relied on our three prior opinions in VanLuchene, Kiter
and m and reiterated that the intervening acts must be
reasonably foreseeable to establish proximate cause. We also
stated in Kinq that
if a plaintiff's injury is caused by the intervening act
of a third party, the defendant's actions cannot be
viewed as the proximate cause of that injury. [Emphasis
added.]
Kinq, 856 P.2d at 956 (citing Graham v. Montana State University
16
(1988), 235 Mont. 284, 289-90, 767 P.2d 301, 304). Our use of the
word "cannot" in this statement was an unfortunate choice as Graham
does not state such a hard and fast rule and we had not intended
to, nor did we, set forth such a hard and fast rule in w. 1n
actuality, we said in Graham that:
If there is no room for a reasonable difference of
opinion as to whether the action of a party other than
the defendant is the intervening cause of the plaintiff's
injury, summary judgment based on proximate cause is
proper.
Graham, 767 P.2d at 304. For that reason, we overrule the
statement in Kinq that we quoted above and we reiterate that our
holding in Kinq is that "the intervening acts must be reasonably
foreseeable to establish proximate cause."
Our prior cases involving intervening criminal acts discussed
above involved fact situations that were properly disposed of by
the trial courts as a matter of law. Nevertheless, we emphasize
that a cause of action involving superseding intervening acts,
whether criminal or non-criminal, normally involves questions of
fact which are more properly left to the finder of fact for
resolution. If, under the facts of a given case, an intervening
criminal act is one which the defendant might reasonably foresee,
then there is no reason why the fact finder should not decide
causation the same as with any other intervening causation case.
Three of our earlier cases, Lencioni v. Long (1961), 139 Mont. 135,
361 P.2d 455; Brown v. First Federal Sav. & L. Ass'n of Great Falls
(1969), I54 Mont. 79, 460 P.2d 97; and Schafer v. State, Dept. of
Institutions (1979), 181 Mont. 102, 592 P.2d 493, stand for a
17
contrary rule--i.e. that no recovery can be allowed for an injury
which resulted from an intervening criminal act of a third person.
To that extent, we overrule those three cases and any other Montana
authority espousing that rule.
Rather, trial courts must continue to carefully review each
fact situation involving intervening criminal acts on a case-by-
case basis, and it is only where reasonable minds could come to but
one conclusion, that this issue is properly disposed of as a matter
of law. See, for example, Kiser, 802 P.2d at 1251, where we
affirmed the trial court's use of this same approach in granting
summary judgment.
This is such a case. Here, not only were there two
intervening criminal acts (two thefts from Susanj's vehicle), but
there was also an intervening grossly negligent act (Cline, high on
marijuana, waving the stolen gun around with his finger on the
trigger, then trying to unload the weapon). Accordingly, on these
facts, we conclude that reasonable minds could come to but one
conclusion--that the series of intervening acts which included two
criminal acts and one grossly negligent act was reasonably
unforeseeable and, thereby, cut off all liability on the part of
Susanj for Robert Strever's unfortunate death.
On the facts here, we hold that the District Court's grant of
summary judgment was proper as any negligence by Susanj was
superseded by the independent intervening criminal and grossly
negligent acts described above.
Having, thus, analyzed and resolved the two legal issues in
18
this case by application of Montana's statutory law, by application
of the well-established rules enunciated in decisions previously
handed down by this Court and by application of other well-reasoned
authority, it is now necessary that we respond to the special
concurrence. While waving the red flag of "gun control" and
raising the specter of "banning firearms" guarantees inflammatory
headlines and a spate of letters to the editor, as a matter of
legal analysis the special concurrence grossly and unfairly
misrepresents this Court's opinion and misstates the law.
At the outset, the special concurrence states that we have
held that:
[Als a matter of law, a property owner owes a legal duty
to a thief or a burglar who enters an owner's property on
a mission of thievery, steals the owner's property, and
then injures himself or another with the stolen loot.
In fact, such a holding is nowhere to be found in our opinion.
Rather, we have held simply that:
[Tlhe owner of a firearm has a duty to the general public
to use and to store the firearm in a safe and prudent
manner taking into consideration the type of firearm,
whether it is loaded or unloaded, whether the ammunition
is in close proximity or easily attainable, and the
location and circumstances of its use and storage.
While the special concurrence apparently views this as the
judicial creation of some sort of new, radical public policy
designed to undermine the constitutional right to bear arms and
promote the imposition of liability upon the innocent victims of
crime, it takes neither a crystal ball nor a Rhodes Scholar to
readily discern the fallacy of that conclusion.
In the first place, Montana's public policy, already set forth
19
in our statutes and in force for decades, clearly and unequivocally
imposes on each citizen the legal duty to, in all matters, act
prudently, with a view to the nature and probable consequences of
his conduct, and to abstain from injuring other persons or their
property or infringing on their rights. Sections l-l-204(4), MCA
and 28-l-201, MCA. These statutes, enacted by our legislature,
make no exception from the duty of care so imposed on the basis of
the "status" of the individual injured by another person's act or
failure to act in the manner prescribed by these laws. Rather,
these statutes mandate that each person owes a general duty of care
to every other person. Moreover, in furtherance of and consistent
with that policy, our statutory law imposes liability on those who
either willfully or negligently breach that duty of care--again
regardless of the "status" of the person injured. Section 27-l-
701, MCA.
While the special concurrence would carve out an exception
from this statutorily-imposed general duty of care for criminals
who are injured by another's breach of that duty, the black-letter
law clearly does not make such an exception. To the contrary,
rather than upholding the public policy set by the legislature as
evidenced in the referred-to statutes, the special concurrence
would simply ignore that policy in favor of one which rewards or
punishes negligent conduct on the basis of the status of the person
injured. Unfortunately, in so doing, the special concurrence also
ignores the obligation of the courts to uphold and to fairly apply,
as written, all constitutional laws. We have not rewritten public
policy in this opinion; we have, to the contrary, properly upheld
and applied the policy which the public, through its elected
representatives, has enacted.
That was precisely what we did in Limberhand, a unanimous
opinion of this Court, and that is all that we have done in this
case. While the special concurrence attempts to narrow Limberhand
to only encompass "civil guests, invitees or trespassers" as
opposed to "criminals, thieves or burglars," such an interpretation
makes no sense given that trespassing, by definition, is a
criminal, as well as tortious, act. See, Title 45, Chapter 6, MCA.
Neither our statutes nor our controlling case law qualify a
property owner's general duty of care by the l'statusV' of the victim
of the property owner's negligence. It, likewise, would be wholly
improper that we do so in this case.
Secondly, the special concurrence maintains that the holding
we have articulated in this case will come as a great shock to the
public in general and to gun owners in particular. To the
contrary, we suspect that the public and gun owners would be more
surprised to learn that owning a gun does not include a
responsibility and a duty to store and use the weapon in a safe and
prudent manner. In point of fact, organizations which teach safety
and promote responsible firearms use and ownership uniformly stress
the necessity to unload and store all guns in a secure location,
inaccessible to children and unauthorized persons and separate from
21
the ammunition.l Our holding in this case says nothing different.
If the owner of a firearm does not owe "a duty to the general
public to use and to store the firearm in a safe and prudent manner
taking into consideration the type of firearm, whether it is loaded
or unloaded, whether the ammunition is in close proximity or easily
attainable, and the location and circumstances of its use and
storage," then that truly is a shocking revelation!
Moreover, the special concurrence strongly implies that under
our decision here, the owner of a firearm is automatically or
strictly liable for any firearms-related injury merely because of
his ownership of the weapon. That absolutely is not the case;
nothing could be further from the truth. Our holding simply sets
forth the duty of care required in the use and storage of a
firearm. If a member of the public is injured in a firearms-
related accident, as in any negligence case, it is for the fact
finder--typically a jury composed of Montana citizens, some of whom
would likely be gun owners--to determine whether the owner of the
firearm breached his duty of care. While the special concurrence
apparently has little faith that such a jury could apply the law
and come to a correct result on the basis of the particular facts
at issue, we do not share that sentiment.
More to the point, the owner of a firearm who willfully or
negligently causes injury in his use or storage of his weapon, has
1
See, for example, "Firearms Responsibility in the Home,"
published by the National Shooting Sports Foundation and *A Guide
to Firearm Safety" and "Parent's Guide to Gun Safety" published by
the National Rifle Association of America.
22
always been subject to suit. The special concurrence's inference
that the floodgates of litigation will be opened notwithstanding,
our decision here does not invent any new theories of liability.
In truth, we have simply articulated a rule of law that has
implicitly existed in Montana for decades.
The special concurrence describes Robert and his group as a
"roving band of teenage thieves." Assuming, arguendo, that is
true, it does not, however, follow that Susanj should thereby be
relieved of his obligation to have done something as common sense
and simple as removing his gun from his unlocked truck when he left
it unattended on a public street or as easy as locking the truck or
locking the gun in the glove box, in order to prevent a needless
tragedy. Perhaps the next "roving band of thieves" will be a group
of curious four-year-olds. Perhaps the next person to get shot
while the thieves fight over the gun will not be the thief himself,
but a mother strolling her baby in the vicinity of the truck. And,
that is precisely the reason why, under the authorities we have
cited, Montana law does not hinge duty of care on the status of the
victim of the breach of that duty. While, the status of the victim
is purely fortuitous, it is completely within the control of the
owner of the firearm to safely and prudently use and store his
weapon. The law imposes a duty of care, among other things, to
encourage responsible conduct, not to set up a lottery that rewards
or punishes negligent conduct on the basis of the status of who is
injured when that duty of care is breached.
Furthermore, the special concurrence contends that citizens
23
"are not required to foresee the acts of thieves and burglars" and
that, therefore, as a matter of law, any intervening criminal act
should, without more, automatically cut off liability where a duty
of care is breached. First, the special concurrence's basic
premise is wrong. Citizens already do foresee the potential for
criminal acts taking place in their daily lives, and they proceed
accordingly. Few members of the public are willing to leave their
cars unlocked with the keys in the ignition in a public parking lot
for fear that the car will be stolen. Many women when traveling or
living alone take precautions to avoid being assaulted. Every
person who boards a commercial aircraft is subject to a personal
and baggage search because we live in a society where,
unfortunately, terrorist attacks are all too foreseeable. It,
thus, does not take a crystal ball or a Rhodes Scholar to figure
out that if one leaves a firearm and ammunition in an unlocked
vehicle on a public street with a veritable candy-store of other
goodies in plain view, that some felon just might enter the vehicle
unlawfully and make off with the goods and the weapon.
More importantly, however, in our decision on Issue 2, we have
not thrown the baby out with the bath water as the special
concurrence suggests. We have simply held that:
If, under the facts of a given case, an intervening
criminal act is one which the defendant might reasonably
foresee, then there is no reason why the fact finder
should not decide causation the same as with any other
intervening causation case.
While, one can conjure up all sorts of Rube Goldberg scenarios
involving intervening criminal acts, realistically, as our decision
24
here and as vanbuchene, m, Camp (which we have not overruled)
and Kins (which we have clarified) reflect, in many instances
intervening criminal acts are unforeseeable and will cut off
liability. Notwithstanding, those same cases and our decision in
Mills also stand for the proposition that if an intervening
criminal act is reasonably foreseeable, then liability will not be
cut off.
Finally, our opinion on Issue 1 is neither gratuitous nor
advisory. As our decision clearly reflects, the District Court
granted summary judgment on the basis that Susanj owed no legal
duty to Robert Strever. We have concluded that ruling to be
erroneous as a matter of law. Without reversing the District
Court's decision in that regard we would not have reached Issue 2.
Affirmed.
We Concur:
Chief Justice
Justices
25
Chief Justice J. A. Turnage concurring in part and dissenting in
part:
I concur in the result of the majority opinion holding that
property owner Tom E. Susanj will not be forced to defend himself
in a district court jury trial where he was accused of a tortious
act of negligence because thieves entered his property, stole his
firearm, and Robert J. Strever, one of the thieves who participated
in the theft of Susanj's firearm, was fatally injured.
I respectfully dissent from the majority opinion holding that,
as a matter of law, a property owner owes a legal duty to a thief
or a burglar who enters property on a mission of thievery, steals
the owner's property, and then injures himself or another with the
stolen loot.
Based upon the following facts, the District Court concluded
that Tom E. Susanj did not owe a legal duty to Robert J. Strever:
In the early morning hours of May 3 Steven Cline,
age 14, Bowen Racine, age 15, and the decedent Robert J.
Strever, burglarized vehicles in the area of Eldorado and
Fairvale, near the Par 3 Golf Course, including the
Defendant Susanj's vehicle. Later Thomas Morris, age 16,
saw the three and joined them in returning to the
Defendant Susanj's vehicle. Morris took the bag contain-
ing the handgun from under the driver's seat of Susanj's
vehicle. A dispute exists whether Steven Cline grabbed
the gun from Morris or whether Morris merely handed it to
him, but in any event Cline obtained possession of the
gun and later pulled the trigger and the bullet struck
Strever in the head resulting in his death.
The District Court, relying on this Court's precedent in
Lencioni v. Long (1961), 139 Mont. 135, 361 P.2d 455; Schafer v.
State, Dept. of Institutions (1979), 181 Mont. 102, 592 P.Zd 493;
and King v. State (19931, 259 Mont. 393, 856 P.2d 954, holding that
criminal acts are generally unforeseeable, held that the interven-
26
ing criminal act of one of the thieves was reasonably unforeseeable
and no duty was owed by property owner Susanj to Strever.
Our standard of review of a district court's conclusion of law
is to determine whether the court's interpretation of the law is
correct. In re Estate of Goick (Mont. 1996), 909 P.Zd 1165, 52
St.Rep. 12. Under the existing decisions of this Court, the
District Judge should be affirmed on his conclusion of law that no
legal duty was owed by Susanj to Strever; our standard of review
requires affirming.
Our prior decisions, which the majority has overruled on this
legal point, had established a rule of law that set the public
policy we should follow--a policy based on reason and common sense
--that our citizens are not required to foresee the acts of thieves
and burglars.
Why, then, does the majority reject our existing public policy
and write a new public policy establishing that our citizens now
owe a leqal dutv to thieves and burglars, a breach of such duty
subjecting them, at a minimum, to the stress, expense and hazard of
a jury trial when a thief or burglar steals from their property or
home a firearm, or other object that could produce harm, and
injures himself or a fellow thief or burglar? Bad public policy.
In overruling our prior precedent and from the ruling in this
case, it does not require a crystal ball or a Rhodes Scholar to
foresee that innocent citizens will have their homes burglarized,
their vehicles entered, their firearms or other possessions stolen,
and that in some cases the thieves and burglars will injure
27
themselves or others with the stolen property. The victimized
owners will then be hauled into court to defend themselves against
a claim of tortious damages.
In Montana, for reasons of hunting, sport or home protection,
many of our citizens own and keep firearms. It will be a real
surprise to them to learn that, if they are victimized by a burglar
or thief and their firearms are stolen, they may have breached a
legal duty and be required to defend themselves in a civil suit for
tort damages. Perhaps this decision may be welcomed by those who
would ban firearms, as a form of subtle gun control. It is a
certainty that the majority of Montanans will not so welcome the
majority decision.
I would agree that the owner of a firearm breached a legal
duty if he left lying around in his home a loaded firearm, in plain
view and accessible to small children lawfully in the home and if
one of the children, in handling the firearm, injured himself or
another. However, these are not the facts in the case before this
court.
We are here confronted with a roving band of teenage thieves
on a mission to break into and steal from several vehicles. The
Court's reliance on Limberhand v. Big Ditch Co. (1985), 218 Mont.
132, 706 P.2d 491, to elevate the status of thieves and burglars to
that of an invitee, licensee, or civil trespasser is misplaced.
The facts in Limberhand had nothing to do with criminal acts.
In Limberhand, a social guest was visiting a tenant in defendant's
apartment complex. The tenant's guest was accompanied by her
28
eighteen-month-old child. The child wandered across the apartment
parking lot, which separated the apartment complex from an
irrigation ditch adjacent to but not on apartment property, and
slipped or fell into the ditch, causing the child's death one day
later. The ditch was not fenced from the apartment complex.
In Limberhand, this Court said that § 27-l-701, MCA, relating
to duty of landowners, made no distinction between social guests,
invitees or persons even though they may be trespassers. However,
this was stated in reference to such individuals as civil guests,
invitees or trespassers and not as to criminal thieves or burglars.
Limberhand had nothing to do with and said nothing about such
criminals. Now such criminals are joining the list of those to
whom property owners owe a legal duty predicated upon claimed
negligence.
I acknowledge that we live in a society in which many innocent
people are victims of crime. However, if we have reached a stage
in our society in which all of us are under a leqal duty to foresee
that our homes and property will be burglarized, we as Montanans
are indeed living in perilous times.
The majority's response to the special concurrence and dissent
requires a further comment in support of the dissent.
The dispositive resolution of this appeal is found in Issue 2,
where this Court's majority holds that the District Court's grant
of summary judgment to defendant Susanj holding him not liable was
proper because of the series of intervening acts including two
29
criminal acts of the thieves and one grossly negligent act. I
concur with this holding and dispositive resolution of this case.
This Court has on countless occasions stated in its decisions
that issues not necessary to the disposition of an appeal need not
and will not be discussed. Advisory and gratuitous statements
should not be indulged in by this Court. I can only speculate as
to why then, the majority of this Court wrote at great length to
establish a new public policy that as a matter of law Susanj, as
owner of a firearm, has a legal duty to thieves who have stolen the
firearm and that not only Susanj but the general public as well has
a like duty to thieves.
One other comment must be made in relation to the majority
response to the dissent.
The majority states that trespassing, by definition, is
criminal, citing Title 45, Chapter 6, MCA. This statement is not
accurate and must be clarified. A civil trespass upon premises or
land of another does not without more become a criminal trespass.
Privilege to enter or remain upon land is extended by the landowner
failing to post notice denying entry onto private land. This
privilege may be revoked at any time by personal communication of
notice by the landowner to the entering person. Only then does
such trespass become a criminal misdemeanor. Section 45-6-201,
MCA. Premises is defined in 5 45-Z-101(58), MCA, as including any
type of structure or building and any real property.
30
The distinction between a civil and criminal trespass is clear
under the statutes. To be criminal, the trespass requires the
requisite act as well as the criminal state of mind of knowingly.
The type of criminal act in this case has nothing to do with
the misdemeanor trespass statute. The criminal acts in this case
involved entry into Susanj's vehicle and theft of his property.
I would affirm the District Court's conclusion that Susanj
could not foresee the criminal act of the thieves and did not
breach a legal duty
Justice Charles E. Erdmann joins in the dissent of Chief Justice
Turnage.
;i-)zL Justice
31
Estate of Strever v. Cline
Court: Montana Supreme Court
Date filed: 1996-06-27
Citations: 924 P.2d 666, 278 Mont. 165, 53 State Rptr. 576
Copy CitationsCombined Opinion