United States Fidelity & Guaranty Co. v. Camp

No. 91-281

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

UNITED STATES FIDELITY
AND GUARANTY COMPANY,
Plaintiff and Appellant,

MIKE CAMP, as Phillips County Sheriff,
and FWNDALL KIM BROADBROOKS,
Defendants and Respondents,

APPEAL FROM: District Court of the Seventeenth Judicial
District, In and for the County of Phillips,
The Honorable Leonard H . Langen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Joseph M. Sullivan, Emrnons & Sullivan,
Great Falls, Montana
For Respondent:
Norman H. Grosfield, Utick & Grosfield,
Helena, Montana

Submitted on Briefs: September 24, 1991
Decided: April 30, 1992

Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Plaintiff/appellant United States Fidelity and Guaranty
Company brought an action in negligence to recover moneys paid to
its insured for damages resulting from a fire in an apartment
building. The suit named as defendants Randall Broadbrooks, who
allegedly started the fire, and Phillips County Sheriff Mike Camp.
Broadbrooks was an escapee from the Phillips County Jail at the
time of the fire. Broadbrooks never appeared in the action and a
default judgment was entered against him. Defendant/respondent
Camp moved for summary judgment which was granted by the Phillips
County District Court. It is from this grant of summary judgment
that USF&G appeals. We affirm.
The following issues are raised on appeal:
1. Did the District Court err in finding that as a matter of
law the USF&G negligence action must fail because the required
element of proximate cause could not be proven?
2. Did the District Court err in determining that Sheriff
Camp was immune from suit under the judicial immunity statute found
at 5 2-9-112, MCA?
3. If Sheriff Camp enjoyed judicial immunity, was it waived
to the extent that there was insurance coverage for the liability?
The appellant made a number of arguments under issue two
concerning the District Court's determination that the respondent
enjoyed judicial immunity for the alleged acts of negligence.
Appellant argued that a sheriff would not, under these
circumstances, be entitled to rely on the immunity granted to the
judiciary. Additionally, appellant contended that a finding that
the sheriff had judicial immunity violated the separation of powers
doctrine as set forth in Article 111, Section 1, of the Montana
Constitution, and that such a finding reinvoked sovereign immunity
in contradiction to Article 11, Section 18, of the Montana
Constitution. concerning issue three, the appellant argued that
pursuant to this Court's recent decision in Crowell v. School
District No. 7 of Gallatin County (1991), 247 Mont. 38, 805 P.2d
522, any immunity was waived to the extent that insurance coverage
existed for the liability. We will not address issues two and
three in this opinion, as our decision concerning the first issue
requires that we affirm the decision of the District Court.
On September 23, 1987, Randall Broadbrooks pled guilty to
Driving While Under the Influence of Alcohol, Fourth Offense, and
Driving While an Habitual Traffic Offender. The District Court
sentenced Broadbrooks to one year in the county jail, but suspended
all but three months of the sentence. The three months not
suspended were to be served under a work release arrangement in
which Broadbrooks would be released from the jail each week day
from 8 a.m. to 5 p.m. in order to continue his employment as
janitor for the Phillips County Courthouse complex.
The Phillips County Sheriff's Department had no set procedure
for work release inmates. The sheriff's department did not attempt
to monitor Broadbrooks during release time to ensure that he
remained within the confines designated in the work release
arrangement. The method used to keep track of the time at which
Broadbrooks left in the morning and returned in the evening was not
entirely accurate. In fact, not all of the law enforcement
officers of the sheriff's department were even aware of when
Broadbrooks was to be released and returned, or where he could go
while he was released.
On the evening of Friday, October 2, 1987, Broadbrooks did not
return to the jail at 5 p.m. as required by the work release
arrangement. At this point, the officer on duty called the
undersheriff to inform him that the inmate had not returned. The
undersheriff directed the officer on duty to try and locate the
inmate and incarcerate him.
The officer on duty went to Broadbrooks' apartment and knocked
on the door, but did not find Broadbrooks. The officer then went
to the home of a female friend of Broadbrooks, but he was not
there. The officer checked a local bar in Malta where he learned
that Broadbrooks had been in earlier and purchased a six-pack of
beer and left. After supper, the officer again checked with
Broadbrooks' female friend and went back to Broadbrooks1 apartment
but did not locate him. A warrant to enter Broadbrooks' apartment
was not sought and no additional members of either the sheriff's
department or the city police were involved in the search.
During the early morning hours of Saturday, October 3, 1987,
at approximately 2:30 a.m., a fire broke out at Broadbrooks'
apartment. The origin of the fire has not been judicially
determined, but for purposes of this appeal both parties concede
that the fire was started when a cigarette Broadbrooks was smoking
fell and ignited a couch in the apartment. Broadbrooks awoke at
some point after the fire had started and was able to escape
without injury.
The officer who had been on duty the previous evening when
Broadbrooks failed to return to the jail again went to the home of
Broadbrooks' female friend at about 4 a.m. on Saturday morning.
She informed the officer that Broadbrooks was passed out in her
apartment. The officer did not take Broadbrooks into custody at
this time, but did inform the sheriff's office of his whereabouts.
Finally, around 9 a.m. on Sunday the undersheriff went to the
residence of Broadbrooks' female friend and took him into custody.
Appellant brought this action as a subrogation claim to
recover amounts paid to appellant's insureds, the owners of the
apartment building damaged by the fire. Appellant named
Broadbrooks as a defendant, alleging that he was negligent in
starting the fire. Appellant also brought suit against Mike Camp,
as Phillips County Sheriff, for negligently allowing Broadbrooks to
escape and for negligently failing to apprehend Broadbrooks once
the escape was discovered several hours after the fact.
Broadbrooks did not appear in the action and a default judgment was
entered against him on March 28, 1990. Respondent Camp moved for
summary judgment on November 28, 1990, and appellant filed a
cross-motion for partial summary judgment on December 28, 1990. On
March 15, 1991, the District Court granted respondent's motion for
summary judgment and denied appellant's motion for partial summary
judgment. Following a motion to reconsider, which the District
Court denied, a judgment in favor of the respondent was entered on
April 26, 1991.
Did the District Court err in finding that as a matter of law
the appellant's negligence action must fail because the required
element of proximate cause could not be proven?
Appellant contends that while the issue of proximate cause was
before the District Court by way of the respondent's motion for
summary judgment, the District Court did not even reach the issue
of proximate cause. It is clear from reading the memorandum,
opinion, and order of the District Court that the primary basis for
granting respondent's motion for summary judgment was the District
Court's finding that the respondent enjoyed judicial immunity.
However, the court also stated that based upon the reasoning in
several recent decisions of this Court, the respondent was entitled
to summary judgment on the grounds that appellant could not meet
the required element of proximate cause necessary to maintain an
action for negligence. The court did not elaborate on the issue of
proximate cause as a basis for granting the summary judgment motion
because the court had "already determined that Defendant's Motion
for Summary Judgment should be granted on the grounds of judicial
immunity." While there was no detailed discussion of the issue of
proximate cause, the District Court did rule on the issue and it is
properly before this Court on appeal.
In order to maintain an action in negligence, this Court has
stated that a plaintiff must prove four elements:
1. Existence of a duty;
 2. Breach of the duty;
3. Causation; and
4. Damages.
Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126.
All of these elements are necessary to successfully bring an action
in negligence. In this case, the respondent has alleged that the
third element, causation, cannot be proven by the appellant.
This Court has separated the element of causation into two
separate components, causation in fact, and proximate or legal
causation, both of which must be proven to prevail in an action for
negligence. Young v. Flathead County (1988), 232 Mont. 274, 757
P.2d 772. Prior to the Youns decision, the distinction between
causation in fact and proximate causation was not generally
recognized in Montana. However, in Younq this Court adopted a
two-tier analysis to determine if a defendant's breach of duty
caused a plaintiff's injury. We have subsequently explained this
analysis stating that:
Liability for breach of duty in a negligence action
attaches if the plaintiff can prove first that
defendant's act is a cause in fact of injury and second
that the injury is the direct or indirect result,
proximately caused by the negligent act.
Kiger v. State Dept. of Institutions (1990), 245 Mont. 457, 459,
802 P.2d 1248, 1250. The first step in the analysis is to
determine if the defendant's breach of duty was the cause-in-fact
of the plaintiff's injury or damage. Concerning cause-in-fact we
have stated that:
 Causation in fact can be established in one of two ways.
Normally, the 'but for1 test is used. Under the 'but
fort test, causation in fact is established simply by
proving that the plaintiff's injury would not have
occurred 'but for7 the defendant's illegal conduct.
Younq, 757 P.2d at 777. Stated differently, the
defendant's conduct is a cause of an event if the event
would not have occurred but for that conduct; conversely,
the defendant's conduct is not a cause of the event if
the event would have occurred without it. Prosser and
Keeton on Torts (5th Edition) 5 41.
Kitchen Krafters v. Eastside Bank of Montana (1990) 242 Mont. 155,
167, 789 P.2d 567, 574. In some unusual circumstances,
cause-in-fact may also be established by application of the
"substantial factor test." However, in this case cause-in-fact is
clearly established through the llbut-foru
test.
Once cause-in-fact is established, the plaintiff must still
prove that the defendant's conduct proximately caused the
plaintifffs injury. Kitchen Krafters, 789 P.2d at 574. This
second tier of analysis in considering causation is necessary
because :
Theoretically consequence for one's acts could
continue into eternity but at some point in the chain of
causation the law must intervene and absolve the
defendant of liability. It was this policy consideration
that led to the development of flproximatell "legaln
or
cause.
Kiqer, 802 P.2d at 1250. Proximate cause is analyzed in terms of
foreseeability . I1Adefendant is liable for his wrongful conduct if
it is reasonably foreseeable that plaintiff s injury may be the
natural and probable consequence of that conduct." Thayer v. nicks
(lggo), 243 Mont. 138, 155, 793 P.2d 784, 795. In Younq, we
defined proximate cause stating that "proximate cause is one which
in a natural and continuous sequence, unbroken by any new,
independent cause, produces injury . . . ." Youns, 757 P.2d at
777. However, not all intervening causes will act so as to absolve

the defendant of liability. The chain of causation will only be
broken, thereby cutting off the defendant's liability, if the
intervening cause is reasonably unforeseeable. Thayer, 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 (19861, 219 Mont. 462, 712 P.2d 1329.
In this case, the respondent is not liable in negligence for
the intervening acts of Broadbrooks and the consequences that
followed such acts if, applying the ordinarily prudent person
standard, they were n o t reasonably foreseeable by the respondent.
Kiqer, 802 P.2d at 1251. In this instance, Broadbrooks escaped,
apparently became intoxicated, passed o u t in his apartment while
smoking, and then started a fire when he allowed his cigarette to
fall onto the couch. We hold that such actions and their
consequences were not reasonably foreseeable and act as supervening
causes of appellant's injury, thereby absolving the respondent of
liability.
Appellant contends that the issue of foreseeability is one for
the jury to decide. While the issue of foreseeability is generally

an issue for the jury, this Court has held that when it is clear
that plaintiff cannot prove by a preponderance of the evidence that
the defendant proximately caused the injury in question then 'Ithe

question of foreseeability may be determined as a matter of law for

purposes of summary judgment.f1 Kiqer, 802 P.2d a t 1251. The
District C o u r t did n o t err i n granting summary judgment f o r t h e
respondent i n this case.
The judgment o f t h e District Court is affirmed.

We concur:
Justice Terry N. Trieweiler specially concurring.
I concur in the result arrived at by the majority opinion.
However, I do not agree with all that is said therein about the
discussion of foreseeability in the context of proximate cause. I
would hold that foreseeability is an element of duty and that none
was established under the facts in this case.