Estate of Strever v. Cline

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

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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-

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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

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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

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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.

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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