Busta Ex Rel. Busta v. Columbus Hospital Corp.

NO. 95-050

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IDA 0. BUSTA, as Personal Representative

of the Estate of Delbert F. Busta, on

behalf of the heirs of Delbert F. Busta,

Plaintiff and Respondent,

COLUMBUS HOSPITAL CORPORATION,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James R. Walsh and Dennis P. Clarke, Smith,

Walsh, Clarke & Gregoire, Great Falls, Montana

For Respondent:

Dennis Patrick Conner, Attorney at Law,

Great Falls, Montana

Submitted on Briefs: January 17, 1996

Decided: 10, 1 9 9 6

M ~ Y

Filed:

Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, Ida 0 . Busta, filed her complaint in the

District Court for the Eighth Judicial District in Cascade County

in which she sought compensation for damages to Delbert F. Busta

pursuant to 5 27-1-501, MCA, and to his heirs pursuant to

5 27-1-513, MCA, based on her allegation that Delbert's death was

caused by the negligence of the defendant, Columbus Hospital

Corporation. Following trial of the issues raised by the parties'

pleadings, a Cascade County jury returned its verdict in which it

found that Delbert's injuries and death were caused by the

negligence of Columbus and the contributory negligence of Delbert

and apportioned seventy percent of fault to the Hospital and thirty

percent of fault to Delbert. The jury found that Delbert and his

estate were damaged in the amount of $5,000 and that his heirs were

damaged in the amount of $800,000 as a result of his death. Based

on the jury's apportionment of liability, the District Court

entered judgment in favor of Delbert's estate in the amount of

$3,500 and in favor of his heirs in the amount of $560,000.

Columbus appeals from the judgment of the District Court, from the

order of the District Court denying its motion for a new trial, and

from the District Court's denial of its motion for offset against

the judgment pursuant to 5 27-1-308, MCA. We affirm the judgment

and orders of the District Court.

The issues raised by Columbus on appeal are as follows:

1. Did the District Court err when it admitted a

photographic exhibit offered by the plaintiff which depicted the

decedent, Delbert Busta, and included a tribute from his

granddaughter?

2. Did the District Court err when it refused to admit the

defendant's proposed exhibit which consisted of a letter written by

the plaintiff's attorney to the Veterans' Administration which

attributed Delbert Busta's death to a military-related mental

illness?

3. Did the District Court err when it refused to give the

defendant's proposed instructions which defined proximate cause and

stated the requirement that the decedent's injuries be foreseeable

before causation could be established?

4. Did the District Court err when it refused to offset

benefits received by Ida Busta from the Veterans1 Administration

against the damages awarded for the decedent's wrongful death?

DISCUSSION

Delbert Busta was an American veteran who had been captured by

the Japanese Army, forced to participate in the Bataan Death March,

and was subsequently imprisoned in a Japanese prisoner of war camp

for over three years.

Subsequent to his release as a prisoner of war and his return

to the United States, he was treated for his mental and physical

debilitation and discharged from the Army. At the time of his

discharge, he was diagnosed with simple schizophrenia, and on that

basis was awarded a service-related disability by the Veteransr

Administration. Testimony given at this trial explained that at

that time the diagnosis of simple schizophrenia was ascribed to

someone who had become withdrawn and uninterested in social

interaction. It did not indicate the kind of bizarre behavior or

delusions that are commonly associated with other forms of

schizophrenia. At any rate, the undisputed testimony was that from

then until the date of his death on December 1, 1991, Delbert

displayed no outward indication of mental or emotional problems and

that not even his wife and children were aware of the basis for his

service-related disability benefits.

On November 26, 1991, Delbert was admitted to the Columbus

Hospital in Great Falls for surgical treatment of prostate cancer

and inguinal hernia repair. Surgery was performed on that date.

Following successful surgery, Delbert was transferred to a

room on what was designated the third floor of the hospital,

although the floor was actually four stories above ground level as

viewed from the outside. During the early morning hours of

December 1, Delbert cut himself free from his Foley catheter,

pulled out the tubings from his IVs, tied two sheets and a hospital

gown together, attached one end of the makeshift rope to a clothing

hook, and attempted to leave the hospital through his third floor

window. He was found on the ground below his window a short time

later suffering from injuries caused by his fall. He died from

those injuries later that day.

Kathy Fitzgerald was the nurse who was employed by and on duty

at Columbus Hospital on the evening of November 30 and the morning

of December 1, and who was assigned to care for Delbert. She

testified that he was normally a cooperative patient, but that on

her last visit with him on the evening of November 30 he had

refused to take his medication, refused to be repositioned,

requested that the sequential compression devices be removed from

his legs, and asked to be left alone. She also noted that at the

time Delbert's blood pressure was elevated and his pulse rate was

abnormally rapid. He was experiencing a condition known as

tachycardia. However, Fitzgerald did not report Delbert's change

in attitude or his constellation of symptoms to his treating

physician, and after observing at midnight that he appeared to be

asleep, she did not check his blood pressure or pulse again.

At the time, Delbert was being treated with ten regular

medications and three medications which were administered "as

needed."

Delbert attempted to leave the hospital through the three foot

by four foot opening in his third floor window at approximately

2:15 a.m. on December 1.

Peter Horst, M.D., was the surgeon who admitted Delbert to the

hospital and performed prostate cancer surgery on November 26. He

acknowledgedthat confusion, psychosis, and anxiety are listed side

effects for several of the medications which were being

administered. He admitted that given the constellation of findings

reported in Fitzgerald's notes, Delbert's condition should have

been medically assessed on November 30, and that had he been

advised of those findings, he would have performed various tests to

see whether Delbert's oxygenation was adequate and his electrolytes

were normal. He would also have tried to determine whether Delbert

was rational or irrational. However, he was not notified.

Ida's complaint was filed on October 7, 1993. In her

complaint she alleged that as a result of mind-altering medication

following his surgery, Delbert suffered from delirium, confusion,

and disorientation; that he was inadequately supervised and cared

for at the hospital; and that the hospital failed to maintain its

facilities in a safe condition. She alleged that the hospital's

omissions were negligent and that its negligence was the cause of

her husband's injuries and death.

In response, the hospital denied that it was negligent and

alleged that any claim by Ida was barred by Delbert's own

contributory fault, the contributory fault of unspecified third

parties, and her own failure to advise the hospital of Delbert's

preexisting mental condition. In its pretrial contentions, the

hospital specifically alleged that Delbert's death was caused by

his preexisting mental illness.

At trial, plaintiff called as a witness Richard Rada, M.D.,

who had extensive experience as a psychiatrist and hospital

administrator. He had been asked to review Delbert's medical

records in an effort to determine what caused him to leave the

hospital through the window on the night of his death. He reviewed

Delbert's Veterans' Administration records, as well as his records

from the Great Falls Clinic where he had been treated over the

years and his records from Columbus Hospital. He formed the

opinion that at the time Delbert attempted to leave the hospital he

was suffering from delirium or an acute confusional state caused by

the fact that his brain was receiving inadequate oxygen and

possibly contributed to by the numerous medications which were

being administered. He explained that delirium is a common side

effect in hospitals and is experienced by about fifteen percent of

all patients. It leads to altered behavior, including panic, fear,

hallucination, delusions, and aggressive behavior.

Dr. Rada explained that by definition, simple schizophrenia is

not characterized by hallucination or delusions. He therefore

ruled out any preexisting mental illness as a cause of Delbert's

behavior on the night of his death.

Dr. Rada expressed the opinion that Fitzgerald was negligent

by failing to adequately monitor Delbert on the night before his

death and by failing to report his constellation of signs and

symptoms to his treating physician. He also expressed the opinion

that the hospital was negligent by providing a window on a third

floor patient's room that could be opened to the extent that a

patient could either intentionally or inadvertently fall from the

window.

His opinion regarding the standard of care for Fitzgerald was

corroborated by Wendy Haack, a clinical nurse specialist from

Portland, Oregon, who had been a Montana college instructor on the

subject of critical care nursing and physical assessment. Dr.

Rada's opinion regarding the inadequacy of the window design at the

hospital was corroborated by J. Armand Burgun, a New York architect

who specializes in hospital design.

It was Dr. Rada's opinion that Delbert ' s death could have been

prevented by proper care and proper window design.

Horatio Bales, M.D.,who is a staff physician at the Veterans'

Administration Hospital at Fort Harrison, also testified. He

explained that he had performed surgical hernia repair on Delbert

in September 1991 and that during the time that he treated him at

the VA hospital he observed no signs of mental or emotional

problems. In fact, he found Delbert's demeanor very pleasant and

testified that he did not appear to be suffering from any form of

schizophrenia.

Other than doctors Horst, Rada, and Bales, no other medical

testimony was offered. Specifically, there was no qualified

medical opinion testimony to the effect that any preexisting mental

condition contributed to or caused Delbert Busta to leave his room

through the third floor window on December 1, 1991.

William J. Downer, Jr., was the President and Chief Executive

of Columbus Hospital on the date of Delbert's fall and death. He

testified that Columbus is accredited as a hospital by the Joint

Commission for the Accreditation of Health Care Organizations and

that in order to maintain its accreditation, teams of investigators

periodically visit the hospital to inspect its facilities and

evaluate its services. The Commission's last inspection prior to

Delbert's death occurred on approximately July 18, 1991. The

inspection team consisted of an administrator, a doctor, and a

nurse.

During his meeting with the inspection team following that

visit, Downer was told "to restrict the opening of your patient

room windows, so that patients cannot inadvertently fall or jump

from the windows." That meeting was followed by a written report

from the Commission which was received by the hospital on

September 26, 1991, and was offered as an exhibit at the time of

trial. The written report noted that high priority should be given

to the problem that room windows lacked stops which would prevent

a patient from falling or jumping from the window. The Commission

recommended that high priority attention be given to the problem.

However, nothing was done about the recommendation from the time it

was made until Delbert died.

Downer admitted that if the hospital had considered window

stops a priority, as the Commission did, it would have been

feasible to put them in. In fact, the cost for doing so would have

been about fifty cents per window, plus labor.

At the time of his fall from his third floor room, Delbert's

window could be opened to a width of three feet and a height of

four feet.

J. Armand Burgun is an architect who specializes in hospital

design. He is the past president of the American Association for

Hospital Planning and has chaired the Design and Construction

Committee for the American Hospital Association. He has authored

several books and articles on hospital design, hospital safety, and

fire safety. He was consulted by the plaintiff regarding the

design of the windows at Columbus Hospital and his testimony was

offered at the time of trial. It was his opinion that as it

existed at the time of Delbert's death, the window design was

unsafe and did not meet code requirements. He testified that one

way to have made the windows safer was to put stops on the windows

which prevented them from being opened far enough for a person to

pass through the opening and that it would have been exceedingly

easy for the hospital to do so. He testified that the type of

incident which caused Delbert's death was foreseeable and well

known within the hospital care industry by 1991 at the time that

Delbert fell. He also testified that if the windows had been

properly designed, the fall and injuries could not have occurred.

The only other expert testimony offered regarding the adequacy

of the hospital's windows was provided by John Rigdon, an architect

from Bellevue, Washington, who also specializes in designing health

care facilities. His firm had designed a rehabilitation unit that

was added to the hospital in 1989. He was listed by the hospital

as an expert witness. However, it was the plaintiff who took his

deposition and offered his testimony over the defendant's

objection.

He admitted that based on current standards the window through

which Delbert attempted to escape was unsafe and that the windows

in the rehab unit which his firm designed would not have permitted

a person to accidentally or intentionally pass through the window.

He testified that escape or suicide in a hospital is a known and

foreseeable consequence, and that although he had participated in

the design of 50 to 100 patient room window systems for hospitals,

he had never personally used one like the one used in Delbert's

room.

Rigdon testified that he normally designed windows with vents

that could be activated by a special tool kept at the nurses'

station, but that in those designs which allowed a patient to open

a window by himself, the window could not be opened more than about

three inches. He testified that by 1987 the knowledge of suicide

and escape risk was incorporated into the formal guidelines for

hospital design, but that he had been using restricted access

windows for patient rooms during his entire thirty years of

architectural practice. It was his opinion that that is what a

reasonable architect would do when designing a third floor

post-surgical hospital patient room window.

Columbus Hospital offered testimony from Debra Gaspar, a

registered nurse from Billings, who testified that based on her

review of the records, Fitzgerald had complied with the standard of

care applicable to post-surgical nurses at the time and date in

quest ion. However, the hospital offered no expert opinion

regarding the reason that Delbert attempted to leave the hospital

through the third floor window, nor did it offer expert testimony

to the effect that the incident which caused Delbert's injuries and

death was unforeseeable from the perspective of a hospital

administrator or a hospital architect.

The jury's verdict and the court's orders were as previously

stated. With this background, we will discuss the issues raised by

the hospital on appeal.

ISSUE 1

Did the District Court err when it admitted a photographic

exhibit offered by the plaintiff which depicted the decedent,

Delbert Busta, and included a tribute from his granddaughter?

During the testimony of Charles Busta, Delbert's son, a

photograph of Delbert was offered as an exhibit. Attached to the

photograph was a poetic tribute to Delbert by his granddaughter.

The poem had apparently been submitted as part of a school project

because next to it was a grade and a handwritten note which stated:

"1 can tell your Grandpa was very special to you!" At the time the

photo was offered, the attorney for the hospital objected to its

admission on the basis that "it was written by a person who is not

an interested party to this lawsuit." When the attorney for the

plaintiff offered to call the person who had written the poem, the

hospital's attorney stated: "I'll stipulate that she wrote it.

You won't have to call her. That's not my objection."

The photograph was then admitted without further objection and

viewed by the jury.

William Busta, Delbert's other son, and one of the heirs for

whom wrongful death damages were being sought, later testified that

one of the reasons his father's loss was significant to him was

because of the contributions that his father made to his own family

and that his daughter's poem had tried to capture what his father

meant to the entire family.

We review a district court's evidentiary rulings to determine

whether there has been an abuse of discretion. In re Seizure of $23,691.00

(Mont. 1995), 52 St. Rep. 1063, 1065, 905 P.2d 148, 152 (citing State

v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380). The

district court has broad discretion to determine if evidence is

admissible. Accordingly, absent an abuse of discretion, this Court

will not overturn the district court ' s determination. In re $23,691.00,

52 St. Rep. at 1065, 905 P.2d at 152.

Furthermore, we will not reverse a district court's admission

of evidence for reasons which have not been clearly set forth by

objection at the time of trial. Rule 103 (a)(I), M.R.Evid.,

provides that:

(a) Effect of erroneous ruling. Error may not be

predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is

affected, and

(1) Objection. In case the ruling is one admitting

evidence, a timely objection or a motion to strike

appears on the record, statinq the specific around of the

obiection, if the specific ground was not apparent from

the context.

(Emphasis added.)

As we stated in Scofieldv.EstateofWood (1984), 211 Mont. 59, 63,

683 P.2d 1300, 1302, "laln objection raised for the first time on

appeal is not timely. Unless a timely objection to evidence or

testimony is raised at the trial level, it cannot be considered on

appeal. (Citations omitted.)

On appeal, the hospital contends that the photograph of

Delbert should have been excluded for the reason that it included

hearsay in violation of Rule 801, M. R.Evid. ; for the reason that it

was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason

that it was unduly prejudicial in violation of Rule 403, M.R.Evid.

However, the hospital's hearsay objection was not stated at

the time that the exhibit was offered and was specifically waived

when the plaintiff's attorney offered to call the author and the

defendant's attorney stated that it would be unnecessary. Undue

prejudice in violation of Rule 403 was also specifically waived

because it was not stated as a basis of the defendant's objection

at the time the exhibit was offered

Although irrelevance was not specifically stated as a basis

for the defendant's objection to the plaintiff's photographic

exhibit, we will construe its objection to the effect that the

author of the message on the exhibit was not a party to mean that

the exhibit was therefore irrelevant. However, even by liberally

interpreting the hospital's objection, we are unable to conclude

that the District Court abused its discretion by admission of the

exhibit.

The jury was instructed, without objection, that the award to

Delbert's heirs should include the value of his companionship and

reasonable compensation for their grief, sorrow, and mental anguish

resulting from his death. William Busta testified that a good deal

of his grief and sorrow which resulted from the loss of his father

was because of the impact that it had on William's own children to

whom Delbert had been an exemplary grandparent. His daughter's

tribute to Delbert was probative of that relationship. Therefore,

we conclude that it was not irrelevant and that the District Court

did not abuse its discretion by admitting the plaintiff's

photographic depiction of Delbert, which included his

granddaughter's tribute.

ISSUE 2

Did the District Court err when it refused to admit the

defendant's proposed exhibit which consisted of a letter written by

the plaintiff's attorney to the Veterans' Administration which

attributed Delbert Busta's death to a military-related mental

illness?

During his life following his discharge from military service,

Delbert received a small pension due to his diagnosis of simple

schizophrenia. The jury was fully informed of that fact.

Subsequent to Delbert ' s death, his surviving spouse Ida, after

learning of the basis for his disability benefits, applied for

death benefits which apparently were denied. For that reason, the

same attorney who represented her in this case wrote to the

Department of Veterans' Affairs on July 10, 1992, and requested

that the denial be reconsidered. This letter was written over two

years before Dr. Richard Rada was first retained and consulted on

August 22, 1994.

In his letter, the plaintiff's attorney provided copies of

Delbert's records and referred to his prisoner of war experience,

his subsequent medical diagnosis, and extensive summaries of his

Veterans' Administration medical records since the date of his

discharge. At the conclusion of the five-page letter, plaintiff's

attorney expressed the opinion that based on that medical history

and Delbert's apparent attempt to escape from the hospital and some

perceived danger, his death was probably related to his

service-connected condition, and he requested that the Department

reconsider the denial of Ida's claim for benefits.

Copies of the medical records referred to in the letter were

provided to the defendant and were offered as exhibits without

objection. However, the defendant also sought to admit the

five-page letter written by the plaintiff's attorney. When the

objection was stated that the letter was inadmissible pursuant to

Allers v. WiNis (l982), 197 Mont. 499, 643 P.2d 592, because it related

to a collateral source, the defendant sought to admit the letter

after deleting the identity of the recipient and the reference to

death benefits. However, the District Court held that because the

letter was on plaintiff's attorney's letterhead, the potential for

prejudice from its admission outweighed its probative value and

denied its admission. The court did offer to allow the defendant

to produce other evidence of the letter's contents. The defendant

indicated it would call Ida Busta for the purpose of offering such

evidence. However, when the District Court stated that that would

be acceptable, the defendant declined to do so.

On appeal, the defendant contends that its proffered letter

from the plaintiff's attorney should have been admitted as an

admission by the plaintiff that Delbert died as a result of his

preexisting mental condition, rather than because of Columbus

Hospital's negligence. It contends that because it was not

informed of his preexisting mental condition at the time of his

admission to the hospital, it could not reasonably have been

expected to protect him from harming himself.

As stated previously, we review a district court's evidentiary

ruling to determine whether there has been an abuse of discretion.

Inre$23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we

will uphold a district court's decision, if correct, even though

its reason for that decision may have been incorrect. Normanv. City

of Whitejish (l993), 258 Mont. 26, 30, 852 P.2d 533, 535; DistrictNo. 55v.

MusselshellCounty (IggO), 245 Mont. 525, 527, 802 P.2d 1252, 1253.

The District Court held that the letter, as modified by the

defendant, was inadmissible for several reasons. It concluded that

it was an offer of compromise, and therefore inadmissible pursuant

to Rule 408, M.R.Evid.; that it was evidence of a collateral

source; and that when altered to exclude evidence of a collateral

source, it was incomplete, and therefore, that its prejudicial

impact outweighed any probative value.

The defendant contends that the reasons given by the District

Court for excluding its proposed exhibit lack merit and that the

letter was relevant pursuant to Rule 401, M.R.Evid., because it had

a tendency to make more probable the hospital's claim that Delbert

died as a result of his preexisting mental infirmity.

We conclude, however, that because the author of the proposed

letter had no qualification for expressing a medical opinion

regarding the cause of Delbert's behavior on December 1, the letter

had little probative value and that the District Court did not

abuse its discretion when it refused to admit the letter pursuant

to Rule 403, M.R.Evid. Rule 403 provides that:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held

that an attorney is not qualified to express an expert medical

opinion regarding a party's condition or prognosis for recovery.

We held in that case that when the opinion was offered in the form

of an affidavit it should have been rejected by the district court

which should have, instead, relied on expert testimony. Maulding,

257 Mont. at 27, 847 P.2d at 298.

Had plaintiff's attorney been called as a witness at trial to

express an opinion regarding the medical explanation for Delbert's

departure from the hospital through his third floor window, the

District Court would necessarily have had to exclude the testimony

because he was unqualified to express such an opinion in a court of

law. For that reason, his unqualified opinion expressed in

correspondence to the Veterans' Administration over two years prior

to the receipt of contrary information from a qualified expert had

no probative value to any relevant issue in this case. On the

other hand, simply because the proposed exhibit was authored by the

plaintiff's attorney, it presented substantial potential for

confusing or misleading the jury. The defendant had an opportunity

to present qualified evidence that Delbert ' s injuries and death

were contributed to or caused by his preexisting mental condition.

In fact, the District Court gave the defendant great latitude

toward that end. However, the defendant presented no qualified

evidence from any medical expert or any observation by any lay

witness that Delbert's preexisting mental condition contributed in

any way to his behavior on the morning of December 1, 1991, or that

the preexisting mental condition affected his behavior at any other

time from the date on which he was discharged from military service

until the date of his death

For these reasons, we conclude that the District Court did not

abuse its discretion when it excluded the defendant's proposed

exhibit which included statements from the plaintiff's attorney

regarding Delberttsmental condition on the evening of his death.

ISSUE 3

Did the District Court err when it refused to give the

defendant's proposed instructions which defined proximate cause and

stated the requirement that the decedent's injuries be foreseeable

before causation could be established?

The hospital proposed, by its Instruction No. 20, that the

District Court instruct the jury regarding the following definition

of proximate cause:

The proximate cause of an injury is that cause

which, as a natural and continuous sequence, unbroken by

any new and independent cause, produces the injury, and

without which it would not have occurred.

The hospital's proposed instructions numbered 21 and 22

suggested the following requirements regarding foreseeability as it

relates to proximate cause:

DEFENDANT'S PROPOSED INSTRUCTION NO. 21

If you find that the Defendant Columbus Hospital was

negligent, in order for its negligence to be the

proximate cause of Delbert Busta's injuries and death, it

must appear from the facts and circumstances surrounding

the accident that the Columbus Hospital, as an ordinarily

prudent entity, could have reasonably foreseen that

Delbert Busta's injury would be the natural and probable

consequence of the hospital's actions.

DEFENDANT'S PROPOSED INSTRUCTION NO. 22

If you find the consequences of the hospital's

actions were not reasonably foreseeable or were generally

freakish, bizarre, or unpredictable, the actions of the

hospital were not the proximate cause of decedent Busta's

injuries and death.

The plaintiff proposed that the jury be instructed on the

issue of causation in a format similar to the format suggested by

our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (199 , 242

0)

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed

instruction referred to cause-in-fact as a "substantial factor."

The defendant objected on that basis and plaintiff's proposed

instruction on causation was withdrawn

The District Court rejected the hospital's proposed

instructions numbered 20, 21, and 22 on the basis that they did not

satisfy the format required by Kitchen Krafters, and therefore, no

instruction which defined proximate cause was submitted to the

jury.

After the District Court indicated which instructions it would

give and which instructions were refused, it asked whether the

defendant had any objections. No objection was stated at that time

to the court ' s failure to provide any instruction to the jury which

defined proximate cause.

The jury was instructed that both parties had the burden of

proving that the other was negligent and that the other party's

negligence was a proximate cause of Delbert's injuries. It was

explained to the jury that a person is negligent if he or she fails

to act as an ordinarily careful person would act under the

circumstances. The jury was also instructed by the court that when

it considered whether a hospital's premises were safe, it should

consider the type of person who could reasonably be expected to be

a patient there.

Pursuant to these instructions, the jury, by its verdict,

found that both the hospital and Delbert were negligent and that

each party's negligence contributed as a proximate cause to

Delbert's injuries and death. It apportioned seventy percent of

the total fault for his injuries to the hospital and thirty percent

to Delbert.

Following entry of judgment for the plaintiff, the hospital

moved for a new trial for several reasons, including the District

Court's failure to define proximate cause in its instructions to

the jury. That basis for the hospital's motion was rejected by the

District Court. In explanation of its order, the District Court

stated that the defendant had failed to offer a proximate cause

instruction which adequately addressed the facts in this case and

failed to object to the court's failure to define proximate cause

until after the jury returned its verdict. The court added that to

the extent it erred by not defining proximate cause for the jury,

that error was harmless because the fact that this type of accident

could happen from the failure to secure hospital windows was

indisputably foreseeable and there was no evidence of intervening

acts by third parties which would interrupt the chain of causation.

Finally, the District Court noted that part of the confusion which

resulted in its failure to define proximate cause was attributable

to the difficulty that district courts have dealing with that issue

since this Court ' s decision in Kitchen Krafters and respectfully

requested that this Court better settle the requirements for

instruction of juries on the subject of causation in future cases.

On appeal, the hospital contends that because the District

Court referred to "proximate causeM in other instructions, it was

necessary that the term be explained to the jury. The hospital

further contends that because this Court included foreseeability as

an element of proximate cause in Kitchen Krafters and because the

foreseeability of Delbert's conduct on December 1, 1991, was a

specific issue, it was important that the jury be specifically

instructed regarding foreseeability.

In response, the plaintiff contends that the defendant waived

its objection to the District Court's failure to instruct on the

issue of proximate cause by its failure to bring the court's

omission to its attention before the jury's verdict was returned.

The plaintiff further contends that even if the District Court

erred, the error was harmless because causation was established by

the undisputed evidence, and therefore, as a matter of law.

A district court has discretion when it decides how to

instruct a jury and we will not reverse a district court ' s decision

absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont. 1995),

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review

instructions to a jury to determine whether they were properly

given or refused, we consider the instructions in their entirety,

as well as in connection with the other instructions given and the

,

evidence at trial. Story v. City ofBozemaw (1993) 259 Mont. 207, 222,

When we review a district court's refusal to give an offered

instruction, the following rules apply:

~t is not reversible error for a trial court to

refuse an offered instruction unless such refusal affects

the substantial rights of the party proposing the

instruction, thereby prejudicing him.

A party is not prejudiced by a refusal of his

proposed instructions where the subject matter of the

instruction is not applicable to the pleadings and facts,

or not supported by the evidence introduced at trial, or

the subject matter is adequately covered by other

instructions submitted to the jury.

Kingv. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting

Cottrellv. Bur1ingtonNorthernR.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d

3 81, 38 7 ; see also Ganz v. United States Cycling Fed'n (Mont. 1995) , 903 P .2d

212, 216, 52 St. Rep. 1030, 1033)

The law of foreseeability, as it relates to liability law in

Montana, has had a tortuous history. Based on the concerns

expressed by the District Court in this case and similar sentiments

reflected by amicuscuriae who have submitted briefs on this issue, we

conclude that in the interest of clarifying issues involved in

litigation where negligence is alleged, it is appropriate that we

address the role of foreseeability and the appropriate manner for

instructing juries on the issue of causation.

Any discussion of foreseeability as it relates to liability

law begins with the oft-cited decision of the Court of Appeals of

New York in Palsgrafv. Long Island Railroad Co. (N.Y. 1928), 162 N.E . 99. In

that case, the plaintiff was standing on a platform of the

defendant's railroad when a guard attempted to assist another

passenger aboard the departing train. In doing so, he dislodged a

package from the passenger's hand which contained fireworks. The

contents exploded when the package hit the ground. The shock from

the explosion knocked down scales many feet away. The falling

scales struck the plaintiff, and she was injured. On appeal from

a judgment in favor of the plaintiff, Chief Justice Cardozo,

writing for a four-person majority, reversed that judgment on the

basis that absent a foreseeable injury to the plaintiff there was

no duty and that absent a duty there was no negligence. In

language that formed the basis for a number of subsequent decisions

in Montana, Cardozo wrote that:

The risk reasonably to be perceived defines the duty to

be obeyed, and risk imports relation; it is risk to

another or to others within the range of apprehension.

. . . This does not mean, of course, that one who

launches a destructive force is always relieved of

liability, if the force, though known to be destructive,

pursues an unexpected path. "It was not necessary that

the defendant should have had notice of the particular

method in which an accident would occur, if the

possibility of an accident was clear to the ordinarily

prudent eye."

Palsgraf, 1 6 2 N.E. at 100.

Writing in dissent, Justice Andrews disagreed that duty

requires a foreseeable plaintiff, but instead contended that all

persons have a duty of care to the world at large. He took the

position that if foreseeability has a place as a limitation on an

individual's liability for damages, it is in the context of

proximate cause. He stated that:

What we do mean by the word "proximate" is that, because

of convenience, of public policy, of a rough sense of

justice, the law arbitrarily declines to trace a series

of events beyond a certain point. This is not logic. It

is practical politics.

Palsgraf, 162 N . E . at 103 (Andrews, J., dissenting)

Andrews went on to state that in analyzing proximate cause,

[tlhe court must ask itself whether there was a natural

and continuous sequence between cause and effect. Was

the one a substantial factor in producing the other? Was

there a direct connection between them, without too many

intervening causes? Is the effect of cause on result not

too attenuated? Is the cause likely, in the usual

judgment of mankind, to produce the result? Or, by the

exercise of prudent foresight, could the result be

foreseen?

Palsgraf, 1 6 2 N . E . at 104 (Andrews, J., dissenting) .

Therefore, from an early point in American jurisprudence there

was disagreement among knowledgeable scholars regarding the role of

foreseeability in the formulation of negligence law. The

conviction, as expressed by Cardozo, was that without

foreseeability there was no duty, and without duty there could be

no liability. The view as expressed by Andrews was that

foreseeability was an element of proximate cause and reflected the

practical political judgment of whether effect of cause on result

was too attenuated. Neither, however, suggested that

foreseeability should be considered on a redundant basis as part of

both duty and proximate cause.

We have, as a Court, considered foreseeability in our

discussions of proximate cause. However, originally those

discussions were limited to situations where it was alleged that

acts of independent third parties intervened following the

defendant's act to sever the causal relationship between one

person's conduct and another person's damage. L n i n v. Long (1961)

ecoi ,

139 Mont. 135, 139, 361 P.2d 455, 457.

Other than in the context of intervening acts by third

parties, our early decisions clearly chose to follow the majority

view from P l g a .

asrf In Mangv.Eliasson (1969), 153 Mont. 431, 437, 458

P.2d 777, 781, we cited Palsgrafwith approval and held that:

As a classic opinion states: "The risk reasonably to

be perceived defines the duty to be obeyed." P l g a v Long

asrf.

IslandR.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 in

the first instance.

In Mang, the plaintiff brought an action to recover damages

for a reduced yield of alfalfa seed caused by weeds which the

defendant allowed to be blown from his property to the plaintiff's

property. Following a verdict for the plaintiff, the defendant

argued on appeal that it had breached no legal duty to the

plaintiff. This Court agreed and explained that to prove

actionable negligence a party must prove "existence of a duty, the

breach thereof and a resulting injury." Mang, 153 Mont. at 435,

458 P.2d at 780. We explained the role of foreseeability, as it

relates to duty, as follows:

Foreseeability is of prime importance in

establishing the element of duty, and the question of

defendants' negligence, if any, must of necessity hinge

on the finding of a breach of that duty. If a reasonably

prudent defendant can foresee neither any danger of

direct injury nor any risk from an intervening cause he

is simply not negligent.

If the chief element in determining whether

defendant owes a duty or obligation to plaintiff is the

foreseeability of the risk then that factor will be of

prime concern in every case. Further, because it is

inherently intertwined with foreseeability, such duty or

obligation must necessarily be adjudicated only upon a

case-to-case basis. Therefore, we do not now

predetermine defendants' obligations in every situation

by a fixed category; no immutable rule can be established

to determine the extent of that obligation for every

circumstance of the future. We do, however, define

guidelines which will aid in the resolution of such an

issue as is presented in the instant case.

. . The obligation of defendants turns on whether:

" . . . the offending conduct foreseeably

involved unreasonably great risk of harm to

the interests of someone other than the actor.

. . . Duty, in other words, is measured by the

scope of the risk which negligent conduct

foreseeably entails."

. . . And absent foreseeability, there is no duty owed by

defendants to plaintiff. . . .

In view of our holding that plaintiff failed to show

a breach of duty owed by defendants, thus failing to

establish that defendants were negligent in the first

instance, he has failed to establish any claim upon which

relief may be granted and accordingly, it is unnecessary

to dwell on the law of causation. . . .

We may assume without deciding that negligence, not

at large or in the abstract but in relation to the

plaintiff, would entail Liability for any and all

consequence however novel or extraordinary. Palsgraf v.

Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101.

However, the consequences to be followed must first be

rooted in a wrong.

Mang, 153 Mont. at 437-39, 458 P.2d at 781-82.

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we

declined to apply the foreseeability requirement set forth in Mang

in a manner which would require that the specific accident which

resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d at 563.

However, we did, from the time that Mang was decided until our

decision in Kitchen Krafters, consistently relate the notion of

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple

(1972), 161 Mont. 56, 504 P.2d 686; Willliamsv. M o n t a n a M B a n k (1975),

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592

P.2d 493; Pretty0nTopv.CityofHardin (1979), 182 Mont. 311, 597 P.2d 58;

Ambroginiv. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State

(1982), 199 Mont. 451, 649 P.2d 752.

In fact, our earlier decisions discuss causation in terms of

cause-in-fact or the "but for" test, and discuss proximate cause

only as it relates to continued liability following an intervening

act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont.

at 30, 534 P.2d at 1250.

In Youngv. FlatheadCounty (l988), 232 Mont. 274, 757 P.2d 772, we

held for the first time that proof of proximate cause requires more

than proof of cause-in-fact or satisfaction of the "but forn test.

However, once again, that discussion occurred in the context of

this Court's conclusion that the chain of causation had been broken

by independent intervening causes. We specifically reversed the

district court because " [nlumerous interruptions in the chain of

events occurred that could be considered the injury causing

damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although

intervening cause was not analyzed in the typical fashion, Young was

clearly an intervening cause case.

The first time that the word "foreseeable" ever appeared in

the context of "proximate cause" in one of our opinions, other than

as related to intervening causes, was in Kitchen KraJiers, Inc. v. Eastside Bank

ofMontana (l99O), 242 Mont. 155, 789 P.2d 567. In that case, we

affirmed the two-tiered analysis of causation set forth in Young.

We explained that the cause-in-fact requirement is normally

established by the "but for" test by proving that a party's injury

would not have occurred "but for" the other party's conduct. We

also reaffirmed prior decisions in which we held that if two or

more causes concur to bring about an event, then cause-in-fact is

established by the "substantial factor" test which we had

previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that

when either the "but foru test or the "substantial factoru test was

satisfied, a party has established that the other party's conduct

was the cause-in-fact of an injury. We then went on to add,

however, that once cause-in-fact is proven, "proximate causation"

must also be established. We held for the first time that:

Proximate cause is normally analyzed in terms of

foreseeability. Simply stated, one is only liable for

consequences which are considered to be reasonably

foreseeable. Prosser & Keeton at § 43. If the

consequences of one's wrongful act are not reasonably

foreseeable, then it follows that it was not proximately

caused by that act. Using this analysis, one must look

forward through the chain of causation in order to

determine whether the events which occurred were

foreseeable. If they were, the element of proximate

cause is satisfied and liability will attach. Prosser &

Keeton at § 43.

Kitchen Krafters, 242 Mont. at 168, 789 P.2d at 575

Having added a requirement that foreseeability be established

as part of causation in addition to the previous requirement that

it be considered in determination of duty, we then went on to hold

that juries must be specifically so instructed. We held that:

In order to be properly instructed on proximate cause,

the jury must be directed to look forward through the

chain of causation, and to determine whether events which

occurred subsequent to Eastside's wrongful act were

foreseeable. A proper instruction on proximate cause

should be worded as follows:

In order for the defendant ' s negligence (failure to

disclose) to be the proximate cause of the plaintiff's

injury, it must appear from the facts and circumstances

surrounding the accident [the nondisclosure] that the

defendant as an ordinarily prudent person, could have

foreseen that the plaintiff's injury would be the natural

and probable consequence of the wrongful act.

Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575 (alteration in

original)

We repeated the requirement from the Kitchen Kraffers opinion that

foreseeability be considered as part of proximate cause in Thayerv.

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UnitedStates Fidelityand

G u a r a n t y C o . ~Camp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv.

.

State (19931, 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone

County (1994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of

these cases, other than Logan, involved issues regarding the

foreseeability of intervening causes. In such situations we have

traditionally held that foreseeability is an issue related to

causation. SeeHalseyv. Uithof (19751, 166 Mont. 319, 328, 532 P.2d 686,

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d

629, it is interesting that we noted:

Foreseeability can be determined in one of two ways.

Some courts analyze the issue under the element of duty.

These courts take the view that the scope of defendant's

duty is determined by a foreseeability of any harm which

may arise as a result of his negligent conduct. See e.g.

Palsgrafv. LongIslandRailroadCo. (1928), 248 N . Y . 339, 162 N.E.

99, 100. Other courts have analyzed foreseeability under

the issue of proximate cause. In doing so, they have

taken the view that all persons owe a duty to the world

at large to act reasonably in order to prevent injury to

their fellow man. Palsgraf, 162 N.E. at 104 (Andrews

dissenting). If this duty is breached, it then becomes

necessary to determine whether the consequences of the

breach were reasonably foreseeable to the defendant. If

the consequences were reasonably foreseeable, proximate

cause is established and liability will follow.

Sizemore, 246 Mont. at 46, 803 P.2d at 635.

Since Sizemore involved allegations of a superseding intervening

event, we analyzed foreseeability as part of proximate cause in

that case. We made no mention of the fact that since Kitchen Krafters,

Montana has two concurrent lines of authority--one which analyzes

foreseeability as part of duty, and a second which considers it as

part of proximate cause.

Therefore, as the law in Montana currently stands, the issue

of foreseeability is considered twice in our analysis of liability

for a negligent act. It is first considered as part of the

analysis of duty and negligence pursuant to our decision in Mang,

153 Mont. 431, 458 P.2d 777. It is then considered as part of a

two-pronged approach to causation pursuant to our decision in Kitchen

Krafters, 242 Mont. 155, 789 P.2d 567.

Although we acknowledge that there are other jurisdictions

which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M.

1990), 792 P.2d 36; McCain v. Florida Power Carp. (Fla. l992), 593 So. 2d

500 ; Nelson b Tatum v: Commonwealth Edison Co.

y ( I11 . App . 2d 1984) , 465

~ . E . 2 d 513), knowledgeable writers and the better-reasoned

decisions of other jurisdictions criticize such a redundant

consideration of foreseeability. For example, in Modern Tort Law

the authors state that:

Much confusion has resulted from the erroneous

application of the requirement of foreseeability to

causation. In referring to proximate cause, many

decisions have confused the element of fault and have

employed foreseeability, properly an element of fault but

not of causation.

1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153

(rev. ed. 1990)

At § 5.02 the same authors point out that:

There is, unfortunately, substantial and respectable

authoritythat foreseeability is an element of causation.

. . .

This application of foreseeability has long been the

subject of criticism by courts and legal scholars.

Foreseeability does not touch on the causal element.

Foreseeability relates only to the element of fault.

. . . As an early Minnesota case pointed out, "What

a man may reasonably anticipate is important, and may be

decisive, in determining whether an act is negligent, but

is not at all decisive in determining whether that act is

the proximate cause of an injury which ensues."

[ h i t a s nv. Chicago S.P., & 0. Ry. Co. (Minn. 1896) , 69 N .W .

Crsino t M.

640.1 And the Wisconsin court has stated:

This court is definitely committed to the

principle that, while foreseeability is an

element to be considered by the jury in

determining negligence, it has no part in the

jury's decision of whether particular

negligence found by it is causal. [Shahlendorfv.

Walgreen Co. (Wis. 1962), 114 N.W.2d 823 .I

Dean Prosser stated:

It is simpler, and no doubt more accurate, to

state the problems in terms of "duty:" is the

defendant under a legal obligation to protect

the plaintiff against such unforeseeable

consequences of his own negligent acts?

[William L. Prosser, Law of Torts 289 (3d ed.

1964) .I

And Harper and James said: "Foreseeability of damage

is altogether irrelevant in determining the existence of

the cause in fact relationship." [2 Harper & James,

of Torts 1135 (1956).I

Professor Leon Green, a persistent critic of the

foreseeability test, as it is used in connection with

proximate cause, remarked, "Clearly the issue of causal

relation between the defendant's conduct and the

plaintiff's injury is not determined by foreseeability."

[Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich.

L . Rev. 543, 549 (1962).] The element of cause becomes

operative only if a duty is breached and damages result,

whereupon the defendant becomes liable for the damages

directly caused by his breach of duty. . . . "Causal

relation is a neutral issue, blind to right and wrong.''

[Green, 60 Mich. L. Rev. at 549.1

Unfortunately, however, the application of the

foreseeability test to causation has had a firm hold in

legal literature, and some recent cases continue to

compound the error. Thus, the problem of causation,

difficult as it is, has been made more complex by

employing foreseeability as a test of legal cause, when

foreseeability should be restricted to the issue of

negligence.

1 Modern Tort Law § 5.02 at 159-62

In the Law of Torts, the authors state that:

It is obvious that under such an analysis of the duty

problem, foreseeability is distinctly a factor that puts

a considerable limitation on the extent of liability,

even though it should be held to play no part whatever in

determining the issue of proximate cause. It is also

clear that if this analysis of the duty problem is

accepted, no good, but only confusion, can result from

repeating the same inquiries as to foreseeability under

the cause issue as were asked and answered (or should

have been) under the duty issue.

4 Fowler V . Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed.

1986) (footnotes omitted)

Finally, in Prosser and Keeton on Torts the authors state:

Once it is established that the defendant's conduct

has in fact been one of the causes of the plaintiff's

injury, there remains the question whether the defendant

should be legally responsible for the injury. Unlike the

fact of causation, with which it is often hopelessly

confused, this is primarily a problem of law. It is

sometimes said to depend on whether the conduct has been

so significant and important a cause that the defendant

should be legally responsible. But both significance and

importance turn upon conclusions in terms of legal

policy, so that they depend essentially on whether the

policy of the law will extend the responsibility for the

conduct to the consequences which have in fact occurred.

Quite often this has been stated, and properly so, as an

issue of whether the defendant is under any duty to the

plaintiff, or whether the duty includes protection

against such consequences. This is not a question of

causation, or even a question of fact, but quite far

removed from both; and the attempt to deal with it in

such terms has led and can lead only to utter confusion.

The term "proximate cause" is applied by the courts

to those more or less undefined considerations which

limit liability even where the fact of causation is

clearly established. The word "proximate" is a legacy of

Lord Chancellor Bacon, who in his time committed other

sins. The word means nothing more than near or

immediate; and when it was first taken up by the courts

it had connotations of proximity in time and space which

have long since disappeared. It is an unfortunate word,

which places an entirely wrong emphasis upon the factor

of physical or mechanical closeness. . . .

It is quite possible to state every question which

arises in connection with "proximate cause" in the form

of a single question: was the defendant under a duty to

protect the plaintiff against the event which did in fact

occur? . . .

. . . "Proximate cause," in short, has been an

extraordinarily changeable concept. "Having no

integrated meaning of its own, its chameleon quality

permits it to be substituted for any one of the elements

of a negligence case when decision on that element

becomes difficult. . . . No other formula . . . so nearly

does the work of Aladdin's lamp." [Leon Green, Proximate

CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950). I

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76

(5th ed. 1984)

Many courts have eliminated this redundant analysis and

simplified the jury's responsibility by limiting the analysis of

foreseeability to a determination of whether there is negligence in

the first place, and then dealing with cause as simply

cause-in-fact. Two of the jurisdictions in our own area which have

done so are the states of Washington and Oregon. In Rikstadv. Holmberg

(Wash. 1969), 456 P.2d 355, the Washington Supreme Court stated

that:

The better considered authorities do not regard

foreseeability as the handmaiden of proximate cause. To

connect them leads to too many false premises and

confusing conclusions. Foreseeability is, rather, one of

the elements of negligence; it is more appropriately

attached to the issues of whether defendant owed

plaintiff a duty, and, if so, whether the duty imposed by

the risk embraces that conduct which resulted in injury

to plaintiff. The hazard that brought about or assisted

in bringing about the result must be among the hazards to

be perceived reasonably, and with respect to which

defendant's conduct was negligent. See Restatement

(Second) of Torts 5 435, comment c (1965). . . .

It is the misuse of foreseeability--that is,

discussion of the improbable nature of the accident in

relation to proximate cause--that led the trial judge, in

the instant case, to conclude that the challenge should

be sustained.

The comment in the Restatement (Second) of Torts referred to

in the Washington Court's opinion is part of the Restatement's

analysis of foreseeability under its section on causation. The

authors there state:

Strictly, the problem before the court is one of

determining whether the duty imposed on the actor was

designed to protect the one harmed from the risk of harm

from the hazard in question. (See § 281, comment e , and

§ 449.) However, courts frequently treat such problems

as problems of causation. (See § 281, comment e , and

§ 430, comment a . )

Restatement (Second) of Torts § 435 cmt. c (1965).

Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966),

409 P.2d 897, and Brennenv. CityofEugene (Or. 1979), 591 P.2d 719.

We agree with the Washington Court and with the cited authors

that the better-reasoned authorities address foreseeability as part

of the analysis of "duty,"rather than "proximate cause," and that

to analyze it under both issues leads only to confusion which can

be easily avoided.

However, the arguments quoted from the previous authors and

the reasoning of the Washington Court are even more compelling

based on Montana's statutory framework for determining liability.

Section 1-1-204(1), MCA, defines negligence as "a want of 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."

(Emphasis added.) This definition suggests that foreseeability is

an element of negligence, and therefore, properly considered with

the existence of a duty.

On the other hand, 5 27-1-317, MCA, which discusses the

damages for which a negligent actor is responsible, defines those

damages as "the amount which will compensate for all the detriment

proximately caused thereby, whether it could have been anticipated

or not. " (Emphasis added. ) By equating damages "proximately caused

thereby" with actual damages, whether they "could have been

anticipated or not," our statutory scheme specifically precludes

the applicability of a foreseeability requirement to the issue of

proximate cause.

We therefore reverse that part of our decision in Kitchen Krafters,

Inc.v.EastsideBankofMontana (1990), 242 Mont. 155, 789 P.2d 567, which

requires a two-tiered analysis of causation which includes

consideration of foreseeability in cases other than those cases

where there has been an allegation that the chain of causation is

severed by an independent intervening cause. There are several

reasons which compel this result. First, that part of the opinion

which suggests language for a proximate cause instruction

erroneously requires proof of an intentional act, rather than a

negligent act, when it suggests the following language:

[Ilt must appear from the facts and circumstances

surrounding the accident . . . that defendant as an

ordinarily prudent person, could have foreseen that

plaintiff's injury would be the natural and probable

consequence of the wrongful act.

Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575

Second, the requirement that foreseeability be considered as

part of proximate cause is redundant with the existing requirement

that foreseeability be considered as part of the analysis of duty.

Third, our statutory scheme of laws relating to liability

requires that foreseeability be considered as part of the

negligence analysis and that it not be considered as part of

proximate cause.

Fourth, legal concepts such as "proximate cause" and

"foreseeability" are best left to arguments between attorneys for

consideration by judges or justices; they are not terms which are

properly submitted to a lay jury, and when submitted can only serve

to confuse jurors and distract them from deciding cases based on

their merits.

In those cases which do not involve issues of intervening

cause, proof of causation is satisfied by proof that a party's

conduct was a cause-in-fact of the damage alleged. As stated in

Prosser and Keeton on Torts § 41, at 266 (5th ed. 1984), a party's

conduct is a cause-in-fact 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."

We hold that with the exception of those cases involving

allegations of independent intervening cause or multiple causes, it

is sufficient to instruct the jury, as recommended in 1989 by the

Montana Supreme Court Commission on Civil Jury Instructions, that:

"The defendant's conduct is a cause of (injury/death/damage) if it

helped produce it and if the (injury/death/damage) would not have

occurred without it." Montana Pattern Instruction 2.08 (rev.

11/1/89).

In those cases where chain of causation is an issue (e.g.,

where there is an allegation of an independent intervening cause),

we recommend, as didthe Commissionin1989, the following instruction:

The defendant's conduct is a cause of the (injury/

death/damage) if, in a natural and continuous sequence,

it helped produce it and if the (injury/death/damage)

would not have occurred without it.

Montana Pattern Instruction 2.08 (rev. 11/1/89).

In those cases where there are allegations that the acts of

more than one person combined to produce a result (e.g.,when the

plaintiff alleges negligence and the defendant alleges contributory

negligence, or when there are multiple defendants), we acknowledge

that the recommended cause-in-fact instruction would be confusing

and misleading. Therefore, in those cases, we recommend continued

use of the substantial factor instruction approved in Rudeck v. Wright

(l985), 218 Mont. 41, 709 P.2d 621, and Kyrissv.State (1985), 218 Mont.

162, 707 P.2d 5. We further recommend that terms such as

"proximate cause" or "legal causeu and "reasonable foreseeability,"

which have some significance to lawyers and judges, not be allowed

to confuse jurors by the inclusion of those terms in jury

instructions. To the extent that foreseeability raises a jury

issue, it is adequately addressed by the definition of negligence

included in Montana Pattern Instruction 2.00.' To the extent that

foreseeability raises issues of public policy, such as those about

which Justice Andrews expressed concern in his dissent in Palsgraf,

the subject is properly dealt with as an issue of law.

'Montana Pattern Instruction 2.00 (rev. 2/7/91) defines

negligence as "the failure to use reasonable care. Negligence may

consist of action or inaction. A person is negligent if he fails

to act as an ordinarily prudent person would act under the

circumstances."

We agree with the conclusion of the California Supreme Court,

as stated in Mitchellv. Gonzales (Cal. 1991), 819 P.2d 872, that:

It is reasonably likely that when jurors hear the

term "proximate cause1' they may misunderstand its meaning

or improperly limit their discussion of what constitutes

a cause in fact. Prosser and Keeton's concern that the

word "proximate" improperly imputes a spatial or temporal

connotation is well founded. Webster's Third New

International Dictionary (1981) page 1828, defines

proximate as "very near," "next," "immediately preceding

or following." Yet, "[plroximity in point of time or

space is no part of the definition [of proximate cause]

. . . except as it may afford evidence for or against

proximity of causation. [Citation. I (Osborn v. Ct of

I' iy

Whittier (1951) 103 Cal.App.2d 609, 616, 230 P.2d 132.)

Given the foregoing criticism, it is not surprising

that a jury instruction incorporating the term "proximate

cause" would come under attack from courts, litigants,

and commentators. . . .

The misunderstanding engendered by the term

"proximate cause' has been documented. In a scholarly

study of 14 jury instructions, BAJI No. 3.75 produced

proportionally the most misunderstanding among lay

persons. ( Charrow, Making Legal Language Understandable: A

Psycholinguistic Study ofJury Instructions ( 1979) 79 Colum .L .Rev. 1306,

1353 (hereafter Psycholinguistic Study) . ) . . in one

experiment, "the term 'proximate cause' was misunderstood

by 23% of the subjects. . . . They interpreted it as

'approximate cause,' 'estimated cause,' or some

fabrication."

Mitchell, 819 P.2d at 877-78 (alterations in original; footnotes

omitted).

The point we wish to make is that the only purpose which is

properly served by instructions to the jury is to assure a decision

consistent with the evidence and the law. This can only be

accomplished when the instructions are as plain, clear, concise,

and as brief as possible. Instructions should never be proposed or

given for the purpose of creating one more obstacle to a resolution

of a case on its merits.

Based on the aforementioned analysis, and our reversal of the

requirement in Kitchen Krafters that causation instructions include a

discussion of foreseeability, we conclude that the District Court's

failure to define proximate cause was at most harmless error and

affirm the District Court's denial of the hospital's motion for a

new trial based on instructional error.

Although the hospital makes occasional reference in its

appellate brief and argument to independent intervening causes,

there was no proof offered at the time of trial that any person

contributed as a cause of Delbert's injury and death other than

Delbert and the defendant hospital. Therefore, a proper

instruction to the jury in this case on the subject of causation

would have related solely to cause-in-fact as articulated by the

substantial factor instruction. However, as we held in Davis v. Church

ofJesusChristofLatterDaySaints (1990), 244 Mont. 61, 71, 796 P.2d 181,

186, we will not reverse a district court for failure to provide a

necessary instruction to the jury unless the court's omission

affected the substantial rights of the complaining party. In this

case, there was no prejudice to the hospital by the District

Court's failure to instruct the jury on cause-in-fact. First,

cause-in-fact is a simple concept that most lay people are capable

of understanding. Second, there was no disagreement with

plaintiff's contention that the design of the hospital's windows

contributed to Delbert's fall and injuries. The issue was simply

whether the hospital was negligent by allowing its windows to

remain in a condition which would permit a patient to either escape

or fall through them. That issue was decided in Ida Busta's favor

based on proper instructions to the jury and was supported by

substantial and virtually uncontroverted evidence

For these reasons, we conclude that the District Court did not

err when it refused to give the defendant's proposed instructions

which defined proximate cause and which stated the requirement that

decedent's injuries be foreseeable before causation could be

established; and that the District Court's failure to instruct the

jury regarding the meaning of cause-in-fact was harmless error

ISSUE 4

Did the District Court err when it refused to offset benefits

received by Ida Busta from the Veterans' Administration against the

damages awarded for the decedent's wrongful death?

Following trial, the hospital moved the court pursuant to

5 27-1-308, MCA, to deduct from the plaintiff's judgment that

amount Ida Busta received from the Veterans' Administration due to

her husband's death. Section 27-1-308, MCA, provides in relevant

part that :

(1) In an action arising from bodily injury or death when

the total award against all defendants is in excess of

$50,000 and the plaintiff will be fully compensated for

his damages, exclusive of court costs and attorney fees,

a plaintiff's recovery must be reduced by any amount paid

or payable from a collateral source that does not have a

subrogation right.

Section 27-1-307(1), MCA, defines "collateral source" as :

[A] payment for something that is later included in a

tort award and which is made to or for the benefit of a

plaintiff or is otherwise available to the plaintiff:

(a) for medical expenses and disability payments

under the federal Social Security Act, any federal,

state, or local income disability act, or any other

public program;

. . . .

(e) any other source, except the assets of the

plaintiff or of his immediate family if he is obligated

to repay a member of his immediate family.

The District Court denied the hospital's motion for offset for

the following reasons:

1. The court found that the heirs will not be fully

compensated for their damages, due to the reduction of their award

based on contributory fault;

2. The court found that the Veterans' Administration

benefits received by Ida Busta were not medical expenses or

disability payments, and therefore, not "collateral source" as

defined in § 27-1-307, MCA; and

3. The court found that the general nature of the

defendant's verdict form makes it impossible to determine what, if

any, amounts were awarded by the jury for a loss against which the

collateral source should be offset.

On appeal, the hospital contends that the death benefits that

Ida Busta received were included in the definition of "collateral

source" at subsection (1)(e) of § 27-1-307, MCA, by its reference

to "any other source.''

However, it is not necessary that we resolve whether death

benefits from the Veterans' Administration are included within the

statutory definition of "collateral source," or whether the

plaintiff has been fully compensated where her judgment has been

reduced by comparative negligence. Section 27-1-308, MCA, clearly

provides for reduction of only that part of a recovery which has

previously been compensated by a collateral source. In this case,

Ida Busta was awarded death benefits by the Veterans'

Administration for the economic loss which resulted from her

husband's death. The jury, on the other hand, was instructed that

its wrongful death damage award should include damages for not only

financial support which the heirs lost, but also for "the value of

the society, comfort, guidance, education, care, protection and

companionship which Ida Busta, William Busta and Charles Busta have

lost by reason of the death," and that its award should "include

reasonable compensation to them [the heirs] for their grief, sorrow

and mental anguish resulting from the death."

The jury returned a special verdict which awarded damages to

the heirs in the amount of $800,000. There is no indication from

the verdict form what, if any, amount of the verdict was for the

loss of Delbert's financial support. Therefore, there was no

method by which the District Court could calculate what, if any

amount, the hospital was entitled to offset by the amount of

previous Veterans' Administration death benefits awarded to Ida.

Because there was no factual basis upon which the District Court

could properly grant the hospital's motion for offset, the motion

was properly denied. For these reasons, we affirm the District

Court's denial of the hospital's motion for statutory offset

pursuant to § 27-1-308, MCA.

Based on our discussion of and holding regarding each of the

issues raised, we affirm the judgment of the District Court.

We concur:

Chief Justice

Justices

Justice Karla M. Gray, specially concurring

I concur in the Court's opinion on issues one and two and

specially concur on issues three and four.

With regard to issue three, which relates to the District

Court's failure to instruct on proximate cause, I agree with the

result the Court reaches on the issue and with most of its

discussion of our case law and other authorities vis-a-vis

foreseeability as an element of proximate cause. My one

disagreement with the Court in this regard is in its interpretation

of § 27-1-317, MCA. I do not read the statute as precluding the

consideration of foreseeability as part of causation. Conversely,

however, the statute certainly does not require us to consider

foreseeability in analyzing causation. Thus, I am persuaded by the

remainder of the authorities cited by the Court that we erred in

doing so in Kitchen Krafters where no intervening cause issue

required its inclusion.

With regard to issue four, whether the hospital was entitled

to offset the VA benefits Ida Busta received against the wrongful

death damages awarded, I concur in the Court's opinion. I

specially concur only to add that the hospital prepared the Special

Verdict which was submitted to the jury and which rendered it

impossible for the District Court to calculate whether any offset

was authorized (even assuming that the VA benefits met the

statutory definition of collateral source). If the hospital wanted

to assert entitlement to the offset, it was incumbent upon the

hospital to structure a verdict form which would make such a

Justice Charles E. Erdmann concurring in part and dissenting in

part.

I concur in the majority's opinion on Issues 1, 2, and 4, but

write separately to dissent on Issue 3.

I disagree with the majority's holding that the District

Court's failure to instruct on proximate cause was harmless error.

1 am convinced that the failure to define proximate cause for the

jury was reversible error. In fact, the jury received no

instructions at all which defined causation. Furthermore, I

disagree with the majority's analysis of foreseeability as applied

to proximate cause and therefore dissent from the majority's

decision to overrule the requirement in Kitchen Krafters v.

Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567, that

causation instructions include a discussion of foreseeability.

In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181,

we held that it was error for the lower court to not instruct on

proximate cause and stated that the question of proximate cause is

an issue of fact to be decided by the jury. Davis, 796 P.2d at

186. In order to constitute reversible error, the lower court's

actions must affect the substantial rights of the complaining

party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (1989), 235

Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant

was not prejudiced by the court's failure to instruct on proximate

cause and therefore held the error to be harmless. Davis, 796 P.2d

at 187.

However, under the circumstances of the present case, I would

hold that the District Court erred in not instructing the jury on

proximate cause. A number of instructions given by the District

Court contained the phrase "proximate cause," but the jury was not

given the benefit of any guidance from the court on this crucial

concept. It is the duty of the court to instruct the jurors fully

and correctly on all applicable laws. Billings Leasing Co. v.

Payne (1978), 176 Mont. 217, 224, 577 P.2d 386, 390. As this Court

noted in Billinss Leasins Co.:

" * * * In instructing the jurors, we must

assume that they have no knowledge of the

rules of law and that therefore, they must be

instructed on all points of law which, under

any reasonable theory, might be involved in

their deliberations, to the end that their

decision will be according to the law and the

evidence and untinged by any private and

possibly false opinion of the law that they

entertain."

Jury instructions are crucial to a jury's

understanding of the case and, unfortunately, counsel

cannot always be relied upon to provide those

instructions. . . .

"It is the inescapable duty of the trial

judge to instruct the jurors, fully and

correctly, on the applicable law of the case,

and to guide, direct, and assist them toward

an intelligent understanding of the legal and

factual issues involved in their search for

truth. The court must instruct the jury properly on the

controlling issues in the case even though there has been

no request for an instruction or the

instruction requested is defective."

Billinss Leasinq Co., 577 P.2d at 390-91 (quoting McBride, The Art

of Instructins the Jurv at 17 (1969), and Wright & Miller, Federal

Practice and Procedure, Civil § 2556).

In the present case, the hospital offered an instruction on

proximate cause which was refused by the District Court. The

plaintiff withdrew her instructions defining causation. As a

result, the jury was not instructed on the crucial concept of

proximate cause which is a key element in all negligence actions.

After analyzing foreseeability and proximate cause, the majority

determines this to be harmless error. I differ with the majority's

analysis and position on foreseeability and proximate cause and

conclude that the District Court's failure to define proximate

cause for the jury in this case was reversible error.

The majority claims it is redundant and confusing to jurors to

focus on foreseeability when analyzing both the "duty" element and

"proximate cause" element of the tort of negligence. On the

contrary, I believe that such a dual analysis of foreseeability is

a necessary and reasonable analysis which has, unfortunately, been

complicated in Montana by the confusing wording of the Kitchen

Krafters instruction.

In Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and

its progeny, we determined that the concept of foreseeability was

a part of the "duty" element. See Ford v. Rupple (1972), 161 Mont.

56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167

Mont. 24, 534 P.2d 1247; Schafer v. State (1979), 181 Mont. 102,

592 P.2d 493; Pretty On Top v . City of Hardin (l979), 182 Mont.

311, 597 P.2d 58; Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d

1013; Belue v. State (l982), 199 Mont. 451, 649 P.2d 752. The

majority agrees with the rationale of this line of cases but

concludes that, with the exception of cases involving intervening

superseding events, foreseeability should be restricted to the

analysis.

In Kitchen Krafters we applied the concept of foreseeability

to the element of causation and stated that " [plroximate cause is

normally analyzed in terms of foreseeability. Simply stated, one

is only liable for consequences which are considered to be

reasonably foreseeable." Kitchen Krafters, 789 P.2d at 575 (citing

Prosser and Keeton on Torts § 43 (5th ed. 1984). The line of cases

which followed Kitchen Krafters, and which were not overruled by

the majority, repeated the requirement that foreseeability be

considered as part of proximate cause. See Thayer v. Hicks (1990),

243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457,

802 P.2d 1248; U.S.F.& G v. Camp (1992), 253 Mont. 64, 831 P.2d

586; King v. State (1993), 259 Mont. 393, 856 P.2d 954; Logan v.

Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v.

Mather (1995), 270 Mont. 188, 890 P.2d 1277.

As noted, the majority concludes it is unnecessary to address

foreseeability as part of the causation element, except in cases of

intervening superseding events. I disagree and submit that the

concept of foreseeability has a proper and distinct place in the

analysis of both "duty" and "causation" elements--both of which

must be satisfied in order to establish the prima facie case for

negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36;

McCain v. Florida Power Corp. (Fla. 1992), 593 So. 2d 500; Nelson

by Tatum v. Com. Edison Co. (Ill. App. 2d 1984), 465 N.E.2d 513.

The analysis of foreseeability in the "duty" context focuses

on whether or not the plaintiff was in the zone of danger to be

protected from the defendant's actions. As the New Mexico Supreme

Court has recently stated:

This case raises issues of duty and proximate cause.

Integral in both elements is a question of

foreseeability. In determining duty, it must be

determined that the injured party was a foreseeable

plaintiff--that he was within the zone of danger created

by respondent's actions; in other words, to whom was the

duty owed?

Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of

danger there was no duty and therefore no negligence. The Florida

Supreme Court has recently held that:

[F]oreseeability relates to duty and proximate causation

in different ways and to different ends. The duty

element of negligence focuses on whether the defendant's

conduct foreseeably created a broader "zone of risk" that

poses a general threat of harm to others.

McCain, 593 So. 2d at 502.

Foreseeability in the "causation" context requires an analysis

of whether the circumstances surrounding the actual occurrence of

the plaintiff's injury were a foreseeable result of the defendant's

breach. It is only after a duty and breach of that duty has been

established that the "ca~sation~~

element is analyzed with its

distinct application of the foreseeability concept. As the

Calkins Court stated:

In determining proximate cause, an element of

foreseeability is also present--the question then is

whether the injury to petitioner was a foreseeable result

of respondent's breach, i.e., what manner of harm is

foreseeable?

Calkins, 792 P.2d at 38. The McCain Court stated:

The proximate causation element, on the other hand, is

concerned with whether and to what extent the defendant's

conduct foreseeably and substantially causedthe specific

injury that actually occurred. In other words, the

former [duty elementl is a minimal threshold legal

requirement for opening the courthouse doors, whereas the

latter [causation element] is part of the much more

specific factual requirement that must be proved to win the

case once the courthouse doors are open. As is obvious,

a defendant might be under a legal duty of care to a

specific plaintiff, but still not be liable for

negligence because proximate causation cannot be proven.

It might seem theoretically more appealing to

confine all questions of foreseeability within either the

element of duty or the element of proximate causation.

However, precedent, public policy, and common sense

dictate that this is not possible. Foreseeability

clearly is crucial in defining the scope of general duty

placed on every person to avoid negligent acts or

omissions. . . ,

On the question of proximate causation, the legal

concept of foreseeability also is crucial, but in a

different way. In this context, foreseeability is

concerned with the specific, narrow factual details of

the case, not with the broader zone of risk the defendant

created.

McCain, 593 So. 2d at 502-03.

Both arenas of the foreseeability analysis are independent and

distinct from one another. Foreseeability applied to the "dutyu

element must be decided as a matter of law by the judge using

established legal policy to determine whether a duty was owed to

the plaintiff. On the other hand, foreseeability applied to the

"causationu element is a question of fact. See Calkins, 792 P.2d

at 38.

Without such a dual approach to the foreseeability analysis,

the determination of whether the "causationu element is satisfied

is reduced to a bare-bones question of cause-in-fact. In removing

foreseeability fromthe causation analysis, the majority's approach

results in a situation where once duty and breach are established,

a "but-for"or "substantial factor" analysis is all that remains in

order to satisfy the causation element--I submit that such an

inquiry will invariably be answered in the affirmative,

particularly when it is obvious or conceded that a duty has been

breached.

I must also address the majority's argument that Montana's

statutory framework for determining liability reinforces its

position. Section 1-1-204, MCA, does include the concept of

foreseeability in the "duty" element when it defines negligence as

"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." However, I fail to follow the

majority's logic when it states that the language of § 27-1-317,

MCA, set forth below, specifically precludes the applicability of

a foreseeability requirement to the issue of proximate cause.

For the breach of an obligation not arising from

contract, the measure of damages, except where otherwise

expressly provided by this code, is the amount which will

compensate for all the detriment proximately caused

thereby, whether it could have been anticipated or not.

This statute addresses damages and the language simply means that

if the injury was foreseeable it makes no difference whether the

damages were also foreseeable.

Finally, I am not persuaded by the majority's position that

lay jury members are confused by concepts such as foreseeability

and proximate cause and therefore that they are distracted from

their duty to decide cases based on their merits. I submit that

such concepts are not only necessary to establish the prima facie

case for negligence but are also, when accurately defined, the

proper tools to enable the jury to do its job. In my view it is

better to explain these concepts and define how they are to be used

by the jury rather than to leave the juries' understanding of them

to chance and differing definitions.

In conclusion, I would be the first to admit that the language

contained in the Kitchen Krafters instruction has caused problems

for judges and practitioners alike. The adequacy of the

instruction needed to be addressed and revised. However, I am not

convinced that in remedying the instruction it is necessary to

abandon the concept of foreseeability and its dual application to

the analysis of both the "duty" and "causation" elements in

negligence actions.

az@2L Justice

Chief Justice J. A. Turnage joins in the foregoing concurring and

dissenting opinion.

Chief Justice

NO. 95-050

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IDA 0 . BUSTA, as Personal Representative

of the Estate of Delbert F. Busta, on

behalf of the heirs of Delbert F. Busta,

Plaintiff and Respondent,

v.

COLUMBUS HOSPITAL CORPORATION,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

R.

~ a m e s WaJsh and Dennis P. Clarke, Smith,

Walsh, Clarke & Gregoire, Great Falls, Montana

For ~es-pond~nt

:

Dennis Patrick Conner, Attorney at Law,

Great Falls, Montana

Submitted on Briefs: January 17, 1996

Decided: M ~ Y1 0 , 1996

Filed:

Columbus Hospital offered testimony from Debra Gaspar, a

registered nurse from Billings, who testified that based on her

review of the records, Fitzgerald had complied with the standard of

care applicable to post-surgical nurses at the time and date in

question. However, the hospital offered no expert opinion

regarding the reason that Delbert attempted to leave the hospital

through the third floor window, nor did it offer expert testimony

to the effect that the incident which caused Delbert's injuries and

death was unforeseeable from the perspective of a hospital

administrator or a hospital architect

The jury's verdict and the court's orders were as previously

stated. With this background, we will discuss the issues raised by

the hospital on appeal.

ISSUE 1

Did the District Court err when it admitted a photographic

exhibit offered by the plaintiff which depicted the decedent,

..

Delbert Busta, and included a tribute from his granddaughter?

,r

During the testimony of Charles Busta, Delbert's son, a

photograph of Delbert was offered as an exhibit. Attached to the

photograph was a poetic tribute to Delbert by his granddaughter.

The poem had apparently been submitted as part of a school project

because next to it was a grade and a handwritten note which stated:

"1 can tell your Grandpa was very special to you!" At the time the

photo was offered, the attorney for the hospital objected to its

admission on the basis that "it was written by a person who is not

(a) Effect of erroneous ruling. Error may not be

predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is

affected, and

(1) Objection. In case the ruling is one admitting

evidence, a timely objection or a motion to strike

appears on the record, statina the suecific around of the

objection, if the specific ground was not apparent from

the context.

(Emphasis added.)

As we stated in Scojeldv. EstateofWood (1984), 211 Mont. 59, 63,

683 P.2d 1300, 1302, "[aln objection raised for the first time on

appeal is not timely. Unless a timely objection to evidence or

testimony is raised at the trial level, it cannot be considered on

appeal." (Citations omitted.)

On appeal, the hospital contends that the photograph of

Delbert should have been excluded for the reason that it included

hearsay in violation of Rule 801, M.R.Evid.; for the reason that it

was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason

that it was unduly prejudicial in violation of Rule 403, M.R.Evid.

However, the hoqpital's hearsay objection was not stated at

the time that the exhibit was offered and was specifically waived

when the plaintiff's attorney offered to call the author and the

defendant's attorney stated that it would be unnecessary. Undue

prejudice in violation of Rule 403 was also specifically waived

because it was not stated as a basis of the defendant's objection

at the time the exhibit was offered.

Although irrelevance was not specifically stated as a basis

for the defendant's objection to the plaintiff's photographic

During his life following his discharge from military service,

Delbert received a small pension due to his diagnosis of simple

schizophrenia. The jury was fully informed of that fact.

Subsequent to Delbert's death, his surviving spouse Ida, after

learning of the basis for his disability benefits, applied for

death benefits which apparently were denied. For that reason, the

same attorney who represented her in this case wrote to the

Department of Veterans' Affairs on July 10, 1992, and requested

that the denial be reconsidered. This letter was written over two

years before Dr. Richard Rada was first retained and consulted on

August 22, 1994.

In his letter, the plaintiff's attorney provided copies of

Delbert's records and referred to his prisoner of war experience,

his subsequent medical diagnosis, and extensive summaries of his

Veterans' Administration medical records since the date of his

discharge. At the conclusion of the five-page letter, plaintiff's

attorney expressed the opinion that based on that medical history

,.

and Delbert's apparent attempt to escape from the hospital and some

perceived danger, his death was probably related to his

service-connected condition, and he requested that the Department

reconsider the denial of Ida's claim for benefits.

Copies of the medical records referred to in the letter were

provided to the defendant and were offered as exhibits without

objection. However, the defendant also sought to admit the

five-page letter written by the plaintiff's attorney. When the

objection was stated that the letter was inadmissible pursuant to

Allersv. Willis (1982), 197 Mont. 499, 643 P.2d 592, because it related

to a collateral source, the defendant sought to admit the letter

after deleting the identity of the recipient and the reference to

death benefits. However, the District Court held that because the

letter was on plaintiff's attorney's letterhead, the potential for

prejudice from its admission outweighed its probative value and

denied its admission. The court did offer to allow the defendant

to produce other evidence of the letter's contents. The defendant

indicated it would call Ida Busta for the purpose of offering such

evidence. However, when the District Court stated that that would

be acceptable, the defendant declined to do so.

On appeal, the defendant contends that its proffered letter

from the plaintiff's attorney should have been admitted as an

admission by the plaintiff that Delbert died as a result of his

preexisting mental condition, rather than because of Columbus

Hospital's negligence. It contends that because it was not

,

informed of his preexisting mental condition at the time of his

admission to the hospital, it could not reasonably have been

expected to protect him from harming himself.

As stated previously, we review a district court's evidentiary

ruling to determine whether there has been an abuse of discretion.

Inre $23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we

-

will uphold a district court's decision, if correct, even though

its reason for that decision may have been incorrect. Normanv.City

o Whitefih (lP93), 2 5 8 Mont. 2 6 , 3 0 , 8 5 2 P.2d 5 3 3 ,

f 535; DistrictNo. 5 5 )

.1.

Musselshell County ( 1 9 9 0 ) , 245 Mont. 525, 527, 802 P . 2d 1 2 5 2 , 1253.

The District Court held that the leEter, as modified by the

defendant, was inadmissible for several reasons. it concluded that

it was an offer of compromise, and therefore inadmissible pursuant

to Rule 408, M.R.Evid.; that it was evidence of a collateral

source; and that when altered to exclude evidence of a collateral

source, it was incomplete, and therefore, that its prejudicial

impact outweighed any probative value.

The defendant contends that the reasons given by the District

Court for excluding its proposed exhibit lack merit and that the

letter was relevant pursuant to Rule 401, M.R.Evid,, because it had

a tendency to make more probable the hospital's claim that Delbert

died as a result of his preexisting mental infirmity.

We conclude, however, that because the author of the proposed

letter had no qualification for expressing a medical opinion

regarding the cause .ofDelbert Is behavior on December 1, the letter

had l i t t l e probative value and that the District Court did not:

abuse its discretion when it refused to admit the letter pursuant

to Rule 403, M.R.Evid. Rule 403 provides that:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held

that an attorney is not qualified to express an expert medical

opinion regarding.a party's condition or prognosis for recovery.

We held in that case that when the opinion was offered in the form

of an affidavit it should have been rejected by the district court

which should have, instead, relied on expert testimony. Maulding,

257 Mont. at 27, 847 P.2d at 298.

Had plaintiff's attorney been called as a witness at trial to

express an opinion regarding the medical explanation for Delbert's

departure from the hospital through his third floor window, the

District Court would necessarily have had to exclude the testimony

because he was unqualified to express such an opinion in a court of

law. For that reason, his unqualified opinion expressed in

correspondence to the Veterans' Administration over two years prior

to the receipt of contrary information from a qualified expert had

no probative value to any relevant issue in this case. On the

other hand, simply because the proposed exhibit was authored by the

I

,

.

plaintiff's attorney, it presented substantial potential for

confusing or misleading the jury. The defendant had an opportunity

to present qualified evidence that Delbert's injuries and death

were contributed to or caused by his preexisting mental condition.

In fact, the District Court gave the defendant great latitude

toward that end. However, the defendant presented. no qualified

evidence from any medical expert or any observation by any lay

witness that Delbert's preexisting mental condition contributed in

any way to his behavior on the morning of December 1, 1991, or that

the preexisting mental condition affected his behavior at any other

time from the date on which he was discharged from military service

until the date of his death.

Fox these reasons, we conclude that the District Court did not

abuse its discretion when it excluded the defendant's proposed

exhibit which included statements from the plaintiff's attorney

regarding Delbert's mental condition on the evening of his death.

ISSUE 3

Did the District Court e r r when it refused to give the

defendant's proposed instructions which defined proximate cause and

stated the requirement that the decedent's injuries be foreseeable

before causation could be established?

The hospital proposed, by its Instruction No. 20, that the

District Court instruct the jury regarding the following definition

of proximate cause:

The proximate cause of an injury is that cause

which, as a natural and continuous sequence, unbroken by

any new and independent cause, produces the injury, and

without which it would not have occurred.

The hospital ' s proposed instructions numbered 21 and 22

suggested the following requirements regarding foreseeability as it

relates to proximate cause:

DEFENDANT'S PROPOSED INSTRUCTION NO. 21

If you find that the Defendant Columbus Hospital was

negligent, in order for its -negligence to be the

proximate cause of Delbezl-tBustal injuries and death, it

s

must appear from the facts and circumstances surrounding

the accident that the Columbus Hospital, as an ordinarily

prudent entity, could have reasonably foreseen that

Delbert Busta's injury would be the natural and probable

consequence of the hospital's actions.

DEFENDANT'S PROPOSED INSTRUCTION NO. 22

If you find the consequences of the hospital's

actions were not reasonably foreseeable or were generally

freakish, bizarre, or unpredictable, the actions of the

hospital were not the proximate cause of decedent Busta's

injuries and death.

The plaintiff proposed that the jury be instructed on the

issue of causation in a format similar to the format suggested by

our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed

instruction referred to cause-in-fact as a "substantial factor."

The defendant objected on that basis and plaintiff's proposed

instruction on causation was withdrawn.

The District Court rejected the hospital's proposed

instructions numbered 20, 21, and 22 on the basis that they did not

satisfy the format required by Kitchen Krafters, and therefore, no

instruction which defined proximate cause was submitted to the

.I

jury.

After the District Court indicated which instructions it would

give and which instructions were refused, it asked whether the

defendant had any objections. No objection was stated at that time

to the court's failure to provide any instruction to the jury which

defined proximate cause.

The jury was instructed that both parties had the burden of

proving that the other was negligent and that the other party's

indisputably foreseeable and there was no evidence of intervening

acts by third parties which would interrupt the chain of causation.

Finally, the District Court noted that part of the confusion which

resulted in its failure to define proximate cause was attributable

to the difficulty that district courts have dealing with that issue

since this Court's decision in Kitchen Krapers and respectfully

requested that this Court better settle the requirements for

instruction of juries on the subject of causation in future cases.

On appeal, the hospital contends that because the District

Court referred to llproximatecause" in other instructions, it was

necessary that the term be explained to the jury. The hospital

further contends that because this Court included foreseeability as

an element of proximate cause in Kitchen Krapers and because the

foreseeability of Delbert's conduct on December 1, 1991, was a

specific issue, it was important that the jury be specifically

instructed regarding foreseeability.

In response, the plaintiff contends that the defendant waived

..I

its objection to the District Court's failure to instruct on the

issue of proximate cause by its failure to bring the court's

omission to its attention before the jury's verdict was returned.

The plaintiff further contends that even if the District Court

erred, the error was harmless because causation was established by

the undisputed evidence, and therefore, as a matter of law.

A district court has discretion when it decides how to

instruct a jury and we will not reverse a district court's decision

absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont. 1995),

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review

instructions to a jury to determine whether they were properly

given or refused, we consider the instructions in their entirety,

as well as in connection with the other instructions given and the

evidence at trial. Storyv. City ofBozeman (1993), 259 Mont. 207, 222,

When we review a district court's refusal to give an offered

instruction, the following rules apply:

It is 'not reversible error for a trial court to

refuse an offeredinstruction unless such refusal affects

the substantial rights of the party proposing the

instruction, thereby prejudicing him.

A party is not prejudiced by a refusal of his

proposed instructions where the subject matter of the

instruction is not applicable to the pleadings and facts,

or not supported by the evidence introduced at trial, or

the subject matter is adequately covered by other

instructions submitted to the jury.

Kingv.Zimn?erman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting

Cottrellv. BurlingtonNor1hernR.R. Co. (19931, 261 Mont. 296, 306, 863 P.2d

381, 387; seealso Ganzv. UnitedStatesCyclingFed'n (Mont. 1995), 903 P.2d

212, 216, 52 St. Rep. 1030, 1033).

The law of foreseeability, as it relates to liability law in

Montana, has had a tortuous history. Based on the concerns

expressed by the District Court in this case and similar sentiments

reflected by anzicus curiae who have submitted briefs on this issue, we

conclude that in the interest of clarifying issues involved in

litigation where negligence is alleged, it is appropriate that we

24

address the role of foreseeability and the appropriate manner for

instructing juries on the issue of causation.

Any discussion of foreseeability as it relates to liability

law begins with the oft-cited decision of the Court of Appeals of

New York in Palsgrafv.LongIslandRailroadCo. (N.Y. 1928), 162 N.E. 99. In

that case, the plaintiff was standing on a platform of the

defendant's railroad when a guard attempted to assist another

passenger aboard the departing train. In doing so, he dislodged a

package from the passenger's hand which contained fireworks. The

contents exploded when the package hit the ground. The shock from

the explosion knocked down scales many feet away. The falling

scales struck the plaintiff, and she was injured. On appeal from

a judgment in favor of the plaintiff, Chief Justice Cardozo,

writing for a four-person majority, reversed that judgment on the

basis that absent a foreseeable injury to the plaintiff there was

no duty and that absent a duty there was no negligence. In

language that formed.the basis for a number of subsequent decisions

,.

in Montana, Cardozo wrote that:

The risk reasonably to be perceived defines the duty to

be obeyed, and risk imports relation; it is risk to

another or to others within the range of apprehension.

. . . This does not mean, of course, that one who

launches a destructive force is always relieved of

liability, if the force, though known to be destructive,

pursues an unexpected path. "It was not necessary that

the defendant should have had notice of the particular

method in which an accident would occur, if the

possibility of an accident was clear to the ordinarily

prudent eye."

Palsgraf, 162 N.E. at 100.

Writing in dissent, Justice Andrews disagreed that duty

requires a foreseeable plaintiff, but instead contended that all

persons have a duty of care to the world at large. He took the

position that if foreseeability has a place as a limitation on an

individual's liability for damages, it is in the context of

proximate cause. He stated that:

What we do mean by the word "proximateu is that, because

of convenience, of public policy, of a rough sense of

justice, the law arbitrarily declines to trace a series

of events beyond a certain point. This is not logic. It

is practical politics.

Palsgraf, 1 6 2 N . E . at 103 (Andrews, J., dissenting)

Andrews went on to state that in analyzing proximate cause,

[tlhe court must ask itself whether there was a natural

and continuous sequence between cause and effect. Was

the one a substantial factor in producing the other? Was

there a direct connection between them, without too many

intervening causes? Is the effect of cause on result not

too attenuated? Is the cause likely, in the usual

judgment of mankind, to produce the result? Or, by the

exercise of prudent foresight, could the result be

foreseen?

Palsgraf, 1 6 2 N . E . at 1 0 4 (Andrews, J., dissenting) .

Therefore, from an early point in American jurisprudence there

was disagreement among knowledgeable scholars regarding the role of

foreseeability in the formulation of negligence law. The

conviction, as expressed by Cardozo, was that without

foreseeability there was no duty, and without duty there could be

no liability. The view as expressed by Andrews was that

foreseeability was an element of proximate cause and reflected the

practical political judgment of whether effect of cause on result

was too attenuated. Neither, however, suggested that

foreseeability should be considered on a redundant basis as part of

both duty and proximate cause.

We have, as a Court, considered foreseeability in our

discussions of proximate cause. However, originally those

discussions were limited to situations where it was alleged that

acts of independent third parties intervened following the

defendant's act to sever the causal relationship between one

person's conduct and another person's damage. L n i n v. Long (1961),

ecoi

139 Mont. 135, 139, 361 P.2d 455, 457.

Other than in the context of intervening acts by third

parties, our early decisions clearly chose to follow the majority

view from P l g a .

asrf In Mangv.E i s o (1969), 153 Mont. 431, 437, 458

lasn

P.2d 777, 781, we cited Palsgrafwith approval and held that:

As a classic opinion states: "The risk reasonably to

be perceived defines the duty to be obeyed.I' P l g a v Long

asrf.

I l n R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R.

sad

1253. That is t,o say, defendant owes a duty with respect

to those risks or hazards whose likelihood made the

conduct unreasonably dangerous, and hence negligent in

the first instance.

In Mang, the plaintiff brought an action to recover damages

for a reduced yield of alfalfa seed caused by weeds which the

defendant allowed to be blown from his property to the plaintiff's

property. Following a verdict for the plaintiff, the defendant

argued on appeal that it had breached no legal duty to the

plaintiff. This Court agreed and explained that to prove

actionable negligence a party must prove "existence of a duty, the

27

breach thereof and a resulting injury." Mang, 153 Mont. at 435,

458 P.2d at 780. We explained the role of foreseeability, as it

relates to duty, as follows:

Foreseeability is of prime importance in

establishing the element of duty, and the question of

defendants' negligence, if any, must of necessity hinge

on the finding of a breach of that duty. If a reasonably

prudent defendant can foresee neither any danger of

direct injury nor any risk from an intervening cause he

is simply not negligent.

If the chief element in determining whether

defendant owes a duty or obligation to plaintiff is the

foreseeability of the risk then that factor will be of

prime concern in every case. Further, because it is

inherently intertwined with foreseeability, such duty or

obligation must necessarily be adjudicated only upon a

case-to-case basis. Therefore, we do not now

predetermine defendants' obligations in every situation

by a fixed category; no immutable rule can be established

to determine the extent of that obligation for every

circumstance of the future. We do, however, define

guidelines which will aid in the resolution of such an

issue as is presented in the instant case.

. . . The obligation of defendants turns on whether:

" . .,. the offending conduct foreseeably

involved"unreasonably great risk of harm to

the interests of someone other than the actor.

. . . Duty, in other words, is measured by the

scope of the risk which negligent conduct

foreseeably entails."

. . . And absent foreseeability, there is no duty owed by

defendants to plaintiff. . . .

In view of our holding that plaintiff failed to show

a breach of duty owed by defendants, thus failing to

establish that defendants were negligent in the first

instance, he has failed to establish any claim upon which

relief may be granted and accordingly, it is unnecessary

to dwell on the law of causation. . . .

We may assume without deciding that negligence, not

at large or in the abstract but in relation to the

plaintiff, would entail liability for any and all

consequence however novel or extraordinary. Palsgraf v.

Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101.

However, the consequences to be followed must first be

rooted in a wrong.

Mang, 153 Mont. at 437-39, 458 P.2d at 781-82.

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we .

declined to apply the foreseeability requirement set forth in Mang

in a manner which would require that the specific accident which

resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d +t 563.

However, we did, from the time that Mang was decided until our

decision in Kitchen Krafters, consistently relate the notion of

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple

(1972), 161 Mont. 56, 504 P . 2 d 686; Williamsv. MontanaNat11Bank (1975),

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592

P.2d 493; PretiyOnTopv. CiiyofHardin (1979), 182 Mont. 311, 597 P.2d 58;

Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State

.s

,

(1982), 199 Mont. 451, 649 P.2d 752.

In fact, our earlier decisions discuss causation in terms of

cause-in-fact or the "but for" test, and discuss proximate cause

only as it relates to continued liability following an intervening

act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont.

at 30, 534 P.2d at 1250.

In Youngv. FIatheadCounty (1988), 232 Mont. 274, 757 P.2d 772, we

held for the first time that proof of proximate cause requires more

29

than proof of cause-in-fact or satisfaction of the "but foru test.

However, once again, that discussion occurred in the context of

this Court's conclusion that the chain of causation had been broken

by independent intervening causes. We specifically reversed the

district court because " [nlumerous interruptions in the chain of

events occurred that could be considered the injury causing

damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although

intervening cause was not analyzed in the typical fashion, Young was

clearly an intervening cause case.

The first time that the word "foreseeablen ever appeared in

the context of "proximate cause" in one of our opinions, other than

as related to intervening causes, was in Kitchen Kraftrs, Inc. v. Eastside Bank

ofMontana (1990), 242 Mont. 155, 789 P.2d 567. In that case, we

affirmed the two-tiered analysis of causation set forth in Young.

We explained that the cause-in-fact requirement is normally

established by the "but for" test by proving that a party's injury

would not have occuGred "but for" the other party's conduct. We

also reaffirmed prior decisions in which we held that if two or

more causes concur to bring about an event, then cause-in-fact is

established by the "substantial factor" test which we had

previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that

when either the "but foru test or the "substantial factor" test was

satisfied, a party has established that the other party's conduct

was the cause-in-fact of an injury. We then went on to add,

however, that once cause-in-fact is proven, "proximate causation"

must also be established. we held for the first time that:

Proximate cause is normally analyzed in terms of

foreseeability. Simply stated, one is only liable for

consequences which are considered to be reasonably

foreseeable. Prosser & Keeton at 5 43. If the

consequences of one's wrongful act are not reasonably

foreseeable, then it follows that it was not proximately

caused by that act. Using this analysis, one must look

forward through the chain of causation in order to

determine whether the events which occurred were

foreseeable. If they were, the element of proximate

cause is satisfied and liability will attach. Prosser &

Keeton at § 43.

KitchenKraJers, 242 Mont. at 168, 789 P.2d at 575

Having added a requirement that foreseeability be established

as part of causation in addition to the previous requirement that

it be considered in determination of duty, we then went on to hold

that juries must be specifically so instructed. We held that:

In order to be properly instructed on proximate cause,

the jury must be directed to look forward through the

chain of causation, and to determine whether events which

occurred subsequent to Eastside's wrongful act were

foreseeable. +'A proper instruction on proximate cause

should be worded as follows:

In order for the defendant's negligence (failure to

disclose) to be the proximate cause of the plaintiff's

injury, it must appear from the facts and circumstances

surrounding the accident [the nondisclosurel that the

defendant as an ordinarily prudent person, could have

foreseen that the plaintiff's injury would be the natural

and probable consequence of the wrongful act.

Kitchen Krajers, 2 4 2 Mont. at 169, 789 P.2d at 5 7 5 (alteration in

original) .

We repeated the requirement from the Kitchen Kraflers opinion that

foreseeability be considered as part of proximate cause in Thayerv.

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UniledStatesFidelipand

Guaranty Co. v. Catnp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv.

,

Stale (1993) 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone

County (l994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of

these cases, other than Logan, involved issues regarding the

foreseeability of intervening causes. In such situations we have

traditionally held that foreseeability is an issue related to

causation. See Halseyv. Uithof (l975), 166 Mont. 319, 328, 532 P.2d 686,

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d

629, it is interesting that we noted:

Foreseeability can be determined in one of two ways.

Some courts anhlyze the issue under the element of duty.

These courts take the view that the scope of defendant's

duty is determined by a foreseeability of any harm which

may arise as a result of his negligent conduct. See e.g.

Palsgrafv. LongIslandRailroadCo. (1928), 248 N.Y. 339, 162 N.E.

99, 100. Other courts have analyzed foreseeabilityunder

the issue of proximate cause. In doing so, they have

taken the view that all persons owe a duty to the world

at large to act reasonably in order to prevent injury to

their fellow man. Palsgraf, 162 N.E. at 104 (Andrews

dissenting). If this duty is breached, it then becomes

necessary to determine whether the consequences of the

breach were reasonably foreseeable to the defendant. If

the consequences were reasonably foreseeable, proximate

cause is established and liability will follow.

Sizemore, 246 Mont. at 46, 803 P.2d at 635.

Since Sizemore involved allegations of a superseding intervening

event, we analyzed foreseeability as part of proximate cause in

that case. We made no mention of the fact that since Kitchen Krafrers,

Montana has two concurrent lines of authority--one which analyzes

foreseeability as part of duty, and a second which considers it as

part of proximate cause

Therefore, as the law in Montana currently stands, the issue

of foreseeability is considered twice in our analysis of liability

for a negligent act. It is first considered as part of the

analysis of duty and negligence pursuant to our decision in Mang,

153 Mont. 431, 458 P.2d 777. It is then considered as part of a

two-pronged approach to causation pursuant to our decision in Kitchen

Krajiers, 242 Mont. 155, 789 P.2d 567.

Although we acknowledge that there are other jurisdictions

which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M.

.'

1990), 792 P.2d 36;' McCain v. Florida Power Corp. (Fla. 1992), 593 So. 2d

5 0 0 ; Nelson by Tatum v: Cornmonweal~hEdison Co. (Ill. App . 2d 1984) , 465

N.E.2d 513), knowledgeable writers and the better-reasoned

decisions of other jurisdictions criticize such a redundant

consideration of foreseeability. For example, in Modern Tort Law

the authors state that:

Much confusion has resulted from the erroneous

application of the requirement of foreseeability to

causation. In referring to proximate cause, many

decisions have confused the element of fault and have

employed foreseeability, properly an element of fault but

not of causation.

1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153

(rev. ed. 1990).

At § 5.02 the same authors point out that:

There is, unfortunately, substantial and respectable

authoritythat foreseeability is an element of causation.

. . .

This application of foreseeability has long been the

subject of criticism by courts and legal scholars.

Foreseeability does not touch on the causal element.

Foreseeability relates only to the element of fault.

. . .

As an early Minnesota case pointed out, "What

a man may reasonably anticipate is important, and may be

decisive, in determining whether an act is negligent, but

is not at all decisive in determining whether that act is

the proximate cause of an injury which ensues."

[Christianson v. Chicago St. P., M. & 0. Ry. Co. (Minn. 1896) , 69 N .W .

640.1 And the Wisconsin court has stated:

This court is definitely committed to the

principle that, while foreseeability is an

element to be considered by the jury in

determining negligence, it has no part in the

jury's decision of whether particular

negligenc&' found by it is causal. [Stmhlendorfv.

WalgreenCo. (Wis. 1962), 114 N.W.2d 823.1

Dean Prosser stated:

It is simpler, and no doubt more accurate, to

state the problems in terms of "duty:" is the

defendant under a legal obligation to protect

the plaintiff against such unforeseeable

consequences of his own negligent acts?

[William L. Prosser, Law of Torts 289 (3d ed.

1964) . I

And Harper and James said: o ore see ability of damage

is altogether irrelevant in determining the existence of

the cause in fact relationship." [2 Harper & James, Law

of Torts 1135 (1956). I

Professor Leon Green, a persistent critic of the

foreseeability test, as it is used in connection with

proximate cause, remarked, "Clearly the issue of causal

relation between the defendant's conduct and the

plaintiff's injury is not determined by foreseeability."

[Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich.

L. Rev. 543, 549 (1962).] The element of cause becomes

operative only if a duty is breached and damages result,

whereupon the defendant becomes liable for the damages

directly caused by his breach of duty. . . . "Causal

relation is a neutral issue, blind to right and wrong."

[Green, 60 Mich. L. Rev. at 549.1

Unfortunately, however, the application of the

foreseeability test to causation has had a firm hold in

legal literature, and some recent cases continue to

compound the error. Thus, the problem of causation,

difficult as it is, has been made more complex by

employing foreseeability as a test of legal cause, when

foreseeability should be restricted to the issue of

negligence.

1 Modern Tort Law 5 5.02 at 159-62.

In the Law of Torts, the authors state that:

It is obvious that under such an analysis of the duty

problem, foreseeability is distinctly a factor that puts

a considerable limitation on the extent of liability,

even though it should be held to play no part whatever in

determining the issue of proximate cause. It is also

clear that i.f' this analysis of the duty problem is

accepted, no good, but only confusion, can result from

repeating the same inquiries as to foreseeability under

the cause issue as were asked and answered (or should

have been) under the duty issue.

4 Fowler V. Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed.

1986) (footnotes omitted).

Finally, in Prosser and Keeton on Torts the authors state:

Once it is established that the defendant's conduct

has in fact been one of the causes of the plaintiff's

injury, there remains the question whether the defendant

should be legally responsible for the injury. Unlike the

fact of causation, with which it is often hopelessly

confused, this is primarily a problem of law. It is

sometimes said to depend on whether the conduct has been

so significant and important a cause that the defendant

should be legally responsible. But both significance and

importance turn upon conclusions in terms of legal

policy, so that they depend essentially on whether the

policy of the law will extend the responsibility for the

conduct to the consequences which have in fact occurred.

Quite often this has been stated, and properly so, as an

issue of whether the defendant is under any duty to the

plaintiff, or whether the duty includes protection

against such consequences. This is not a question of

causation, or even a question of fact, but quite far

removed from both; and the attempt to deal with it in

such terms has led and can lead only to utter confusion.

The term "proximate cause" is applied by the courts

to those more or less undefined considerations which

limit liability even where the fact of. causation is

clearly established. The word "proximate" is a legacy of

Lord Chancellor Bacon, who in his time committed other

sins. The word means nothing more than near or

immediate; and when it was first taken up by the courts

it had connotations of proximity in time and space which

have long since disappeared. It is an unfortunate word,

which places an entirely wrong emphasis upon the factor

of physical or mechanical closeness. . . .

It is quite possible to state every question which

arises in connection with "proximate cause" in the form

of a single question: was the defendant under a duty to

protect the plaintiff against the event which did in fact

occur? . . .

. . . "Proximate cause," in short, has been an

extraordinarily changeable concept. "Having no

integrated meaning of its own, its chameleon quality

permits it to be substituted for any one of the elements

of a negligence case when decision on that element

becomes difficult. . . . No other formula . . . so nearly

does the work of Aladdin's lamp." [Leon Green, Proximate

CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950). I

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76

(5th ed. 1984)

Many courts have eliminated this redundant analysis and

simplified the jury's responsibility by limiting the analysis of

foreseeability to a determination of whether there is negligence in

the first place, and then dealing with cause as simply

cause-in-fact. Two of the jurisdictions in our own area which have

done so are the states of Washington and Oregon. In Rikstudv. Holmberg

(Wash. 1969), 456 P.2d 355, the Washington Supreme Court stated

that :

The better considered authorities do not regard

foreseeability as the handmaiden of proximate cause. To

connect them leads to too many false premises and

confusing conclusions. Foreseeability is, rather, one of

the elements of negligence; it is more appropriately

attached to the issues of whether defendant owed

plaintiff a duty, and, if so, whether the duty imposed by

the risk embraces that conduct which resulted in injury

to plaintiff. The hazard that brought about or assisted

in bringing about the result must be among the hazards to

be perceived reasonably, and with respect to which

defendant's conduct was negligent. See Restatement

(Second) of Torts 5 435, comment c (1965). . . .

It is the misuse of foreseeability--that is,

discussion of the improbable nature of the accident in

relation to proximate cause--that led the trial judge, in

the instant case, to conclude that the challenge should

be sustained.

Rikstud, 456 P.2d at 358.

The comment in the Restatement (Second) of Torts referred to

in the Washington Court's opinion is part of the Restatement's

analysis of foreseeability under its section on causation. The

authors there state:

Strictly, the problem before the court is one of

determining whether the duty imposed on the actor was

designed to protect the one harmed from the risk of harm

37

from the hazard in question. (See § 281, comment e , and

§ 449.) However, courts frequently treat such problems

as problems of causation. (See § 281, comment e, and

§ 430, comment a . )

Restatement (Second) of Torts 5 435 cmt. c (1965).

Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966),

409 P.2d 897, and Brennen v. CilyofEugene (Or. 1979), 591 P.2d 719.

We agree with the Washington Court and with the cited authors

that the better-reasoned authorities address foreseeability as part

of the analysis of "duty," rather than "proximate cause," and that

to analyze it under both issues leads only to confusion which can

be easily avoided.

However, the arguments quoted from the previous authors and

the reasoning of the Washington Court are even more compelling

based on Montana's statutory framework for determining liability.

,

Section 1-1-204(1) MCA, defines negligence as "a want of 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. "

(Emphasis added.) This definition suggests that foreseeability is

an element of .negligence,and therefore, properly considered with

the existence of a duty.

On the other hand, § 27-1-317, MCA, which discusses the

damages for which a negligent actor is responsible, defines those

damages as "the amount which will compensate for all the detriment

proximately caused thereby, whether it-could have been anticiuated

or not. " (Emphasis added.) By equating damages "proximately caused

thereby" with actual damages, whether they "could have been

anticipated or not," our statutory scheme specifically precludes

the applicability of a foreseeability requirement to the issue of

proximate cause.

We therefore reverse that part of our decision in Kitchen Krajiers,

Inc.v.EastsideBunkofMontanu (1990), 242 Mont. 155, 789 P.2d 567, which

requires a two-tiered analysis of causation which includes

consideration of foreseeability in cases other than those cases

where there has been an allegation that the chain of causation is

severed by an independent intervening cause. There are several

reasons which compel this result. First, that part of the opinion

which suggests language for a proximate cause instruction

erroneously requires proof of an intentional act, rather than a

negligent act, when it suggests the following language:

[I]t must appear from the facts and circumstances

surrounding the accident . . . that defendant as an

ordinarily prudent person, could have foreseen that

plaintiff's injury would be the natural and probable

consequence of.the wrongful act.

Kitchen Krajiers, 242 Mont. at 169, 789 P.2d at 575.

Second, the requirement that foreseeability be considered as

part of proximate cause is redundant with the existing requirement

that foreseeability be considered as part of the analysis of duty.

Third, our statutory scheme of laws relating to liability

requires that foreseeability be considered as part of the

negligence analysis and that it not be considered as part of

proximate cause

Fourth, legal concepts such as "proximate causeM and

"foreseeability" are best left to arguments between attorneys for

consideration by judges or justices; they are not terms which are

properly submitted to a lay jury, and when submitted can only serve

to confuse jurors and distract them from deciding cases based on

their merits.

In those cases which do not involve issues of intervening

cause, proof of causation is satisfied by proof that a party's

conduct was a cause-in-fact of the damage alleged. As stated in

Prosser and Keeton on Torts 5 41, at 266 (5th ed. 1984), a party's

conduct is a cause-in-fact 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."

We hold that with the exception of those cases involving

allegations of independent intervening cause or multiple causes, it

is sufficient to instruct the jury, as recommended in 1989 by the

,.

Montana Supreme Court Commission on Civil Jury Instructions, that:

"The defendant's conduct is a cause of (injury/death/damage) if it

helped produce it and if the (injury/death/damage) would not have

occurred without it." Montana Pattern Instruction 2.08 (rev.

11/1/89).

In those cases where chain of causation is an issue (e.g.,

where there is an allegation of an independent intervening cause),

we recommend, as did the Commissionin1989, the following instruction:

The defendant's conduct is a cause of the (injury/

death/damage) if, in a natural and continuous sequence,

it helped produce it and if the (injury/death/damage)

would not have occurred without it.

Montana Pattern Instruction 2.08 (rev. 11/1/89).

In those cases where there are allegations that the acts of

more than one person combined to produce a result (e.g., when the

plaintiff alleges negligence and the defendant alleges contributory

negligence, or when there are multiple defendants), we acknowledge

that the recommended cause-in-fact instruction would be confusing

and misleading. Therefore, in those cases, we recommend continued

use of the substantial factor instruction approved in Rudeck v. Wright

(19851, 218 Mont. 41, 709 P.2d 621, and Kyrissv.State (l985), 218 Mont.

162, 707 P.2d 5. We further recommend that terms such as

cause" or If legal cause" and "reasonable foreseeability,

trproximate

which have some significance to lawyers and judges, not be allowed

to confuse jurors by the inclusion of those terms in jury

instructions. To the extent that foreseeability raises a jury

issue, it is adequdtely addressed by the definition of negligence

included in Montana Pattern Instruction 2.00.l To the extent that

foreseeability raises issues of public policy, such as those about

which Justice Andrews expressed concern in his dissent in P l g a ,

asrf

the subject is properly dealt with as an issue of law.

'Montana Pattern Instruction 2-.00 (rev. 2/7/91) defines

negligence as "the failure to use reasonable care. Negligence may

consist of action or inaction. A person is negligent if he fails

to act as an ordinarily prudent person would act under the

circumstances."

contributed to Delbert's fall and injuries. The issue was simply

whether the hospital was negligent by allowing its windows to

remain in a condition which would permit a patient to either escape

or fall through them. That issue was decided in Ida Bustals favor

based on proper instructions to the jury and was supported by

substantial and virtually uncontroverted evidence.

For these reasons, we conclude that the District Court did not

err when it refused to give the defendant's proposed instructions

which defined proximate cause and which stated the requirement that

decedent's injuries be foreseeable before causation could be

established; and that the District Court's failure to instruct the

jury regarding the meaning of cause-in-fact was harmless error.

ISSUE 4

Did the District Court err when it refused to offset benefits

received by Ida Busta from the Veterans' Administration against the

damages awarded for the decedent's wrongful death?

Following trial, the hospital moved the court pursuant to

,.

5 27-1-308, MCA, to deduct from the plaintiff's judgment that

amount Ida Busta received from the Veterans' Administration due to

her husband's death. Section 27-1-308, MCA, provides in relevant

part that :

(1) In an action arising from bodily injury or death when

the total award against all defendants is in excess of

$50,000 and the plaintiff will be fully compensated for

his damages, exclusive of court costs and attorney fees,

a plaintiff's recovery must be reduced by any amount paid

or payable from a collateral source that does not have a

subrogation right.

Section 27-1-307(1), MCA, defines "collateral sourceu as:

[A] payment for something that is later included in a

tort award and which is made to or for the benefit of a

plaintiff or is otherwise available to the plaintiff:

(a) for medical expenses and disability payments

under the federal Social Security Act, any federal,

state, or local income disability act, or any other

public program;

. . . .

(e) any other source, except the assets of the

plaintiff or of his immediate family if he is obligated

to repay a member of his immediate family.

The District Court denied the hospital's motion for offset for

the following reasons:

1. The court found that the heirs will not be fully

compensated for their damages, due to the reduction of their award

based on contributory fault;

2. The court found that the Veterans' Administration

benefits received by Ida Busta were not medical expenses or

disability payments, and therefore, not "collateral source" as

defined in § 27-1-307, MCA; and

3. The court found that the general nature of the

defendant's verdict form makes it impossible to determine what, if

any, amounts were awarded by the jury for a loss against which the

collateral source should be offset.

On appeal, the hospital contends that the death benefits that

Ida Busta received were included in the definition of "collateral

source" at subsection (1)(e) of § 27-1-307, MCA, by its reference

to "any other source."

However, it is not necessary that we resolve whether death

benefits from the Veterans1 Administration are included within the

statutory definition of "collateral source," or whether the

plaintiff has been fully compensated where her judgment has been

reduced by comparative negligence. Section 27-1-308, MCA, clearly

provides for reduction of only that part of a recovery which has

previously been compensated by a collateral source. In this case,

Ida Busta was awarded death benefits by the Veterans1

Administration for the economic loss which resulted from her

husband's death. The jury, on the other hand, was instructed that

its wrongful death damage award should include damages for not only

financial support which the heirs lost, but also for "the value of

the society, comfort, guidance, education, care, protection and

companionship which Ida Busta, William Busta and Charles Busta have

lost by reason of the death," and that its award should "include

reasonable compensation to them [the heirs] for their grief, sorrow

and mental anguish resulting from the death."

The jury returned a special verdict which awarded damages to

the heirs in the amount of $800,000. There is no indication from

the verdict form what, if any, amount of the verdict was for the

loss of Delbert's financial support. Therefore, there was no

method by which the District Court could calculate what, if any

amount, the hospital was entitled to offset by the amount of

previous Veterans' Administration death benefits awarded to Ida.

Because there was no factual basis upon which the District Court

could properly grant the hospital's motion for offset, the motion

was properly denied. For these reasons, we affirm the District

Court's denial of the hospital's motion for statutory offset

pursuant to § 27-1-308, MCA.

Based on our discussion of and holding regarding each of the

issues raised, we affirm the judgment of the District Court.

We concur:

Chief Justice

Justices

Justice Karla M. Gray, specially concurring

I concur in the Court's opinion on issues one and two and

specially concur on issues three and four.

With regard to issue three, which relates to the District

Court's failure to instruct on proximate cause, I agree with the

result the Court reaches on the issue and with most of its

discussion of our case law and other authorities vis-a-vis

foreseeability as an element of proximate cause. My one

disagreement with the Court in this regard is in its interpretation

of § 27-1-317, MCA. I do not read the statute as precluding the

consideration of foreseeability as part of causation. Conversely,

however, the statute certainly does not require us to consider

foreseeability in analyzing causation. Thus, I am persuaded by the

remainder of the authorities cited by the Court that we erred in

doing so in Kitchen Krafters where no intervening cause issue

required its inclusion.

With regard to issue four, whether the hospital was entitled

to offset the VA benefits Ida Busta received against the wrongful

death damages awarded, I concur in the Court's opinion. I

specially concur only to add that the hospital prepared the Special

Verdict which was submitted to the jury and which rendered it

impossible for the District Court to calculate whether any offset

was authorized (even assuming that the VA benefits met the

statutory definition of collateral source). If the hospital wanted

to assert entitlement to the offset, it was incumbent upon the

hospital to structure a verdict form which would make such a

1

Justice Charles E. Erdmann concurring in part and dissenting in

part.

T concur in the majority's opinion on Issues 1, 2, and 4, but

write separately to dissent on Issue 3.

I disagree with the majority's holding that the District

Court's failure to instruct on proximate cause was harmless error.

I am convinced that the failure to define proximate cause for the

jury was reversible error. In fact, the jury received no

instructions at all which defined causation. Furthermore, I

disagree with the majority's analysis of foreseeability as applied

to proximate cause and therefore dissent from the majority's

decision to overrule the requirement in Kitchen Krafters v.

Eastsi.de Bank of Montana (1990),242 Mont. 155, 789 P.2d 567, that

causation instructions include a discussion of foreseeability.

In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181,

we held that it was error for the lower court to not instruct on

proximate cause and stated that the question of proximate cause is

an issue of fact to be decided by the jury. Davis, 796 P.2d at

186.. In order to constitute reversible error, the lower court's

actions must affect the substantial rights of the complaining

party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (l989), 235

Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant

was not prejudiced by the court's failure to instruct on proximate

cause and therefore held the error to be harmless. Davis, 796 P.2d

at 187.

However, under the circumstances of the present case, I would

hold that the District Court erred in not instructing the jury on

proximate cause. A number of instructions given by the District

Court contained the phrase "proximate cause," but the jury was not

given the benefit of any guidance from the court on this crucial

concept. It is the duty of the court to instruct the jurors fully

and correctly on all applicable laws. Billings Leasing Co. v.

Payne ( 1 9 7 8 ) , 176 Mont. 2 1 7 , 2 2 4 , 577 P.2d 386, 390. As this Court

noted in Billinss Leasins Co.:

'I* * * In instructing the jurors, we must

assume that they have no knowledge of the

rules of law and that therefore, they must be

instructed on all points of law which, under

any reasonable theory, might be involved in

their deliberations, to the end that their

decision will be according to the law and the

evidence and untinged by any private and

possibly false opinion of the law that they

entertain."

Jury instructions are crucial to a jury's

understanding of the case and, unfortunately, counsel

cannot always" be relied upon to provide those

instructions. . . .

"It is the inescapable duty of the trial

judge to instruct the jurors, fully and

correctly, on the applicable law of the case,

and to guide, direct, and assist them toward

an intelligent understanding of the legal and

factual issues involved in their search for

truth. The cuurr must inshuct the jury properly on ll7e

controlling issues in the case even though there has been

no request for an instruction or the

instruction requested is defective."

Billinss Leasins Co., 577 P.2d at 390-91 (quoting McBride, The Art

of Instructins the Jury at 17 (1969), and Wright & Miller, Federal

Practice and Procedure, Civil § 2556).

In the present case, the hospital offered an instruction on

proximate cause which was refused by the District Court. The

plaintiff withdrew h e r instructions defining causation. As a

result, the jury was not instructed on the crucial concept of

proximate cause which is a key element in all negligence actions.

After analyzing foreseeability and proximate cause, the majority

determines this to be harmless error. I differ with the majority's

analysis and position on foreseeability and proximate cause and

conclude that the District Court's failure to define proximate

cause for the jury in this case was reversible error.

The majority claims it is redundant and confusing to j u r o r s to

f o c u s on foreseeability when analyzing both the "duty" element and

'Iproximate causen element of t h e tort of negligence. On t h e

contrary, I believe that such a dual analysis of foreseeability is

a necessary and reasonable analysis which has, unfortunately, been

complicated in Montana by the confusing wording of the Kitchen

Krafters instruction.

In Mang v . Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and

its progeny, we determined that the concept of foreseeability was

a part of the "dutyI1element. Ford v. Rupple (1972), 161 Mont.

56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167

Mont. 24, 534 P.2d 1247; Schafex v. State (1979), 181 Mont. 102,

592 P.2d 493; Pretty On Top v . City of Hardin (l979), 182 Mont.

311, 597 P.2d 58; Ambrogini v. Todd (l982), 197 Mont. 111, 642 P.2d

1013; Belue v. State (1982), 199 Mont. 451, 649 P.2d 752. The

majority agrees with the rationale of this line of cases but

concludes that, with the exception of cases involving intervening

superseding events, foreseeability should be restricted to the

"duty" analysis.

In Kitchen Krafters we applied the concept of foreseeability

to the element of causation and stated that "[plroximate cause is

normally analyzed in terms of foreseeability. Simply stated, one

is only liable for consequences which are considered to be

reasonably foreseeable." Kitchen Krafters, 789 P.2d at 575 (citing

Prosser and Keeton on Torts § 43 (5th ed. 1984) . The line of cases

which followed Kitchen Krafters, and which were not overruled by

the majority, repeated the requirement that foreseeability be

considered as part of proximate cause. See Thayer v. Hicks (19901,

243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457,

802 P.2d 1248; U.S.F.& G v. Camp (l99Z), 253 Mont. 64, 831 P.2d

586; King v. State (19931, 259 Mont. 393, 856 P.2d 954; Logan v.

Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v.

Mather (1995), 270 Mont. 188, 890 P.2d 1277.

As noted, the majority concludes it is unnecessary to address

foreseeability as part of the causation element, except in cases of

intervening superseding events. I disagree and submit that the

concept of foreseeability has a proper and distinct place in the

analysis of both "duty" and "causation" elements--both of which

must be satisfied in order to establish the prima facie case for

52

negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36;

McCain v. Florida Power Corp. (Fla. 19921, 593 So. 2d 500; Nelson

by Tatum v. Com. Edison Co. (111. App. 2d 1984), 465 N.E.2d 513.

The analysis of foreseeability in the "duty" context focuses

on whether or not the plaintiff was in the zone of danger to be

protected from the defendant's actions. As the New Mexico Supreme

Court has recently stated:

This case raises issues of duty and proximate cause.

Integral in both elements is a question of

foreseeability. In determining duty, it must be

determined that the injured party was a foreseeable

plaintiff--that he was within the zone of danger created

by respondent's actions; in other words, to whom was the

duty owed?

Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of

danger there was no duty and therefore no negligence. The Florida

Supreme Court has recently held that:

[Floreseeability relates to duty and proximate causation

in different ways and to different ends. The duty

element of negligence focuses on whether the defendant's

conduct foreseeably created a broader "zone of risk" that

poses a genera1,threat of harm to others.

McCain, 593 So. 2d at 502

Foreseeability in the "causation" context requires an analysis

of whether the circumstances surrounding the actual occurrence of

the plaintiff's injury were a foreseeable result of the defen

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