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