author: JUSTICE SHEEHY JUSTICE BARZ,

text:
    ART VENDER and MARY VENDER, Plaintiffs and Appellants, v. KEVIN D. STONE and ST. PAUL FIRE AND MARINE INSURANCE, Defendants and Respondents.
    No. 89-306.
    Submitted Sept. 20, 1990.
    Decided Nov. 9, 1990.
    Rehearing Denied Dec. 13, 1990.
    802 P.2d 606.

      Richard F. Gallagher, Church, Harris, Johnson & Williams, Great Falls, for plaintiffs and appellants.
    Robert J. Emmons, Emmons & Coder, Great Falls, for defendants and respondents.
    Kevin D. Stone, Great Falls, pro se.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This action arises out of a 1984 automobile accident in Great Falls, Montana, involving vehicles driven by the plaintiff, Art Vender, and the defendant, Kevin Stone. The jury verdict in the Eighth Judicial District Court, Cascade County, concluded that Art Vender was damaged in the amount of $3,313.90, Mary Vender incurred no damages, and Art Vender and Kevin Stone were each 50% negligent. The Venders filed a motion for new trial. When the District Court did not rule on the motion within the prescribed time, the Venders appealed. We reverse and remand for a new trial.

Appellants present two issues for review:

1. Did the District Cotut err in instructing the jury on comparative negligence?

2. Did the District Court err by disallowing oral testimony of Art Vender’s educational expenses and instructing the jury to disregard Vender’s previously admitted oral testimony of those expenses?

The collision occurred at the intersection of Twentieth Street and Tenth Avenue South in Great Falls, Montana, on April 18, 1984, at approximately 9:00 am. Vender, alone in his station wagon, approached the intersection traveling south on Twentieth Street. The intersection is controlled by a traffic light. When Vender approached the intersection, the light was red, and one car ahead of him was stopped waiting for the light to change. When the light changed, Vender pulled into the intersection, following the car ahead of him. Vender intended to make a left turn east on Tenth Avenue South. Here is the testimony from Vender as to what occurred:

“Q. What did you see when you approached the intersection of Twentieth Street South and Tenth Avenue South? A. There was a red light for me at the time I approached the intersection, and a car was stopped ahead of me so I stopped ...
“A. (Witness steps down from the witness stand and uses pointer for counsel.) I was stopped with the front of my car approximately back here because of the car ahead of me. Then when the light turned green, I proceeded out with my car where I was stopped in this area because the first car made a left turn and the car from the south — the first car there turned also, and then the other cars that were coming from the south, they were coming straight through, approximately three cars.
“Q. Alright. Stop there. Did you then have to wait for those cars coming straight through before you completed your turn? A. Yes. I was stopped right in here approximately waiting for those other cars to go straight through so that I could eventually make a left turn.
“Q. Alright. Then three cars cleared and then what did you do? A. I was going to make a left hand turn but then that’s when I was hit broadside from Mr. Stone.
“Q. From what direction were you hit? A. He was coming from the east. He was in this lane.”

At the time of this incident, Tenth Avenue South was laned for two lines of traffic in each direction. Defendant, Kevin Stone, was driving a GMC four-wheel pickup west on Tenth Avenue South on the inside lane of traffic. He drove into the intersection, and struck the stopped Vender vehicle on the driver’s side. Here is his testimony respecting the accident:

“Q. You have heard Mr. Vender’s testimony of what happened on April 18,1984, and how the accident occurred. I would like you to tell the jury your version, if you would, please, of what happened. A. I was going down Tenth in the left lane west, and when approaching the intersection I didn’t see the light and when I did look around, he was sitting in the middle of the intersection and I turned and tried and looked beside me to see if I could get over and it was kinda too late and I was skidding — and skidded out into the intersection and hit him in the left rear side.
“Q. Was there anything in your windshield or on your dash that obstructed your view of the road in front of you as you were going west in the left lane? A. No.
“Q. Was there traffic in your lane of travel? A. No.
“Q. Between you and the intersection? A. No.
“Q. You had a clear view of the intersection; is that correct? A. Yes.
“Q. Now you told the jury you didn’t see the light but that you did skid so you must have seen the light at some point and put on your brakes, is that correct? A. No. I saw Mr. Vender.
“Q. You never did see the light? A. No. I was trying — I was looking beside me and I was looking at him. I was going to try to miss him. I never did look at the light.
“Q. Did you see any other cars at the intersection or stopped at the intersection. A. On Tenth Avenue going west there was none ...
“Q. Were there any cars any other place that you noticed? A. Only one I noticed was the green station wagon in the intersection and it was —when I looked and made sure there was nobody beside me that I could go around him, it was too late and that was the only one I saw in the intersection...
“Q. I take it from your testimony that you didn’t see the red light that was in your lane of traffic. A. I didn’t see any light, no.
“Q. You didn’t know if the light was green, yellow or red, is that true? A. True.
“Q. Well, clear that up for me then. A. I said I looked to the right with my foot on the brakes already. I was on the brakes as soon as I seen him.
“Q. Alright. A. And I looked to the right and looked back around at his car and it was just too late to move over. I had to hit him no matter what and if there had been somebody beside me, I would have hit them too.
“Q. Okay. You didn’t have time to stop or to maneuver out so that you wouldn’t hit him? A. There was no time to stop. There was no time to stop.”

Over Vender’s objections, the District Court by its instructions, submitted to the jury the issue of the comparative negligence of both Vender and Stone. As a result, the jury returned a special verdict and attributed 50% of the cause of the accident to the negligence of Stone and 50% attributable to Art Vender.

There was other evidence in the case that the traffic light controlling the intersection, insofar as Twentieth Street was concerned, had sensors buried at the approaches to the intersection which triggered a change of light for traffic on Twentieth Street from red to green. The testimony indicated that regardless of the number of vehicles that may have come to a stop waiting on Twentieth Street to cross the intersection, the maximum green time for that crossing would be 27 seconds plus 3 seconds for the amber light.

There is no direct evidence in the record as to whether the traffic light facing Stone was red or green when he entered the intersection. The effect of Vender’s testimony is that he entered the intersection on Twentieth Street on a favorable green light and that he did not see if the light changed before the moment of collision. Stone argues that Vender’s light must have changed from green to amber to red before the collision, based on the testimony that the traffic light facing Vender would be green for no longer than 27 seconds, with an amber light of 3 seconds. Vender’s argument assumes without other evidence that the number of vehicles on Twentieth Street could not cross the intersection in that period of time.

It is our view of the law, however, when applied to the facts of this case, that Vender was lawfully in the intersection, and that Stone, even if the traffic light had turned green in his favor at the time he entered the intersection, had a duty to keep a lookout so as to see and observe the traffic lights and the stopped car of Vender in the intersection, and to control his speed in such manner as to be able to avoid colliding with the Vender vehicle. On that basis, as a matter of law, Stone was solely responsible for the accident. An examination of the statutes, and the law applicable thereto will explain why.

The key statute to be looked at is § 61-8-207, MCA. It provides:

“61-8-207. Traffic-control signal legend. Whenever traffic is controlled by traffic-control signals...the following colors ... shall indicate and apply to drivers of vehicles and pedestrians as follows:
“(1) Green alone or ‘Go’:
“(a) Vehicular traffic facing the signal may proceed straight through or turn left or right unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles ... lawfully within the intersection ... at the time such signal is exhibited. (Emphasis added.)”

Applying the foregoing statute to the facts of this case, Art Vender, traveling south on Twentieth Street, entered the intersection when the light turned green, relying on the statute that he could proceed straight through or turn left. He was required to yield the right-of-way to other vehicles lawfully within the intersection.

Stone, on the other hand, if the light had turned green when he had entered the intersection, was obliged to yield the right-of-way nevertheless to all other vehicles lawfully within the intersection.

A further statute required Vender, intending to make a left turn within the intersection, to yield the right-of-way to vehicles coming from the opposite direction. Section 61-8-340, MCA, provides:

“61-8-340. Vehicle turning left at intersection. The driver of the vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this chapter, may make such left turn, and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn. (Emphasis added.)”

When Art Vender entered the intersection driving south, he was faced with at least four vehicles also entering the intersection from the opposite direction, three of which were proceeding straight north. Because Vender intended to turn to the left, it was his duty under § 61-8-340, to yield the right-of-way to those vehicles in the intersection or approaching so closely so as to be an immediate hazard. All of this, under the facts of this case, Art Vender properly performed.

Moreover, Art Vender had properly stopped his automobile in the intersection under the facts of this case. Section 61-8-354, MCA, provides:

“61-8-354. Stopping, standing or parking prohibited in specified places-exceptions. (1) No person shall stop ... a vehicle, except... (2) ... when necessary to avoid conflict with other traffic ... (Emphasis added.)”

Vender entered the intersection and intended to make a left-hand turn, which he had a right to do. He was prevented from proceeding immediately through his left-hand turn by the approach of vehicles coming in the opposite direction on Twentieth Street. It was “necessary to avoid conflict with other traffic” that he stop in the intersection. He was, therefore, lawfully in the intersection when he was struck broadside by the oncoming vehicle driven by Kevin Stone. Vender testified that he did not see Stone before the collision or his vehicle, but Vender’s right to stop in the intersection in the circumstances is undoubted under the law.

“The driver of an automobile which enters an intersection on the green light ordinarily is entitled to continue until he clears the intersection, even though the green changes to amber and the amber to red before he completes the crossing, while traffic awaiting on intersecting streets the change of lights must ascertain whether the intersection is clear before starting to cross.”

Blashfield, Automobile Law and Practice, Vol. 3, p. 96, § 114.42 (1965).

Even if Stone had a green light in his favor as he entered the intersection, he was still required under § 61-8-207, MCA, to yield the right-of-way to other vehicles lawfully within the intersection. As the Washington Court said in Lanegan v. Crauford (1956), 49 Wash.2d 562, 304 P.2d 953, 955:

“Agreen light is not a command to go, but only a limited permission to pass, having due regard for those already lawfully in the intersection. (Citing cases.)
‘Vehicles rightfully in a light-controlled intersection have a reasonable opportunity to clear the intersection. (Citing cases.)
“Such is the imperative command of the statute, Laws of 1951, Ch. 56, § 3, p. 165, R.C.W. 46.60.230:
“ ‘But vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully in the intersection or an adjacent crosswalk at the time such signal is exhibited....’ ”

304 P.2d at 955.

Stone’s duty to keep a lookout as he approached the intersection and entered it is well settled in Montana law. His duty to keep a lookout implied his duty to see what was in plain view, and what should be seen in the exercise of reasonable care. Johnson v. Herring (1931), 89 Mont. 156, 295 P. 1100. A driver must look not only straight ahead but laterally ahead, Autio v. Miller (1932), 92 Mont. 150, 11 P.2d 1039. A person is presumed to see, and therefore to know, that which he could see by keeping a lookout. McNair v. Berger (1932), 92 Mont. 441, 15 P.2d 834; Marinkovich v. Tierney (1932), 93 Mont. 72, 17 P.2d 93.

The failure of a motorist approaching a controlled intersection to see what was plainly visible or obviously apparent makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care. Drury v. Palmer (1962), 84 Idaho 558, 375 P.2d 125; Hughes v. Hooper (1967), 19 Utah 2d 389, 431 P.2d 983.

It is not to be doubted that the primary duty of lookout in a light-controlled intersection rests upon the disfavored driver, but this does not excuse the favored driver from his duty of reasonable care in approaching and entering the intersection, including the duty owing here to other traffic. In this case, Stone contends that Vender failed to keep a lookout because he didn’t see Stone before the collision. Granting this, Vender’s lack of lookout was not a proximate cause of the accident because up to and at the moment of collision, his vehicle was in a helpless position as far as approaching traffic from Stone’s direction is concerned.

The evidence is clear that Stone not only failed to keep a lookout, but failed to obey the basic speed rule contained in § 61-8-303, MCA. That rule is stated as follows:

“61-8-303. Speed restrictions basic rule. (1) A person operating or driving a vehicle ... on a public highway of this state shall drive it in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation,... and he shall drive it so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.
“(5) The driver of a vehicle shall, consistent with subsection (1), drive at an appropriate reduced speed when approaching and crossing an intersection ... and when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.”

The forégoing applicable statutes cannot be construed in any other way but that Vender was lawfully in the intersection at the time that his vehicle was struck by the Kevin Stone vehicle, and that Kevin Stone alone was driving negligently, if not recklessly, to cause the collision.

Only in exceptional circumstances will a favored driver be in fault for a collision in a light-controlled intersection, when the favored driver could have avoided the accident by exercising the slightest observation and care. Smith v. Regional Transit Authority (La.App. 4, 1990), 559 So.2d 995. When, as here, the facts are undisputed and susceptible of only one inference, questions of fact become a matter of law. We determine that Kevin Stone was solely responsible for the collision which occurred in this case.

It is necessary, therefore, for us to reverse the judgment of the District Court and remand this cause for a new trial on the issue of damages, the liability having been determined as a matter of law.

The second issue raised by the appellants relates to the denial of evidence by the District Court in the first trial on damages issues. The question of admissible testimony arose in the first trial because of discovery complications upon which the District Court ruled to eliminate the evidence. Since we are remanding this cause for a new trial, we assume that proper discovery will be made before the next trial and we have no need, therefore, to determine the damages questions raised by the second issue of the appellants.

Cause remanded for new trial in the District Court on the issue of damages only.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and HUNT concur.

JUSTICE BARZ,

'dissenting:

I dissent.

A jury found that Art Vender was fifty percent negligent. On appeal we are limited to a determination of whether the verdict is supported by substantial credible evidence. A great deal of evidence indicated that while Vender entered the intersection with a green light, the light may have changed while Vender was stopped in the intersection waiting for four or five northbound cars to go by before he could attempt a left turn.

“The jury was not compelled to believe plaintiff’s testimony. The jury viewed the evidence, heard and viewed the witnesses, and entered its verdict. To permit the undoing of this verdict by affirming the trial court decision granting a new trial, would, in the language of Nelson v. Hartman (1982), [199 ] Mont. [295], 648 P.2d 1176, 1179, 39 St.Rep. 1409, 1412, ‘... create a bench supremacy and sap the vitality of jury verdicts.’ (Emphasis added.)”

Maykuth v. Eaton (1984), 212 Mont. 370, 372-73, 687 P.2d 726, 727.

The jury in the instant case obviously had trouble believing Vender’s testimony on liability and damages. The jury verdict should be affirmed.

JUSTICES WEBER and McDONOUGH join in the foregoing dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN THE MATTER OF MARVIN W. QUINLAN, JR., An Attorney and Counselor at Law.
    No. 90-236.
    Nov. 29, 1990.
    801 P.2d 1337.
   CHIEF JUSTICE TURNAGE

delivered the Order.

ORDER AND PUBLIC CENSURE

The following proceedings were had before this Court in its Courtroom in the Justice Building in Helena, Montana, on Thursday, November 29, 1990, beginning at 10:30 a.m.

CHIEF JUSTICE: This is the time and place set under our order of November 8, 1990, for the public censure of Marvin W. Quinlan, Jr., as an attorney and counselor at law admitted to the Bar of this state.

Mr. Quinlan, will you please come to the speakers’ stand in the well of the Court?

Are you, Marvin W. Quinlan, Jr., one and the same person as the attorney named in this proceeding?

MARVIN W. QUINLAN, JR.: Yes.

CHIEF JUSTICE: Are you represented by counsel at this time?

MARVIN W. QUINLAN, JR.: No.

CHIEF JUSTICE: One of the justices will now deliver the public censure of this Court.

ADMINISTERING JUSTICE: Mr. Quinlan, you are before this Court today because of a report in the form of findings of fact, conclusions of law and recommendation submitted to this Court by the Commission on Practice on June 21, 1990.

You have been provided with a copy of that report but for the purposes of this proceeding, a review of the report is in order.

A formal complaint was filed against you by the Commission on Practice in this Court on May 7,1990, and thereafter, formal proceedings ensued in connection with the complaint against you.

The complaint alleged in Count I, that on October 31, 1988, you, acting in your capacity as County Attorney for Rosebud County, conducted an interview at the Rosebud County Jail with one John Richter, also known as John Johnson, at a time when Richter was represented by counsel. It was alleged that the interview related to matters within the scope of the representation of Richter by other counsel. It was further alleged that you had acknowledged that the interview had taken place out of the presence and without the consent of Richter’s counsel. Accordingly, in Count I you were charged with violating the provisions of Rule 4.2 of the Rules of Professional Conduct adopted by this Court.

In Count II, the complaint alleged that the Commission on Practice had issued and ordered you to appear before the Commission in its meeting place on April 20, 1990. You were served with a copy of that order by certified mail, and a return receipt showed that you had received it on March 19, 1990. Nonetheless, you failed to appear at the time and place designated by the Commission in its order to appear.

Count II further alleged that no justification or excuse or grounds for your failure to comply with the order was proffered. In so failing to comply with the lawful order of the Commission or to state grounds for refusal to do so you violated Rules 7(f) of the Rules for Lawyer Disciplinary Enforcement.

A hearing on the complaint by the Commission against you was eventually commenced on Thursday, May 31, 1990, in accordance with notices provided to you and of which you acknowledged receipt. Again you failed to appear and defend the allegations contained in the complaint although given full opportunity to do so. Moreover, you have filed no written response to the allegations in the complaint.

The matter of your nonappearance greatly concerned the Commission. The Chairman of the Commission, Rockwood Brown, got in touch with you by telephone on the date of the ordered hearing, and Mr. Brown reported to the Commission that you did not intend to attend the hearing of your own volition but that you would file a response to the complaint at a later date. The time had already passed for a response from you. The Chairman reported that you offered no explanation for not appearing and the Commission had no choice but to proceed in your absence.

The proceedings that followed resulting in the report to which we have adverted, the findings of fact, conclusions of law, and the recommendation from the Commission on Practice that you would be publicly censored by this Court, that you be directed to pay the costs of the proceedings against you, and that you be suspended from the practice of law for a period of ten days.

In accordance with the rules in such cases made and provided, you were then given thirty days by this Court to respond to the report of the Commission and to make any objections to its findings or conclusions which you might have. You made no such formal response, but did send a letter on July 25,1990, to Rockwood Brown, the Chairman of the Commission on Practice, which is now in this file and about which there might be some comments later from members of this Court.

This Court requested the Commission on Practice to review your letter of July 25, 1990, and we were informed by the Commission on Practice that in the light of the letter, it found no reason to reconsider or modify its report, findings of fact and conclusions. Accordingly, on October 19, 1990, this Court adopted and approved the findings of fact, conclusions of law and the recommendation for public censure which brings you before this Court on this day. We have reserved for a future order the question whether you should pay the costs of these proceedings, and whether you should be suspended in accordance ■with the recommendation of the Commission.

This censure will focus for the present on the uncontested proceedings before the Commission on Practice and the matters raised by the findings and conclusions for which no proper defense has been given, and which this Court must find as true.

It was clearly improper for you as a lawyer to communicate with the client of another lawyer about the subject of the representation of that client by the other lawyer without the consent of the other lawyer, outside of his presence, and without the authority of the lawyer or any authority of law to do so. That requirement is set out in Rule 4.2 of the Rules of Professional Conduct promulgated by this Court. Such a violation of the Rules would be a very serious matter if it occurred in a civil proceedings. It is doubly serious when the rule is violated by a county attorney representing the state, interviewing a charged defendant outside the presence of his lawyer, without authority, without consent, in surroundings totally dominated by law enforcement personnel. You were not simply an attorney representing a civil client and impermissibly stepping over the line — you were violating the very essence of the concepts of fair trial and right to counsel guaranteed by our state and federal constitutions to every person charged with crime.

We gather from your letters and from the responses of your deputy, Gary Ryder, that the methods employed by the charged person’s lawyer in his representation of Richter were reprehensible to you, and were such that you felt they obstructed the course of the administration of justice. Those factors, however, were not a sufficient excuse for you to take matters into your own hands, and go to the client of another attorney, and extract information about the representation that client was receiving from his attorney and admissions which may have led to his eventual conviction. That kind of representation of the State of Montana in criminal cases cannot be tolerated by this Court and you are hereby very strongly censured for having so acted.

Then comes the matter of your refusal to cooperate, in effect, with the Commission on Practice, when the complaint was made against you. You did not respond, you ignored letters and you left the members of the Commission in the dark as to whatever reasons you may have had for the allegations against you. In so doing, you violated Rule 9(c) of the Rules of Lawyer Disciplinary Enforcement promulgated by this Court.

Mr. Quinlan, when you applied for admission to the Bar in this state, you signed an oath that you would strive to uphold the honor and to maintain the dignity of the profession to improve not only the law but the administration of justice. You have not followed that oath.

When you were sworn in before this Court and admitted to practice law in the courts of this state, you further took an oath that you would faithfully discharge the duties of an attorney to the best of your knowledge and ability, and you specifically accepted and said you would faithfully follow the Rules of Professional Conduct promulgated by this Court. You have violated that oath also.

Mr. Quinlan, if you are going to remain as a lawyer admitted to the Bar in this State, we warn you that the Rules of Professional Ethics, and the Rules for Professional Disciplinary Enforcement are worth more than the paper on which they are written. They were meant to be enforced and lived up to and no lawyer can be permitted to pick and choose among the rules so promulgated and to observe those to which he accedes and ignore the others at his own suit. You are hereby publicly censured. This proceeding is a blot on your record as a lawyer, a blot that you cannot remove, but for which you may atone, if in the future, if you study anew and observe in the future those rules which are set out not for your protection but for the protection of the public.

We will now proceed to discuss with you the other recommendations of the Commission upon which a further Order from this Court will ensue.

ORDER

In view of the foregoing, and in accordance with the report and recommendation of the Commission on Practice heretofore submitted to this Court in this cause, you are hereby publicly censured. You are served herewith a copy of this public censure and a copy shall be delivered the Secretary of the Commission on Practice for keeping in its files.

Done and Dated this 29th day of November, 1990, under the authority imposed on us under Art. VII, § 2(3), of the Montana Constitution.

s/ J.A. Turnage, Chief Justice

s/ John Conway Harrison, Justice

s/ John C. Sheehy, Justice

s/ Diane G. Barz, Justice

s/ William E. Hunt, Sr., Justice

s/ R.C. McDonough, Justice

s/ Fred J. Weber, Justice


author: JUSTICE WEBER JUSTICE SHEEHY,

text:
    CLINTON LOVE and ROSEMARY LOVE, Plaintiffs and Appellants, v. HARLEM IRRIGATION DISTRICT, LARRY MOHAR and GILBERT L. ANDERSON, Defendants and Respondents, CLINTON LOVE and ROSEMARY LOVE, Plaintiffs and Appellants, v. KNUTE KULBECK, Defendant and Respondent.
    No. 90-094.
    Submitted on Briefs Sept. 27, 1990.
    Rehearing Denied Jan. 10, 1991.
    Decided Dec. 4, 1990.
    802 P.2d 611.

      David L. Irving, Glasgow for Plaintiffs and Appellants.
    Robert D. Morrison and Kathleen H. Richardson; Morrison, Young, Melcher, Brown & Richardson; Havre, for Defendants and Respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

When the Harlem Irrigation District discontinued delivery of water to the Loves for failure to pay water assessments, Loves brought suit against the Irrigation District for failure to give adequate notice. The District Court of the Seventeenth Judicial District, Blaine County, granted the defendants motion for summary judgment based on immunity. From that order, plaintiffs appeal. We affirm.

The sole issue for our review is: Did the District Court err in granting summary judgment in favor of defendants on the basis of immunity?

Plaintiffs (Loves) owned and operated a family farming and ranching operation located within the Harlem Irrigation District (Irrigation District) located in Blaine County, Montana. The Irrigation District was established pursuant to § 85-7-101, MCA, and is a public corporation for the promotion of the public welfare. The commissioners of the Irrigation District are qualified and elected pursuant to state law. §§ 85-7-1501 and 85-7-1702, MCA. The individual defendants, Larry Mohar (Mohar), Gilbert L. Anderson (Anderson) and Knute Kulbeck (Kulbeck) were the commissioners for the Irrigation District at the time relevant to this litigation.

The Loves were members of the Irrigation District since 1967. As such members they were assessed bi-yearly taxes for the operation of the Irrigation District. The Loves paid their assessment up to and including the installment for the first half of 1980. However, the second installment for 1980 and all subsequent installments up to the time of this litigation were not paid.

On May 12, 1983, the Irrigation District sent a certified letter to the Loves which read:

“Dear Mr. and Mrs. Love:
“It was brought to the attention of the Board, dining the State audit which was completed in March, 1983, that water assessments on your property are more than two years in arrears. Pursuant to Montana Law Section 85-7-1902, the Harlem Irrigation District wishes to advise you that as of May 25, your water service will be terminated unless delinquent water assessments are paid.
“We regret that this action has become necessary. We also wish to advise you that delinquent water assessments may be paid separately when county taxes are also delinquent.
“If payment has been made since May 9, please disregard this notice.
“Sincerely yours,
“/s/Gilbert L. Anderson
“President”

The letter was not picked up by the Loves and was returned to the Irrigation District. The water assessment was not paid and water was not delivered to the Loves. The Loves’ claim that their crops failed as a result.

Loves filed suit on August 5, 1983, alleging that the Irrigation District and the individual commissioners were liable for crop losses and punitive damages. On November 28, 1983, the District Court ruled that the Loves were not in fact two years delinquent in their water assessments until 5:00 p.m., May 31, 1983. The Irrigation District erred in its position that the Loves were delinquent prior to that date.

Discovery and litigation continued, and six years later, on November 9, 1989, the District Court entered its order allowing the defendants to amend its answer to raise immunity as an affirmative defense. Final judgment was entered on November 20,1989, granting defendants motion for summary judgment on the grounds of immunity.

On December 4,1989, the Loves made a motion to amend the order and for new trial based, in part, upon newly discovered evidence. The District Court ruled that the new evidence was incompetent, and declined to reverse its summary judgment. This appeal followed.

Did the District Court err in granting summary judgment in favor of defendants on the basis of immunity?

The Loves argue that under Montana law, the immunity issue is considered an affirmative defense. They maintain that the defenses of laches and estoppel should control since defendants had never raised the immunity defense through six and one-half years of litigation. Loves further contend that defendants are not immune because they did not act as a legislative body.

Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment and summary judgment is never a substitute for a trial on the merits. Hoven v. First Bank (N.A.) - Billings (1990), [244 Mont. 229,] 797 P.2d 915, 47 St.Rep. 1563.

In this case there are no genuine issues of material fact. The Irrigation District is clearly a “governmental entity” within the meaning of § 2-9-111, MCA. As defendants point out, “governmental entity” includes “political subdivisions” as defined in § 2-9-101(5), MCA:

“ ‘Political subdivision’ means any county, city, municipal corporation, school district, special improvement or taxing district, or any other political subdivision or public corporation. (Emphasis added).”

Section 85-7-109, MCA, provides:

“Every irrigation district so established is a public corporation for the promotion of the public welfare, and the lands included therein shall constitute all the taxable and assessable property of such district for the purposes of this chapter. (Emphasis added).”

Under § 2-9-111(2), MCA, a “governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.” Harlem Irrigation District is clearly a governmental entity immune from suit under these definitions. Under § 2-9-111(3), MCA, the commissioners individually are immune as members of a legislative body who are immune from suit for damages arising from action by the legislative body.

The Loves urge that defendants waited too long to raise immunity as a defense. We disagree. Rule 15(a), M.R.Civ.R empowers the district courts with broad discretion to grant leave to amend. In Priest v. Taylor (1987), 227 Mont. 370, 378, 740 P.2d 648, 653, this Court stated:

“Rule 15(a) declares that leave to amend shall be freely given when justice so requires; this mandate is to be heeded. ... If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”

Here, the District Court allowed the amendment “in the furtherance of justice” and “in order that all issues could be given full consideration.” The District Court pointed out that at no time did the Loves ask for time for further discovery. In addition, the Loves failed to submit evidence showing they were prejudiced by the amendment.

We hold that the District Court correctly granted summary judgment in favor of defendants on the basis of immunity. Therefore, we conclude that we need not discuss the other issues raised by the parties.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and McDONOUGH concur.

JUSTICE SHEEHY,

dissenting:

I dissent as vigorously as I can from this reckless court grant of immunity to irrigation districts and their commissioners. The majority decision is a follow-up from Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145, Peterson v. Great Falls School District No. 1 (1989), 237 Mont. 376, 773 P.2d 316, [8 Ed Law 61,] and State ex rel. Eccleston v. District Court (1989), 240 Mont. 44, 783 P.2d 363, 8 Ed Law 146G]. In Eccleston, in my dissent, I stated that the immunity trilogy was the most extensive, even of monarchical history, and that the majority had excused the king’s men, his feudal lords and all their vassals, 783 P.2d at 370 (Sheehy, J. dissenting). This case demonstrates the dire results from granting immunity to the feudal lords.

Section 2-9-111, MCA, is a grant of legislative immunity. Neither the irrigation district nor its commissioners were acting legislatively in this case. In holding non-discretionary functions of administrative decisions to be legislative in character, and therefore entitled to immunity, the majority have stretched to a greater extent than any other court the concept of the legislative activity. In Utah, where the Supreme Court of that state holds that state discretionary functions of governmental agents are entitled to immunity, ordinary routine matters at the operational level are not considered to be discretionary functions. That court has recently said in Hansen v. Salt Lake County (Utah 1990), 794 P.2d 838, 846 (Durham, J.):

“Because we do not know which of defendant’s arguments the trial court accepted in granting defendant’s first motion to dismiss, we must also address Hansen’s contention that defendant’s actions were not discretionary functions for which the immunity generally waived for negligence is specifically retained. Utah Code Ann., § 63-30-10(l)(a).
“As early as Carroll v. State Road Commission, 27 Utah. 2d 384, 496 P.2d 888 (1972), we held that discretionary functions are those requiring evaluation of basic governmental policy matters and do not include acts and decisions at the operational level — those everyday, routine matters not requiring ‘evaluation of broad policy factors.’ 27 Utah.2d at 389, 496 P.2d at 891. We noted in Frank [v. State, 613 P.2d 517 (1980)] that the discretionary function exception is ‘intended to shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseeable ways from individual and class legal actions, the continual threat which would make public administration all but impossible.’ Frank, 613 P.2d at 520.
“In Doe v. Arguelles, 716 P.2d 279, 283 (Utah 1985), we held that a ‘decision or action implementing a preexisting policy is operational in nature and is undeserving of protection under the discretionary function exception.’ In that case, a 14-year-old was sexually assaulted by a juvenile offender who was on placement in the community but had not been discharged from the Youth Detention Center. The victim’s guardian sued the juvenile offender, the state, and the supervising probation officer, the latter two defendants on the theory of negligent supervision. Although we recognize that ‘a probation officer’s policy decisions are discretionary,’ we held that ‘acts implementing the policy must be considered by a case-by-case basis to determine whether they are ministerial and thereby outside the immunity protections/ Id. The case had been decided below on summary judgment and reversed and remanded for trial.
“The County argues that in its efforts to remove obstacles from the natural channel of Big Cottonwood Creek as part of its flood control program, its conduct necessarily involved an exercise of judgment and constituted a discretionary function. We disagree. We rejected this literal interpretation of ‘discretionary’ in our earliest cases involving section 63-30-10(l)(a). (Citing a case.)”

794 P.2d at 846.

The maj ority of this Court has persisted in considering that routine everyday matters of administering governmental agencies or public corporations are legislative acts, and covered under the legislative immunity provisions of § 2-9-111, MCA. That erroneous concept has created a flood of decisions now rising to this Court from the District Courts, all because the District Courts are taking the majority at their word, and applying legislative immunity to every possible act of government.

In this case, the implications of immunity are frightening. Although § 85-7-1913, MCA, requires the Board of Commissioners of an irrigation district to keep a complete book and record of all of its actions, minutes of meetings and “other matters of every kind pertaining to or belonging to the irrigation district” no such record was kept here. No order or resolution of the Board of Commissioners exists which would show an official action on the part of the Board to discontinue the water to the Loves. The District Court in this case had already decided that when the water was cut off from the Loves by the persons acting in the purported role of the Commissioners, their tax assessments were not delinquent so as to require the suspension of the water rights. In consequence, their farm did not receive the water it needed and they lost an entire crop year and perhaps other losses not now detailed before us.

The majority ought to be thinking what this decision means to every water user in an irrigation district in Montana: Under this decision, the district and its agents are immune not only for their negligent acts but for their willful and wanton acts which constitute a tort.

The right of an irrigation district to regulate, supervise and apportion water under § 85-7-1922, MCA, does not apply to users in the district who have water rights or ditch rights established by court decree, use, appropriation or otherwise. Yet, under this decision, the negligent or wanton refusal of the District to supply the water to which the member of the District may otherwise be lawfully entitled mil subject the irrigation district and its agents to no liability, in spite of such water rights.

Thus, all water users within an irrigation district face the same risk of ruin that the Loves in this case have endured. The Commissioners apparently wrongfully deprived them of their water, and this Court says they have no recourse at law.

Well might public officials and commissioners of irrigation districts salute the majority of this Court. Immunity is never having to say you’re sorry.

JUSTICE HUNT concurs with the foregoing dissent of JUSTICE SHEEHY.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF JAMES LLOYD HERMAN, Petitioner and Cross-Appellant, and ELAINE GLENNA HERMAN, Respondent and Appellant.
    No. 90-036.
    Submitted Sept. 27, 1990.
    Decided Dec. 11, 1990.
    802 P.2d 623.

      Leo J. Kottas, Sr., Helena, for petitioner and cross-appellant.
    Elaine Glenna Herman, Helena, pro se.
   JUSTICE HUNT

delivered the Opinion of the Court.

In September of 1989, the Lewis and Clark County District Court entered a decree of dissolution of the marriage of James Lloyd Herman (husband) and Elaine Glenna Herman (wife). Elaine Herman appeals from the District Court’s award of property, maintenance, child support and attorneys’ fees; James Herman cross-appeals from the award of attorneys’ fees. We affirm.

The issues for review are:

1. Whether the District Court erred in its property division.

2. Whether the District Court erred in its maintenance award.

3. Whether the District Court erred in its child support award.

4. Whether the District Court erred in its attorneys’ fees award.

Husband filed a petition for dissolution of marriage in Lewis and Clark County in October of 1984. On August 11, 1986, the court appointed a Special Master to make proposed Findings of Fact and Conclusions of Law on all matters of property division and child support, and on wife’s request for maintenance and attorneys’ fees. From evidence presented at the hearing, the Special Master prepared findings and conclusions to which wife had certain objections. A hearing held on December 19, 1988, disposed of these objections and provided a basis for issuing a final decree. Evidently a discrepancy arose between the proposed final decrees prepared by the parties, and the court ordered a transcript be prepared of the proceedings that had occurred before the Special Master. Upon review of that transcript, the court issued an opinion and order on July 17, 1989, in which it adopted and clarified the rulings of the December 1988 hearing. A decree of dissolution was entered on September 27, 1989. From this decree, wife and husband appeal.

The first issue raised on appeal by wife is whether the District Court erred in its property division.

Wife contends that the District Court overvalued the family home which she was awarded as part of the property settlement. She protests that “if the most recent evidence of value is used for the home,” she would be awarded less than $30,000 in equity. “The Master awarded the Petitioner more than that in missing cash,” she states. However, the Special Master, after hearing conflicting testimony as to the value of the house, chose the estimate of the appraiser he determined to have the best qualifications. He found that the value was almost $40,000 higher than that which wife would have had him adopt. He thus concluded that that sum, coupled with the other property awards he made, provided her with ample resources to reestablish herself.

As to the remainder of the personal property, wife contends that the Special Master did not properly consider assets that were gained through inheritance or gift. Our review of the record shows that the Master used utmost care in considering the whole estate of the parties, and simply divided things as he saw fit according to the evidence. The issues of missing and undisclosed property were likewise considered. The Special Master’s findings, adopted by the District Court, indicate that wife was awarded the “far greater portion of the property” to provide her sufficient property to attend to her needs.

Deference is given to the trial court when faced with conflicting evidence. “Unless there is a clear preponderance of the evidence against the District Court’s valuation, its findings, where based on substantial though conflicting evidence, will not be disturbed on appeal.” Marriage of Milesnick, 235 Mont. 88, 95, 765 P.2d 751, 755 (1988). Here the District Court, through the Master’s special investigation, made a reasonable finding on the value of the house and the property after carefully considering all of the evidence before it. Finding no clear preponderance of evidence to the contrary, we will not disturb its finding.

The next issue raised on appeal is whether the District Court erred in its maintenance award.

Wife contends that the District Court should have awarded her permanent maintenance. The court awarded wife maintenance in the sum of $1,000 per month for twelve months. Wife contends that because she has been absent from her career for a number of years, the one year award does not give her sufficient time to reestablish herself in her teaching career. She contends that she is entitled to three years temporary maintenance of $800 per month, plus permanent maintenance based on forfeiture of twenty years loss of professional advancement.

The relevant factors to be considered in determining the amount and duration of the maintenance award are set out in § 40-4-203 (2), MCA. That section provides:

“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

We realize that the District Court faces a considerable task in determining a maintenance award. Our standard of review in dissolution cases is accordingly limited. We will not disturb a District Court’s judgment that is based on substantial credible evidence, unless a clear abuse of discretion is shown. In Re Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988).

In the present case, the Special Master awarded what he deemed as a far greater portion of the property to wife to provide for her reasonable needs. Because wife does not suffer from a disability and has no health problem that prevents her from working, and because she has apparently obtained sufficient college credits to allow her to return to work as a teacher, the Special Master found that she would probably soon find appropriate employment. By awarding her the substantial balance of the property, he presumed she would be able to maintain the standard of living established during the twenty year marriage. Further, although wife did not accumulate the retirement benefits she would have received had she remained a teacher throughout the marriage, she was awarded nearly one-half of husband’s accumulated PERS account. In short, while husband was in the best position to acquire assets during the marriage, the Master took special care to consider wife’s non-monetary contribution during most of the marriage when computing her maintenance award.

The District Court’s adoption of the Special Master’s findings was clearly based on substantial credible evidence. The Master heard days of testimony and examined copious exhibits before making his findings and conclusions. The District Court thoroughly reviewed the outcome, even to the extent of having another hearing on objections. We therefore find no abuse of discretion.

The next issue raised on appeal is whether the District Court erred in its child support award.

The District Court awarded wife $570 per month for support of the parties’ minor child. Husband is also ordered to maintain health insurance for the child. Wife claims that the Master erred when considering the child’s needs and should have awarded a monetary compensation for the learning disabled child, and further should have awarded wife a $200 per month custodial fee.

Again the Special Master was confronted with conflicting evidence, and in some areas of contention, no evidence at all. As stated above, when faced with conflicting evidence, we give deference to the trial court’s decision. The reason is apparent. ‘When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible. Having had the opportunity to observe the witnesses, the trial court is in a position superior to that of the appellate court to judge the credibility of the testimony.” Milesnick, 235 Mont. 88, 95, 765 P.2d 751, 755 (1988). Here the Special Master evaluated the evidence regarding the child, as did the District Court. We are particularly alert to allegations of unfairness when it comes to the care of a minor, and in this case, disabled child. However, our review of the decision, coupled with the District Court’s review, convinces us of its soundness. We affirm the child support award.

The last issue raised on appeal is whether the District Court erred in its attorneys’ fees award.

Both of the parties contest the attorneys’ fees award in this appeal. Husband who has been ordered to pay one-half of wife’s attorneys’ fees objects on the ground that no hearing was held on any of the fees and that he had no opportunity to cross-examine the attorneys on the value of their services. However, the record discloses that there was a hearing at which husband, his attorney and wife’s then attorneys were present. At that hearing counsel fees were discussed and apportioned by the court in the presence of husband and comas el of record and all agreed on the figures calculated by the court. Following the discussion of the calculations, the court set the fees and agreed to hold a hearing on the fees upon the request of any party. No hearing was ever requested. The court ordered husband to pay one-half of wife’s attorneys’ fees. We find no abuse of discretion.

Affirmed.

JUSTICES HARRISON, BARZ, WEBER and McDONOUGH concur.


author: JUSTICE WEBER

text:
    KATRINA B. KIGER and DONALD D. KIGER, Plaintiffs and Appellants, v. THE STATE OF MONTANA; The State of Montana Department of Institutions; the State of Montana Parole Board, Defendants and Respondents.
    No. 90-115.
    Submitted on Briefs Aug. 16, 1990.
    Decided Dec. 11, 1990.
    802 P.2d 1248.

      Susan J. Rebeck, Richard Dzivi, Great Falls, for plaintiffs and appellants.
    Dana L. Christensen; Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiffs, Katrina and Donald Kiger, brought this action in the Eleventh Judicial District, Flathead County, to seek damages for the October 28,1985 shooting of Katrina Kiger by Danny Arledge who had been paroled from the Montana State Prison on October 10,1985. The court granted summary judgment in favor of all three State defendants. Plaintiffs appeal. We affirm.

We restate the issues as follows:

1. Was it foreseeable that Arledge would shoot Kiger upon his release on parole because the Department allegedly miscalculated Arledge’s parole eligibility date?

2. Was it foreseeable that Arledge would shoot Kiger upon his release on parole because the Department failed to inform the Board of marijuana use by Arledge in Prison?

Katrina Kiger was critically injured on October 28,1985, by Danny Arledge who shot her while attempting to steal her car in downtown Kalispell 18 days after he was paroled from the Montana State Prison. Prior to parole Arledge had been serving prison terms for forgery, burglary, theft, and escape from a halfway house.

In their complaint, plaintiffs alleged that the State of Montana (State), the Department of Institutions (Department) and the Parole Board (Board) were negligent during the parole process of Arledge.

The State filed a Motion for Summary Judgment, asserting that the Board is immune from suit, that there is a lack of causation between the numerous alleged acts of negligence and the shooting of Kiger by Arledge, a lack of foreseeability, and that there was no breach of duty on the part of the State, the Department, or the Board.

After the filing of extensive briefs by the parties and a hearing, the District Court granted Summary Judgment, holding that:

(1) The Board is a quasi-judicial agency and is entitled to absolute immunity.

(2) The Board, the Department and State are not negligent because they could not reasonably foresee that their decisions, actions or omissions would lead to the actions of Danny Arledge or the injuries of Plaintiff Katrina Kiger.

Plaintiff concedes that the Board is immune but appeals as to the State and the Department.

I.

Was it foreseeable that Arledge would shoot Eager upon his release on parole because the Department allegedly miscalculated Arledge’s parole eligibility date?

Section 46-18-401(5), MCA, and A.R.M. 20.25.304(2), establish the rules for calculating sentences for purposes of parole when additional or consecutive sentences are involved. Statutorily the Department has a duty to properly calculate parole eligibility dates. Because this case is on appeal from an order of summary judgment we must view the evidence in favor of the party opposing the motion and assume that miscalculation did in fact occur. Rule 56(c), M.R.Civ.P.; Thelen v. City of Billings (1989), 238 Mont. 82, 85, 776 P.2d 520, 522. Therefore for the purposes of summary judgment we can assume the facts establish a duty owed and a breach of that duty under the statutes. We move on to analyze causation.

Liability for breach of duty in a negligence action attaches if the plaintiff can prove first that defendant’s act is a cause in fact of injury and second that the injury is the direct or indirect result, proximately caused by the negligent act. In the past in Montana, the distinction between cause in fact and proximate cause, now occasionally referred to as legal cause, was not generally made. In three recent decisions, this Court has set out to alleviate the confusion in the area of causation by clarifying the law as it now applies in Montana. See Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772; Kitchen Krafters v. Eastside Bank (Mont. 1990), [242 Mont. 155,] 789 P.2d 567, 47 St.Rep. 602; Thayer v. Hicks (Mont. 1990), [243 Mont. 138,] 793 P.2d 784, 47 St.Rep. 1082.

In Kitchen Krafters, as to cause-in-fact, we state:

“In determining whether a defendant’s breach of duty caused a plaintiff’s injury, one must conduct a two-tiered [causation] analysis. First, one must determine whether the defendant’s actions were the cause-in-fact of the plaintiff’s damages. Causation in fact can be established in one of two ways. Normally, the ‘but-for’ test is used. Under the ‘but-for’ test, causation in fact is established simply by proving that the plaintiff’s injury would not have occurred ’but-for’ the defendant’s illegal conduct. Young, 757 P.2d at 777. Stated differently, the defendant’s conduct is a cause of an event if the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event if the event would have occurred without it. Prosser and Keeton on Torts (5th Edition) § 41.
“The ‘but for’ rule serves to explain the great majority of cases. However, there is one type of situation in which it fails. If two causes concur to bring about an event, and either one of them, alone, would have been sufficient to cause the identical result, some other test is needed. In response to this problem, the courts have developed the ‘substantial factor test.’ Young, 757 P.2d at 777.”

Kitchen Krafters, 789 P.2d at 574, 47 St.Rep. at 610.

In this case, cause-in-fact is established through the but-for test. See Young, 232 Mont. at 281-82, 757 P.2d at 777. Arledge was released on October 10,1985 and Niger was shot on October 28,1985. Assuming a miscalculation occurred, Arledge probably would have still been in prison on October 28 and would not have been able to shoot Niger.

Once cause-in-fact has been established, plaintiff must then move to the second tier of the causation analysis and prove that the defendant’s conduct proximately caused the injury. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611. This is where Niger’s case fails because she is unable to establish proximate cause.

Theoretically consequence for one’s acts could continue into eternity but at some point in the chain of causation the law must intervene and absolve the defendant of liability. It was this policy consideration that led to the development of “proximate” or “legal” cause. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611.

“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 and 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 and Keeton, at § 43.”

Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611.

In order for the Department’s negligence (failure to calculate correctly) to be the proximate cause of Niger’s injuries, it must appear from the facts and circumstances surrounding the incident that the Department, applying the ordinarily prudent person standard, could have reasonably foreseen that Niger’s injuries would be the natural and probable consequences of the wrongful act. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 612. If the Department could not reasonably foresee the consequences, then the consequences should be regarded as a superseding event which breaks the chain of causation as to any of Niger’s injuries. Kitchen Krafters, 789 P.2d at 576, 47 St.Rep. at 613. In this case there are too many “what ifs” that are superseding events that break the chain of causation.

To cite the District Court in its Order and Rationale, p. 5:

“The ‘what ifs’ are endless: if Arledge had been treated differently in prison, or at other stages in life, he might have acted differently; if he had been written up for disciplinary actions within the prison he would have lost good time and not been eligible for parole; if any one of a number of people who picked him up while he was hitchhiking to Nalispell had identified him, or driven him somewhere else; if Arledge had decided to steal someone else’s car, other than Plaintiff’s; if Arledge had been unable to purchase a handgun or ammunition, etc. Such speculations fail to establish a direct and proximate cause between any acts of the State of Montana and injury to Plaintiffs.”

Because of these numerous interruptions in the chain of events, we agree with the analysis of the District Court that the Department could not reasonably foresee that Arledge would shoot Eager. We conclude that Niger has failed to present any facts that establish that her injuries were proximately caused by the Department’s alleged miscalculation of eligibility for parole. Therefore, we affirm the summary judgment on behalf of the Department on this issue.

Plaintiff argues that the issue of foreseeability is a jury question in this case. As stated in Brohman v. State (1988), 230 Mont. 198, 205, 749 P.2d 67, 72:

“In any action for negligence, the plaintiff must produce evidence from which it can be reasonably inferred that the negligent conduct on the part of the defendant was the proximate cause of the plaintiff’s injuries.... Under the facts of this case, the evidence presented and the depositional testimony, it is clear that Brohman could not prove by a preponderance of the evidence that the State proximately caused her injuries. Reasonable minds could not differ in this result.”

Thus, when reasonable minds could reach but one conclusion, the question of foreseeability may be determined as a matter of law for purposes of summary judgment.

II.

Was it foreseeable that Arledge would shoot Niger upon his release on parole because the Department failed to inform the Board of marijuana use by Arledge in prison?

In order to establish liability, Niger must first show that the Department had a duty to inform the Board of Arledge’s marijuana violation. The only duty of the Department is spelled out in § 46-23-203, MCA, which states:

“It shall be the duty of all prison officials to grant to the members of the board or its properly accredited representatives access at all reasonable times to any prisoner over whom the board has jurisdiction under parts 1,2,3 and 10 of this chapter, to provide for the board or such representative facilities for communicating with and observing such prisoner, and to furnish to the board such reports as the board shall require concerning the conduct and character of any prisoner in their custody and any other facts deemed by the board pertinent in determining whether such prisoner shall be paroled.”

Under the clear language of the statute, the Department was required only to furnish such reports as the Board “shall require” concerning the “conduct and character and any other facts deemed by the Board to be pertinent in determining whether Arledge should be paroled.” Niger has failed to present any facts that establish a duty on the part of the Department to inform the Board of Arledge’s marijuana violation. We conclude that since no duty to inform has been proven, the issue of foreseeability is never reached. We affirm summary judgment on behalf of the Department on this issue.

III.

As to the State of Montana, Niger argues that the State is liable because the Department and Board are administered by and under the jurisdiction of the State. Because the plaintiff did not appeal the judgment in favor of the Board, and because of our holding that the Department is not liable, no theory remains on which to hold the State liable, summary judgment was proper as to the State.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON, HUNT, SHEEHY and MCDONOUGH concur.


author: JUSTICE SHEEHY

text:
    IN RE THE MARRIAGE OF DONNA A. SAMSON, Petitioner and Appellant, and EDWIN C. SAMSON, Respondent and Respondent.
    No. 90-145.
    Submitted Sept. 20, 1990.
    Decided Dec. 11, 1990.
    802 P.2d 1241.

      Randall S. Ogle, Ogle & Worm, Kalispell, for petitioner and appellant.
    Gary G. Doran, Moore & Doran, Kalispell, for respondent and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

On April 7, 1989, Donna A. Samson filed a motion to amend the parties’ decree of dissolution requesting the District Court to evaluate and equitably divide Edwin C. Samson’s military pension as an asset of the marriage. The Eleventh Judicial District Court, Flathead County, denied Donna’s motion and granted summary judgment in favor of Edwfin. Donna now appeals the District Court’s order. We affirm.

Donna raises the following issue on appeal:

Whether the District Court erred in denying her an equitable share of Edwin’s military retirement pension?

Donna and Edwin were married in Great Falls, Montana, on September 17,1961. At the time of the marriage, Edwin was enlisted in the United States Air Force. The parties had one child, Bruce S. Samson, bom September 26,1964. Edwin retired from the Air Force in February, 1978, after the parties had been married over 16 years.

Donna filed her petition for dissolution in this matter on September 9,1982. The couple signed a separation and property settlement agreement on March 27, 1983, which made no mention of Edwin’s military retirement pension. The agreement provided that Edwin would pay maintenance to Donna in the amount of $450 per month from August 1, 1983, through March 31, 1989. Later, on April 27, 1983, the court entered the parties’ decree of dissolution.

Edwin’s military pension was considered in determining the amount of maintenance to be paid to Donna, however, the military pension was not considered or divided as a marital asset at the time of the dissolution. Donna now claims she was unaware that Edwin’s military pension was a marital asset at the time of the dissolution and did not learn the fact until early 1989.

Donna filed her motion to amend the decree of dissolution on April 7, 1989, seeking an equitable division and distribution of Edwin’s military pension as a marital asset. On January 23,1990, the District Court denied Donna’s motion and granted Edwin’s motion for summary judgment finding Donna’s claim barred by the doctrine of laches.

Donna claims the District Court erred when it denied her a share in Edwin’s military pension. Edwin claims the federal Uniform Services Former Spouses’ Protection Act (USFSPA) and case law interrupting this Act, support the District Court’s decision to deny Donna a share of his military pension. Furthermore, Edwin contends that Donna accepted maintenance in the place of an actual division of military pension.

The standard that this Court applies in reviewing a grant of summary judgment is the same as that initially utilized by the District Court. McCracken v. City of Chinook (Mont. 1990), [242 Mont. 21,] 788 P.2d 892, 894, 47 St.Rep. 501, 504. Summary judgment is proper when it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), M.R.Civ.P.; Kelly v. Widner (1989), 236 Mont. 523, 526, 771 P.2d 142, 144; McCracken, 788 P.2d at 894. With this standard in mind, we review the issue presented to this Court.

Whether the District Court erred in denying her an equitable share of Edwin’s military pension?

In order to determine this issue, we must review the law surrounding military pensions as an asset of the marital estate.

Prior to 1981, we treated a military pension as a marital asset subject to equitable distribution. In Re the Marriage of Miller (1980), 187 Mont. 286, 609 P.2d 1185. In 1981, the United States Supreme Court, held, in effect, that federal law prevented state courts from dividing military pensions according to state community property or equitable distribution laws. McCarty v. McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589. Later, this Court followed the McCarty ruling and held that military retirement pensions were not marital assets subject to distribution by the District Court. In Re the Marriage of McGill (1981), 196 Mont. 40, 41, 637 P.2d 1182.

In direct response to McCarty, on September 8, 1982, Congress enacted 10 U.S.C. § 1408, the Uniform Services Former Spouses’ Protection Act (USFSPA). Pursuant to USFSPA, state courts could once again include a military pension in the equitable distribution of the marital estate. One day after the enactment of the USFSPA, Donna filed her petition for dissolution.

The USFSPA took effect in February, 1983. As the District Court notes, “Although the USFSPA took effect on February 1, 1983, Respondent’s military pension was not considered or distributed as a marital asset in the Decree of Dissolution entered April 27, 1983.” One year later, after the District Court entered the parties’ decree of dissolution, this Court re-adopted the federal position set forth in the USFSPA, and once again held that a military pension constitutes a divisible marital asset. In Re the Marriage of Kecskes (1984), 210 Mont. 479, 483, 683 P.2d 478, 480.

Donna, relying on our holding in In Re the Marriage of Waters (1986), 223 Mont. 183, 724 P.2d 726, argues this Court should retroactively award her an equitable portion of Edwin’s military pension. In Waters, we considered “the narrow question whether the Uniform Services Former Spouses’Protection Act, 10 U.S.C. § 1408, should be applied retroactively to final decrees of dissolution which were entered subsequent to the United States Supreme Court decision in McCarty v. McCarty but prior to the aforementioned federal statute.” Waters, 724 P.2d at 727.

In Waters, McCarty applied and prohibited the District Court from dividing the husband’s military pension as a marital asset. Subsequent to the District Court decree entered in Waters, Congress passed the USFSPA. In Waters, we stated:

“The legislative history of the USFSPA indicates that the Act was meant to apply to those spouses who were divorced during the period between McCarty and the Act. ‘The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty ...’ 1982 U.S. Code Cong. & Ad. News 1555, 1596. It is also clear that Congress meant the law to apply retroactively.”

Waters, 724 P.2d at 730.

In Waters, we held that the USFSPA should be applied retroactively, but we limited our holding to dissolution decrees that were final after the McCarty decision, but before the effective date of the USFSPA. Waters, 724 P.2d at 730. In the present case, the District Court granted the decree of dissolution on April 27,1983, well outside of the time limitation set forth in Waters.

While our holding in Waters is limited to a specific time frame, we expounded upon the inequity of denying spouses a share of military pensions:

“.. .Those spouses of members of armed forces who obtained dissolutions prior to McCarty were entitled to share in their spouses’ military pension. Likewise, those spouses who obtain dissolutions after Keeskes will be entitled to have their spouses’ military pension treated as a marital asset. However, those spouses who were divorced during the period between McCarty and Keeskes were denied this right. To forbid those spouses who were divorced during this period from obtaining a modification of their decrees would create a category of people who were denied substantial rights solely because of the unfortunate time within which their decrees happened to be made final. This fate does not befall others similarly situated whose decrees were not or will not be final during that period.”

Waters, 724 P.2d at 729-30.

Equity forces this Court to examine Donna’s request for a share of Edwin’s pension, despite the fact that the couple’s decree falls outside of the time limitations set forth in Waters. However, our examination of Donna’s request for a share of the military pension is rather brief, since we agree with the District Court that Donna’s claim is barred by the doctrine of laches. As we explained in Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 600, 602, “[ljaches means negligence to the assertion of the right, and exists where there has been a delay of such duration as to render enforcement of an asserted right inequitable.” Furthermore, “[a] complainant can be charged with laches if, but only if he was either actually or presumptively aware of his rights. A complainant is presumptively aware of his rights where the circumstances of which he is cognizant are such as to put a man of ordinary prudence on inquiry.” Hereford. 598 P.2d at 602; see also, Clayton v. Atlantic Richfield Company (1986), 221 Mont. 166, 170, 717 P.2d 558, 561; Johnson v. Estate of Shelton (1988), 232 Mont. 85, 90, 754 P.2d 828, 831.

Donna contends the District Court erred in applying the doctrine of laches, since there is no reasonable way that she could have been “actually” or “presumptively” aware of her rights by either the USFSPA or Keeskes. Under the circumstances here, we adopt the District Court’s rationale for its application of the doctrine of laches:

“While arguably the USFSPA’s enactment and/or effective date placed Petitioner on inquiry, certainly, In re the Marriage of Kecskes, 210 Mont. 479, 683 P.2d 478 (1984), notified Petitioner of her rights regarding the military pension. Regardless, however, Petitioner took no action for five years. Rather, she waited until April of 1989, just after Respondent’s maintenance obligation terminated, to seek amendment of the Dissolution Decree.”

As the District Court notes in its finding, it would be prejudicial to Edwin to award Donna this late in time a share of the military pension considering that Edwin: (1) did not conceal the pension from Donna; (2) paid maintenance to Donna for six years so that she could receive education or vocational training; and, (3) relied upon his financial obligation to Donna ending in March, 1989.

Donna waited on her rights for an unreasonable period of time, and consequently, her claim to any part of the military pension is barred by the doctrine of laches. Accordingly, we affirm the District Court’s summary judgment order.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDONOUGH and WEBER concur.