author: JUSTICE NELSON CHIEF JUSTICE TURNAGE

text:
    THE ESTATE OF ROBERT J. STREVER, and JOLLEEN STREVER, Individually, and as Personal Representative of said Estate, Plaintiffs and Appellants, v. STEVEN CLINE, a minor; THOMAS MORRIS, a minor; BOWEN RACINE, a minor; and TOM E. SUSANJ, Defendants and Respondents.
    No. 95-053.
    Submitted January 30, 1996.
    Decided June 27, 1996.
    53 St.Rep. 576.
    278 Mont. 165.
    924 P.2d 666.

      For Appellant: Craig W. Holt, Billings.
    For Respondent: Michael B. Anderson (argued) & V. Ann Liechty, Gannett, Anderson & Liechty, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Eleven-year-old Robert Strever died May 3, 1992, as a result of a single gunshot wound to the head. Robert was shot with a handgun that he and several companions had stolen from a vehicle. Robert’s mother brought an action against the owner of the vehicle and the three boys present at the time of the shooting. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment in favor of the vehicle owner and one of the boys and entered default against the remaining two boys. The District Court subsequently granted Plaintiffs’ Motion for Rule 54(b) Certification to this Court. We affirm.

The issues presented for review are:

1. Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.

2. Whether the District Court erred in determining that, even if Thomas Susanj owed a legal duty to Robert Strever, the breach of that duty was not a proximate cause of Robert’s death.

Background Facts

On Friday, May 1,1992, Robert contacted his mother at work and requested permission to go on a weekend fishing trip with his friend, Brent McKellip. Robert’s mother instructed him to contact his grandmother, Josephine Strever, and have her speak with Brent’s father to get the details of the trip. Josephine called the McKellip home and spoke with an individual who represented himself as Mr. McKellip. He stated that the boys would be leaving for the fishing trip on Friday evening and that they would return to Billings on either Saturday or Sunday.

When the boys came to collect Robert’s clothing for the weekend trip, Josephine expressed her suspicions of Mr. McKellip’s youthful sounding voice. Robert and Brent told her that it was due to Mr. McKellip having a sore throat. After Robert’s death, it came to light that the fishing trip was a ruse and that fourteen-year-old Steven Cline pretended to be Mr. McKellip to obtain permission for Robert to spend the weekend with Brent.

On Saturday evening, May 2nd, Robert, Cline and another boy, Bowen Racine, attended a movie. After leaving the movie theater, the boys decided to enter several parked vehicles in the neighborhood and steal their contents.

Tom Susanj was in Billings that weekend to visit his father who had been transferred to St. Vincent’s Hospital for medical care. Susanj had parked his pickup on the street in front of a relative’s home and had left it for the night. Located in the cab of his pickup were a Spectrum radar detector, keys, a micro cassette recorder, jumper cables, a Black & Decker car light, Bushnell binoculars, a Shakespeare fishing rod and case, a tape case with 30 cassette tapes, a small tool box, and a Fujica camera. Underneath the seat of the pickup, in a white bag, was a Ruger 22-caliber semiautomatic pistol and ammunition.

In the early morning hours of May 3rd, the three boys entered Susanj’s pickup and removed several items. Although Susanj testified that it was his normal practice to lock his pickup, there was no evidence of forced entry. Susanj was not aware, nor had he reason to be aware, of a crime problem, if any, in that neighborhood.

Sixteen-year-old Thomas Morris joined Robert, Cline and Racine after noticing them near Susanj’s pickup. All four boys then returned to the pickup to search for more items to steal. Morris took the white bag from under the driver’s seat and discovered that it contained the handgun and ammunition. An animated discussion ensued over who should have the gun. After removing the gun from the bag, Morris either handed the gun to Cline at Cline’s request or Cline took the gun from Morris. Either way, Cline gained control of the gun. Prior to the incident Cline had been smoking marijuana and had informed Morris he was “high”.

Morris testified that Cline waved the gun around while his finger continually rested on the trigger. In the process of examining the gun, Cline ejected a live shell from the chamber. Cline was attempting to remove the ammunition clip from the gun when the gun discharged, the bullet striking Robert in the head. Susanj later testified that he did not keep the clip in the gun. However, Morris and Cline testified that the clip was in the gun when they took it from the bag.

After Robert fell to the ground, the other boys panicked. Morris and Racine ran down an alley and Cline followed, still carrying the gun. Morris and Racine urged Cline to put the gun down and he complied. Cline went to a nearby convenience store and called the police. The police later retrieved the gun from the spot where Cline placed it. Cline was convicted of negligent homicide for the death of Robert Strever.

Plaintiffs brought a civil action against the vehicle owner, Susanj, claiming that his negligent act of leaving his vehicle unattended and unlocked in a public thoroughfare contributed to the wrongful death of Robert Strever. Plaintiffs claimed that Robert’s three companions, Morris, Cline and Racine, should also be held liable for Robert’s death because they were involved in stealing the handgun from Susanj’s pickup. Plaintiffs claimed that Morris, as the oldest of the boys and the one with some familiarity of handguns, was negligent in failing to prevent harm to Robert and in failing to warn Robert of the danger involved with a loaded gun.

The District Court granted summary judgment in favor of Susanj and Morris on the grounds that neither of them owed a duty to Robert. The District Court further held that even if Susanj and Morris owed a duty to Robert, their actions or inactions were not the proximate cause of Robert’s death. The District Court entered default against the remaining two defendants, Cline and Racine, for failure to appear.

Upon motion by Plaintiffs and without objection by Morris and Susanj, the District Court granted Plaintiff’s Motion for Rule 54(b), M.R.Civ.R, Certification to this Court. Morris was subsequently dismissed from the appeal.

Standard of Review

Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we said:

The movant must demonstrate that no genuine issues of material fact exist. [Citation omitted.] Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. [Citation omitted.] Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [Citation omitted.] We review the legal determinations made by a district court as to whether the court erred. [Citation omitted.]

Bruner, 900 P.2d at 903.

Discussion

In order to sustain a negligence action, the plaintiff must establish a legal duty, breach of that duty, and damages proximately caused by that breach. Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127.

Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty; the existence of a legal duty is a question of law to be determined by the district court. Nautilus Insurance Co. v. First National Insurance (1992), 254 Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802, 803.

Yager v. Deane (1993), 258 Mont. 453, 456, 853 P.2d 1214, 1216.

Issue 1

Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.

The District, Court determined that Susanj did not owe a legal duty to Robert because Susanj was unaware of previous thefts in that area of Billings that would compel him to lock his vehicle, because Susanj did not permit the boys to enter his vehicle, because Susanj did not have an open display of his firearm to lure the boys into entering his vehicle and stealing the firearm, and because Robert was not an innocent party but, rather, was a participant in the burglary.

Plaintiffs contend that Susanj had a legal duty to the general public to lock his vehicle to prevent the gun from falling into “improper hands.” Susanj argues that vehicle owners have no duty to protect burglars from injuries they inflict upon themselves in the course of their criminal acts. We conclude that Susanj did owe a duty to not only Robert but also to the public in general to store his firearm and ammunition in a safe and prudent manner.

Negligence denotes “a want of the attention to the nature or probable consequences of the act or omission that a prudent man would ordinarily give in acting in his own concerns.” Section 1-1-204(4), MCA. Moreover, every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of his rights. Section 28-1-201, MCA.

At common law, a property owner’s potential liability for injuries suffered by one who entered onto his land was determined by the injured party’s status as an invitee, licensee or trespasser.

A trespasser is one who enters the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duties to the owner, but merely for his own purposes, pleasure or convenience.

Williams v. Bill’s Custom Fit, Inc. (Tex. Ct. App. 1991), 821 S.W.2d 432, 433. Although most cases have involved trespassers on land, these same rules have been applied to trespassers on personal property. Williams, 821 S.W.2d at 433 (citing Prosser and Keeton, The Law of Torts § 58 (5th ed. 1984)).

A trespasser could recover under the common law “only for intentional, wanton, or willful injury or the maintenance of a hidden engine of destruction.” Alston v. Baltimore & Ohio Railroad Co. (D.D.C. 1977), 433 F.Supp. 553, 560. In those states still adhering to the common-law classifications of licensee, invitee and trespasser, the general rule is that while a landowner cannot intentionally injure or lay traps for a trespasser upon his land, he owes no other duty to a trespasser. McKinsey v. Wade (Ga. Ct. App. 1975), 220 S.E.2d 30, 32 (where a storekeeper set a trap with dynamite in a vending machine and a sixteen-year-old boy was killed in the act of stealing from the machine).

While many jurisdictions still adhere to this concept, many, including Montana, have abandoned the common-law classifications of invitee, licensee and trespasser and have adopted a uniform standard of reasonable care under the circumstances. Yalowizer v. Husky Oil Co. (Wyo. 1981), 629 P.2d 465, 467.

In Limherhand v. Big Ditch Co. (1985), 218 Mont. 132, 140, 706 P.2d 491, 496, this Court held that the test for determining the duty owed by a landowner to an injured party is “not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner.” In Limherhand, we cited § 27-1-701, MCA, which provides:

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Limherhand, 706 P.2d at 496. Thus, the question in the case before us becomes, did Susanj exercise ordinary care in storing his gun and ammunition clip under the seat of his unlocked pickup.

The existence of a duty of care depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability. Maguire v. State (1992), 254 Mont. 178, 189, 835 P.2d 755, 762. The policy considerations to be weighed in determining whether to impose a duty include: (1) the moral blame attached to the defendant’s conduct; (2) the desire to prevent future harm; (3) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (4) the availability, cost and prevalence of insurance for the risk involved. Phillips v. City of Billings (1988), 233 Mont. 249, 253, 758 P.2d 772, 775.

Applying these policy considerations in the present case, reasonable minds could attach moral blame to Susanj’s act of storing his gun and ammunition in an unlocked vehicle on a public street with numerous other items of attractive personal property in plain view easily accessible to thieves or simply to curious small children. In addition, requiring a gun owner to safely store his firearm (for example, in this case, by merely locking the vehicle, locking the gun in the glove compartment or removing the gun and ammunition from the vehicle) would not impose an undue burden upon the gun owner in light of the danger involved and the necessity of preventing thefts of firearms or accidental shootings. Finally, various types of liability insurance policies are readily available at a reasonable cost and cover the risks inherent in the negligent use and storage of firearms.

Moreover, in our recent opinion of Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, we stated that duty “is measured by the scope of the risk which negligent conduct foreseeably entails.” Busta, 916 P.2d at 134 (quoting Mang v. Eliasson (1969), 153 Mont. 431, 438, 458 P.2d 777, 781).

In like manner, in Prosser and Keeton on Torts the authors state:

The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous ... must exercise a great amount of care because the risk is great. They may be required to take every reasonable precaution suggested by experience or prudence.

W. Page Keeton et al., Prosser and Keeton on Torts § 34, at 208 (5th ed. 1984). We cited with approval this same rule in Mang when we said:

As a classic opinion states: “The risk reasonably to be perceived defines the duty to be obeyed.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253. Thatis to say, defendant owes a duty with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent in the first instance.

Mang, 458 P.2d at 781.

A firearm, particularly one that is loaded or has ammunition in close proximity, is considered a dangerous instrumentality and therefore requires a higher degree of care in its use or handling. This concept is set out in the Restatement (Second) of Torts, which provides:

Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.
As in all cases where the reasonable character of the actor’s conduct is in question, its utility is to be weighed against the magnitude of the risk which it involves. [Citation omitted.] The amount of attention and caution required varies with the magnitude of the harm likely to be done if care is not exercised, and with the utility of the act. Therefore, if the act has little or no social value and is likely to cause any serious harm, it is reasonable to require close attention and caution. So too, if the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them. [Emphasis added.]

Restatement (Second) of Torts § 298 cmt. b (1965).

Accordingly, given the foreseeability of the risk involved in the improper and unsafe use and storage of a firearm; given the strong policy considerations favoring safe and prudent use and storage; and on the basis of the law as set forth in §§ 1-1-204, 27-1-701 and 28-1-201, MCA, our decisions in Limberhand, Maguire, Phillips, Mang and Busta and the above referred to standards of care set forth in Prosser and Keeton on Torts and in comment b to § 298 of the Restatement, we hold that, as a matter of law, the owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent maimer taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.

Because we conclude that Susanj owed a legal duty to the general public to store his firearm and ammunition in a manner consistent with this standard of care, on the material facts here, we reverse the District Court’s legal conclusion that Susanj owed no legal duty to Robert.

Issue 2

Whether the District Court erred in determining that, even if Thomas Susanj owed a legal duty to Robert Strever, the breach of that duty was not a proximate cause of Robert’s death.

Implicit in the District Court’s riding that Susanj’s conduct did not cause Robert’s death is the conclusion that Susanj did not breach any duty of care that he might have had to Robert. Breach of a legal duty is a question of fact that is properly determined by the factfinder. Similarly, causation requires a determination — ordinarily by the fact finder — that defendant’s conduct helped produce the injury and that the injury would not have occurred without it. Proximate cause is proved by establishing cause in fact, i.e., the “but for” test or “substantial factor” test. Prosser and Keeton on Torts § 41, at 263-72.

We recently determined in Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, 138, that ordinarily foreseeability is part of the analysis of “duty,” rather than “proximate cause,” and that to analyze it under both issues leads only to confusion. In Busta, we overruled that part of our decision in Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567, that required a two-tiered analysis of causation in cases other than those where there has been an allegation that the chain of causation is severed by an independent intervening cause. Since the case before us is just such an intervening causation case, foreseeability is properly considered with respect to causation on that basis, and, under the facts here, we conclude that failure of proof of causation can be determined as a matter of law.

We have previously stated that a defendant’s liability for his wrongful act will not be severed by the intervening act of a third party if the intervening act is one that the defendant might reasonably foresee as probable or one that the defendant might reasonably anticipate under the circumstances. Thayer v. Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795 (citing Nehring v. LaCounte (1986), 219 Mont. 462, 470, 712 P.2d 1329, 1334).

As to intervening acts by third parties in relation to a defendant’s conduct, Prosser and Keeton state:

The question is always one of whether the defendant is to be relieved of responsibility, and the defendant’s liability superseded, by the subsequent event. In general, this has been determined by asking'whether the intervention of the later cause is a significant part of the risk involved in the defendant’s conduct, or is so reasonably connected with it that the responsibility should not be terminated. It is therefore said that the defendant is to be held liable if, but only if, the intervening cause is “foreseeable.”

Prosser and Keeton on Torts § 44, at 302.

In Mills v. Mather (1995), 270 Mont. 188, 890 P.2d 1277, we recognized that although most negligence actions contemplate some action on the part of a defendant which is the actual and proximate cause of the plaintiff’s damages, failure to act can also form the basis for a claim of negligence.

There are ... situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even-criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct....

Mills, 890 P.2d at 1283-84 (quoting Restatement (Second) of Torts § 302B cmt. e (1965)).

However, we have also stated that the criminal or intentional actions of a third person may not be foreseeable. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 47, 803 P.2d 629, 635-36 (citing Cole v. German Savings and Loan Society (8th Cir. 1903), 124 F. 113). Similarly, a grossly negligent act on the part of a plaintiff may also be considered unforeseeable. Sizemore, 803 P.2d at 636.

Along these same lines, in Prosser and Keeton on Torts the authors state:

There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely 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.

Prosser and Keeton on Torts § 33, at 201. With that in mind, a review of some of our prior cases involving intervening criminal acts by third parties is appropriate.

In 1990, the relatives of a minor killed by an ex-convict sued the State of Montana over the convict’s release. VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 932. Plaintiffs claimed that the state has a duty to avoid the release of prisoners whose mental illnesses render them dangerous to society. The District Court found that plaintiffs’ theories of proximate cause were too speculative and that the state’s acts were not the proximate cause of plaintiffs’ injuries. Although this case involved an intervening act by a third party, we did not reach that point in our analysis since we held that the state did not owe a duty to plaintiffs because once the inmates’ sentence had expired, the state had no choice but to release him.

Three months later, in Kiger v. State (1990), 245 Mont. 457, 802 P.2d 1248, we were faced with a similar situation when the state was again sued over the release of a Montana State Prison inmate. In Kiger, several days after his release on parole, a former prison inmate shot a woman while attempting to steal her car. Plaintiff claimed the state was negligent in releasing the parolee. In Kiger we analyzed proximate cause in terms of foreseeability because of the intervening act and we said that in this case “there are too many ‘what ifs’ that are superseding events that break the chain of causation.” Kiger, 802 P.2d at 1251.

Two years later, in U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 70, 831 P.2d 586, 589, we said that not all intervening causes will act so as to absolve the defendant of liability. The plaintiff in Camp brought an action in negligence to recover moneys paid to its insured for damages resulting from a fire in an apartment building. In Camp, we said:

The chain of causation will only be broken, thereby cutting off the defendant’s liability, if the intervening cause is reasonably unforeseeable. Thayer, 793 P.2d at 795. However, if the intervening cause is one that the defendant might reasonably foresee as probable, or one that the defendant might reasonably anticipate under the circumstances, then the intervening act does not absolve the defendant of liability. Nehring v. LaCounte (1986), 219 Mont. 462, 712 P.2d 1329.

Camp, 831 P.2d at 589.

The following year in King v. State (1993), 259 Mont. 393, 856 P.2d 954, the parents of a young man murdered by a former mental patient of the Montana State Hospital brought suit against the state for negligence in releasing the patient to the community. In King, we relied on our three prior opinions in VanLuchene, Kiger and Camp and reiterated that the intervening acts must be reasonably foreseeable to establish proximate cause. We also stated in King that

if a plaintiff’s injury is caused by the intervening act of a third party, the defendant’s actions cannot be viewed as the proximate cause of that injury. [Emphasis added.]

King, 856 P.2d at 956 (citing Graham v. Montana State University (1988), 235 Mont. 284, 289-90, 767 P.2d 301, 304). Our use of the word “cannot” in this statement was an unfortunate choice as Graham does not state such a hard and fast rule and we had not intended to, nor did we, set forth such a hard and fast rule in King. In actuality, we said in Graham that:

If there is no room for a reasonableolifference of opinion as to whether the action of a party other than the defendant is the intervening cause of the plaintiff’s injury, summary judgment based on proximate cause is proper.

Graham, 767 P.2d at 304. For that reason, we overrule the statement in King that we quoted above and we reiterate that our holding in King is that “the intervening acts must be reasonably foreseeable to establish proximate cause.”

Our prior cases involving intervening criminal acts discussed above involved fact situations that were properly disposed of by the trial courts as a matter of law. Nevertheless, we emphasize that a cause.of action involving superseding intervening acts, whether criminal or non-criminal, normally involves questions of fact which are more properly left to the finder of fact for resolution. If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case. Three of our earlier cases, Lencioni v. Long (1961), 139 Mont. 135, 361 P.2d 455; Brown v. First Federal Sav. & L. Ass’n of Great Falls (1969), 154 Mont. 79, 460 P.2d 97; and Schafer v. State, Dept. of Institutions (1979), 181 Mont. 102, 592 P.2d 493, stand for a contrary rule — i.e. that no recovery can be allowed for an injury which resulted from an intervening criminal act of a third person. To that extent, we overrule those three cases and any other Montana authority espousing that rule.

Rather, trial courts must continue to carefully review each fact situation involving intervening criminal acts on a case-by-case basis, and it is only where reasonable minds could come to but one conclusion, that this issue is properly disposed of as a matter of law. See, for example, Kiger, 802 P.2d at 1251, where we affirmed the trial court’s use of this same approach in granting summary judgment.

This is such a case. Here, not only were there two intervening criminal acts (two thefts from Susanj’s vehicle), but there was also an intervening grossly negligent act (Cline, high on marijuana, waving the stolen gun around with his finger on the trigger, then trying to unload the weapon). Accordingly, on these facts, we conclude that reasonable minds could come to but one conclusion — that the series of intervening acts which included two criminal acts and one grossly negligent act was reasonably unforeseeable and, thereby, cut off all liability on the part of Susanj for Robert Strever’s unfortunate death.

On the facts here, we hold that the District Court’s grant of summary judgment was proper as any negligence by Susanj was superseded by the independent intervening criminal and grossly negligent acts described above.

Having, thus, analyzed and resolved the two legal issues in this case by application of Montana’s statutory law, by application of the well-established rules enunciated in decisions previously handed down by this Court and by application of other well-reasoned authority, it is now necessary that we respond to the special concurrence. While waving the red flag of “gun control” and raising the specter of “banning firearms” guarantees inflammatory headlines and a spate of letters to the editor, as a matter of legal analysis the special concurrence grossly and unfairly misrepresents this Court’s opinion and misstates the law.

At the outset, the special concurrence states that we have held that:

[A]s a matter of law, a property owner owes a legal duty to a thief or a burglar who enters an owner’s property on a mission of thievery, steals the owner’s property, and then injures himself or another with the stolen loot.

In fact, such a holding is nowhere to be found in our opinion. Rather, we have held simply that:

[T]he owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.

While the special concurrence apparently views this as the judicial creation of some sort of new, radical public policy designed to undermine the constitutional right to bear arms and promote the imposition of liability upon the innocent victims of crime, it takes neither a crystal ball nor a Rhodes Scholar to readily discern the fallacy of that conclusion.

In the first place, Montana’s public policy, already set forth in our statutes and in force for decades, clearly and unequivocally imposes on each citizen the legal duty to, in all matters, act prudently, with a view to the nature and probable consequences of his conduct, and to abstain from injuring other persons or their property or infringing on their rights. Sections 1-1-204(4), MCA, and 28-1-201, MCA. These statutes, enacted by our legislature, make no exception from the duty of care so imposed on the basis of the “status” of the individual injured by another person’s act or failure to act in the manner prescribed by these laws. Rather, these statutes mandate that each person owes a general duty of care to every other person. Moreover, in furtherance of and consistent with that policy, our statutory law imposes liability on those who either willfully or negligently breach that duty of care — again regardless of the “status” of the person injured. Section 27-1-701, MCA.

While the special concurrence would carve out an exception from this statutorily-imposed general duty of care for criminals who are injured by another’s breach of that duty, the black-letter law clearly does not make such an exception. To the contrary, rather than upholding the public policy set by the legislature as evidenced in the referred-to statutes, the special concurrence would simply ignore that policy in favor of one which rewards or punishes negligent conduct on the basis of the status of the person injured. Unfortunately, in so doing, the special concurrence also ignores the obligation of the courts to uphold and to fairly apply, as written, all constitutional laws. We have not rewritten public policy in this opinion; we have, to the contrary, properly upheld and applied the policy which the public, through its elected representatives, has enacted.

That was precisely what we did in Limberhand, a unanimous opinion of this Court, and that is all that we have done in this case. While the special concurrence attempts to narrow Limberhand to only encompass “civil guests, invitees or trespassers” as opposed to “criminals, thieves or burglars,” such an interpretation makes no sense given that trespassing, by definition, is a criminal, as well as tortious, act. See, Title 45, Chapter 6, MCA. Neither our statutes nor our controlling case law qualify a property owner’s general duty of care by the “status” of the victim of the property owner’s negligence. It, likewise, would be wholly improper that we do so in this case.

Secondly, the special concurrence maintains that the holding we have articulated in this case will come as a great shock to the public in general and to gun owners in particular. To the contrary, we suspect that the public and gun owners would be more surprised to learn that owning a gun does not include a responsibility and a duty to store and use the weapon in a safe and prudent manner. In point of fact, organizations which teach safety and promote responsible firearms use and ownership uniformly stress the necessity to unload and store all guns in a secure location, inaccessible to children and unauthorized persons and separate from the ammunition. Our holding in this case says nothing different. If the owner of a firearm does not owe “a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage,” then that truly is a shocking revelation!

Moreover, the special concurrence strongly implies that under our decision here, the owner of a firearm is automatically or strictly liable for any firearms-related injury merely because of his ownership of the weapon. That absolutely is not the case; nothing could be further from the truth. Our holding simply sets forth the duty of care required in the use and storage of a firearm. If a member of the public is injured in a firearms-related accident, as in any negligence case, it is for the fact finder — typically a jury composed of Montana citizens, some of whom would likely be gun owners — to determine whether the owner of the firearm breached his duty of care. While the special concurrence apparently has little faith that such a jury could apply the law and come to a correct result on the basis of the particular facts at issue, we do not share that sentiment.

More to the point, the owner of a firearm who willfully or negligently causes injury in his use or storage of his weapon, has always been subject to suit. The special concurrence’s inference that the floodgates of litigation will be opened notwithstanding, our decision here does not invent any new theories of liability. In truth, we have simply articulated a rule of law that has implicitly existed in Montana for decades.

The special concurrence describes Robert and his group as a “roving band of teenage thieves.” Assuming, arguendo, that is true, it does not, however, follow that Susanj should thereby be relieved of his obligation to have done something as common sense and simple as removing his gun from his unlocked truck when he left it unattended on a public street or as easy as locking the truck or locking the gun in the glove box, in order to prevent a needless tragedy. Perhaps the next “roving band of thieves” will be a group of curious four-year-olds. Perhaps the next person to get shot while the thieves fight over the gun will not be the thief himself, but a mother strolling her baby in the vicinity of the truck. And, that is precisely the reason why, under the authorities we have cited, Montana law does not hinge duty of care on the status of the victim of the breach of that duty. While, the status of the victim is purely fortuitous, it is completely within the control of the owner of the firearm to safely and prudently use and store his weapon. The law imposes a duty of care, among other things, to encourage responsible conduct, not to set up a lottery that rewards or punishes negligent conduct on the basis of the status of who is injured when that duty of care is breached.

Furthermore, the special concurrence contends that citizens “are not required to foresee the acts of thieves and burglars” and that, therefore, as a matter of law, any intervening criminal act should, without more, automatically cut off liability where a duty of care is breached. First, the special concurrence’s basic premise is wrong. Citizens already do foresee the potential for criminal acts taking place in their daily lives, and they proceed accordingly. Few members of the public are willing to leave their cars unlocked with the keys in the ignition in a public parking lot for fear that the car will be stolen. Many women when traveling or living alone take precautions to avoid being assaulted. Every person who boards a commercial aircraft is subject to a personal and baggage search because we live in a society where, unfortunately, terrorist attacks are all too foreseeable. It, thus, does not take a crystal ball or a Rhodes Scholar to figure out that if one leaves a firearm and ammunition in an unlocked vehicle on a public street with a veritable candy-store of other goodies in plain view, that some felon just might enter the vehicle unlawfully and make off with the goods and the weapon.

More importantly, however, in our decision on Issue 2, we have not thrown the baby out with the bath water as the special concurrence suggests. We have simply held that:

If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case.

While, one can conjure up all sorts of Rube Goldberg scenarios involving intervening criminal acts, realistically, as our decision here and as VanLuchene, Kiger, Camp (which we have not overruled) and King (which we have clarified) reflect, in many instances intervening criminal acts are unforeseeable and will cut off liability. Notwithstanding, those same cases and our decision in Mills also stand for the proposition that if an intervening criminal act is reasonably foreseeable, then liability will not be cut off.

Finally, our opinion on Issue 1 is neither gratuitous nor advisory. As our decision clearly reflects, the District Court granted summary judgment on the basis that Susanj owed no legal duty to Robert Strever. We have concluded that ruling to be erroneous as a matter of law. Without reversing the District Court’s decision in that regard we would not have reached Issue 2.

Affirmed.

JUSTICES HUNT, TRIEWEILER, GRAY and LEAPHART concur.

CHIEF JUSTICE TURNAGE

concurring in part and dissenting in part:

I concur in the result of the majority opinion holding that property owner Tom E. Susanj will not be forced to defend himself in a district court jury trial where he was accused of a tortious act of negligence because thieves entered his property, stole his firearm, and Robert J. Strever, one of the thieves who participated in the theft of Susanj’s firearm, was fatally injured.

I respectfully dissent from the majority opinion holding that, as a matter of law, a property owner owes a legal duty to a thief or a burglar who enters property on a mission of thievery, steals the owner’s property, and then injures himself or another with the stolen loot.

Based upon the following facts, the District Court concluded that Tom E. Susanj did not owe a legal duty to Robert J. Strever:

In the early morning hours of May 3 Steven Cline, age 14, Bowen Racine, age 15, and the decedent Robert J. Strever, burglarized vehicles in the area of Eldorado and Fairvale, near the Par 3 Golf Course, including the Defendant Susanj’s vehicle. Later Thomas Morris, age 16, saw the three and joined them in returning to the Defendant Susanj’s vehicle. Morris took the bag containing the handgun from under the driver’s seat of Susanj’s vehicle. A dispute exists whether Steven Cline grabbed the gun from Morris or whether Morris merely handed it to him, but in any event Cline obtained possession of the gun and later pulled the trigger and the bullet struck Strever in the head resulting in his death.

The District Court, relying on this Court’s precedent in Lencioni v. Long (1961), 139 Mont. 135, 361 P.2d 455; Schafer v. State, Dept. of Institutions (1979), 181 Mont. 102, 592 P.2d 493; and King v. State (1993), 259 Mont. 393, 856 P.2d 954, holding that criminal acts are generally unforeseeable, held that the intervening criminal act of one of the thieves was reasonably unforeseeable and no duty was owed by property owner Susanj to Strever.

Our standard of review of a district court’s conclusion of law is to determine whether the court’s interpretation of the law is correct. In re Estate of Goick (1996), 275 Mont. 13, 909 P.2d 1165. Under the existing decisions of this Court, the District Judge should be affirmed on his conclusion of law that no legal duty was owed by Susanj to Strever; our standard of review requires affirming.

Our prior decisions, which the majority has overruled on this legal point, had established a rule of law that set the public policy we should follow — a policy based on reason and common sense — that our citizens are not required to foresee the acts of thieves and burglars.

Why, then, does the majority reject our existing public policy and write a new public policy establishing that our citizens now owe a legal duty to thieves and burglars, a breach of such duty subjecting them, at a minimum, to the stress, expense and hazard of a jury trial when a thief or burglar steals from their property or home a firearm, or other object that could produce harm, and injures himself or a fellow thief or burglar? Bad public policy.

In overruling our prior precedent and from the ruling in this case, it does not require a crystal ball or a Rhodes Scholar to foresee that innocent citizens will have their homes burglarized, their vehicles entered, their firearms or other possessions stolen, and that in some cases the thieves and burglars will injure themselves or others with the stolen property. The victimized owners will then be hauled into court to defend themselves against a claim of tortious damages.

• In Montana, for reasons of hunting, sport or home protection, many of our citizens own and keep firearms. It will be a real surprise to them to learn that, if they are victimized by a burglar or thief and their firearms are stolen, they may have breached a legal duty and be required to defend themselves in a civil suit for tort damages. Perhaps this decision may be welcomed by those who would ban firearms, as a form of subtle gun control. It is a certainty that the majority of Montanans will not so welcome the majority decision.

I would agree that the owner of a firearm breached a legal duty if he left lying around in his home a loaded firearm, in plain view and accessible to small children lawfully in the home and if one of the children, in handling the firearm, injured himself or another. However, these are not the facts in the case before this Court.

We are here confronted with a roving band of teenage thieves on a mission to break into and steal from several vehicles. The Court’s reliance on Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491, to elevate the status of thieves and burglars to that of an invitee, licensee, or civil trespasser is misplaced.

The facts in Limberhand had nothing to do with criminal acts. In Limberhand, a social guest was visiting a tenant in defendant’s apartment complex. The tenant’s guest was accompanied by her eighteen-month-old child. The child wandered across the apartment parking lot, which separated the apartment complex from an irrigation ditch adjacent to but not on apartment property, and slipped or fell into the ditch, causing the child’s death one day later. The ditch was not fenced from the apartment complex.

In Limberhand, this Court said that § 27-1-701, MCA, relating to duty of landowners, made no distinction between social guests, invitees or persons even though they may be trespassers. However, this was stated in reference to such individuals as civil guests, invitees or trespassers and not as to criminal thieves or burglars. Limberhand had nothing to do with and said nothing about such criminals. Now such criminals are joining the list of those to whom property owners owe a legal duty predicated upon claimed negligence.

I acknowledge that we live in a society in which many innocent people are victims of crime. However, if we have reached a stage in our society in which all of us are under a legal duty to foresee that our homes and property will be burglarized, we as Montanans are indeed living in perilous times.

The majority’s response to the special concurrence and dissent requires a further comment in support of the dissent.

The dispositive resolution of this appeal is found in Issue 2, where this Court’s majority holds that the District Court’s grant of summary judgment to defendant Susanj holding him not liable was proper because of the series of intervening acts including two criminal acts of the thieves and one grossly negligent act. I concur with this holding and dispositive resolution of this case.

This Court has on countless occasions stated in its decisions that issues not necessary to the disposition of an appeal need not and will not be discussed. Advisory and gratuitous statements should not be indulged in by this Court. I can only speculate as to why then, the majority of this Court wrote at great length to establish a new public policy that as a matter of law Susanj, as owner of a firearm, has a legal duty to thieves who have stolen the firearm and that not only Susanj but the general public as well has a like duty to thieves.

One other comment must be made in relation to the majority response to the dissent.

The majority states that trespassing, by definition, is criminal, citing Title 45, Chapter 6, MCA. This statement is not accurate and must be clarified. A civil trespass upon premises or land of another does not without more become a criminal trespass. Privilege to enter or remain upon land is extended by the landowner failing to post notice denying entry onto private land. This privilege may be revoked at any time by personal communication of notice by the landowner to the entering person. Only then does such trespass become a criminal misdemeanor. Section 45-6-201, MCA. Premises is defined in § 45-2-101(58), MCA, as including any type of structure or building and any real property.

The distinction between a civil and criminal trespass is clear under the statutes. To be criminal, the trespass requires the requisite act as well as the criminal state of mind of knowingly.

The type of criminal act in this case has nothing to do with the misdemeanor trespass statute. The criminal acts in this case involved entry into Susanj’s vehicle and theft of his property.

I would affirm the District Court’s conclusion that Susanj could not foresee the criminal act of the thieves and did not breach a legal duty.

JUSTICE ERDMANN joins in the dissent of CHIEF JUSTICE TURNAGE.

      . See, for example, “Firearms Responsibility in the Home,” published by the National Shooting Sports Foundation and “A Guide to Firearm Safety and “Parent’s Guide to Gun Safety” published by the National Rifle Association of America.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    EAGLE WATCH INVESTMENTS, INC., Plaintiff, Respondent, and Cross-Appellant, v. ALEX E. SMITH and TRUDY L. SMITH, husband and wife, Defendants and Appellants.
    No. 95-517.
    Submitted on Briefs July 18, 1996.
    Rehearing Denied October 17, 1996.
    Decided August 19, 1996.
    53 St.Rep. 757.
    278 Mont. 187.
    924 P.2d 257.

      For Appellants: Michael J. Ridgeway, Hubble & Ridgeway, Stanford.
    For Respondent: Geoffrey R. Keller, Matovich, Addy & Keller, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On August 21, 1991, Eagle Watch Investments, Inc., filed a complaint in the District Court for the Fourteenth Judicial District in Golden Valley County in which it alleged that Alex and Trudy Smith had breached their lease agreement with Eagle Watch, and in which it sought damages for that breach. Following a nonjury trial, the District Court concluded that the Smiths owed Eagle Watch $509.56 per year for a three-year period of the lease and $20,000 per year during the time of their holdover tenancy. The Smiths appealed the District Court’s decision and Eagle Watch cross-appealed. We affirm in part and reverse in part the judgment of the District Court.

We address three issues on appeal:

1. Did the District Court err when it concluded that the Smiths owed Eagle Watch lease payments of $509.56 per year for the period of the parties’ lease from 1987-1989?

2. Did the District Court err when it concluded that the Smiths were holdover tenants for the period of time from 1990-1996?

3. Did the District Court err when it concluded that the Smiths, as holdover tenants, owed Eagle Watch lease payments of $20,000 per year from 1990-1996?

FACTUAL BACKGROUND

Eagle Watch Investments, Inc., owns a tract of land in Golden Valley County which consists of approximately 1569 acres of farmland and 231 acres of grassland. On September 30,1984, Eagle Watch and Alex and Trudy Smith executed a farm lease agreement pertaining to that land. The lease agreement required annual cash payments of $20,000 per year ($12.75 per acre) beginning October 1, 1985, for a term of three years and provided for an optional two-year extension of the agreement and an option to purchase the land. The Smiths made the annual payments pursuant to the lease agreement for the first two years.

In the spring of 1986, Eagle Watch and the Smiths agreed to enroll the property into the Conservation Reserve Program (CRP). In July and December 1986, the Commodity Credit Corporation (CCC) accepted approximately 1502 acres of the parties’ leased land into the program. Pursuant to the specific CRP contracts, the CCC agreed to pay the parties $49,975.49 per year. The Smiths received sixty-one percent ($30,485.05) and Eagle Watch received thirty-nine percent ($19,490.44) of the payment. In return, the parties agreed to give up any summer fallow that they had on the property, cultivate and spray as necessary, seed the property to a grass or grass and legume stand, control noxious weeds and insects, and establish and maintain a forage stand for ten years. The parties agreed that the Smiths would be responsible for all costs of seeding and grass establishment.

In November 1986, after the parties had entered into the CRP contracts but before the CCC had made its first payment, Eagle Watch informed the Smiths that it expected them to continue to pay the $20,000 annual lease payment in addition to the $19,490 which Eagle Watch was entitled to receive from the CRP contracts. Eagle Watch also informed the Smiths that it intended to terminate the lease agreement no later than 1989 and remove the Smiths from the land and the CRP contracts at that time. In response to Eagle Watch’s demands, the Smiths attempted to formally modify the lease agreement with two addenda agreements. The first addendum sought to extend the lease term from three years with a two-year extension to the ten-year term of the CRP contracts. The second addendum would have modified the agreement to substitute Eagle Watch’s share of the CRP payments for the Smiths’ annual $20,000 lease payment obligation. Eagle Watch did not sign either agreement.

In April 1987, the Smiths seeded the property in accordance with the CRP contract specifications. The Smiths’total seeding costs were $78,488.65, for which they were reimbursed by the Agricultural Stabilization and Conservation Service (ASCS) in the amount of $33,997.00. The ASCS certified the grass stands in September 1990.

In July 1987, the Smiths exercised the two-year lease option and extended the lease through September 30, 1989. At that time, the Smiths believed that their annual lease payment would be covered by the CCC’s $19,491 annual payment to Eagle Watch. Therefore, the Smiths did not tender their annual $20,000 lease payment to Eagle Watch on October 1,1987. On December 18, 1987, Eagle Watch sent the Smiths a notice of default for nonpayment. On January 11,1988, the Smiths tendered a check in the amount of $509.56 to Eagle Watch with the notation “Balance of 1987 lease payment.” The Smiths contended that the $20,000 payment required by the lease agreement was satisfied by combining their $509.56 check and Eagle Watch’s $19,490.44 CRP payment.

The Smiths sent checks in the amounts of $509.56 to Eagle Watch on October 20, 1988; on October 3, 1989; on October 12, 1990; on September 25, 1991; and on October 1, 1992. The Smiths contended that each check represented the balance due for their lease payment after Eagle Watch was paid its share of CRP proceeds. Eagle Watch refused all such payments.

Eagle Watch first attempted to resolve the dispute with the Smiths through the ASCS but was advised that ASCS would not assume jurisdiction of this dispute. Therefore, on August 21, 1991, Eagle Watch filed a complaint in the Fourteenth Judicial District Court to recover payments from the Smiths pursuant to the written agreement. Eagle Watch contended that the Smiths owed it $20,000 annually for the three years of the parties’ lease and $20,000 annually for the years the Smiths remained on the land as holdover tenants. The Smiths contended, however, that the CRP contracts modified the lease agreement and that they owed Eagle Watch only $509.56 annually for the ten-year period of the CRP contracts.

Following a nonjury trial, the District Court decided that the CRP agreement did not extinguish or modify the parties’ lease agreement. The District Court concluded that the parties had an equitable agreement for the years 1987-1989 pursuant to which the Smiths seeded the land to grass, made lease payments of $509.56 per year, and collected approximately $30,000 per year from the CRP. The court further concluded that during this three-year lease period, Eagle Watch received its $20,000 per year lease payment from a combination of its share of the annual CRP payment and the Smiths’ annual payment of $509.56. Finally, the District Court concluded that the Smiths were holdover tenants after their lease expired and during the seven years remaining on the CRP contracts, and that the Smiths were therefore required to pay Eagle Watch $20,000 annually in addition to the CRP payments that Eagle Watch received during those years.

STANDARD OF REVIEW

On appeal, Eagle Watch maintains that the District Court’s order is equitable in nature and thus requires a more deferential standard of review. In particular, Eagle Watch cites § 3-2-204(5), MCA, as the applicable standard of review. That section provides:

In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless for good cause a new trial or the taking of further evidence in the court below be ordered. Nothing herein shall be construed to abridge in any manner the powers of the supreme court in other cases.

This Court interpreted the standard of review for equity cases in Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 282-83, 742 P.2d 456, 461:

[S]ection 3-2-204(5), MCA ... does not entitle [the appellant] to a de novo review of the evidence. This Court’s function in reviewing findings of fact in a civil action tried by a district court without a jury is not to substitute its judgment in place of the trier of facts but rather it is confined to determining whether the findings of fact are clearly erroneous. Rule 52(a), M.R.Civ.P. Although conflicts may exist in the evidence presented, it is the duty and function of the trial judge to resolve such conflicts. His findings will not be disturbed on appeal where they are based on substantial though conflicting evidence.
Further, there is a presumption when this Court reviews the evidence, that the trial court’s judgment is correct, and that any conflicting evidence must be resolved in favor of the ruling.
Not only must conflicting evidence be resolved in favor of the District Court’s ruling, but [the appellant] must shoulder the burden of proving that the evidence preponderates against the finding.

(Citations omitted.)

It is well established, however, that a district court may only accept jurisdiction in equity when no statutory or legal remedy is available. Jeffries Coal Co. v. Industrial Accident Board (1952), 126 Mont. 411, 413, 252 P.2d 1046, 1047 (citing Epletveit v. Solberg (1946), 119 Mont. 45, 169 P.2d 722; Meyer v. Lemley (1929), 86 Mont. 83, 282 P. 268; Philbrick v. American Bank & Trust Co. (1920), 58 Mont. 376, 193 P. 59). In this case, Montana’s landlord-tenant and contract provisions provide a positive statutory remedy; therefore, the District Court could not invoke equitable jurisdiction and was required to proceed pursuant to those statutes. See Peitzman v. Seidman (Pa. Super. Ct. 1981), 427 A.2d 196, 198 (holding that where an adequate remedy was provided by Pennsylvania’s Landlord and Tenant Act, jurisdiction of a court of equity could not be invoked). This Court cannot, therefore, look upon the District Court’s order as an equitable ruling and cannot invoke the more deferential standard of review set forth in Meridian Minerals.

Instead, our review of the district court’s order is two-fold. First, we review the district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. Second, we review the district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

ISSUE 1

Did the District Court err when it concluded that the Smiths owed Eagle Watch lease payments of $509.56 per year for the period of the parties’ lease from 1987-1989?

Eagle Watch and the Smiths executed their written lease agreement in 1984. The parties entered into the CRP contracts in July and December 1986. Although the original lease agreement was not formally modified at that time, both parties testified at the District Court hearing that they intended the $20,000 lease payment to be satisfied by a combination of the $19,491 annual CRP payment and the Smith’s annual payment of $509. In fact, Alex Smith testified that he and Peter Bouma, the president of Eagle Watch, had specifically bid the land into the CRP program at $32.70 per acre and had specifically decided on the 61/39 split because thirty-nine percent of $32.70 per acre (Eagle Watch’s share) equals $12.75 per acre, which is the exact figure that the Smiths were paying to Eagle Watch under their pre-CRP lease agreement. Because some of the farmland did not qualify for the CRP program, however, the CRP payment was $509 short of the total annual lease payment.

At the same hearing, Peter Bouma agreed that he intended “at least for the first three years for the $20,000.00 CRP payment to be [his] payment for the lease of that land.” Bouma testified that he informed the Smiths that the CRP payment would not cover their annual $20,000 lease payment only after the Smiths indicated that they believed the lease to be extended for the ten-year period of the CRP contracts. His initial intent, however, was that the lease payment would be satisfied by a combination of the CRP payment and a $509 payment from the Smiths.

On the basis of both parties’ testimony at the hearing, the District Court concluded that “[t]he parties agreed to a reasonable financial arrangement during the last years of the lease” and that therefore “[Eagle Watch] is entitled to payments of $509.56 annually from [the Smiths] commencing October 1, 1987, and terminating October 1, 1989 (3 years).”

On appeal, neither party disputes the District Court’s conclusion that Eagle Watch received its $20,000 annual lease payment from a combination of its CRP payment and the Smith’s annual payment of $509 during the first three years of the CRP contracts (1987-1989) when the parties’ lease was still in effect. In fact, Eagle Watch concedes that “it was [Eagle Watch’s] belief and understanding that during those next three years, Smiths would receive approximately $30,500.00 annually from CRP and Eagle Watch would receive approximately $19,500 from CRP and approximately $500 from Smiths.” Eagle Watch’s “belief and understanding” is further evidenced by a letter that Bouma sent to the Smiths in April 1987, prior to the commencement of the CRP term. In that letter, Bouma did not indicate that he believed that the Smiths would owe Eagle Watch $20,000 per year in addition to Eagle Watch’s $19,491 payment after the start of the CRP term. Instead, Bouma stated that he should receive “some payment” from the Smiths in addition to Eagle Watch’s $19,500 CRP payment. (Emphasis added.) According to Bouma, this additional payment would take into consideration that the entire property leased by the Smiths had not been enrolled in the CRP. After the Smith’s received this letter, they tendered a check to Eagle Watch in the amount of $509, which compensated Eagle Watch for the difference between the acreage that the Smiths had originally leased and the acreage that the ASCS had accepted into the CRP.

Any modification of the parties’ original written lease agreement is governed by § 28-2-1602, MCA, which provides: “A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” Section 28-2-1602, MCA, extends to executed oral modifications of rental payment agreements. See Lemley v. Allen (1983), 203 Mont. 37, 41, 659 P.2d 262, 265; Kosena v. Eck (1981), 195 Mont. 12, 19, 635 P.2d 1287, 1291. “An oral agreement modifying a written agreement is executed when its terms have been fully performed.” Lemley, 203 Mont, at 41, 659 P.2d at 265. This Court has held that an oral agreement that modifies the payment terms of a written lease agreement is fully executed when both parties comply with the new terms and when one party pays, and the other accepts, a different payment than that provided for in the written lease agreement. Lemley, 203 Mont. at 41, 659 P.2d at 265; Kosena, 195 Mont, at 19, 635 P.2d at 1291.

In this case, both parties complied with the requirements of the CRP contracts, which converted the property from farmland to grassland. In addition, Eagle Watch accepted the yearly CRP payments which Peter Bouma testified that he had intended to accept in lieu of the Smith’s lease payments. We therefore hold that the original 1984 written lease agreement was modified by the parties’ oral agreement that the original lease payment would be satisfied by the annual CRP payment and the Smiths’ annual payment of $509.56 and by Peter Bouma’s acceptance of the annual CRP lease payment. We affirm that part of the District Court’s order which required the Smiths to pay Eagle Watch lease payments of $509.56 per year for the three remaining years of the parties’ lease.

ISSUE 2

Did the District Court err when it concluded that the Smiths were holdover tenants for the period of time from 1990-1996?

In this case, the District Court concluded that the CRP contracts did not modify the parties’ lease agreement by extending the term of the lease to ten years. The court therefore concluded that after the parties’ lease ended in 1990, the Smiths’ only claim to the land for the remaining years of the CRP contracts was as holdover tenants. The Smiths maintain, however, that they did not remain on the land as holdover tenants. Instead, the Smiths assert that the CRP contracts and the applicable federal regulations modified the underlying lease to the extent that they were inconsistent. The Smiths therefore maintain that the CRP contracts modified the term of their lease by extending it for the ten-year period of the CRP contracts.

The District Court based its conclusion that the CRP contracts did not modify the Smith’s lease, in part, on Schiewe v. Farwell (Idaho 1993), 867 P.2d 920. In Schiewe, the plaintiff leased agricultural land from the defendants for five years pursuant to a written contract. After the term of the lease expired, the plaintiff maintained possession of the land on a year-to-year basis as a holdover tenant under the same terms as provided in the original agreement. After the parties entered the land into the CRP, the defendants requested that the plaintiff sign a five-year lease. The plaintiff refused, maintaining that the CRP contract provided her with a ten-year right of possession. When the defendants threatened to evict her, the plaintiff brought an action to determine whether the CRP created a right to remain on the land. The plaintiff contended that the language of the CRP contract, which is identical to the CRP contract language that the Smiths cite in this case, vested her with the right to operate the cropland during the ten-year term of the CRP contract. That language provides that in order to be eligible for the CRP, an operator must, inter alia, “provide satisfactory evidence that such person will operate such cropland for the contract period.” Schiewe, 867 P.2d at 923 (citing Section 2A(1) of the CRP contract appendix).

The Idaho Supreme Court concluded that although a lease or some proof of a continuing right to operate the land is necessary to comply with the terms of the CRP, the CRP contract does not itself create such a lease. Schiewe, 867 P.2d at 924. The Court reasoned that the CRP contract does not provide any terms normally associated with a lease, such as terms governing payment of property taxes, liability insurance, and maintenance of the property. Schiewe, 867 P.2d at 924. In addition, the Court noted that the CRP contemplates that owners and operators may change during the ten-year term of the- CRP. Schiewe, 867 P.2d at 924. The Court therefore held that “although [the plaintiff] may be a party to the [CRP contract], this contract does not create a right to remain on the cropland for the contract period where no independent right exists” Schiewe, 867 P.2d at 924 (emphasis added).

We find the language and reasoning of Schiewe to be persuasive. In this case, the Smiths potentially had three years remaining on their agricultural lease with Eagle Watch when the parties entered into the CRP contracts. The Smiths’ certification in the CRP contracts that they were “operators” with “general control of the farming operations on the farm” resulted solely from their right of possession and control of the land pursuant to that underlying agricultural lease. See Sections 1R and 2A(1) of the appendix to the CRP contracts. The relationship between Eagle Watch and the Smiths was as landlord and tenant, and the Smiths right to possession and control of the land pursuant to that relationship was not changed or affected by the CRP contracts.

The landlord/tenant lease relationship is independent of the CRP contract and is a matter of state law. See, e.g., Dickson v. Edwards (5th Cir. 1961), 293 F.2d 211, 215; Thomas v. Dudrey (Kansas 1972), 494 P.2d 1039, 1056 (Fatzer, C.J., dissenting). The CRP contracts and federal regulations therefore have no bearing on the right of a landlord to remove a tenant under state law. In fact, the CRP contracts clearly contemplate that a tenant’s interest in the land may be reduced or entirely eliminated. Because a tenant’s right of possession is only by virtue of the landlord/tenant relationship, that right may be terminated at any time in accordance with state law.

In this case, the parties’ written lease agreement at the time they became parties to the CRP contracts was for a term of one year with an option for a two-year extension. Because the Smiths timely exercised their option to remain on the land for the additional two-year period, the written lease agreement expired in 1989. The Smiths, however, remained on the land after the expiration of their lease term and continued to receive their sixty-one percent share of the annual CRP payments. Although the Smiths’ right to possession of the land did not arise by virtue of the CRP contracts, the District Court concluded that the Smiths continued their possession and control of the land based on a “holdover” agricultural farm lease.

Holdover tenancies are governed by statute in Montana. For the holdover of a commercial lease, § 70-26-204, MCA, provides:

If a lessee of real property ... remains in possession thereof after the expiration of the hiring [of real property] and the lessor accepts a rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year.

(Emphasis added.) In this case, Eagle Watch did not accept any of the Smith’s $509 supplemental rent payments, but did accept annual CRP payments which the parties had intended would be applied toward the lease payment. As we held above, Eagle Watch’s acceptance of those payments, combined with the parties’ intent that those payments would constitute the majority of the lease payment, acted to modify the terms of the written lease agreement.

Therefore, although the CRP contracts did not create a right of possession for the ten-year term of the CRP contracts, we hold that the Smiths did lawfully remain on the land after the expiration of their written lease term as “holdover” agricultural tenants. That tenancy was created when the Smiths remained on the land and continued their duties pursuant to the CRP contracts and when Eagle Watch accepted the annual CRP payments and failed to take action to remove the Smiths from the land. We therefore affirm that portion of the District Court’s opinion and order which concluded that (1) the CRP contracts did not modify the underlying lease so as to provide the Smiths with a right of possession for the ten-year period of the CRP contracts, and (2) the Smiths remained on the land as holdover tenants for the remaining years of the CRP contracts, from 1990-1996.

ISSUE 3

Did the District Court err when it concluded that the Smiths, as holdover tenants, owed Eagle Watch lease payments of $20,000 per year from 1990-1996?

Section 70-26-204, MCA, provides thatifthe lessee of real property, including commercial and agricultural property, remains in possession of the property after the expiration of a lease and the lessor continues to accept rent on that property, “the parties are presumed to have renewed the [lease] on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year.” (Emphasis added.) The presumption that the lease will continue “on the same terms and for the same time” is a disputable presumption. Section 26-1-602, MCA, (stating that all presumptions not listed as conclusive in § 26-1-601, MCA, are disputable and may be controverted by other evidence). “If the presumption is not controverted, the facts must be found according to the presumption, or, if it is controverted, the presumption must be given weight as evidence.” Roseneau Foods, Inc. v. Coleman (1962), 140 Mont. 572, 577, 374 P.2d 87, 90.

In this case, although Eagle Watch does not challenge the District Court’s conclusion that the Smiths only owed Eagle Watch $509 per year for the first three years of the CRP contracts, Eagle Watch does dispute that the Smiths’ holdover tenancy continued under those terms. Eagle Watch asserts that “[t]he District Court correctly held ... that Smiths owed Eagle Watch lease payments of $509.56 per year for ... the 3-year period 1987-1989”; however, Eagle Watch maintains that “as holdover tenants the District Court properly determined that [the Smiths] owe the $20,000.00 annual lease payments to Eagle Watch, the parties never having executed a written or oral lease modification.” As we determined in the first part of our opinion, there was in fact a valid executed oral modification of the terms of the parties’ lease agreement for the final three years of that lease, from 1987-1989. Therefore, since the terms of the lease, at the time of its expiration, provided for yearly CRP payments to Eagle Watch plus yearly payments of $509 from the Smiths, there is a presumption that those payment terms continued to apply during the pendency of the holdover tenancy.

In this case, there is no evidence to rebut that presumption. Eagle Watch did not take steps to remove the Smiths from their holdover tenancy, pursuant to §§ 70-27-104 and -105, MCA. Furthermore, Eagle Watch did not, either prior to or during the Smiths’ holdover tenancy, provide the Smiths with notice of an increase in rent during the pendency of that holdover tenancy. Therefore, the parties were “presumed to have renewed the [lease] on the same terms and for the same time.” Section 70-26-204, MCA. Since Eagle Watch failed to adequately rebut that presumption, we hold that the Smiths were hable to Eagle Watch for annual lease payments of $509.56, pursuant to the terms of the original modified lease agreement for the remainder of their holdover tenancy. We therefore reverse that portion of the District Court’s order that held that the Smiths owe Eagle Watch $20,000 per year for each year of the holdover tenancy, from 1990-1996.

On the basis of our conclusion that the parties had modified the terms of their written lease agreement to provide that CRP payments to Eagle Watch were in lieu of the full lease payment by the Smiths during the pendency of their lease, and on the basis of our conclusion that the Smiths operated under “the same terms” during the pendency of their holdover tenancy, we affirm that part of the District Court’s order which concluded that the Smiths owed Eagle Watch $509 for the years 1987-1989 and reverse that part of the District Court’s order that concluded that the Smiths owed Eagle Watch $20,000 for the years 1990-1996. We remand this case to the District Court for entry of a judgment consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and HUNT concur.

      . For example, Section 26 of the appendix to the CRP contracts provides that a new owner or operator may become a participant in the CRP contract if the person assumes the obligations of the previous participants in the program. In addition, Section 28 of the appendix to the CRP contracts states that the CRP contract may be revised or revoked “by mutual agreement between the parties.”