### No. 89-099



### IN THE SUPREME COURTOF THE STATEOFMONTANA
1989



### RODNEY and DEBRA THELEN,RICHARD and DANA BUECHER, SUSAN GRASSO,LARRY and NANCY PINNOW,and GEORGE

### W. CLEVELAND,JR., Plaintiffs/Appellants,

CITY OF BILLINGS,HEIGHTS SEWER BOARD,BLACK and VEATCH, COP CONSTRUCTION CO., SANDERSON, STEWART, GASTON ENGINEERING, INC., and CHRISTIAN, SPRING, SEILBACH & 

### ASSOCIATES, jointly and severally, Defendants/Cross-Appellants.



### APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County ofYellowstone, The Honorable Russel K. Fillner,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Jerrold L. Nye,Nye & 

### Meyer; Billings,MT

For Respondent: Mark S. Werner,McNamer & 

### Thompson; ~illings, MT Ronald R. 

### Lodders, Crowley, Haughey, Hanson, Toole and Dietrich; Billings,MT W. Anderson Forsythe,Moulton, Bellingham,Longo and Mather; Billings,MT .J. 

### Dwaine Roybal, Keefer, Roybal,Hanson & 

### Stacey;

P- 

### _Billings,MT. i~c) C'3 / 1 

### Submitted on Briefs: May 25, 1989 -" 3 i~ 

### Decided: July 5, 1989

### Mr. Justice R. C. McDonough delivered the Opinion of the Court.

This appeal concerns alleged negligence and inverse condemnation on the part of a city government, a contractor and an engineering firm in designingand constructing a sewer system. Plaintiffs Rodney and Debra Thelen, et al. (Plaintiffs) appeal from the Amended Judgmentof the District Court of the Thirteenth Judicial District, Yellowstone County. The court granted summary judgment in favor of defendants City of Billings, Black & 

### Veatch and COP Construction Co. We affirm. Plaintiffs present a single issue on appeal: Whether the Amended Judgment of November 16, 1988, granting summary judgment to Defendants by the Montana District Court and dismissing Plaintiffs' case was proper. In 1984, construction began on a sewer system project undertaken by the City of Billings in the Billings Heights

area. The City hired engineering firms and a contractor to design, superviseand build the project. Preliminary studies showed that the soil in the area where Plaintiffs' homes are located contained ground water in quantities that might interfere with the excavation of trenches where sewer lines would be buried. The plans therefore called for the contractor,COP Construction Co., to take steps to "dewater" the trenches through the use of "dewatering wells". Constructionof the project began in a neighborhood some distance from Plaintiffs' homes. Dewatering wells were employed to keepwater out of the trenches. The water that collected in thewells was pumped into an existing irrigation ditch that ran through the area, passing near Plaintiffs' homes. At the time in question, the ditch was alleged tohave been in use for irrigation of fields near the homes. The use of the ditch for disposal of water from the dewatering wells was alleged tohave increased the amount of water in the ditchbeyond normal levels used for irrigation. The first construction activity in Plaintiffs' neighborhood consisted of COP digging a "test hole" in an alley. The workers digging thehole encountered a highwater table that prevented completion of the hole and any further excavation. While the hole was being dug, a water main was broken. COP turned off the the water and repaired themain, but 

### it broke again the next day. The main was again turned off and remained off until more permanent repairs were made

some time later. COP then refilled the test hole and suspended work in Plaintiffs' vicinity, moving to another

area of theproject. While the exact time frame is disputed in the record, sometime after COP'S departure from the area Plaintiffst basements began to flood. Some testified indeposition that the water rose as much as two feet into their basements, causing damage to carpet, wall coverings and concrete. Plaintiffs and other residents of the area held a public meeting attended by COP, the City and project engineers, at which 

### it was agreed that COP would install dewatering wells toalleviatethe flooding. The 

### wellswere installed, and the water receded from Plaintiffs

## ' basements. There were no further problems with flooding for the duration of the constructionwork, and the projectwas completed. Plaintiffs filed this lawsuit inAugust of 1985, naming



### a number of persons and entitiesinvolvedwith theproject as defendants. Plaintiffs alleged that the defendants' failure to anticipate and control the ground water they "knew or should have known" tobe present amounted tonegligence, and also worked a wrongful taking of Plaintiff's property byinverse condemnation. After several motions for partial summary judgment, the field of parties being sued was eventually reduced to the City of Billings, the engineering firm Black and Veatch, and COP Construction Co., referred to here as Defendants. Defendants each moved separately for summary judgment. In a single Memorandum and Order, the District Court granted the motions, holding (1) Defendants breached no duty running from themselves toward Plaintiffs, and (2) Plaintiffs were unable to show damage to their property that was proximately caused by Defendants. This appeal followed. On appeal, Plaintiffs first argue that the District Court misapplied the summary judgment standard used in this state. Plaintiffs' argument, however, 

### is based on a misunderstanding of Montana law. Plaintiffs argue that Defendants were required to show "that the flooding was not caused by or did not occur as 

### a direct result of the sewer excavation and work." While Defendants were required toshow that they were entitled tojudgment as a matter of law, that burden did not require Defendants to prove the reverse of Plaintiffs' case. Defendants had toprove asa matter of law thatPlaintiffs

### werenot entitledtorelief. Plaintiffs thus appear to confuse the burden of proof imposed on a party moving for summary judgment with that imposed on a plaintiff in every civil suit. This fundamental misunderstanding taintsPlaintiffs' arguments tothisCourt. In order for summary judgment to issue pursuant toRule 56(c), M.R.Civ.P., the movant must show that there 

### is no genuine issue astoany fact deemed material in lightof the substantivelegalprinciples entitlingthemovant tojudgment

as a matter of law. Allreasonable inferences that can be drawn from offered proof willbe drawn in favor of the party opposing themotion. Cereck v. Albertson's, Inc. (1981), 195Mont. 409, 637 P.2d 509. If themovant meets thisburden, 

### it then shifts to the non-moving party todemonstrate a genuine issue of material fact. "Mere denialor speculation

### willnot suffice, the non-moving party must show facts sufficient to raise a genuine issue." Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287. These same standards apply to this Court's review of the decisionbelow. Kronen v. Richter (1984), 211Mont. 208, 683 P.2d 1315. Most of the District Court's memorandum in this case deals with a single substantive legal principle held to entitle Defendants to judgment as a matter of law: the principle of proximate cause. Proximate cause is an element of the cause of action for negligence, and must be proven in order for a plaintiff torecover damages. Young v. Flathead County (Mont. 1988), 757 P.2d 772, 45 St.Rep. 1047. Proximate cause is also a required element of the cause of action for inverse condemnation. Rauser v. Toston Irrigation District (1977)

## , 172 Mont. 530, 565 P.2d 632. The initial burden was therefore on Plaintiffs to come forth with sufficient proof toraise issues of material fact concerning each element of their case, including proximate cause. Absent a showing of proximate cause, both of Plaintiffs' claims would fail, and Defendants would be entitled to judgment asamatter of law. AsthisCourt noted inYoung, 757 P.2d at777, proximate

cause has notbeen defined clearlyinMontana law: Liability, in any cause of action, attaches if the plaintiff can prove firstthatdefendant's act

### isa cause infactof injury and then thatthe injuryis the direct or indirect result, proximately caused by the negligent act. Causation in fact has been determined by the use of the "but for" test 

# ...

...In Montana, proximate cause is one which in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred.

[citations] This definition of proximate cause incorporates the "but for" definition inthewords of the last clause 

### "[a] nd without which the injury would not have occurred." It is from thiswording that the distinction between cause in fact and proximate, or legal, cause has become clouded. The Young opinion thereforewent on tofocus on the "natural and continuous sequence, unbroken by any new, independent cause," which must be shown to establish proximate cause. Before the District Court, Plaintiffs relied largely on their own deposition testimony and a "Preliminary Investigation Report" prepared by a hydrogeologist hired by Plaintiffs. Defendants argued inbriefs filed in support of theirmotions for summary judgment thatthisevidence alleged insufficient facts on which to base a showing of proximate
cause, relying instead on mere speculation. In other words,

on thebasisof thepleadings and proof intherecord, 

### itwas impossible for Plaintiffs to show that Defendants

## ' actions, through a natural and continuous sequence unbroken by any new, independent cause, produced Plaintiffs' injuries. The DistrictCourt agreed. Because of Plaintiffs

## ' misunderstanding of Montana

## 's summary judgment standard, their arguments on appeal suffer from the same flaw addressed by the District Court. Plaintiffs argue tothisCourt that "undisputed facts" inthe record raise sufficient issues of material fact to avoid summary judgment: 

### (1) Plaintiffs had no problems with basement flooding prior tothe events atissue; (2) the soil 

### tests performed prior to construction indicated that dewatering wells would be necessary to control ground water in excavations; (3) COP Construction began excavating inPlaintiffs' vicinity before installing dewatering wells and encountered ground water; (4) Plaintiffs' basements began flooding "within a day or two" after COP began excavation; (5) once dewatering wells 

### were installed, the flooding subsided; and (6) Plaintiffs have had no further flooding problems intheirbasements. Plaintiffs state intheirbrief tothisCourt thatthe essenceof theirargument isthus "but for" Defendants' actions associated with excavating the test hole, Plaintiffs' basements would not have flooded. Plaintiffs cite the Young opinion for the proposition that the "but for" 

### test 

### is appropriateinthiscase. The Young opinion quoted above states the distinction between cause in fact and proximate cause. Plaintiffs correctly cite Young for the "but for" 

### test, but they apply the 

### test incorrectly. "But for" 

### is a testof cause infact, not proximate cause. Stated another way, the "but for" test establishes that if the act complained of had not taken place, the injury would not have resulted. This same argument, however, can be applied to any cause that might have contributedtothe flooding; e.g., thepresence of water inthe irrigation ditch, the composition of the soil, or the water from septic tank drain fields inthe neighborhood. By taking the argument to

### its logical extreme, 

### it couldbe said thatifPlaintiffshad notbuilttheirhouses with basements, they would have had no flooding problems (several homes in the neighborhood had no basements and thus no flooding). This 

### iswhy the law requires an acttobe theproximate

cause of injury before liability

### willattach. Which one or

more of the contributing causes identified by the "but for" 

### test, through a natural and continuous sequence unbroken by any new, intervening cause, produced Plaintiffs' injury? Certainly Plaintiffs' choice made years ago to build homes withbasements would appear sologically remote that 

### it couldnot be the proximate cause of the flooding. However, by resting theircaseon "undisputed facts" asserted to

### meetthe "but for" 

### test, Plaintiffs ignore the required showing that Defendants' actions

### were theproximate cause of the flooding. The factsrecited by Plaintiffs do not go tothe question of whether there was a natural, continuous, uninterrupted sequence between Defendants' actions and the flooding. They simply allege "but for". The hydrogeologist's preliminary report relied upon by Plaintiffs below does not remedy the flaw intheir argument. The report drew two main conclusions: 

### (1) increased water flow inthe irrigation ditchcould have caused the flooding, and (2) excavation of a sewer trench between the irrigation ditch and Plaintiffs' homes could have caused orcontributed tothe flooding. The report also states, "Other factors that would affect water table level atthe basements [including climate, storms, irrigation of crops and normal water table fluctuation] 

### were examined in a brief preliminary manner." This report, as 

### is evident from 

### its very title, was preliminary. It is based on the application of hydrogeological theory to a number of possible causes, and 

### its conclusions express no certainty of any kind as tothe natural or continuous sequence of events under Plaintiffs' theories. It 

### iscursory and speculative. Wehave held that speculative statements are insufficient to raise a material. issue of fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401. Keeping in mind the rule from the Cereck case that all reasonable inferences drawn from the reportmust be drawn in favor of Plaintiffs, 

### it must be noted that the report's treatment of "other factors" could address the question of proximate cause. Examination of other possible causes could show whether the "sequence" between the Defendants

### ' actionsand the Plaintiffs' injury was "unbroken by any new, independent cause". However, the report's treatment of "other factors'' 

### is equally speculative, drawing conclusions such as, 

### "[rlandom inspection of water table records 

# . .. suggests that such occurrences may be rare." The only portion of Plaintiffs' offeredproof thatreasonably couldbe construed as addressing proximate cause thus fails to raise

an issueof material factunder theruleinBerger. The proof offered by Plaintiffsbelow failed toraise a material issue of fact on the question of proximate cause. Defendants moved for summary judgment, and pointed out the flaw in Plaintiffs' case. This had a dual effect. By pointing out that Plaintiffs' had failed toraise a genuine issue of material fact as toproximate cause and supporting that assertion with briefs, exhibits and affidavits, Defendants at the same 

### time showed their entitlement to summary judgment. Plaintiffs then had the duty topresent sufficient proof to show that an issue of material fact actually existed; 

### mere denial or speculation would not suffice. Gamble Robinson, 683 P.2d at287. Plaintiffs failedtocome forthwith sufficientproof in the District Court. Instead, they merely reiterated their allegations of fact which they assert preclude summary judgment by their own force, and pointed to the hydrogeologist's report which in a preliminary fashion speculates as to the possible causes of the flooding. As shown above, the proof thus far advanced by Plaintiffs is insufficient to avoid summary judgment. By arguing that it

was Defendants' burden to

### - disprove their theory of the case, Plaintiffs seek to reverse the burden of proof under Montana law. This would leave theDistrict Court in the position of having toguess atwhether Plaintiffs could present a viable
case, or would simply waste the court's time in a futiletrial. This Court has specificallyrefused torequire such a guessinggame.



# . .. the trial court, in considering a motion for summary judgment, has no duty to anticipate possible proof that might be offered under the pleadings and that asking for such foresight demands "clairvoyance" not possessed by even a trialjudge. Larry C. Iverson, Inc. v. Bouma (1981), 195Mont. 351, 374, 639 P.2d 47, 59. We affirmthejudgment of theDistrict Court.