No. 89-099 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

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 of Yellowstone, 

The Honorable Russel K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 designing and constructing a sewer 

sys tem. Plaintiffs Rodney and Debra Thelen, et al. 

(Plaintiffs) appeal from the Amended Judgment of 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, supervise and 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". 

Construction of the project began in a neighborhood some 

distance from Plaintiffs' homes. Dewatering wells were 

employed to keep water out of the trenches. The water that 

collected in the wells 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 to 
have 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 to have increased the amount of 

water in the ditch beyond 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 the hole encountered a high water 

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 the main, 

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 the project. 

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 in deposition 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 

to alleviate the flooding. The wells were installed, and the 

water receded from Plaintiffs ' basements. There were no 

further problems with flooding for the duration of the 

construction work, and the project was completed. 

Plaintiffs filed this lawsuit in August of 1985, naming 

a number of persons and entities involved with the project as 

defendants. Plaintiffs alleged that the defendants' failure 

to anticipate and control the ground water they "knew or 

should have known" to be present amounted to negligence, and 

also worked a wrongful taking of Plaintiff's property by 
inverse 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 to show 

that they were entitled to judgment as a matter of law, that 

burden did not require Defendants to prove the reverse of 

Plaintiffs' case. Defendants had to prove as a matter of law 

that Plaintiffs were not entitled to relief. 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 

taints Plaintiffs' arguments to this Court. 

In order for summary judgment to issue pursuant to Rule 

56(c), M.R.Civ.P., the movant must show that there is no 

genuine issue as to any fact deemed material in light of the 

substantive legal principles entitling the movant to judgment 

as a matter of law. All reasonable inferences that can be 

drawn from offered proof will be drawn in favor of the party 

opposing the motion. Cereck v. Albertson's, Inc. (1981), 195 
Mont. 409, 637 P.2d 509. If the movant meets this burden, it 

then shifts to the non-moving party to demonstrate a genuine 

issue of material fact. "Mere denial or speculation will not 

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 

decision below. Kronen v. Richter (1984), 211 Mont. 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 to recover 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 to raise 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 as a matter of law. 

As this Court noted in Young, 757 P.2d at 777, proximate 

cause has not been defined clearly in Montana law: 

Liability, in any cause of action, attaches if the 

plaintiff can prove first that defendant's act is a 

cause in fact of injury and then that the injury is 

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 in the words 

of the last clause " [a] nd without which the injury 

would not have occurred." It is from this wording 

that the distinction between cause in fact and 

proximate, or legal, cause has become clouded. 

The Young opinion therefore went on to focus 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 in briefs filed in support of 

their motions for summary judgment that this evidence alleged 

insufficient facts on which to base a showing of proximate 

cause, relying instead on mere speculation. In other words, 

on the basis of the pleadings and proof in the record, it was 

impossible for Plaintiffs to show that Defendants ' actions, 

through a natural and continuous sequence unbroken by any 

new, independent cause, produced Plaintiffs' injuries. The 

District Court 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 to this Court that "undisputed facts" in the 

record raise sufficient issues of material fact to avoid 

summary judgment: (1) Plaintiffs had no problems with 

basement flooding prior to the events at issue; (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 in 
Plaintiffs' 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 in their basements. Plaintiffs state in their brief 

to this Court that the essence of their argument is thus "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 appropriate in this case. 

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 test of cause in fact, 

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 contributed to the flooding; e.g., the presence of water 

in the irrigation ditch, the composition of the soil, or the 

water from septic tank drain fields in the neighborhood. By 

taking the argument to its logical extreme, it could be said 

that if Plaintiffs had not built their houses with basements, 

they would have had no flooding problems (several homes in 

the neighborhood had no basements and thus no flooding). 

This is why the law requires an act to be the proximate 

cause of injury before liability will attach. 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 

with basements would appear so logically remote that it could 
not be the proximate cause of the flooding. However, by 

resting their case on "undisputed facts" asserted to meet the 

"but for" test, Plaintiffs ignore the required showing that 

Defendants' actions were the proximate cause of the flooding. 

The facts recited by Plaintiffs do not go to the 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 in their argument. 

The report drew two main conclusions: (1) increased water 

flow in the irrigation ditch could have caused the flooding, 

and (2) excavation of a sewer trench between the irrigation 

ditch and Plaintiffs' homes could have caused or contributed 

to the flooding. The report also states, "Other factors that 

would affect water table level at the 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 to the 

natural or continuous sequence of events under Plaintiffs' 

theories. It is cursory and speculative. We have 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 report must 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 ' actions 
and 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' offered proof that reasonably could be 

construed as addressing proximate cause thus fails to raise 

an issue of material fact under the rule in Berger. 

The proof offered by Plaintiffs below failed to raise 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 to raise a genuine 

issue of material fact as to proximate 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 to present 

sufficient proof to show that an issue of material fact 

actually existed; mere denial or speculation would not 

suffice. Gamble Robinson, 683 P.2d at 287. 

Plaintiffs failed to come forth with sufficient proof 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 the District Court in the position of 

having to guess at whether Plaintiffs could present a viable 

case, or would simply waste the court's time in a futile 
trial. This Court has specifically refused to require such a 

guessing game. 

. . . 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 

trial judge. 

Larry C. Iverson, Inc. v. Bouma (1981), 195 Mont. 351, 374, 

639 P.2d 47, 59. 

We affirm the judgment of the District Court.