No. 94-581 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

THEODORE R. ALLERS, 

Plaintiff and Respondent, 

-vMICHAEL D. RILEY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly M. Wills, Michael C. Prezeau, Garlington, Lohn 

& Robinson, Missoula, Montana 

For Respondent: 

Laurie Wallace, David K. Lauridsen, Bothe & 

Lauridsen, eolurnbia Fails, Montana 

(j 

Submitted on Briefs: March 16, 1995 

Filed: 

Decided: September 
justice Jaines C. Nelson delivered the Opinion of the Court. 

Appellant Michael Riley (Riley) appeals the decision of the 

Eleventh Judicial District Court, Flathead County, denying his 

post-trial motion for a new trial. We reverse and remand for 

further proceedings consistent with this opinion. 

Riley raises the following issue on appeal: 

Did the District Court err when it denied Riley's motion for 

a new trial on the grounds of juror and bailiff misconduct? 

This case arises from a traffic accident that occurred near 

Whitefish, Montana on September 2, 1992. Respondent Theodore 

Allers (Allers) was injured when the motorcycle he was riding 

collided with a pickup driven by Riley. The accident occurred when 

Riley turned left at the same time that Allers was attempting to 

pass several vehicles, including Riley's pickup. Allers sued 

Riley, claiming that Riley had been negligent in initiating a turn 

while Allers was making his pass. Riley answered, denying that 

Allers' pass had been initiated when Riley started to turn and 

claiming that Allers had been negligent by attempting to pass in an 

unsafe manner. 

A jury trial began on June 27, 1994. Following deliberations, 

the jury returned a verdict finding that: (1) Allers suffered 

$280,000 in damages; (2) ALlers was 45 percent comparatively 

negligent; and (3) Riley was 55 percent comparatively negligent. 

After the verdict had been returned, Riley's counsel learned 

that, during the jury's deliberations, the jury foreperson 

requested the bailiff to provide a dictionary and that the bailiff 

2 
complied without informing or obtaining the permission of the 

court. Riley's counsel interviewed several jurors who confirmed 

that the bailiff had provided both a legal dictionary and an 

ordinary dictionary. The jury used the dictionaries to look up the 

terms "proximate cause" and "prudent." The dictionary definitions 

relating to causation did not contain the foreseeability element 

which was contained in Instruction No. 14 given by the District 

Court. 

Both parties obtained affidavits from different jurors 

regarding the use of the dictionaries. Allers also obtained an 

affidavit from the bailiff stating that he had provided the jury 

with the dictionaries. Riley filed a post-trial motion for 

judgment notwithstanding the verdict or, alternatively, for a new 

trial. The District Court denied the motions. Riley 

appeals. 

Did the District Court err when it denied Riley's motion for 

a new trial on the grounds of juror and bailiff misconduct? 

Section 25-11-102, FICA, enumerates the grounds upon which a 

new trial may be granted: 

The former verdict or other decision may be vacated and 

a new trial granted on the application of the party 

aggrieved for any of the following causes materially 

affecting the substantial rights of such party: 

1 irregularity in the proceedings of the . . . jury . . by which either party was prevented from 

having a fair trial; 

(2) misconduct of the jury. 

In this case, Riley moved for a new trial on the grounds of bailiff 

and jury misconduct pursuant to subsections (1) and (2) of the 

statute. 
On appeal, the parties provide different standards by which 

this Court should review a district court's grant or denial of a 

motion for new trial under § 25-11-102(13 and (2), MCA. Allers 

cites Schmoyer v. Bourdeau (19661, 148 Mont. 340, 343, 420 P.2d 

316, 317, in which this Court held: 

[Olnce the District Court has considered the matter [of 

jury misconduct], however it is raised . . . this Court 

will not lightly disturb that ruling. To overthrow it 

this Court must be shown by evidence that is clear, 

convincing, and practically free from doubt, of the error 

of the trial court's ruling. 

Riley points out that, in reviewing cases like the one at bar, this 

Court has employed a variety of standards, including a "practically 

free from doubtn standard, Easterday v. Canty 11986), 219 Mont. 

420, 423, 712 P.2d 1305, 1307, and a "clear and convincing" 

standard, Ahmann v. American Federal Savings & Loan Assln (1988), 

235 Mont. 184, 191, 766 P.2d 853, 857. Riley requests that we 

clarify the standard of review. 

In the two most recent civil cases in which this Court has 

reviewed a district court's grant or denial of a motion for a new 

trial on the grounds of jury and/or bailiff misconduct, we 

enunciated the following standard of review: The decision to grant 

or deny a new trial is within the sound discretion of the trial 

judge and will not be disturbed absent a showing of manifest abuse 

of that discretion. Geiger v. Sherrodd, Inc. (1993) , 262 Mont. 

505, 508, 866 P.2d 1106, 1108; Henrichs v. Todd (1990), 245 Mont. 

286, 291, 600 P.2d 710, 713. We will continue to employ this 

standard of review when allegations of jury and/or bailiff 

misconduct are raised as grounds for a motion for a new trial. 

4 
Those cases which articulate a different standard of review are 

overruled to that extent. 

We will give considerable weight to the determination of the 

district court because it is in the best position to observe the 

jurors and determine the potential for prejudice when allegations 

of jury or bailiff misconduct are raised, and the district court 

will have significant latitude when ruling on these matters. 

Easterdav, 712 P.2d at 1307; see State v. Gollehon (1993), 262 

Mont. 293, 303, 864 P.2d 1257, 1263-64; State v. Eagan (1978), 178 

Mont. 67, 76, 582 P.2d 1195, 1200. 

Riley and Allers agree that jury misconduct occurred. 

However, Allers does not agree with Riley that the jury's 

misconduct materially affected a substantial right of Riley, as 

required by § 25-11-102, MCA. The District Court found that 

" [wl ithout invading the jury's decisions [sic] making process to 

determine that the dictionary definitions affected their 

deliberations, there is no evidence of any irregularity or 

misconduct materially affecting the substantial rights of [Riley] ." 

As to the bailiff's actions, Allers and Riley disagree. Riley 

asserts that the bailiff ' s actions went beyond the limits set forth 

in § 25-7-403, MCA, and thus created an irregularity in proceedings 

under 25-11-102(1), MCA. Allers counters that the bailiff's 

actions did not constitute an irregularity in proceedings because 

those actions did not materially affect Riley's substantial rights. 

Allers appears to base that argument on the bailiff's lack of 

corninunicatioil with the jury when providing the dictionaries to 
them. Section 25-7-403, MCA, provides in pertinent part: 

Unless by order of the court, the officer having [the 

jury] under his charge must not suffer any communication 

to be made to them or make any himself, except to ask 

them if they or two-thirds of them are agreed upon a 

verdict . . . . 

The statute strictly limits the interaction that is allowed 

between the jury and the bailiff. In its rationale for denying 

Riley's motion for new trial, the District Court concluded that, 

while "it was inappropriate for the bailiff to have complied with 

the jury's request. . . . " the bailiff nevertheless did not commit 

any error which substantially affected the right of Riley. We 

agree that, by providing the jury with extraneous materials without 

the permission of the court, the bailiff violated § 25-7-403, MCA. 

Nevertheless, since we determine that Riley is entitled to a new 

trial because of the misconduct of the jurors, we need not address 

further the effect of the bailiff's misconduct as regards Riley's 

motion for new trial 

We start from the premise that under the Constitution of 

Montana both the plaintiff and the defendant have a right to a fair 

trial. In Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717, we 

stated: 

The guiding principle of our legal system is fairness. 

We must tenaciously adhere to the ideal that both sides 

of a lawsuit be guaranteed a fair trial. Sec 27, Art. 

111, Montana Constitution. [Now Sec 17, Art. 111. 

m, 410 P.2d at 722. See also Brockie v. Omo Const., Inc. 

i1992i, 215 Mont. 495, 499, 844 P.2d 61, 64 

Riley argues that, pursuant to w, jury or bailiff 

misconduct creates a rebuttable presumption of prejudice. w, 
410 P.2d at 721. In , a civil case, Putro was injured when 

the car she was driving collided with the truck that Baker was 

driving. Two passengers in Putro's car died as a result of the 

accident. In a separate criminal proceeding, Baker pled guilty to 

charges of manslaughter. Prior to trial in the civil proceeding, 

the parties stipulated to exclude any reference to the criminal 

proceeding. On the day that the civil case was to be given to the 

jury, an article appeared in the local paper stating that Baker had 

pled guilty to manslaughter. Baker moved for a mistrial or a new 

trial on the grounds that at least some of the jurors must have 

read the article that morning, thereby tainting the verdict. The 

district court took the motion under advisement and decided to 

submit the case to the jury and to poll the jury members after they 

reached a verdict to determine if the article influenced them. 

When the district court polled the jury, it was discovered that all 

of the jurors had been exposed to the article because one of the 

jurors had clipped it out and brought it into the jury room. 

Several jurors said that they refused to read it before reaching a 

final verdict. All of the jurors told the district court that the 

article had no influence on their verdict. The district court then 

denied the motion for mistrial or a new trial. On appeal, we 

reversed, stating that we were not satisfied that the article did 

not prejudicially influence the jury's verdict. w, 410 P.2d at 

721. We stated: 

It was established early in our law . . . that "if 

misconduct be shown tending to injure defendant, 

prejudice to the defendant is presumed, but not 

absolutely." The presumption may be rebutted by the use 

7 
of testimony of the jurors "to show facts which prove 

that prejudice or injury did not or could not occur." 

But, "this court, however, has never held, and does not 

now hold, that, if the contact of the juror with outside, 

prejudicial influences be clearly demonstrated and 

uncontroverted, the juror may purge himself by testifying 

that such influences did not affect his judgment in 

forming his verdict." The ultimate inquiry is for the 

court to decide upon the facts of each particular case. 

Our holding in m, with regard to the testimony of jurors, 

has been qualified, however, because of the 1977 adoption of Rule 

606(b), M.R.Evid., which provides that juror testimony--including 

affidavits and other evidence--that concerns the juror's thoughts, 

concerns, emotions, statements, mental processes, or any other 

matter pertaining to the jury's deliberations is inadmissible in 

determining the validity of the verdict. Under that Rule, a juror 

may provide testimony in only three circumstances: 

[To determine1 (1) whether extraneous prejudicial 

information was improperly brought to the jury's 

attention; or (2) whether any outside influence was 

brought to bear upon any juror; or (3) whether any juror 

has been induced to assent to any general or special 

verdict, or finding on any question submitted to them by 

the court, by a resort to the determination of chance. 

Rule 606 (b) , M.R.Evid; Harry v. Elderkin (1981), 196 Mont. 1, 7, 

637 P.2d 809, 813. 

Here, it is clear from its order denying Riley's motion for 

new trial that the District Court was cognizant of the restrictions 

imposed on the use of juror affidavits. The court, in accordance 

with our case law, determined that, while it could consider such 

affidavits for the limited purpose of showing that external 

irifluences and extraneous prejudicial information were brougnc co 
the jury's attention, it was, nevertheless, barred from considering 

a, if at all, such information affected those deliberations or 

the jury's decision making processes. See Estate of Spicher v. 

Miller (1993!, 260 Mont. 504, 861 P.2d 183; Boyd v. State Medical 

Oxygen & Supply, Inc. (1990), 246 Mont. 247, 805 P.2d 1282. Since 

the District Court could not inquire into the jury's thought 

processes, it concluded that there was no evidence of prejudice-- 

i.e., that the jury's use of the dictionary definitions affected 

its determination of proximate cause and cause in fact. Moreover, 

having declined to presume prejudice, the court concluded that 

Riley's substantial rights were not affected and that his motion 

for new trial must be denied. 

In determining whether the substantial rights of the 

complaining party have been affected, we have, however, 

acknowledged that "[glenerally, courts in both civil and criminal 

cases have held that to warrant a new trial, the misconduct must be 

such that actual or potential injury results to the losing party." 

Brockie, 844 P.2d at 64. (Emphasis added.) In Brockie, Brockie's 

son was killed when the car he was a passenger in skidded near an 

icy bridge and struck a flasher board that was located in the 

median. At trial, defendant's expert testified as to the distance 

between the flasher board and the interstate at the time of the 

accident. He based his analysis on motion theory and kinematics. 

Brockie gave no expert testimony to rebut defendant's expert. The 

location of the fiasher board at the time of the accident was 

pivotal in the case. Affidavits submitted by two jurors stated 
that the jury foreperson told them that he conducted independent 

research on motion theory and kinematics and that his research 

confirmed the defendant's expert's testimony. The district court 

denied Brockie's motion for a new trial. We reversed, concluding 

that the district court abused its discretion. We found that the 

jury foreperson's research, and the report of that research to two 

other jurors, was misconduct as defined by 5 25-11-102 (21, MCA. We 

also found that probable prejudice resulted from that conduct. In 

essence, the jury foreperson became a witness to the other jurors 

by corroborating defendant's expert's testimony with reports of his 

own independent research. Brockie, 844 P.2d at 64-65 

The situation in the present case is analogous, and the same 

result obtains. Here, the jury panel conducted independent 

research on extraneous material which redefined the critical 

element of causation by effectively eliminating from Instruction 

No. 14 any reference to foreseeability. Such conduct is sufficient 

to demonstrate probable prejudice and potential injury to the 

losing party. See Brockie, 844 P.2d at 64. 

Allers' arguments that the jury did not present any questions 

to the court regarding foreseeability; that foreseeability was not 

an element in this case; and that if the court had felt that the 

element of foreseeability had not been proven it would have granted 

Riley a new trial, are beside the point. Instruction No. 14 

correctly set forth Montana law on causation, and the jury was 

obligated ro determine proximate cause in accordance with that 

instruction. Foreseeability was an element of proximate cause in 
Lhe law given ro irhe jury, and the jury was not at liberty to 

simply ignore the court's instruction and to redefine causation by 

eliminating the foreseeability element. It is pure speculation to 

attempt to divine whether, and if so, to what extent the concept of 

foreseeability entered into the jury's determination of causation. 

As the District Judge acknowledged, he could not determine the 

prejudicial effect of the jury's conduct without invading the 

internal mechanisms of its decision making processes--something 

that he was precluded from doing under Rule 606(b), M.R.Evid. 

Since the trial court was barred from inquiring into the jurors' 

thought processes, there was no practicable method to determine 

whether the outcome of the trial would have been different had the 

misconduct not occurred. See m, 410 P.2d at 722, and Brockie, 

844 P.2d at 64. 

As Riley points out in his brief on appeal: 

This was a difficult case, involving complex issues 

of negligence, causation, and comparative negligence. 

The jury deliberated for nearly seven hours, and it is 

clear that it struggled with the evidence and the law, 

ultimately finding that Riley's negligence exceeded 

Allers's negligence by only 10%. 

In m, we stated that a rebuttable presumption of prejudice 

exists when jury misconduct stems from extraneous influence; that 

the misconduct in question must show a "natural tendency" to 

prejudice; and that -,he presumption is not absolute. m, 410 

P.2d at 721-22. As we have indicated above, our discussion in 

Futro has been somewhat qualified by the adoption of Rule 606(b). 

M.R.Evid., and by our interpretations of that Rule. However, given 

the facts of this case, we conclude that there was, at the very 

I1 
least, a reasonable probability that the jurors' misconduct 

influenced their decision; that probable prejudice and potential 

injury was apparent from the fact that the jury used extraneous 

materials--two dictionaries--to redefine a critical element of this 

negligence case--proximate cause--that was already correctly 

defined in the court's instructions; and that, as a consequence, 

Riley's substantial rights were compromised along with his 

constitutional right to a fair trial. 

While not dealing with juror misconduct, we, nevertheless, 

made an observation in a case involving improper argument of 

counsel that is germane to our resolution of the issue raised here. 

In Kuhnke v. Fisher (1984), 210 Mont. 114, 126, 683 P.2d 916, 922, 

we observed that there is no way to measure how a prejudicial 

argi?ment may affect an adverse pa-rty. We stated that "[tlhe only 

way to be sure which, if any, of the defendants should be 

exonerated or whether plaintiff should recover at all is to grant 

a new trial." Kuhnke, 683 P.2d at 922. See also m, 410 P.2d 

at 722, where this Court stated: 

[Wl e also realize that unexplained prejudicial 

references to important matters in litigation may have a 

"natural tendency" to infect the proceedings with an 

unfairness that can be corrected only by starting anew 

the legal contest. 

Similarly, the prejudice to a party occasioned by the jurors taking 

it upon themselves to redefine a term of art in a critical jury 

instruction from their review of extraneous materials can hardly be 

measured either--especially where the trial court is barred by rule 

from obtaining he very evidence that might resolve that issue one 
way or the other. The only cure for such mischief and for the 

potential prejudice and injury resulting therefrom is to grant a 

new trial. 

Accordingly, we hold that the District Court manifestly abused 

its discretion in denying Riley's motion for new trial, and we 

reverse and remand for further proceedings consistent with this 

opinion. 

We Concur: 

Justice Fred J. Weber signed the majority opinion on June 20, 1995. 
Justice William E. Hunt, Sr., dissenting. 

I dissent from the majority opinion. 

I do not disagree with the majority's analysis concerning the 

misconduct of the bailiff and the jury in this case; and I agree 

that both parties are entitled to a fair trial; and that it may 

always be difficult to determine whether or not that misconduct was 

prejudicial to one or both parties. 

What I have trouble with is the conclusion reached by the 

majority that the District Court committed a manifest abuse of 

discretion by not granting a new trial in this case. The District 

Court found that there was misconduct, but that none of Riley's 

substantial rights were materially affected by the misconduct of 

the jury. We have stated that " [nlot every act of jury misconduct 

. . mandates a new trial." Erickson v. Perrett (1977), 175 Mont, 

87, 91, 572 P.2d 518, 520. When the jury requested and examined a 

dictionary for a definition, I do not find a material affect on 

Riley's substantial rights resulting from this misconduct. 

The District Court stated in its rationale for denying Riley's 

motion for a new trial that " [il t was inappropriate for the bailiff 

to have complied with the jury request . . . . " It was 

inappropriate, but I agree with the District Court that not every 

act of bailiff misconduct will mandate a new trial. See Ahmann, 

766 P.2d at 857. The record in this case does not show that any of 

Riley's substantial rights were materially affected by the 

bailiff's actions. 
The inquiry for courts is whether the misconduct was such that 

actual or potential injury occurred to the losing party, materially 

affecting their substantial rights. Brockie v. Omo Construction 

(19921, 255 Mont. 495, 498-99, 844 P.2d 61, 64. 

In this case, the District Court found no evidence of 

prejudice to Riley. In a review of the dictionary definitions in 

question, I do not find them to be prejudicial. They do not show 

a "tendency to injury." The record indicates that the District 

Court examined the definitions in the context of the surrounding 

circumstances and satisfied itself that Riley was not prejudiced. 

The court reached this conclusion from the advantage of its 

position at the trial, and from that position, properly concluded 

that there was no material affect on substantial rights by actual 

or potential injury. I do not find a manifest abuse of discretion 

by the District Court, and therefore, I conclude that the District 

Court should be affirmed. 

Justice Terry N. Trieweiler joins in the foregoing dissenting 

opinion. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Reversing the jury's verdict which was arrived at following 

four days of trial and seven hours of deliberation is no 

insignificant matter. It should never be done based on purely 

academic notions of technical irregularity which had no bearing on 

the outcome of the case. Yet, that is exactly what the majority 

has done in this case. 

The defendant complains because the jury, in its conscientious 

effort to resolve the issues in this case on their merits, referred 

to the dictionary for a definition of proximate cause. However, 

the only discrepancy between the dictionary definition and the 

court's Instruction No. 14 was that the dictionary definition did 

not include a discussion of foreseeability. That fact made 

absolutely no difference to the outcome in this case, because 

foreseeability was not an issue in this case. It was not even 

mentioned in the issues as framed in the pretrial order, and 

obviously did not come up during the course of the trial. Not only 

has the appellant failed to cite this Court to any fact in this 

case which would have made foreseeability an issue, the appellant 

has not even provided this Court with a transcript of the District 

Court proceedings so that this Court could, on its own, examine the 

record to conclude whether foreseeability was an issue. None of 

that, however, is a deterrent to the majority's determination to 

make an example of this bailiff and this jury by reversing a 
substantial verdict over an issue that had absolutely nothing to do 

with the case. 

The majority pontificates that "iilt is pure speculation to 

attempt to divine whether, and if so, to what extent the concept of 

foreseeability entered into the jury's determination of causation." 

Then, with absolutely no reference to the record, no suggestion of 

how foreseeability might have been an issue in this case, and no 

discussion of the actual issues in this case, the majority 

concludes that there was "a reasonable probability that the jurors' 

misconduct influenced their decision . . . ." Frankly, this is a 

shocking misapplication of the law that pertains to appellate 

review. 

The only record presented to this Court on appeal consisted of 

the pleadings and the jury instructions. The pleadings give 

absolutely no indication that foreseeability was an Issue in this 

case. The majority may feel good because they have sent a message 

to this bailiff and this jury. However, the only person really 

affected by this decision is the prevailing party who had nothing 

to do with the misconduct. In the process, the losing party is 

rewarded because of "misconduct" which had absolutely no bearing on 

the outcome of this case. As it turns out, the best thing that 

happened to the defendant in this case was when the jury tried to 

figure out what proximate cause meant. 

It is in recognition of the time and effort that goes into the 

jury process that two important rules control our review of jury 

verdicts in civil cases. First, a verdict should never be reversed 
based on an irregularity or misconduct unless the act complained of 

materially affects the substantial rights of the aggrieved party. 

Second, in arriving at the first determination, the law 

acknowledges that the district judge who sat through the trial and 

personally observed and heard the evidence is in the best position 

to determine whether an irregularity or misconduct adversely 

affects one of the parties. 

Therefore, we have established the rule that the decision to 

grant or deny a motion for new trial on one of these bases is 

within the sound discretion of the trial judge and will not be 

disturbed absent a manifest abuse of that discretion. In this 

case, I conclude that neither requirement has been established. 

Furthermore, it bears repeating that this Court has not even 

been provided the benefit of a transcript of the District Court 

proceedings. The majority does not know what testimony was given. 

The majority is unaware of any arguments that were made to the 

jury. The majority does not know what motions were made to the 

District Court, nor the factual bases for those motions. Yet, it 

has concluded that it knows, better than the District Judge, 

whether this admittedly improper conduct was prejudicial to the 

defendant. 

It occurs to me that the only prejudice that occurred in this 

case, occurred when the District Court gave its Instruction No. 14 

which pertained to proximate cause and was mandated by our decision 

in KifchenKrirfiers,Inc. v. EustsideBmk (1990), 242 Mont. 155, 759 P.2d 567. 

That instruction is a convoluted, incomprehensible and irrelevant 

18 
description of an abstract legal notion which did not belong in the 

jury instructions in the first place. To suggest that one of the 

parties was prejudiced when the jury tried to overcome this 

considerable judicially-created obstacle by trying to understand 

the relatively simple concept of causation through other means, 

carries the detached, misguided and esoteric notions of Kitchen K~wjiem 

to a new extreme. 

The District Court instructed the jury on the subject of 

proximate cause in its instruction No. 14. The affidavits of the 

jurors indicate that they sought guidance from dictionary 

definitions of proximate cause because of their inability to 

understand Instruction No. 14. However, the only discrepancy 

between the dictionary definitions and the court's instruction 

which is complained of by the defendant is the fact that the 

dictionary definitions do not include the concept of 

"foreseeability." I conclude that the absence of foreseeability in 

the dictionary definitions created absolutely no prejudice to the 

defendant for the following reasons. 

First, foreseeability was not an issue in this case. This 

case was not, as suggested in the majority opinion, a complex form 

of litigation. it was a simple motor vehicle accident involving 

two vehicles, two drivers and one collision. The plaintiff accused 

the defendant of making an improper left hand turn. The defendant 

accused the plaintiff of making an improper pass. There is no 

indication from the meager record presented to us that either party 

ever argued that if he had done what he was accused of doing, harm 

19 
to another person was unforeseeable. In fact, the contentions and 

issues raised in the pretrial order never even discuss the issue of 

proximate cause, much less the sub-issue of foreseeability. The 

issues were set forth in the pretrial order as follows: 

ISSUES OF FACT 

The following issues of fact and no others remain to 

be litigated upon the trial: 

1. Whether the September 2, 1992, accident was 

caused by Defendant's negligence. 

2. Whether the September 2, 1992, accident was 

caused by Plaintiff's negligence. 

3. The percentage of fault or negligence 

attributed to each party, if any, which was a cause of 

the September 2, 1992, accident. 

4. The amount of money, if any, to which Plaintiff 

is entitled to compensate him for his damages. 

The majority's concern, therefore, about foreseeability is much to 

do about nothing. 

Second, if either party did what he was accused of doing, 

foreseeability was assumed as a matter of law. Therefore, it was 

unnecessary to instruct the jury on the issue of foreseeability in 

the first place. For example, Riley was accused of making an 

unsafe turn in violation of § 61-8-336, MCA. Allers was accused of 

making an unsafe pass, which would be a violation of § 61-8-325, 

MCA . 

[Wle have long been committed to the doctrine that the 

violation of a statute enacted for the safety of the 

public is negligence perse . . . . 

Kudr~zuv. Come! Corp. (1977!, 175 Mont. 29, 39, 572 P.2d 183, 188 
In this case, the jury was specifically instructed that 

violation of motor vehicle laws is negligence per se, and it found 

that both parties were negligent. Negligence has four elements: 

(1) duty; 12) breach of duty; (3) causation; and (4) damages. 

However, there can be no "duty" unless harm from an act or omission 

is "foreseeable." As we stated in Shaferv.DepartmenlofInstiiutions (1979), 

181 Mont. 102, 105, 592 P.2d 493, 495: 

The crux of this case is the element of negligence 

known as foreseeability. This element serves as a limit 

on liability for acts which might, under other 

circumstances, be negligent. The substance of 

foreseeability as it relates to negligence is that a 

defendant who could not foresee any danger of injury from 

his conduct or any risk from an intervening force is not 

negligent. Mang v. Eliasson (l969), 153 Mont. 431, 436, 

458 P.2d 777, 780. Absent foreseeabilitv, there is no 

dutv; absent dutv, there is no neqliqence. 

(Emphasis added. ) 

When we have held, as we have on many occasions in the past, 

that violation of a motor vehicle statute is negligence as a matter 

of law, we have held that such a violation constitutes a breach of 

each motorist's duty to others. By concluding as a matter of law 

that violation of a motor vehicle statute is a breach of duty, we 

have held as a matter of law that injury to others is foreseeable 

from such a violation. Therefore, it was completely unnecessary to 

re-instruct the jury on the subject of foreseeability as an elemect 

of causation. It was not only unnecessary, it caused confusion 

which should have been avoided if this case was to be decided on 

its merits. For these reasons, the jury's mere consultation of 

other definitions which did not include the concept of 
"foreseeability" could not possibly have prejudiced the defendant. 

To hold otherwise ignores the simple reality presented by the facts 

in this case and the common law by which it must be decided 

Finally, I conclude that the Kitchen Kru@ersl proximate cause 

instruction is itself prejudicial to any party charged with proving 

causation. It is redundant with regard to the subject of 

"foreseeability" which is already implicit in the negligence 

instructions; the subject of "foreseeability" is more appropriately 

dealt with under the issue of negligence; the concept is 

incomprehensible to the average jury; and by perpetuating this 

practice (which to my knowledge is unique to this jurisdictioni, 

this Court has made it more difficult to resolve civil claims on 

their merits. Therefore, it is time for the Court to admit that it 

made a huge mistake when, in its KitchenKrufters case, it imposed upon 

the district courts of this state the obligation to interject 

archaic, redundant and most often irrelevant legal notions into 

instructions to a lay jury on an issue which in most cases is 

relatively simple and can be decided based on common sense. 

In a negligence action, such as this one, the subject of 

foreseeability is repetitious of the duty imposed under the 

standard negligence instruction which provides that: 

Negligence is the failure to use reasonable care. 

Negligence may consist of action or inaction. A Person 

is neqliaent if he fails to act as an ordinarily careful 

person would act under the circumstances. 

(Emphasis added. i 
How an ordinarily careful person would act under the 

circumstances takes into consideration whether or not harm to 

someone is foreseeable 

The fact that discussion of "foreseeability" as part of 

proximate cause results in repetition is evident from our earlier 

cases which, as already mentioned, include foreseeability as an 

element of the "duty" which has to be present before negligence can 

be found. 

For example, in Shafer v. Department afInstitutions (1979) , 18 1 Mont . 102, 

592 P.2d 493, the victim was on leave from the Mountain View School 

for Girls when she was involved in an automobile accident and 

injured. The state was sued under the theory that Mountain View 

was negligent by failing to properly supervise the victim. We held 

that the state was not negligent, based upon unforeseeability of 

the manner in which the injury occurred. However, we did not do so 

under a diszussion of "proximate cause" but rather under the 

discussion of the defendant's "duty." In addition to the 

previously quoted language, we stated that: 

Foreseeability is measured on a scale of 

reasonableness; it is not measured abstractly. Fordv. Ruple 

(19721, 161 Mont. 56, 64, 504 P.2d 686, 691. The 

perspective is from the time of the allegedly negligent 

act : 

. , . in weighing the likelihood of harm, the 

seriousness of injury and the value of the 

interest to be sacrificed--the law judges the 

actor's conduct in the light of the situation 

as it would have appeared to the reasonable 

man in his shoes at the time of the act or 

omission complained of. Not what actually 

happened, but what the reasonably prudent 
person would then have foreseen as 11kely to happen, is the 

key to the question of reasonableness. Mangv 

Eliasson, 153 Mont. at 436-37, 458 P.2d at 780. 

Shafer, 592 P.2d at 495. 

Foreseeability was also imposed as an element of duty in Pretly 

on%pv.CityofHardin (19791, 182 Mont. 311, 597 P.2d 58. In that case, 

we pointed out that: 

Actionable negligence arises only from a breach of 

legal duty, and to sustain an action for damages 

resulting from negligence, the complaint must allege the 

duty, its breach, the damages, and that the breach of 

duty was the proximate cause of the injury. Ritchie v. 

~orthernPacificRail~~ayCo. (1954), 128 Mont. 218, 272 P.2d 728. 

Related to these basic rules of negligence law is the 

rule that a defendant who could not reasonably foresee 

any danger of direct injury resulting from his conduct or 

any risk from an intervening force is not negligent. 

hirngv. Eliasson (1969), 153 Mont. 431, 458 P.2d 777. 

As a result of these cases, in combination with the Kitchen 

Krufers decision, we now analyze foreseeability in determining 

whether there is negligence, and then re-analyze foreseeability in 

determining whether there was "proximate cause." 

Many courts have eliminated this redundant analysis and 

simplified the jury's responsibility by limiting the analysis of 

foreseeability to a determination of whether there is negligence in 

the first place, and then dealing with cause as simply cause-infact. Two of the jurisdictions in our own area which have done so 

are the states of Washington and Oregon. 
In Rickstadv. Holmberg (Wash. 1969) , 456 P.2d 355, the Washington 

Supreme Court stated that: 

The better considered authorities do not regard 

foreseeability as the handmaiden of proximate cause. To 

connect them leads to too many false premises and 

confusing conclusions. Foreseeability is, rather, one of 

the elements of negligence; it is more appropriately 

attached to the issue of whether defendant owed plaintiff 

a duty, and, if so, whether the duty imposed by the risk 

embraces that conduct which resulted in injury to 

plaintiff. The hazard that brought about or assisted in 

bringing about the result must be among the hazards to be 

perceived reasonably, and with respect to which 

defendant's conduct was negligent. See Restatement 

(Second) of Torts 5 435 comment c (1965). . . . 

It is the misuse of foreseeability--that is, 

discussion of the improbable nature of the accident in 

relation to proximate cause--that led the trial judge, in 

the instant case, to conclude that the challenge should 

be sustained. 

The comment in the Restatement (Second) of Torts referred to 

in the Washington opinion is part of the Restatement's analysis of 

foreseeability under its section on causation. The authors there 

state : 

Strictly, the problem before the court is one of 

determining whether the duty imposed on the actor was 

designed to protect the one harmed from the risk of harm 

from the hazard in question. (See § 281, comment e, and 

5 449.) However, courts frequently treat such problems 

as problems of causation. (See § 281, comment e, and 

§ 430, comment a.j 

Restatement (Second) of Torts § 435, comment c (1965) 

How to deal with foreseeability in the jury instructions when 

analyzed as part of "duty" is illustrated in Wills v. City qf Vutzcouver 

(Wash. 1970), 467 P.2d 292 
Similar analyses in Oregon occurred in Sworden b3. Gross (Ore. 

1966), 409 P.2d 897, and Wnanv. CiiyofEugene (Ore. l979), 591 P.2d 

I agree with the Washington court that the better reasoned 

authorities address foreseeability as part of their analysis of 

"duty" rather than "proximate cause." In addition to the 

Restatement (Second) of Torts, W. Page Keeton et al., Prosser and 

Keeton on the Law of Torts 5 43 (5th Ed. 1984), states as follows: 

Negligence, it must be repeated, is conduct which 

falls below the standard established by law for the 

protection of others against unreasonable risk. It 

necessarily involves a foreseeable risk, a threatened 

danger of injury, and conduct unreasonable in proportion 

to the danger. If one could not reasonably foresee any 

injury as the result of one's act, or if one's conduct 

was reasonable in light of what one could anticipate, 

there would be no negligence, and no liability. . . . 

. . . At the risk of becoming wearisome, it must be 

repeated that the question is primarily not one of 

causation, and never arises until causation has been 

established. It is rather one of the fundamental policy 

of the law, as to whether the defendant's responsibility 

should extend to such results. In so far as the 

defendant is held liable for consequences which do not 

lie within the original risk which the defendant has 

created, a strict liability without fault is superimposed 

upon the liability that is logically to be attributed to 

the negligence itself. It is simpler, and no doubt more 

accurate, to state the problem in terms of legal 

responsibility: [Ils the defendant legally responsible 

to protect the plaintiff against such unforeseeable 

consequences of the defendant's own negligent acts? . . . Whether there is to be such legal responsibility is a 

matter of policy, of the end to be accomplished; and when 

we say, for example, that the defendant is or is not 

under a "duty" to protect the plaintiff against such 

consequences, "duty" is only a word with which we state 

our conclusion and no more. 

Prosser and Keeton on the Law of Torts § 43 at pp. 280-81. 
The classic case in this country that dealt with the issue of 

foreseeability was Palsgruf v. Long IslandRailrucrdCo. (N.Y. 1928) , 162 N.E. 

99. In the majority opinion authored by Justice Cardozo, liability 

was defeated because the injury that was alleged was 

"unforeseeable." However, the issue of foreseeability was 

considered in the court's analysis of whether or not the defendant 

had a duty to the plaintiff. In summarizing that decision, Prosser 

and Keeton state: 

In this situation Judge Cardozo, speaking for a 

majority of four, held that there was no liability, 

because there was no negligence toward the plaintiff. 

Negligence, he said, was a matter of relation between the 

parties, which must be founded upon the foreseeability of 

harm to the person in fact injured. The defendant's 

conduct was not a wrong toward her merely because it was 

negligence toward someone else. She must "sue in her own 

right for a wrong personal to her, and not as the 

vicarious beneficiary of a breach of duty to another." 

Prosser and Keeton on the Law of Torts 8 43 at p. 285. 

I believe that we can accomplish the same social objectives 

for which the requirement of foreseeability was established without 

dealing with the issue redundantly and thereby unnecessarily 

complicating the resolution of disputes. The way to do so is to 

deal with the issue of foreseeability in the analysis of negligence 

alone. 

For all of these reasons, then, I conclude that there was no 

prejudice to the defendant by the jury's consideration of 

definitions of proximate cause which did not include the concept of 

*foreseeability." Furthermore, because there was no prejudice to 
the defendant, the District Court did not manifestly abuse its 

discretion when it denied the defendant's motion for new trial 

In summary, § 25-11-102, MCA, provides that a new trial may 

only be granted when the complaining party's "substantial rights" 

have been materially affected by an irregularity in the proceedings 

or misconduct of the jury. Rule 61, M.R.Civ.P., provides that: 

No error in either the admission or the exclusion of 

evidence and no error or defect in any ruling or order or 

in anything done or omitted by the court or by any of the 

parties is ground for granting a new trial or for setting 

aside a verdict or for vacating, modifying or otherwise 

disturbing a judgment or order, unless refusal to take 

such action appears to the court inconsistent with 

substantial justice. The court at every staae of the 

proceedinq must disreqard any error or defect in the 

proceedinq which does not affect the substantial riqhts 

of the parties. 

(Emphasis added. 

We have repeatedly held that we will not reverse jury verdicts 

or decisions of the district court based on error which was 

harmless. R.H.Crover,Inc.v.F~:nnIns.Co. !1989), 238 Mont. 278, 284-85, 

777 P.2d 338, 342; Gilesv. Flint VulleyForestProds. (1979), 179 Mont. 382, 

387-88, 588 P.2d 535, 538-39. The majority in this case has, 

however, established a new rule. That rule seems to be that if the 

conduct complained of by the aggrieved party is offensive enough to 

the majority, then the absence of prejudice is irrelevant. Since 

symbolic messages are not the true function of this Court, I 

dissent from that course of action. 

Aside from the legal analysis set forth above, the most 

amazing thing to me about che result arrived at by the majority is 
that without the benefit of having heard the evidence or even 

reviewed a transcript of the evidence, it holds as a matter of law 

that the District Court Judge who heard all of the evidence 

manifestly abused his discretion when he held that: 

This court determines that any influence the dictionary 

definitions may have had on the jury did not affect the 

rights of the defendant. 

Under the circumstances in this case, this decision renders a 

three to four-day trial, the service performed by a jury, and the 

role of the District Court all meaningless. 

For these reasons, I dissent from the majority opinion. 

Justice William E. Hunt, Sr., joins in the foregoing dissenting 

opinion. 
September 5, 1995 

CERTIFICATE OF SERVICQ 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Kelly M. Wills, Michael C. Prezeau 

GARLINGTON, LOHN & ROBINSON 

Box 7909 

Missouta MT 59807-7909 

Laurie Wallace 

BOTHE & LAURIDSEN, P.C. 

Box 2020 

Columbia Falls MT 59912-2020 

ED SMITH 

CLERK OF THE SUPREME COURT