IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

ESTATE OF DEBORAH RUTH MOREHOUSE. 

Deceased; JAMES MOREHOUSE as 

Personal Representative, 

Plaintiff and Appellant, 

COUNTY OF YELLOWSTONE, STATE OF 

MONTANA; DEPUTY BAUER, DEPUTY 

KAMMINGA & DEPUTY ELLIS, 

Defendants and Respondents 

APPEAL FROM: District Court of the Thirteenth Judicial District. 

In and for the County of Yellowstone, 

The Honorable Maurice Colberg, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James Robert Graves, Ingrid Gustafson, Graves, Toennis & Gustafson, 

Billings, Montana 

For Respondent: 

Charles R. Cashmore, Billings, Montana 

Filed: 

Submitted on Briefs: April 3, 1997 

Decided: April 24, 1997 

clerk 
MEMORANDUM 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal 

Operating Rules, the following decision shall not be cited as precedent and shall be published 

by its filing as a public document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing Company. 

This is an appeal from a jury verdict in favor of the respondents, Yellowstone County 

and Deputies Bauer, Kamminga and Ellis (hereinafter collectively referred to as Yellowstone 

County or the Deputies), and against the appellant Estate of Deborah Ruth Morehouse, James 

Morchouse as personal representative (heremafter referred to as Morehouse). We reverse 

and remand for new trial. 

The basic facts are that during the early morning hours of October 31, 1992, the 

Deputies, after having breakfast at a local Billings restaurant, found Brent Straw, now 

deceased, parked next to their patrol car in his pickup, intoxicated and passed out. They tried 

to arouse him and were minimally successful in doing so. Without taking any precautions 

or making any arrest, the deputies left Straw asleep in the pickup. A short time later Straw 

drove the wrong way on Interstate 90, between Laurel and Billings, Montana, and collided 

with the vehicle of Deborah Ruth Morehouse, who was on her way to work. Morehouse 

died as a result of the accident. The Estate brought suit against Yellowstone County, 

asserting that the Deputies were negligent in failing to arrest Straw for DUI and that their 

negligence resulted in the death of Morehouse. The jury determined that the Deputies had 
probable cause to arrest Straw for DUI; that they were negligent in not making the arrest; but 

that their negligence was not a legal cause of Morehouse's death. Prior to bringing suit, 

Morehouse settled with the estate of Brent Straw. 

Three issues are raised on appeal: 

I. Were Morehouse's substantive due process rights violated by allowing the jury to 

consider the affirmative defense that Morehouse's damages were caused by or contributed 

to by an unnamed third party, pursuant to 5 27-1-703(6), MCA (1995)? 

2. Was the issue of causation properly submitted to the jury? 

3. Did the District Court err in admitting evidence of drug use and sale by 

Morehouse's son? 

Having considered the arguments of the parties in the context of the record of this 

case, we conclude that the jury verdict and the judgment entered in this case by the District 

Court should be reversed and this case remanded for a new hial on the issue of liability and 

damages. 

Issue I 

In light of our decision in Plumb v. Fourth Jud. Dist. Court (Mont.1996), 927 P.2d 

101 1,53 St.Rep. 1187, declaring the nonparty defense unconstitutional, it was error for the 

District Court to submit this defense to the jury. While Yellowstone County argues that 

submission of the nonparty defense to the jury in this case was harmless error because the 

jury found that the Deputies' conduct was not the legal cause of the accident in which 
Morehouse died, we agree with Morehouse that the nonparty defense so permeated the entire 

litigation in this case that Morehouse's substantive due process rights were violated by the 

submission of the nonparty defense to the jury. There is simply no way to gage the effect of 

this defense on the jury's deliberations and verdict and, accordingly, the case must be retried. 

Issue 2 

With regard to issue two, Morehouse argues that where law enforcement officers 

negligently failed to arrest a DUI suspect and the suspect then causes an automobile fatality 

within one hour and twenty minutes after being encountered by the law enforcement officers 

and where, as both parties seem to agree, there was no intervening or superseding negligence 

or any allegation of comparative negligence, then as a matter of law the negligence of the 

officers must be a legal cause in bringing about the decedent's death. On that basis, 

Morehouse argues that we should remand the case for a new trial only on the issue of 

damages. We disagree. 

Causation is normally an issue to be decided by the fact finder and where conflicting 

evidence is presented at trial, such issues must be decided by the jury. Werre v. David 

(1996), 275 Mont. 376,392,913 P.2d 625,635. We obviously do not how exactly on what 

basis the jury determined that the negligence of the deputies was not a legal cause of 

Morehouse's death. Given the nature of the conflicting evidence presented to the jury, 

including the substantial causation instruction offered by Morehouse, and given, that the jury 

was allowed to consider the nonparty defense, it would be improper for this Court to 
speculate as to the reasons why the jury made the decision on the issue of causation that it 

did. Again, the only proper way to resolve this case is to remand for retrial on liability as 

well as on damages. 

Issue 3 

Finally, appellant argues that the District Court abused its discretion in admitting 

evidence that Morehouse's son used and sold marijuana following his mother's death. 

Yellowstone County argues that admitting the evidence was within the court's discretion or 

was at most hamless error. 111 the context in which this evidence was admitted in this case, 

and because we are remanding this case for a new trial, we conclude that it is unnecessary 

that we address this issue. 

Reversed and remanded for a new trial. 
April 25, 1997 

CERTIFICATE OF SERVICE 

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

foliowing named 

James Robert Graves, Esq.; Ingrid Gustafson, Esq. 

Graves, Toennis & Gustafson 

P.O. Box 7227 

Billings, MT 59103-7227 

J 

i 

Charles R. Cashmore 

Attorney at Law 

301 N. 27th St. 

Billings, MT 59101 

ED SMITH 

CLERK OF TEE SUPREME COURT 

STATE OF MONTANA