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 ofthe Thirteenth JudicialDistrict. In and for the County of Yellowstone, The HonorableMaurice Colberg, Judge presiding. COUNSEL OF RECORD: For Appellant: James Robert Graves, Ingrid Gustafson, Graves, Toennis & Gustafson, Billings, Montana For Respondent: CharlesR. 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 followingdecision shallnotbe cited asprecedent and shall bepublished by its filingas 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 favorof the respondents, Yellowstone County andDeputies Bauer, Kamminga and Ellis (hereinafter collectivelyreferred to as Yellowstone County orthe Deputies), and against the appellant Estate ofDeborah 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 totheirpatrol 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. Thejury determined that the Deputies hadprobable cause to arrest Straw forDUI; 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 ofBrent 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 submittedto 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 thejury 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 ofliability and damages. Issue I In light of our decision in Plumb v. Fourth Jud. Dist. Court (Mont.1996), 927 P.2d 1011,53St.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 thejury in this case was harmless error because the jury found that the Deputies' conduct was not the legal cause of the accident in whichMorehouse died, we agreewith Morehouse that the nonparty defense sopermeated the entire litigation in this case that Morehouse's substantivedueprocess rights were violated by the submissionofthe nonparty defenseto thejury. There is simply no way to gage the effect of this defense on the jury's deliberations andverdict and, accordingly,the casemust be retried. 

### Issue 2 With regard to issue two, Morehouse argues that where law enforcement officers negligently failedto arrest a DUI suspect and the suspectthen causes an automobile fatality within one hour and twenty minutes afterbeing encounteredby the law enforcement officers and where, as both parties seemto agree,there was no interveningor superseding negligence or any allegation of comparativenegligence, 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 decidedby the fact finder and where conflicting evidence is presented at trial, such issues must be decided by thejury. Werre v. David (1996), 275 Mont. 376,392,913P.2d 625,635. We obviously donot howexactly 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 substantialcausation instruction offeredby Morehouse, and given,that thejury was allowed to consider the nonparty defense, it would be improper for this Court tospeculate 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 admittingthe evidence was within the court's discretion or
was at most hamless error. 111the contextin which this evidence was admitted in this case, andbecause we are remanding this case for a new trial, we concludethat 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