96-667

 No. 96-667

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

DORIS A. SCOTT, individually and as Personal Representative 

of the Estate of John William Scott, Deceased,

 Plaintiff and Appellant,

 v.

JAMES L. HENRICH, DAVID J. FLAMAND, BUTTE-SILVER BOW LAW 

ENFORCEMENT AGENCY, CITY OF BUTTE, and COUNTY OF SILVER BOW,

 Defendants and Respondents.

APPEAL FROM: District Court of the Second Judicial District,

 In and for the County of Silver Bow,

 The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Curtis G. Thompson and William D. Jacobsen;

 Thompson & Jacobsen; Great Falls, Montana

 For Respondents:

 Brendon J. Rohan; Poore, Roth & Robinson; Butte, Montana 

 (for Respondents Henrich, Flamand and Butte-Silver Bow 

 Law Enforcement Agency)

 Marshal L. Mickelson; Corette, Pohlman & Kebe; Butte, Montana

 (for Respondents City of Butte and County of Silver Bow)

 Submitted on Briefs: April 4, 1997

 Decided: June 10, 1997

Filed:

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 __________________________________________

 Clerk

Justice Jim Regnier delivered the Opinion of the Court.

 Doris Scott appeals from the Silver Bow County, Second Judicial District Court's

entry of summary judgment against her in this negligence action for wrongful death 

and

survivorship, arising from the shooting death of her husband by an officer of the 

ButteSilver Bow Law Enforcement Agency. We reverse. 

 The sole issue before us is whether the District Court erred in granting summary

judgment against Scott on her state law negligence claims for wrongful death and

survivorship on the grounds of res judicata.

 FACTUAL BACKGROUND

 This case arises from the shooting death of John Scott by an officer of the 

ButteSilver Bow Law Enforcement Agency. On August 4, 1984, police officers James L.

Henrich and David J. Flamand responded to a call reporting the discharge of firearms 

at

701 West Park Street in Butte. When they arrived at the scene, a resident informed 

them

that an individual had fired a rifle and entered a nearby apartment. Officer 

Flamand then

saw a man peer out of a second story window in the building. 

 Both officers, with weapons drawn, approached the door of the apartment. Officer

Henrich banged and kicked on the door and identified himself and Officer Flamand as

police officers. A few minutes later, Officer Henrich again banged on the door and

identified himself as a police officer. According to the officers, Scott opened the 

door,

holding a long gun pointed at them. Officer Henrich fired a shot that missed Scott. 

Officer Flamand, mistakenly believing that Scott had fired at them, fired four shots 

at

Scott, one of which killed him.

 John Scott's wife, Doris Scott, brought an action in the United States District

Court, alleging violations of John's constitutional rights under 42 U.S.C. 1983 

(1982),

as well as state law negligence claims for wrongful death and survivorship. After 

the

initial discovery was completed, the defendants moved for summary judgement. United

States District Judge Paul Hatfield took the motions for summary judgment under

advisement, but allowed Scott sixty days to engage in further discovery limited to 

the

issue of the reasonableness of the officers' conduct. Subsequently, Judge Hatfield 

granted

the defendants summary judgment on the 1983 claims, but refused to exercise

jurisdiction on the pendent state law negligence claims. Scott appealed and then 

filed this

action in state court. The Second Judicial District Court, Silver Bow County, 

stayed the

state court proceedings pending resolution of the 1983 action in the federal court.

 On November 2, 1994, the Ninth Circuit Court of Appeals affirmed the summary

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judgment granted by Judge Hatfield. The Ninth Circuit's opinion did not address 

Judge

Hatfield's disposition of the state law negligence claims. Scott appealed the Ninth

Circuit's decision to the United States Supreme Court, which denied certiorari on 

June

26, 1996.

 After the federal claims were disposed of, the defendants next moved the state

district court for summary judgment. The defendants argued that they were entitled 

to

summary judgment on the theories of res judicata or collateral estoppel. Scott 

countered

that the federal district court did not decide her state law negligence claims and 

therefore

she should be allowed to proceed in state court. The District Court granted the

defendants summary judgement, ruling that the issues raised before it in state court 

were

identical to the issues decided in the federal court proceedings, so res judicata was

appropriate. The court focused upon the Ninth Circuit Court's opinion which affirmed

the federal district court's finding that the officers' conduct was objectively 

reasonable. 

The District Court noted that the Ninth Circuit Court of Appeals decided that the

defendants did not breach their duty to John Scott and their conduct was reasonable 

and

proper. Without a breach of duty, plaintiff's negligence claims fail and the 

defendants

are entitled to summary judgment.

 Scott appeals from the order and the judgement granting the defendants' motion

for summary judgment.

 DISCUSSION

 Did the District Court err in granting summary judgment against Doris Scott on

her state law negligence claims for wrongful death and survivorship on the grounds of

res judicata?

 Summary judgment is proper when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We

review a district court's grant of summary judgment de novo, applying the same Rule

56(c), M.R.Civ.P., criteria used by that court. In re Estate of Lien (1995), 270 

Mont.

295, 298, 892 P.2d 530, 532. Such a review requires that we first determine whether

the moving party met its burden of establishing both the absence of genuine issues of

material fact and entitlement to judgment as a matter of law. See Estate of Lien, 

270

Mont. at 298, 892 P.2d at 532. 

 The doctrine of res judicata prevents a party from re-litigating a matter that 

the

party has already had an opportunity to litigate. Hollister v. Forsythe (1996), 277 

Mont.

23, 918 P.2d 665; Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506,

510, 905 P.2d 158, 161. It is based on the public policy that there must be some 

end to

litigation. Wellman v. Wellman (1983), 205 Mont. 504, 508, 668 P.2d 1060, 1062. A

claim is res judicata when four criteria are met--the parties or their privies are 

the same;

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the subject matter of the claim is the same; the issues are the same and relate to 

the same

subject matter; and the capacities of the persons are the same in reference to the 

subject

matter and the issues. Greenwood v. Steve Nelson Trucking, Inc. (1995), 270 Mont.

216, 219, 890 P.2d 765, 767.

 Respondents contend that Scott's state law negligence claims are barred by the

doctrine of res judicata and the District Court's grant of summary judgment was 

entirely

proper. They offer the following analysis. First, the parties are the same in both 

actions. 

Second, the subject matter is also the same; both actions are based on the officers'

conduct that led to the shooting of John Scott. Third, the issue in Scott's state 

court

action is identical to the issue previously raised and decided by the federal court, 

the

reasonableness of the officers' conduct. Finally, the capacity of the parties 

involved has

not changed in relation to the subject matter and the issues in litigation. 

 However, Scott argues that the issue litigated in the federal court is not 

identical

to the issue in the state action, and therefore, the third requirement necessary for 

the

application of res judicata has not been met. Scott points out that the federal 

courts only

addressed whether the officers acted reasonably within the meaning of the Fourth

Amendment of the United States Constitution in the context of Scott's 1983 claims 

and

the officers' claim of qualified immunity. Scott points out that the federal courts 

did not

address whether the officers acted in a negligent fashion under Montana substantive 

law. 

Scott contends that she has not had the opportunity to litigate her state law 

negligence

claims because those claims were severed from the federal proceedings at Judge

Hatfield's discretion on the basis of subject matter jurisdiction.

 In granting summary judgment for the respondents, the District Court ruled as a

matter of law that Scott's state law negligence claims were barred by res judicata. 

The

District Court framed the issue as whether or not the officers and the law 

enforcement

agencies had breached their duty to John Scott. The District Court relied on the 

Ninth

Circuit's decision that the officers did not breach their duty and their conduct was

reasonable and proper. The District Court evaluated Scott's state law negligence 

claims

and determined that the issue was decided by a final judgment in federal court. 

Because

Scott was allowed to litigate the reasonableness of the officers' conduct in federal 

court,

the District Court ruled that it was bound by res judicata and adopted the federal 

court's

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decision, finding that the officers' conduct was reasonable.

 At first glance this case may seem like a proper candidate for summary 

disposition

on the basis of res judicata. The United States District Court's opinions, as well 

as the

Ninth Circuit's subsequent opinion, repeatedly characterized the officers' conduct as

"objectively reasonable" under the circumstances. If the officers had been found to 

have

acted in an "objectively reasonable" manner by the federal courts, how can this same

conduct violate the standards of negligence required for a finding of liability in 

the state

court? A closer analysis of the federal and state court actions, however, leads us 

to the

conclusion that it would be improper to deny the plaintiff the opportunity to 

litigate her

state court claims on the basis of res judicata.

 Judge Hatfield first addressed Scott's 1983 claims in 1988. See Scott v. 

Henrich

(D. Mont. 1988), 700 F. Supp. 498. Interestingly, the plaintiff had originally pled 

her

civil rights action in the United States District Court under ordinary negligence 

standards. 

This prompted the defendants to move for summary judgment. In response to the

defendants' motion for summary judgement, the plaintiff sought leave of court to 

amend

her complaint, substituting her allegations of ordinary negligence with gross 

negligence. 

Judge Hatfield allowed Scott to amend, noting that allegations of simple negligence 

would

be insufficient to state a claim cognizable under 42 U.S.C. 1983. In Daniels v.

Williams (1986), 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662, the United States

Supreme Court held that a finding of mere negligence will not give rise to a claim 

for the

deprivation of constitutional rights under 42 U.S.C. 1983. Judge Hatfield noted 

that

since the Daniels decision the Ninth Circuit has followed earlier case law holding 

that the

Due Process Clause of the United States Constitution can be implicated by conduct of

state officials amounting to "recklessness," "gross negligence," or "deliberate

indifference." See Wood v. Ostrander (9th Cir. 1988), 851 F.2d 1212, 1214; 

Bergquist

v. County of Cochise (9th Cir. 1986), 806 F.2d 1364, 1370. 

 Therefore, it is clear that the conduct under scrutiny in the federal case was 

not

evaluated under ordinary negligence principles, but rather under gross negligence

standards which are required in order to sustain a claim under 1983. What is

confusing, however, is that claims such as this, where it is alleged that law 

enforcement

officers used excessive force in an arrest, investigatory stop, or seizure, are 

analyzed

under the Fourth Amendment and its "reasonableness" standard. Graham v. Conner

(1989), 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443. Judge Hatfield and the

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Ninth Circuit ultimately exonerated the police officers from the 1983 claims by

concluding that their conduct when facing the exigent circumstances of having a rifle

pointed at them was "objectively reasonable." Yet it is important to note that the 

federal

court never addressed or considered the simple negligence claims under Montana

substantive law. Again, Judge Hatfield's opinion is instructive on this issue:

 Perhaps a more prudent course of procedure would have prevented

the death of John Scott. Nonetheless, the fact a necessarily instantaneous

decision by a police officer is not, in hindsight, the best, does not serve to

elevate negligence to a constitutional plane. Any malfeasance that may be

attributed to the conduct of Officers Henrich and Flamand does not rise to

the level of "gross" negligence essential to a claim for deprivation of

constitutional rights under 42 U.S.C. 1983. Whether Officers Henrich

and Flamand acted in a negligent fashion is, of course, an issue properly

left to the trier of fact. 

Scott v. Henrich (January 3, 1991), No. CV-87-003-BU at p. 10 (Memorandum and

Order).

 Judge Hatfield's ruling was subsequently affirmed, in its entirety, by the Ninth

Circuit Court of Appeals. Nowhere in its decision does the Ninth Circuit demonstrate

an intention to reverse Judge Hatfield or direct a resolution of Scott's negligence 

claims. 

In fact, at the time the Ninth Circuit ruled, Scott's negligence claims were not even

before that court. Judge Hatfield had dismissed the negligence claims, without 

prejudice,

for lack of federal jurisdiction, and those claims had been refiled in Montana 

district

court. 

 Thus, the Ninth Circuit's decision only addressed Scott's 1983 claims. Both

Judge Hatfield and the Ninth Circuit ruled that the officers acted reasonably, 

within the

meaning of the Fourth Amendment, for the purposes of Scott's 1983 claims. As 

stated

above, in finding that the officers acted reasonably, both federal courts ruled that 

the

officers' conduct did not rise to the level of gross negligence required for a 

finding of

deprivation of John Scott's constitutional rights under 42 U.S.C. 1983. The 

federal

courts did not decide whether the officers' conduct was negligent under Montana

substantive law.

 As discussed above, the United States District Court ruled that the officers'

conduct did not rise to the level of gross negligence required for a finding of 

deprivation

of constitutional rights under 42 U.S.C. 1983. However, in her state court action,

Scott is not required to prove that the officers' conduct was grossly negligent to 

prevail

on her claims. Scott must only prove that the officers' conduct was negligent in 

her state

court action. The traditional standard of negligence, as defined under Montana law, 

is

"conduct of a reasonable and prudent person under the circumstances." Abernathy v.

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Eline Oilfield Services, Inc. (1982), 200 Mont. 205, 211, 650 P.2d 772, 775. In this

case, the federal court's finding that the officers' conduct was reasonable as to 

defeat

Scott's 1983 claims may not act on the basis of res judicata to bar a finding in 

state

district court that the officers' same conduct might be unreasonable in an action 

for a

state law negligence claim.

 Furthermore, although both the United States District Court and the Ninth 

Circuit 

concluded that the officers acted reasonably within the meaning of the Fourth

Amendment, for purposes of Scott's 1983 claims, that ruling has no preclusive 

effect

on Scott's negligence claims because the federal courts had specifically ceded 

jurisdiction

over the negligence claims to the state courts of Montana. If the federal court had

intended by its ruling to bar litigation of Scott's negligence claims, it could have 

granted

summary judgment on those claims when it granted summary judgment on Scott's 1983

claims.

 This Court concludes that Scott's negligence claims for wrongful death and

survivorship, based on Montana state law, are not barred by res judicata. Judge

Hatfield's decision granting summary judgment on Scott's 1983 claims, and the

subsequent Ninth Circuit decision which affirmed his ruling in its entirety, do not 

operate

to bar Scott's negligence claims based on res judicata.

 We reverse and remand to the District Court. 

 /S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

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