No. 89-266 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

LESLIE D. KRIEG, 

Plaintiff and Appellant, 

DEWEY E. MASSEY, and FLORENCE E. 

MASSEY, individually and d/b/a MASSEY 

APPARTMENTS; and BETTY J. YOUNG, a/k/a 

B.J. YOUNG, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. D. Peterson; Peterson, Schofield & Leckie, Billings, 

Montana 

For Respondent: 

James R. Halverson; Herndon, Hartman, Sweeney and 

Halverson, Billings, Montana 

Filed: 

Submitted on Briefs: Aug. 17, 1989 

Decided: October 24, 1989 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

The plaintiff, Leslie D. Krieg, brought this wrongful 

death action founded on negligence for failure of defendants 

to prevent the suicide of his 77 year-old uncle, Arthur 

Leslie Van Hoose. The District Court for the Thirteenth 

Judicial District, Yellowstone County granted defendants' 

motion for summary judgment and dismissed the case with 

prejudice. From this judgment, Mr. Krieg appeals. We 

affirm. 

The sole issue is: Did the District Court err in 

granting summary judgment in favor of defendants? 

Masseys are the owners and operators of the Massey 

Apartments in Billings, Montana. When Mr. Van Hoose moved 

into the Massey Apartments, Mr. Massey introduced Mr. Van 

Hoose to the apartment manager, Mrs. Young, an elderly lady 

in her seventies. 

The next day, Mr. Van Hoose told Mrs. Young he was 

having leg and stomach pain. Mrs. Young offered the use of 

her phone to Mr. Van Hoose so that he could call a doctor. 

He declined. She then offered to take him to the hospital to 

see a doctor. He accepted this offer, however, Mrs. Young 

told him she was expecting her daughter and would have to 

wait until her daughter arrived. 

Later, when Mrs. Young was walking past Mr. Van Hoose's 

room, his door was open and she noticed he was walking around 

the room holding a pistol. Mrs. Young told him not to point 

the gun at her. He responded with, "Guns take care of all 

problems." Mrs. Young stated, "It doesn't take care of 

problems, it causes problems." She then took the pistol from 

Mr. Van Hoose with the intention of taking it to her apartment. When Mr. Van Hoose protested, she obtained a chair 

from the kitchen, climbed up on the chair and put the pistol 
on the top of a closet, thinking he would leave it alone. 

Mr. Van Hoose appeared calmer and Mrs. Young repeated that 

she would take him to the doctor, then left. She did nothing 

else about the gun incident. 

Approximately an hour later, Mrs. Young heard a loud 

"thud." She was not concerned about the noise until the 

thought occurred to her that Mr. Van Hoose may have climbed 

up on the chair to get the pistol, and fallen off. She then 

went back to his apartment and discovered he had killed 

himself with the pistol. 

Did the District Court err in granting summary judgment 

in favor of defendants? 

We begin by emphasizing that summary judgment is never a 

substitute for a trial on the merits. Kronen v. Richter 

(1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. It is only 

appropriate when there are no genuine issues of material fact 

and the moving party is entitled to judgment as a matter of 

law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from 

the factual record must be resolved in favor of the party 

opposing summary judgment. Simmons v. Jenkins (1988), 750 

P.2d 1067, 45 St.Rep. 328. 

In its summary judgment the District Court relied on the 

general rule that: 

Negligence actions for the suicide of another will 

generally not lie since the act or suicide is 

considered a deliberate intervening act exonerating 

the defendant from legal responsibility, noted the 

court, but two exceptions to this general rule 

exist: 

a. [W] here the defendant's tortious act causes a 

mental condition in the decedent that proximately results in an uncontrollable impulse to 

commit suicide or that prevents the decedent 

from realizing the nature of his act; 
b. [W] here there is a duty to prevent the 

suicide, the situation typically arising when 

someone is obligated to exercise custodial 

care over the eventual decedent, is in a 

position to know about the latter suicidal 

potential, and is lax with respect to taking 

preventive measures. 

41 ALR 4th, 353. 

The District Court then found that the relationship between 

Mr. Van Hoose and Mrs. Young was non-custodial and that there 

was no evidence that Mr. Van Hoose's suicide was a foreseeable event. The court therefore concluded that Mrs. Young 

owed no duty to prevent Mr. Van Hoose's suicide. 

Plaintiff contends that when Mrs. Young entered Mr. Van 

Hoose's room and attempted to take the pistol away, she 

imposed upon herself a duty to prevent the suicide. Plaintiff urges that Mrs. Young breached this duty because she was 

negligent in her intervention. He claims she could have 

prevented the suicide of Mr. Van Hoose by removing the 

pistol. 

It is fundamental that an action for negligence requires 

1) a legal duty, 2) a breach of the duty, 3) causation, and 

4) damages. Prosser and Keeton on Torts, S 30, at 164-165 

(5th ed. 1984); R.H. Schwartz Const. Specialties v. Hanrahan 

(1983), 207 Mont. 105, 672 P.2d 1116. Traditionally, a 

person is not liable for the actions of another and is under 

no duty to protect another from harm in the absence of a 

special relationship of custody or control. If originally, 

no special relationship existed, but the defendant interjects 

himself into the situation so as to create a special relationship of control, a duty may be imposed. Prosser and 

Keeton on Torts, § 56 at 375-377, (5th ed. 1984). 

Defendant relies on Pretty on Top v. Hardin (1979) , 182 

Mont. 311, 597 P.2d 58, as authority that no duty arose. 
That case involved a custodial situation of a jailer and a 

prisoner. When the prisoner committed suicide the wife 

claimed the prison had a duty to prevent the suicide. However, in Pretty on Top this Court affirmed the district court's 

grant of summary judgment in favor of defendant since the 

suicide of the prisoner was not foreseeable. Since foreseeability was lacking we stated that the district court was 

required to follow the general rule that suicide is an intentional act and grant defendant's motion for summary judgment. 

Pretty on Top, 597 P.2d at 60. 

The same rule applies even more forcefully in the 

present case. The general rule, as relied upon by the District Court, in the area of civil Liability for suicide is 

that " [nlegligence actions for the suicide of another will 

generally not lie since the act or suicide is considered a 

deliberate intervening act exonerating the defendant from 

legal responsibility . . . " 41 ALR 4th, 353. Prosser and 

Keeton on Torts fj 44 at 280-81 (4th ed. 1971); McPeake v. 

Cannon Esquire, P.C. (Pa.Stiper. 1989), 553 A.2d 439; 

McLaughlin v. Sullivan (N.H. 1983), 461 A.2d 123. We 

expressly adopt this rule. 

There are two narrow exceptions to this rule. The first 

exception deals with causing another to commit suicide and is 

not applicable to the present case. The second exception 

allows the imposition of a duty to prevent suicide but only 

in a custodial situation where suicide is foreseeable. These 

situations typically involve hospitals or prisons. 41 ALR 

4th at 353. 

The facts of the present case clearly do not fit within 

this exception to the general rule. As the District Court 

found, Mrs. Young was not in a custodial relationship with 

Mr. Van Hoose. He had lived in her apartment less than two 

days and she had no control over him. Our research has 
disclosed no cases holding that a landlord tenant relationship is a custodial relationship which would impose a duty to 

prevent suicide. We agree with the District Court that there 

are no genuine issues of material fact on the existence of a 

custodial relationship. The fact that there was no custodial 

relationship or special circumstances, actually ends our 

inquiry because no duty can be established. 

The District Court, however, went on to determine that 

the suicide in this case was not foreseeable. Mrs. Young 

testified that she did not think Mr. Van Hoose should have 

the gun, but that she did not think he was planning on killing himself. When asked why she put the gun on top of the 

closet, she said, "I figured he'd leave it alone." She then 

returned to her own apartment. Plaintiff failed to present 

any evidence to show that Mr. Van Hoose's suicidal tendencies 

had been communicated to Mrs. Young. Further, nothing indicates that she had any special training to foresee that Mr. 

Van Hoose intended suicide. We conclude that no genuine 

issue of material fact existed regarding foreseeability. 

Plaintiff, however, urges that because Mrs. Young "interjected herself into the situation" by taking the gun from 

Mr. Van Hoose, she imposed a duty upon herself. He contends 

that she then breached this duty by negligently placing the 

gun on top of the cabinet rather than removing it. We decline to affirm plaintiff's contention that Mrs. Young's 

actions created a duty to prevent suicide since, as previously stated, the general rule is that no duty exists in this 

area absent a custodial relationship or special circumstances. However, even if a duty had arisen, the acts of Mrs. 

Young placed Mr. Van Hoose in no worse position than before 

she took the gun from him. We conclude that there are no 

genuine issues of material fact on the issue of negligence. 

Plaintiff failed to present the District Court with any facts 
which would establish either a duty or a breach. The general 

rule that suicide is an intentional act which forecloses 

civil liability is applicable, and the District Court was 

correct granting summary judgment in favor of defendants. We 

affirm the District Court's grant of summary judgment. 

We concur: