NO. 95-050 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IDA 0. BUSTA, as Personal Representative 

of the Estate of Delbert F. Busta, on 

behalf of the heirs of Delbert F. Busta, 

Plaintiff and Respondent, 

COLUMBUS HOSPITAL CORPORATION, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James R. Walsh and Dennis P. Clarke, Smith, 

Walsh, Clarke & Gregoire, Great Falls, Montana 

For Respondent: 

Dennis Patrick Conner, Attorney at Law, 

Great Falls, Montana 

Submitted on Briefs: January 17, 1996 

Decided: M~Y 10, 1996 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiff, Ida 0. Busta, filed her complaint in the 

District Court for the Eighth Judicial District in Cascade County 

in which she sought compensation for damages to Delbert F. Busta 

pursuant to 5 27-1-501, MCA, and to his heirs pursuant to 

5 27-1-513, MCA, based on her allegation that Delbert's death was 

caused by the negligence of the defendant, Columbus Hospital 

Corporation. Following trial of the issues raised by the parties' 

pleadings, a Cascade County jury returned its verdict in which it 

found that Delbert's injuries and death were caused by the 

negligence of Columbus and the contributory negligence of Delbert 

and apportioned seventy percent of fault to the Hospital and thirty 

percent of fault to Delbert. The jury found that Delbert and his 

estate were damaged in the amount of $5,000 and that his heirs were 

damaged in the amount of $800,000 as a result of his death. Based 

on the jury's apportionment of liability, the District Court 

entered judgment in favor of Delbert's estate in the amount of 

$3,500 and in favor of his heirs in the amount of $560,000. 

Columbus appeals from the judgment of the District Court, from the 

order of the District Court denying its motion for a new trial, and 

from the District Court's denial of its motion for offset against 

the judgment pursuant to 5 27-1-308, MCA. We affirm the judgment 

and orders of the District Court. 

The issues raised by Columbus on appeal are as follows: 
1. Did the District Court err when it admitted a 

photographic exhibit offered by the plaintiff which depicted the 

decedent, Delbert Busta, and included a tribute from his 

granddaughter? 

2. Did the District Court err when it refused to admit the 

defendant's proposed exhibit which consisted of a letter written by 

the plaintiff's attorney to the Veterans' Administration which 

attributed Delbert Busta's death to a military-related mental 

illness? 

3. Did the District Court err when it refused to give the 

defendant's proposed instructions which defined proximate cause and 

stated the requirement that the decedent's injuries be foreseeable 

before causation could be established? 

4. Did the District Court err when it refused to offset 

benefits received by Ida Busta from the Veterans1 Administration 

against the damages awarded for the decedent's wrongful death? 

DISCUSSION 

Delbert Busta was an American veteran who had been captured by 

the Japanese Army, forced to participate in the Bataan Death March, 

and was subsequently imprisoned in a Japanese prisoner of war camp 

for over three years. 

Subsequent to his release as a prisoner of war and his return 

to the United States, he was treated for his mental and physical 

debilitation and discharged from the Army. At the time of his 

discharge, he was diagnosed with simple schizophrenia, and on that 
basis was awarded a service-related disability by the Veteransr 

Administration. Testimony given at this trial explained that at 

that time the diagnosis of simple schizophrenia was ascribed to 

someone who had become withdrawn and uninterested in social 

interaction. It did not indicate the kind of bizarre behavior or 

delusions that are commonly associated with other forms of 

schizophrenia. At any rate, the undisputed testimony was that from 

then until the date of his death on December 1, 1991, Delbert 

displayed no outward indication of mental or emotional problems and 

that not even his wife and children were aware of the basis for his 

service-related disability benefits. 

On November 26, 1991, Delbert was admitted to the Columbus 

Hospital in Great Falls for surgical treatment of prostate cancer 

and inguinal hernia repair. Surgery was performed on that date. 

Following successful surgery, Delbert was transferred to a 

room on what was designated the third floor of the hospital, 

although the floor was actually four stories above ground level as 

viewed from the outside. During the early morning hours of 

December 1, Delbert cut himself free from his Foley catheter, 

pulled out the tubings from his IVs, tied two sheets and a hospital 

gown together, attached one end of the makeshift rope to a clothing 

hook, and attempted to leave the hospital through his third floor 

window. He was found on the ground below his window a short time 

later suffering from injuries caused by his fall. He died from 

those injuries later that day. 
Kathy Fitzgerald was the nurse who was employed by and on duty 

at Columbus Hospital on the evening of November 30 and the morning 

of December 1, and who was assigned to care for Delbert. She 

testified that he was normally a cooperative patient, but that on 

her last visit with him on the evening of November 30 he had 

refused to take his medication, refused to be repositioned, 

requested that the sequential compression devices be removed from 

his legs, and asked to be left alone. She also noted that at the 

time Delbert's blood pressure was elevated and his pulse rate was 

abnormally rapid. He was experiencing a condition known as 

tachycardia. However, Fitzgerald did not report Delbert's change 

in attitude or his constellation of symptoms to his treating 

physician, and after observing at midnight that he appeared to be 

asleep, she did not check his blood pressure or pulse again. 

At the time, Delbert was being treated with ten regular 

medications and three medications which were administered "as 

needed. " 

Delbert attempted to leave the hospital through the three foot 

by four foot opening in his third floor window at approximately 

2:15 a.m. on December 1. 

Peter Horst, M.D., was the surgeon who admitted Delbert to the 

hospital and performed prostate cancer surgery on November 26. He 

acknowledgedthat confusion, psychosis, and anxiety are listed side 

effects for several of the medications which were being 

administered. He admitted that given the constellation of findings 
reported in Fitzgerald's notes, Delbert's condition should have 

been medically assessed on November 30, and that had he been 

advised of those findings, he would have performed various tests to 

see whether Delbert's oxygenation was adequate and his electrolytes 

were normal. He would also have tried to determine whether Delbert 

was rational or irrational. However, he was not notified. 

Ida's complaint was filed on October 7, 1993. In her 

complaint she alleged that as a result of mind-altering medication 

following his surgery, Delbert suffered from delirium, confusion, 

and disorientation; that he was inadequately supervised and cared 

for at the hospital; and that the hospital failed to maintain its 

facilities in a safe condition. She alleged that the hospital's 

omissions were negligent and that its negligence was the cause of 

her husband's injuries and death. 

In response, the hospital denied that it was negligent and 

alleged that any claim by Ida was barred by Delbert's own 

contributory fault, the contributory fault of unspecified third 

parties, and her own failure to advise the hospital of Delbert's 

preexisting mental condition. In its pretrial contentions, the 

hospital specifically alleged that Delbert's death was caused by 

his preexisting mental illness. 

At trial, plaintiff called as a witness Richard Rada, M.D., 

who had extensive experience as a psychiatrist and hospital 

administrator. He had been asked to review Delbert's medical 

records in an effort to determine what caused him to leave the 
hospital through the window on the night of his death. He reviewed 

Delbert's Veterans' Administration records, as well as his records 

from the Great Falls Clinic where he had been treated over the 

years and his records from Columbus Hospital. He formed the 

opinion that at the time Delbert attempted to leave the hospital he 

was suffering from delirium or an acute confusional state caused by 

the fact that his brain was receiving inadequate oxygen and 

possibly contributed to by the numerous medications which were 

being administered. He explained that delirium is a common side 

effect in hospitals and is experienced by about fifteen percent of 

all patients. It leads to altered behavior, including panic, fear, 

hallucination, delusions, and aggressive behavior. 

Dr. Rada explained that by definition, simple schizophrenia is 

not characterized by hallucination or delusions. He therefore 

ruled out any preexisting mental illness as a cause of Delbert's 

behavior on the night of his death. 

Dr. Rada expressed the opinion that Fitzgerald was negligent 

by failing to adequately monitor Delbert on the night before his 

death and by failing to report his constellation of signs and 

symptoms to his treating physician. He also expressed the opinion 

that the hospital was negligent by providing a window on a third 

floor patient's room that could be opened to the extent that a 

patient could either intentionally or inadvertently fall from the 

window. 
His opinion regarding the standard of care for Fitzgerald was 

corroborated by Wendy Haack, a clinical nurse specialist from 

Portland, Oregon, who had been a Montana college instructor on the 

subject of critical care nursing and physical assessment. Dr. 

Rada's opinion regarding the inadequacy of the window design at the 

hospital was corroborated by J. Armand Burgun, a New York architect 

who specializes in hospital design. 

It was Dr. Rada's opinion that Delbert ' s death could have been 

prevented by proper care and proper window design. 

Horatio Bales, M.D., who is a staff physician at the Veterans' 

Administration Hospital at Fort Harrison, also testified. He 

explained that he had performed surgical hernia repair on Delbert 

in September 1991 and that during the time that he treated him at 

the VA hospital he observed no signs of mental or emotional 

problems. In fact, he found Delbert's demeanor very pleasant and 

testified that he did not appear to be suffering from any form of 

schizophrenia. 

Other than doctors Horst, Rada, and Bales, no other medical 

testimony was offered. Specifically, there was no qualified 

medical opinion testimony to the effect that any preexisting mental 

condition contributed to or caused Delbert Busta to leave his room 

through the third floor window on December 1, 1991. 

William J. Downer, Jr., was the President and Chief Executive 

of Columbus Hospital on the date of Delbert's fall and death. He 

testified that Columbus is accredited as a hospital by the Joint 
Commission for the Accreditation of Health Care Organizations and 

that in order to maintain its accreditation, teams of investigators 

periodically visit the hospital to inspect its facilities and 

evaluate its services. The Commission's last inspection prior to 

Delbert's death occurred on approximately July 18, 1991. The 

inspection team consisted of an administrator, a doctor, and a 

nurse. 

During his meeting with the inspection team following that 

visit, Downer was told "to restrict the opening of your patient 

room windows, so that patients cannot inadvertently fall or jump 

from the windows." That meeting was followed by a written report 

from the Commission which was received by the hospital on 

September 26, 1991, and was offered as an exhibit at the time of 

trial. The written report noted that high priority should be given 

to the problem that room windows lacked stops which would prevent 

a patient from falling or jumping from the window. The Commission 

recommended that high priority attention be given to the problem. 

However, nothing was done about the recommendation from the time it 

was made until Delbert died. 

Downer admitted that if the hospital had considered window 

stops a priority, as the Commission did, it would have been 

feasible to put them in. In fact, the cost for doing so would have 

been about fifty cents per window, plus labor. 
At the time of his fall from his third floor room, Delbert's 

window could be opened to a width of three feet and a height of 

four feet. 

J. Armand Burgun is an architect who specializes in hospital 

design. He is the past president of the American Association for 

Hospital Planning and has chaired the Design and Construction 

Committee for the American Hospital Association. He has authored 

several books and articles on hospital design, hospital safety, and 

fire safety. He was consulted by the plaintiff regarding the 

design of the windows at Columbus Hospital and his testimony was 

offered at the time of trial. It was his opinion that as it 

existed at the time of Delbert's death, the window design was 

unsafe and did not meet code requirements. He testified that one 

way to have made the windows safer was to put stops on the windows 

which prevented them from being opened far enough for a person to 

pass through the opening and that it would have been exceedingly 

easy for the hospital to do so. He testified that the type of 

incident which caused Delbert's death was foreseeable and well 

known within the hospital care industry by 1991 at the time that 

Delbert fell. He also testified that if the windows had been 

properly designed, the fall and injuries could not have occurred. 

The only other expert testimony offered regarding the adequacy 

of the hospital's windows was provided by John Rigdon, an architect 

from Bellevue, Washington, who also specializes in designing health 

care facilities. His firm had designed a rehabilitation unit that 
was added to the hospital in 1989. He was listed by the hospital 

as an expert witness. However, it was the plaintiff who took his 

deposition and offered his testimony over the defendant's 

objection. 

He admitted that based on current standards the window through 

which Delbert attempted to escape was unsafe and that the windows 

in the rehab unit which his firm designed would not have permitted 

a person to accidentally or intentionally pass through the window. 

He testified that escape or suicide in a hospital is a known and 

foreseeable consequence, and that although he had participated in 

the design of 50 to 100 patient room window systems for hospitals, 

he had never personally used one like the one used in Delbert's 

room. 

Rigdon testified that he normally designed windows with vents 

that could be activated by a special tool kept at the nurses' 

station, but that in those designs which allowed a patient to open 

a window by himself, the window could not be opened more than about 

three inches. He testified that by 1987 the knowledge of suicide 

and escape risk was incorporated into the formal guidelines for 

hospital design, but that he had been using restricted access 

windows for patient rooms during his entire thirty years of 

architectural practice. It was his opinion that that is what a 

reasonable architect would do when designing a third floor 

post-surgical hospital patient room window. 
Columbus Hospital offered testimony from Debra Gaspar, a 

registered nurse from Billings, who testified that based on her 

review of the records, Fitzgerald had complied with the standard of 

care applicable to post-surgical nurses at the time and date in 

quest ion. However, the hospital offered no expert opinion 

regarding the reason that Delbert attempted to leave the hospital 

through the third floor window, nor did it offer expert testimony 

to the effect that the incident which caused Delbert's injuries and 

death was unforeseeable from the perspective of a hospital 

administrator or a hospital architect. 

The jury's verdict and the court's orders were as previously 

stated. With this background, we will discuss the issues raised by 

the hospital on appeal. 

ISSUE 1 

Did the District Court err when it admitted a photographic 

exhibit offered by the plaintiff which depicted the decedent, 

Delbert Busta, and included a tribute from his granddaughter? 

During the testimony of Charles Busta, Delbert's son, a 

photograph of Delbert was offered as an exhibit. Attached to the 

photograph was a poetic tribute to Delbert by his granddaughter. 

The poem had apparently been submitted as part of a school project 

because next to it was a grade and a handwritten note which stated: 

"1 can tell your Grandpa was very special to you!" At the time the 

photo was offered, the attorney for the hospital objected to its 

admission on the basis that "it was written by a person who is not 
an interested party to this lawsuit." When the attorney for the 

plaintiff offered to call the person who had written the poem, the 

hospital's attorney stated: "I'll stipulate that she wrote it. 

You won't have to call her. That's not my objection." 

The photograph was then admitted without further objection and 

viewed by the jury. 

William Busta, Delbert's other son, and one of the heirs for 

whom wrongful death damages were being sought, later testified that 

one of the reasons his father's loss was significant to him was 

because of the contributions that his father made to his own family 

and that his daughter's poem had tried to capture what his father 

meant to the entire family. 

We review a district court's evidentiary rulings to determine 

whether there has been an abuse of discretion. In re Seizure of $23,691.00 

(Mont. 1995), 52 St. Rep. 1063, 1065, 905 P.2d 148, 152 (citing State 

v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380). The 

district court has broad discretion to determine if evidence is 

admissible. Accordingly, absent an abuse of discretion, this Court 

will not overturn the district court ' s determination. In re $23,691.00, 

52 St. Rep. at 1065, 905 P.2d at 152. 

Furthermore, we will not reverse a district court's admission 

of evidence for reasons which have not been clearly set forth by 

objection at the time of trial. Rule 103 (a) (I), M.R.Evid., 

provides that: 
(a) Effect of erroneous ruling. Error may not be 

predicated upon a ruling which admits or excludes 

evidence unless a substantial right of the party is 

affected, and 

(1) Objection. In case the ruling is one admitting 

evidence, a timely objection or a motion to strike 

appears on the record, statinq the specific around of the 

obiection, if the specific ground was not apparent from 

the context. 

(Emphasis added. ) 

As we stated in Scofieldv.EstateofWood (1984), 211 Mont. 59, 63, 

683 P.2d 1300, 1302, "laln objection raised for the first time on 

appeal is not timely. Unless a timely objection to evidence or 

testimony is raised at the trial level, it cannot be considered on 

appeal. (Citations omitted. ) 

On appeal, the hospital contends that the photograph of 

Delbert should have been excluded for the reason that it included 

hearsay in violation of Rule 801, M. R. Evid. ; for the reason that it 

was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason 

that it was unduly prejudicial in violation of Rule 403, M.R.Evid. 

However, the hospital's hearsay objection was not stated at 

the time that the exhibit was offered and was specifically waived 

when the plaintiff's attorney offered to call the author and the 

defendant's attorney stated that it would be unnecessary. Undue 

prejudice in violation of Rule 403 was also specifically waived 

because it was not stated as a basis of the defendant's objection 

at the time the exhibit was offered 

Although irrelevance was not specifically stated as a basis 

for the defendant's objection to the plaintiff's photographic 
exhibit, we will construe its objection to the effect that the 

author of the message on the exhibit was not a party to mean that 

the exhibit was therefore irrelevant. However, even by liberally 

interpreting the hospital's objection, we are unable to conclude 

that the District Court abused its discretion by admission of the 

exhibit. 

The jury was instructed, without objection, that the award to 

Delbert's heirs should include the value of his companionship and 

reasonable compensation for their grief, sorrow, and mental anguish 

resulting from his death. William Busta testified that a good deal 

of his grief and sorrow which resulted from the loss of his father 

was because of the impact that it had on William's own children to 

whom Delbert had been an exemplary grandparent. His daughter's 

tribute to Delbert was probative of that relationship. Therefore, 

we conclude that it was not irrelevant and that the District Court 

did not abuse its discretion by admitting the plaintiff's 

photographic depiction of Delbert, which included his 

granddaughter's tribute. 

ISSUE 2 

Did the District Court err when it refused to admit the 

defendant's proposed exhibit which consisted of a letter written by 

the plaintiff's attorney to the Veterans' Administration which 

attributed Delbert Busta's death to a military-related mental 

illness? 
During his life following his discharge from military service, 

Delbert received a small pension due to his diagnosis of simple 

schizophrenia. The jury was fully informed of that fact. 

Subsequent to Delbert ' s death, his surviving spouse Ida, after 

learning of the basis for his disability benefits, applied for 

death benefits which apparently were denied. For that reason, the 

same attorney who represented her in this case wrote to the 

Department of Veterans' Affairs on July 10, 1992, and requested 

that the denial be reconsidered. This letter was written over two 

years before Dr. Richard Rada was first retained and consulted on 

August 22, 1994. 

In his letter, the plaintiff's attorney provided copies of 

Delbert's records and referred to his prisoner of war experience, 

his subsequent medical diagnosis, and extensive summaries of his 

Veterans' Administration medical records since the date of his 

discharge. At the conclusion of the five-page letter, plaintiff's 

attorney expressed the opinion that based on that medical history 

and Delbert's apparent attempt to escape from the hospital and some 

perceived danger, his death was probably related to his 

service-connected condition, and he requested that the Department 

reconsider the denial of Ida's claim for benefits. 

Copies of the medical records referred to in the letter were 

provided to the defendant and were offered as exhibits without 

objection. However, the defendant also sought to admit the 

five-page letter written by the plaintiff's attorney. When the 
objection was stated that the letter was inadmissible pursuant to 

Allers v. WiNis (l982), 197 Mont. 499, 643 P.2d 592, because it related 

to a collateral source, the defendant sought to admit the letter 

after deleting the identity of the recipient and the reference to 

death benefits. However, the District Court held that because the 

letter was on plaintiff's attorney's letterhead, the potential for 

prejudice from its admission outweighed its probative value and 

denied its admission. The court did offer to allow the defendant 

to produce other evidence of the letter's contents. The defendant 

indicated it would call Ida Busta for the purpose of offering such 

evidence. However, when the District Court stated that that would 

be acceptable, the defendant declined to do so. 

On appeal, the defendant contends that its proffered letter 

from the plaintiff's attorney should have been admitted as an 

admission by the plaintiff that Delbert died as a result of his 

preexisting mental condition, rather than because of Columbus 

Hospital's negligence. It contends that because it was not 

informed of his preexisting mental condition at the time of his 

admission to the hospital, it could not reasonably have been 

expected to protect him from harming himself. 

As stated previously, we review a district court's evidentiary 

ruling to determine whether there has been an abuse of discretion. 

Inre$23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we 

will uphold a district court's decision, if correct, even though 

its reason for that decision may have been incorrect. Normanv. City 
of Whitejish (l993), 258 Mont. 26, 30, 852 P.2d 533, 535; DistrictNo. 55v. 

MusselshellCounty (IggO), 245 Mont. 525, 527, 802 P.2d 1252, 1253. 

The District Court held that the letter, as modified by the 

defendant, was inadmissible for several reasons. It concluded that 

it was an offer of compromise, and therefore inadmissible pursuant 

to Rule 408, M.R.Evid.; that it was evidence of a collateral 

source; and that when altered to exclude evidence of a collateral 

source, it was incomplete, and therefore, that its prejudicial 

impact outweighed any probative value. 

The defendant contends that the reasons given by the District 

Court for excluding its proposed exhibit lack merit and that the 

letter was relevant pursuant to Rule 401, M.R.Evid., because it had 

a tendency to make more probable the hospital's claim that Delbert 

died as a result of his preexisting mental infirmity. 

We conclude, however, that because the author of the proposed 

letter had no qualification for expressing a medical opinion 

regarding the cause of Delbert's behavior on December 1, the letter 

had little probative value and that the District Court did not 

abuse its discretion when it refused to admit the letter pursuant 

to Rule 403, M.R.Evid. Rule 403 provides that: 

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative 

evidence. 
In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held 

that an attorney is not qualified to express an expert medical 

opinion regarding a party's condition or prognosis for recovery. 

We held in that case that when the opinion was offered in the form 

of an affidavit it should have been rejected by the district court 

which should have, instead, relied on expert testimony. Maulding, 

257 Mont. at 27, 847 P.2d at 298. 

Had plaintiff's attorney been called as a witness at trial to 

express an opinion regarding the medical explanation for Delbert's 

departure from the hospital through his third floor window, the 

District Court would necessarily have had to exclude the testimony 

because he was unqualified to express such an opinion in a court of 

law. For that reason, his unqualified opinion expressed in 

correspondence to the Veterans' Administration over two years prior 

to the receipt of contrary information from a qualified expert had 

no probative value to any relevant issue in this case. On the 

other hand, simply because the proposed exhibit was authored by the 

plaintiff's attorney, it presented substantial potential for 

confusing or misleading the jury. The defendant had an opportunity 

to present qualified evidence that Delbert ' s injuries and death 

were contributed to or caused by his preexisting mental condition. 

In fact, the District Court gave the defendant great latitude 

toward that end. However, the defendant presented no qualified 

evidence from any medical expert or any observation by any lay 

witness that Delbert's preexisting mental condition contributed in 
any way to his behavior on the morning of December 1, 1991, or that 

the preexisting mental condition affected his behavior at any other 

time from the date on which he was discharged from military service 

until the date of his death 

For these reasons, we conclude that the District Court did not 

abuse its discretion when it excluded the defendant's proposed 

exhibit which included statements from the plaintiff's attorney 

regarding Delbertts mental condition on the evening of his death. 

ISSUE 3 

Did the District Court err when it refused to give the 

defendant's proposed instructions which defined proximate cause and 

stated the requirement that the decedent's injuries be foreseeable 

before causation could be established? 

The hospital proposed, by its Instruction No. 20, that the 

District Court instruct the jury regarding the following definition 

of proximate cause: 

The proximate cause of an injury is that cause 

which, as a natural and continuous sequence, unbroken by 

any new and independent cause, produces the injury, and 

without which it would not have occurred. 

The hospital's proposed instructions numbered 21 and 22 

suggested the following requirements regarding foreseeability as it 

relates to proximate cause: 

DEFENDANT'S PROPOSED INSTRUCTION NO. 21 

If you find that the Defendant Columbus Hospital was 

negligent, in order for its negligence to be the 

proximate cause of Delbert Busta's injuries and death, it 

must appear from the facts and circumstances surrounding 

the accident that the Columbus Hospital, as an ordinarily 
prudent entity, could have reasonably foreseen that 

Delbert Busta's injury would be the natural and probable 

consequence of the hospital's actions. 

DEFENDANT'S PROPOSED INSTRUCTION NO. 22 

If you find the consequences of the hospital's 

actions were not reasonably foreseeable or were generally 

freakish, bizarre, or unpredictable, the actions of the 

hospital were not the proximate cause of decedent Busta's 

injuries and death. 

The plaintiff proposed that the jury be instructed on the 

issue of causation in a format similar to the format suggested by 

our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (199 0) , 24 2 

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed 

instruction referred to cause-in-fact as a "substantial factor." 

The defendant objected on that basis and plaintiff's proposed 

instruction on causation was withdrawn 

The District Court rejected the hospital's proposed 

instructions numbered 20, 21, and 22 on the basis that they did not 

satisfy the format required by Kitchen Krafters, and therefore, no 

instruction which defined proximate cause was submitted to the 

jury. 

After the District Court indicated which instructions it would 

give and which instructions were refused, it asked whether the 

defendant had any objections. No objection was stated at that time 

to the court ' s failure to provide any instruction to the jury which 

defined proximate cause. 

The jury was instructed that both parties had the burden of 

proving that the other was negligent and that the other party's 
negligence was a proximate cause of Delbert's injuries. It was 

explained to the jury that a person is negligent if he or she fails 

to act as an ordinarily careful person would act under the 

circumstances. The jury was also instructed by the court that when 

it considered whether a hospital's premises were safe, it should 

consider the type of person who could reasonably be expected to be 

a patient there. 

Pursuant to these instructions, the jury, by its verdict, 

found that both the hospital and Delbert were negligent and that 

each party's negligence contributed as a proximate cause to 

Delbert's injuries and death. It apportioned seventy percent of 

the total fault for his injuries to the hospital and thirty percent 

to Delbert. 

Following entry of judgment for the plaintiff, the hospital 

moved for a new trial for several reasons, including the District 

Court's failure to define proximate cause in its instructions to 

the jury. That basis for the hospital's motion was rejected by the 

District Court. In explanation of its order, the District Court 

stated that the defendant had failed to offer a proximate cause 

instruction which adequately addressed the facts in this case and 

failed to object to the court's failure to define proximate cause 

until after the jury returned its verdict. The court added that to 

the extent it erred by not defining proximate cause for the jury, 

that error was harmless because the fact that this type of accident 

could happen from the failure to secure hospital windows was 
indisputably foreseeable and there was no evidence of intervening 

acts by third parties which would interrupt the chain of causation. 

Finally, the District Court noted that part of the confusion which 

resulted in its failure to define proximate cause was attributable 

to the difficulty that district courts have dealing with that issue 

since this Court ' s decision in Kitchen Krafters and respectf ully 

requested that this Court better settle the requirements for 

instruction of juries on the subject of causation in future cases. 

On appeal, the hospital contends that because the District 

Court referred to "proximate causeM in other instructions, it was 

necessary that the term be explained to the jury. The hospital 

further contends that because this Court included foreseeability as 

an element of proximate cause in Kitchen Krafters and because the 

foreseeability of Delbert's conduct on December 1, 1991, was a 

specific issue, it was important that the jury be specifically 

instructed regarding foreseeability. 

In response, the plaintiff contends that the defendant waived 

its objection to the District Court's failure to instruct on the 

issue of proximate cause by its failure to bring the court's 

omission to its attention before the jury's verdict was returned. 

The plaintiff further contends that even if the District Court 

erred, the error was harmless because causation was established by 

the undisputed evidence, and therefore, as a matter of law. 

A district court has discretion when it decides how to 

instruct a jury and we will not reverse a district court ' s decision 
absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont . 1995) , 

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review 

instructions to a jury to determine whether they were properly 

given or refused, we consider the instructions in their entirety, 

as well as in connection with the other instructions given and the 

evidence at trial. Story v. City ofBozemaw (1993) , 259 Mont. 207, 222, 

When we review a district court's refusal to give an offered 

instruction, the following rules apply: 

~t is not reversible error for a trial court to 

refuse an offered instruction unless such refusal affects 

the substantial rights of the party proposing the 

instruction, thereby prejudicing him. 

A party is not prejudiced by a refusal of his 

proposed instructions where the subject matter of the 

instruction is not applicable to the pleadings and facts, 

or not supported by the evidence introduced at trial, or 

the subject matter is adequately covered by other 

instructions submitted to the jury. 

Kingv. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting 

Cottrellv. Bur1ingtonNorthernR.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d 

3 8 1, 3 87 ; see also Ganz v. United States Cycling Fed'n (Mont . 19 95 ) , 903 P .2d 

212, 216, 52 St. Rep. 1030, 1033) 

The law of foreseeability, as it relates to liability law in 

Montana, has had a tortuous history. Based on the concerns 

expressed by the District Court in this case and similar sentiments 

reflected by amicuscuriae who have submitted briefs on this issue, we 

conclude that in the interest of clarifying issues involved in 

litigation where negligence is alleged, it is appropriate that we 
address the role of foreseeability and the appropriate manner for 

instructing juries on the issue of causation. 

Any discussion of foreseeability as it relates to liability 

law begins with the oft-cited decision of the Court of Appeals of 

New York in Palsgrafv. Long Island Railroad Co. (N.Y. 1928) , 162 N. E . 99. In 

that case, the plaintiff was standing on a platform of the 

defendant's railroad when a guard attempted to assist another 

passenger aboard the departing train. In doing so, he dislodged a 

package from the passenger's hand which contained fireworks. The 

contents exploded when the package hit the ground. The shock from 

the explosion knocked down scales many feet away. The falling 

scales struck the plaintiff, and she was injured. On appeal from 

a judgment in favor of the plaintiff, Chief Justice Cardozo, 

writing for a four-person majority, reversed that judgment on the 

basis that absent a foreseeable injury to the plaintiff there was 

no duty and that absent a duty there was no negligence. In 

language that formed the basis for a number of subsequent decisions 

in Montana, Cardozo wrote that: 

The risk reasonably to be perceived defines the duty to 

be obeyed, and risk imports relation; it is risk to 

another or to others within the range of apprehension. . . . This does not mean, of course, that one who 

launches a destructive force is always relieved of 

liability, if the force, though known to be destructive, 

pursues an unexpected path. "It was not necessary that 

the defendant should have had notice of the particular 

method in which an accident would occur, if the 

possibility of an accident was clear to the ordinarily 

prudent eye." 

Palsgraf, 162 N.E. at 100. 
Writing in dissent, Justice Andrews disagreed that duty 

requires a foreseeable plaintiff, but instead contended that all 

persons have a duty of care to the world at large. He took the 

position that if foreseeability has a place as a limitation on an 

individual's liability for damages, it is in the context of 

proximate cause. He stated that: 

What we do mean by the word "proximate" is that, because 

of convenience, of public policy, of a rough sense of 

justice, the law arbitrarily declines to trace a series 

of events beyond a certain point. This is not logic. It 

is practical politics. 

Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting) 

Andrews went on to state that in analyzing proximate cause, 

[tlhe court must ask itself whether there was a natural 

and continuous sequence between cause and effect. Was 

the one a substantial factor in producing the other? Was 

there a direct connection between them, without too many 

intervening causes? Is the effect of cause on result not 

too attenuated? Is the cause likely, in the usual 

judgment of mankind, to produce the result? Or, by the 

exercise of prudent foresight, could the result be 

foreseen? 

Palsgraf, 162 N.E. at 104 (Andrews, J., dissenting) . 

Therefore, from an early point in American jurisprudence there 

was disagreement among knowledgeable scholars regarding the role of 

foreseeability in the formulation of negligence law. The 

conviction, as expressed by Cardozo, was that without 

foreseeability there was no duty, and without duty there could be 

no liability. The view as expressed by Andrews was that 

foreseeability was an element of proximate cause and reflected the 

practical political judgment of whether effect of cause on result 
was too attenuated. Neither, however, suggested that 

foreseeability should be considered on a redundant basis as part of 

both duty and proximate cause. 

We have, as a Court, considered foreseeability in our 

discussions of proximate cause. However, originally those 

discussions were limited to situations where it was alleged that 

acts of independent third parties intervened following the 

defendant's act to sever the causal relationship between one 

person's conduct and another person's damage. Lencioni v. Long (1961) , 

139 Mont. 135, 139, 361 P.2d 455, 457. 

Other than in the context of intervening acts by third 

parties, our early decisions clearly chose to follow the majority 

view from Palsgraf. In Mangv.Eliasson (1969), 153 Mont. 431, 437, 458 

P.2d 777, 781, we cited Palsgrafwith approval and held that: 

As a classic opinion states: "The risk reasonably to 

be perceived defines the duty to be obeyed." Palsgrafv. Long 

IslandR. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 

1253. That is to say, defendant owes a duty with respect 

to those risks or hazards whose likelihood made the 

conduct unreasonably dangerous, and hence negligent in 

the first instance. 

In Mang, the plaintiff brought an action to recover damages 

for a reduced yield of alfalfa seed caused by weeds which the 

defendant allowed to be blown from his property to the plaintiff's 

property. Following a verdict for the plaintiff, the defendant 

argued on appeal that it had breached no legal duty to the 

plaintiff. This Court agreed and explained that to prove 

actionable negligence a party must prove "existence of a duty, the 
breach thereof and a resulting injury. " Mang, 153 Mont. at 435, 

458 P.2d at 780. We explained the role of foreseeability, as it 

relates to duty, as follows: 

Foreseeability is of prime importance in 

establishing the element of duty, and the question of 

defendants' negligence, if any, must of necessity hinge 

on the finding of a breach of that duty. If a reasonably 

prudent defendant can foresee neither any danger of 

direct injury nor any risk from an intervening cause he 

is simply not negligent. 

If the chief element in determining whether 

defendant owes a duty or obligation to plaintiff is the 

foreseeability of the risk then that factor will be of 

prime concern in every case. Further, because it is 

inherently intertwined with foreseeability, such duty or 

obligation must necessarily be adjudicated only upon a 

case-to-case basis. Therefore, we do not now 

predetermine defendants' obligations in every situation 

by a fixed category; no immutable rule can be established 

to determine the extent of that obligation for every 

circumstance of the future. We do, however, define 

guidelines which will aid in the resolution of such an 

issue as is presented in the instant case. 

. . The obligation of defendants turns on whether: 

". . . the offending conduct foreseeably 

involved unreasonably great risk of harm to 

the interests of someone other than the actor. . . . Duty, in other words, is measured by the 

scope of the risk which negligent conduct 

foreseeably entails." 

. . . And absent foreseeability, there is no duty owed by 

defendants to plaintiff. . . . 

In view of our holding that plaintiff failed to show 

a breach of duty owed by defendants, thus failing to 

establish that defendants were negligent in the first 

instance, he has failed to establish any claim upon which 

relief may be granted and accordingly, it is unnecessary 

to dwell on the law of causation. . . . 
We may assume without deciding that negligence, not 

at large or in the abstract but in relation to the 

plaintiff, would entail Liability for any and all 

consequence however novel or extraordinary. Palsgraf v. 

Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101. 

However, the consequences to be followed must first be 

rooted in a wrong. 

Mang, 153 Mont. at 437-39, 458 P.2d at 781-82. 

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we 

declined to apply the foreseeability requirement set forth in Mang 

in a manner which would require that the specific accident which 

resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d at 563. 

However, we did, from the time that Mang was decided until our 

decision in Kitchen Krafters, consistently relate the notion of 

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple 

(1972), 161 Mont. 56, 504 P.2d 686; Willliamsv. MontanaMBank (1975), 

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592 

P.2d 493; Pretty0nTopv.CityofHardin (1979), 182 Mont. 311, 597 P.2d 58; 

Ambroginiv. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State 

(1982), 199 Mont. 451, 649 P.2d 752. 

In fact, our earlier decisions discuss causation in terms of 

cause-in-fact or the "but for" test, and discuss proximate cause 

only as it relates to continued liability following an intervening 

act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont. 

at 30, 534 P.2d at 1250. 

In Youngv. FlatheadCounty (l988), 232 Mont. 274, 757 P.2d 772, we 

held for the first time that proof of proximate cause requires more 
than proof of cause-in-fact or satisfaction of the "but forn test. 

However, once again, that discussion occurred in the context of 

this Court's conclusion that the chain of causation had been broken 

by independent intervening causes. We specifically reversed the 

district court because " [nlumerous interruptions in the chain of 

events occurred that could be considered the injury causing 

damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although 

intervening cause was not analyzed in the typical fashion, Young was 

clearly an intervening cause case. 

The first time that the word "foreseeable" ever appeared in 

the context of "proximate cause" in one of our opinions, other than 

as related to intervening causes, was in Kitchen KraJiers, Inc. v. Eastside Bank 

ofMontana (l99O), 242 Mont. 155, 789 P.2d 567. In that case, we 

affirmed the two-tiered analysis of causation set forth in Young. 

We explained that the cause-in-fact requirement is normally 

established by the "but for" test by proving that a party's injury 

would not have occurred "but for" the other party's conduct. We 

also reaffirmed prior decisions in which we held that if two or 

more causes concur to bring about an event, then cause-in-fact is 

established by the "substantial factor" test which we had 

previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d 

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that 

when either the "but foru test or the "substantial factoru test was 

satisfied, a party has established that the other party's conduct 
was the cause-in-fact of an injury. We then went on to add, 

however, that once cause-in-fact is proven, "proximate causation" 

must also be established. We held for the first time that: 

Proximate cause is normally analyzed in terms of 

foreseeability. Simply stated, one is only liable for 

consequences which are considered to be reasonably 

foreseeable. Prosser & Keeton at § 43. If the 

consequences of one's wrongful act are not reasonably 

foreseeable, then it follows that it was not proximately 

caused by that act. Using this analysis, one must look 

forward through the chain of causation in order to 

determine whether the events which occurred were 

foreseeable. If they were, the element of proximate 

cause is satisfied and liability will attach. Prosser & 

Keeton at § 43. 

Kitchen Krafters, 242 Mont. at 168, 789 P.2d at 575 

Having added a requirement that foreseeability be established 

as part of causation in addition to the previous requirement that 

it be considered in determination of duty, we then went on to hold 

that juries must be specifically so instructed. We held that: 

In order to be properly instructed on proximate cause, 

the jury must be directed to look forward through the 

chain of causation, and to determine whether events which 

occurred subsequent to Eastside's wrongful act were 

foreseeable. A proper instruction on proximate cause 

should be worded as follows: 

In order for the defendant ' s negligence (failure to 

disclose) to be the proximate cause of the plaintiff's 

injury, it must appear from the facts and circumstances 

surrounding the accident [the nondisclosure] that the 

defendant as an ordinarily prudent person, could have 

foreseen that the plaintiff's injury would be the natural 

and probable consequence of the wrongful act. 

Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575 (alteration in 

original) 
We repeated the requirement from the Kitchen Kraffers opinion that 

foreseeability be considered as part of proximate cause in Thayerv. 

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State 

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UnitedStates Fidelityand 

GuarantyCo.~. Camp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv. 

State (19931, 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone 

County (1994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather 

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of 

these cases, other than Logan, involved issues regarding the 

foreseeability of intervening causes. In such situations we have 

traditionally held that foreseeability is an issue related to 

causation. SeeHalseyv. Uithof (19751, 166 Mont. 319, 328, 532 P.2d 686, 

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d 

629, it is interesting that we noted: 

Foreseeability can be determined in one of two ways. 

Some courts analyze the issue under the element of duty. 

These courts take the view that the scope of defendant's 

duty is determined by a foreseeability of any harm which 

may arise as a result of his negligent conduct. See e.g. 

Palsgrafv. LongIslandRailroadCo. (1928), 248 N.Y. 339, 162 N.E. 

99, 100. Other courts have analyzed foreseeability under 

the issue of proximate cause. In doing so, they have 

taken the view that all persons owe a duty to the world 

at large to act reasonably in order to prevent injury to 

their fellow man. Palsgraf, 162 N.E. at 104 (Andrews 

dissenting). If this duty is breached, it then becomes 

necessary to determine whether the consequences of the 

breach were reasonably foreseeable to the defendant. If 

the consequences were reasonably foreseeable, proximate 

cause is established and liability will follow. 
Sizemore, 246 Mont. at 46, 803 P.2d at 635. 

Since Sizemore involved allegations of a superseding intervening 

event, we analyzed foreseeability as part of proximate cause in 

that case. We made no mention of the fact that since Kitchen Krafters, 

Montana has two concurrent lines of authority--one which analyzes 

foreseeability as part of duty, and a second which considers it as 

part of proximate cause. 

Therefore, as the law in Montana currently stands, the issue 

of foreseeability is considered twice in our analysis of liability 

for a negligent act. It is first considered as part of the 

analysis of duty and negligence pursuant to our decision in Mang, 

153 Mont. 431, 458 P.2d 777. It is then considered as part of a 

two-pronged approach to causation pursuant to our decision in Kitchen 

Krafters, 242 Mont. 155, 789 P.2d 567. 

Although we acknowledge that there are other jurisdictions 

which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M. 

1990), 792 P.2d 36; McCain v. Florida Power Carp. (Fla. l992), 593 So. 2d 

5 0 0 ; Nelson by Tatum v: Commonwealth Edison Co. ( I11 . App . 2d 19 84 ) , 4 6 5 

~.E.2d 513), knowledgeable writers and the better-reasoned 

decisions of other jurisdictions criticize such a redundant 

consideration of foreseeability. For example, in Modern Tort Law 

the authors state that: 

Much confusion has resulted from the erroneous 

application of the requirement of foreseeability to 

causation. In referring to proximate cause, many 

decisions have confused the element of fault and have 
employed foreseeability, properly an element of fault but 

not of causation. 

1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153 

(rev. ed. 1990) 

At § 5.02 the same authors point out that: 

There is, unfortunately, substantial and respectable 

authoritythat foreseeability is an element of causation. 

. . . 

This application of foreseeability has long been the 

subject of criticism by courts and legal scholars. 

Foreseeability does not touch on the causal element. 

Foreseeability relates only to the element of fault. 

. . . As an early Minnesota case pointed out, "What 

a man may reasonably anticipate is important, and may be 

decisive, in determining whether an act is negligent, but 

is not at all decisive in determining whether that act is 

the proximate cause of an injury which ensues." 

[Christianson v. Chicago St. P., M. & 0. Ry. Co. (Minn . 18 96 ) , 6 9 N . W . 640.1 And the Wisconsin court has stated: 

This court is definitely committed to the 

principle that, while foreseeability is an 

element to be considered by the jury in 

determining negligence, it has no part in the 

jury's decision of whether particular 

negligence found by it is causal. [Shahlendorfv. 

Walgreen Co. (Wis. 1962), 114 N.W.2d 823 .I 

Dean Prosser stated: 

It is simpler, and no doubt more accurate, to 

state the problems in terms of "duty:" is the 

defendant under a legal obligation to protect 

the plaintiff against such unforeseeable 

consequences of his own negligent acts? 

[William L. Prosser, Law of Torts 289 (3d ed. 

1964) .I 

And Harper and James said: "Foreseeability of damage 

is altogether irrelevant in determining the existence of 

the cause in fact relationship." [2 Harper & James, 

of Torts 1135 (1956) .I 
Professor Leon Green, a persistent critic of the 

foreseeability test, as it is used in connection with 

proximate cause, remarked, "Clearly the issue of causal 

relation between the defendant's conduct and the 

plaintiff's injury is not determined by foreseeability." 

[Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich. 

L. Rev. 543, 549 (1962).] The element of cause becomes 

operative only if a duty is breached and damages result, 

whereupon the defendant becomes liable for the damages 

directly caused by his breach of duty. . . . "Causal 

relation is a neutral issue, blind to right and wrong.'' 

[Green, 60 Mich. L. Rev. at 549.1 

Unfortunately, however, the application of the 

foreseeability test to causation has had a firm hold in 

legal literature, and some recent cases continue to 

compound the error. Thus, the problem of causation, 

difficult as it is, has been made more complex by 

employing foreseeability as a test of legal cause, when 

foreseeability should be restricted to the issue of 

negligence. 

1 Modern Tort Law § 5.02 at 159-62 

In the Law of Torts, the authors state that: 

It is obvious that under such an analysis of the duty 

problem, foreseeability is distinctly a factor that puts 

a considerable limitation on the extent of liability, 

even though it should be held to play no part whatever in 

determining the issue of proximate cause. It is also 

clear that if this analysis of the duty problem is 

accepted, no good, but only confusion, can result from 

repeating the same inquiries as to foreseeability under 

the cause issue as were asked and answered (or should 

have been) under the duty issue. 

4 Fowler V. Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed. 

1986) (footnotes omitted) 

Finally, in Prosser and Keeton on Torts the authors state: 

Once it is established that the defendant's conduct 

has in fact been one of the causes of the plaintiff's 

injury, there remains the question whether the defendant 

should be legally responsible for the injury. Unlike the 

fact of causation, with which it is often hopelessly 
confused, this is primarily a problem of law. It is 

sometimes said to depend on whether the conduct has been 

so significant and important a cause that the defendant 

should be legally responsible. But both significance and 

importance turn upon conclusions in terms of legal 

policy, so that they depend essentially on whether the 

policy of the law will extend the responsibility for the 

conduct to the consequences which have in fact occurred. 

Quite often this has been stated, and properly so, as an 

issue of whether the defendant is under any duty to the 

plaintiff, or whether the duty includes protection 

against such consequences. This is not a question of 

causation, or even a question of fact, but quite far 

removed from both; and the attempt to deal with it in 

such terms has led and can lead only to utter confusion. 

The term "proximate cause" is applied by the courts 

to those more or less undefined considerations which 

limit liability even where the fact of causation is 

clearly established. The word "proximate" is a legacy of 

Lord Chancellor Bacon, who in his time committed other 

sins. The word means nothing more than near or 

immediate; and when it was first taken up by the courts 

it had connotations of proximity in time and space which 

have long since disappeared. It is an unfortunate word, 

which places an entirely wrong emphasis upon the factor 

of physical or mechanical closeness. . . . 

It is quite possible to state every question which 

arises in connection with "proximate cause" in the form 

of a single question: was the defendant under a duty to 

protect the plaintiff against the event which did in fact 

occur? . . . 

. . . "Proximate cause," in short, has been an 

extraordinarily changeable concept. "Having no 

integrated meaning of its own, its chameleon quality 

permits it to be substituted for any one of the elements 

of a negligence case when decision on that element 

becomes difficult. . . . No other formula . . . so nearly 

does the work of Aladdin's lamp. " [Leon Green, Proximate 

CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950) .I 

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76 

(5th ed. 1984) 
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-in-fact. Two of the jurisdictions in our own area which have 

done so are the states of Washington and Oregon. In Rikstadv. 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 issues 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 Court's 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 

§ 449.) However, courts frequently treat such problems 

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

§ 430, comment a.) 

Restatement (Second) of Torts § 435 cmt. c (1965). 

Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966) , 

409 P.2d 897, and Brennenv. CityofEugene (Or. 1979), 591 P.2d 719. 

We agree with the Washington Court and with the cited authors 

that the better-reasoned authorities address foreseeability as part 

of the analysis of "duty," rather than "proximate cause," and that 

to analyze it under both issues leads only to confusion which can 

be easily avoided. 

However, the arguments quoted from the previous authors and 

the reasoning of the Washington Court are even more compelling 

based on Montana's statutory framework for determining liability. 

Section 1-1-204 (1) , MCA, defines negligence as "a want of attention 

to the nature or probable consequences of the act or omission that 

a prudent man would ordinarily give in acting in his own concerns. " 

(Emphasis added.) This definition suggests that foreseeability is 

an element of negligence, and therefore, properly considered with 

the existence of a duty. 

On the other hand, 5 27-1-317, MCA, which discusses the 

damages for which a negligent actor is responsible, defines those 

damages as "the amount which will compensate for all the detriment 

proximately caused thereby, whether it could have been anticipated 

or not. " (Emphasis added. ) By equating damages "proximately caused 
thereby" with actual damages, whether they "could have been 

anticipated or not," our statutory scheme specifically precludes 

the applicability of a foreseeability requirement to the issue of 

proximate cause. 

We therefore reverse that part of our decision in Kitchen Krafters, 

Inc.v.EastsideBankofMontana (1990), 242 Mont. 155, 789 P.2d 567, which 

requires a two-tiered analysis of causation which includes 

consideration of foreseeability in cases other than those cases 

where there has been an allegation that the chain of causation is 

severed by an independent intervening cause. There are several 

reasons which compel this result. First, that part of the opinion 

which suggests language for a proximate cause instruction 

erroneously requires proof of an intentional act, rather than a 

negligent act, when it suggests the following language: 

[Ilt must appear from the facts and circumstances 

surrounding the accident . . . that defendant as an 

ordinarily prudent person, could have foreseen that 

plaintiff's injury would be the natural and probable 

consequence of the wrongful act. 

Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575 

Second, the requirement that foreseeability be considered as 

part of proximate cause is redundant with the existing requirement 

that foreseeability be considered as part of the analysis of duty. 

Third, our statutory scheme of laws relating to liability 

requires that foreseeability be considered as part of the 

negligence analysis and that it not be considered as part of 

proximate cause. 
Fourth, legal concepts such as "proximate cause" and 

"foreseeability" are best left to arguments between attorneys for 

consideration by judges or justices; they are not terms which are 

properly submitted to a lay jury, and when submitted can only serve 

to confuse jurors and distract them from deciding cases based on 

their merits. 

In those cases which do not involve issues of intervening 

cause, proof of causation is satisfied by proof that a party's 

conduct was a cause-in-fact of the damage alleged. As stated in 

Prosser and Keeton on Torts § 41, at 266 (5th ed. 1984), a party's 

conduct is a cause-in-fact of an event if "the event would not have 

occurred but for that conduct; conversely, the defendant's conduct 

is not a cause of the event, if the event would have occurred 

without it." 

We hold that with the exception of those cases involving 

allegations of independent intervening cause or multiple causes, it 

is sufficient to instruct the jury, as recommended in 1989 by the 

Montana Supreme Court Commission on Civil Jury Instructions, that: 

"The defendant's conduct is a cause of (injury/death/damage) if it 

helped produce it and if the (injury/death/damage) would not have 

occurred without it." Montana Pattern Instruction 2.08 (rev. 

11/1/89) . 

In those cases where chain of causation is an issue (e.g., 

where there is an allegation of an independent intervening cause), 

we recommend, as didthe Commissionin1989, the following instruction: 
The defendant's conduct is a cause of the (injury/ 

death/damage) if, in a natural and continuous sequence, 

it helped produce it and if the (injury/death/damage) 

would not have occurred without it. 

Montana Pattern Instruction 2.08 (rev. 11/1/89). 

In those cases where there are allegations that the acts of 

more than one person combined to produce a result (e.g., when the 

plaintiff alleges negligence and the defendant alleges contributory 

negligence, or when there are multiple defendants), we acknowledge 

that the recommended cause-in-fact instruction would be confusing 

and misleading. Therefore, in those cases, we recommend continued 

use of the substantial factor instruction approved in Rudeck v. Wright 

(l985), 218 Mont. 41, 709 P.2d 621, and Kyrissv.State (1985), 218 Mont. 

162, 707 P.2d 5. We further recommend that terms such as 

"proximate cause" or "legal causeu and "reasonable foreseeability," 

which have some significance to lawyers and judges, not be allowed 

to confuse jurors by the inclusion of those terms in jury 

instructions. To the extent that foreseeability raises a jury 

issue, it is adequately addressed by the definition of negligence 

included in Montana Pattern Instruction 2.00.' To the extent that 

foreseeability raises issues of public policy, such as those about 

which Justice Andrews expressed concern in his dissent in Palsgraf, 

the subject is properly dealt with as an issue of law. 

'Montana Pattern Instruction 2.00 (rev. 2/7/91) defines 

negligence as "the failure to use reasonable care. Negligence may 

consist of action or inaction. A person is negligent if he fails 

to act as an ordinarily prudent person would act under the 

circumstances." 
We agree with the conclusion of the California Supreme Court, 

as stated in Mitchellv. Gonzales (Cal. 1991), 819 P.2d 872, that: 

It is reasonably likely that when jurors hear the 

term "proximate cause1' they may misunderstand its meaning 

or improperly limit their discussion of what constitutes 

a cause in fact. Prosser and Keeton's concern that the 

word "proximate" improperly imputes a spatial or temporal 

connotation is well founded. Webster's Third New 

International Dictionary (1981) page 1828, defines 

proximate as "very near," "next," "immediately preceding 

or following." Yet, "[plroximity in point of time or 

space is no part of the definition [of proximate cause] . . . except as it may afford evidence for or against 

proximity of causation. [Citation. I I' (Osborn v. City of 

Whittier (1951) 103 Cal.App.2d 609, 616, 230 P.2d 132.) 

Given the foregoing criticism, it is not surprising 

that a jury instruction incorporating the term "proximate 

cause" would come under attack from courts, litigants, 

and commentators. . . . 

The misunderstanding engendered by the term 

"proximate cause' has been documented. In a scholarly 

study of 14 jury instructions, BAJI No. 3.75 produced 

proportionally the most misunderstanding among lay 

persons. ( Charrow, Making Legal Language Understandable: A 

Psycholinguistic Study ofJury Instructions ( 19 7 9 ) 7 9 Colum . L . Rev. 13 0 6 , 1353 (hereafter Psycholinguistic Study) . ) . . in one 

experiment, "the term 'proximate cause' was misunderstood 

by 23% of the subjects. . . . They interpreted it as 

'approximate cause,' 'estimated cause,' or some 

fabrication." 

Mitchell, 819 P.2d at 877-78 (alterations in original; footnotes 

omitted). 

The point we wish to make is that the only purpose which is 

properly served by instructions to the jury is to assure a decision 

consistent with the evidence and the law. This can only be 

accomplished when the instructions are as plain, clear, concise, 

and as brief as possible. Instructions should never be proposed or 
given for the purpose of creating one more obstacle to a resolution 

of a case on its merits. 

Based on the aforementioned analysis, and our reversal of the 

requirement in Kitchen Krafters that causation instructions include a 

discussion of foreseeability, we conclude that the District Court's 

failure to define proximate cause was at most harmless error and 

affirm the District Court's denial of the hospital's motion for a 

new trial based on instructional error. 

Although the hospital makes occasional reference in its 

appellate brief and argument to independent intervening causes, 

there was no proof offered at the time of trial that any person 

contributed as a cause of Delbert's injury and death other than 

Delbert and the defendant hospital. Therefore, a proper 

instruction to the jury in this case on the subject of causation 

would have related solely to cause-in-fact as articulated by the 

substantial factor instruction. However, as we held in Davis v. Church 

ofJesusChristofLatterDaySaints (1990), 244 Mont. 61, 71, 796 P.2d 181, 

186, we will not reverse a district court for failure to provide a 

necessary instruction to the jury unless the court's omission 

affected the substantial rights of the complaining party. In this 

case, there was no prejudice to the hospital by the District 

Court's failure to instruct the jury on cause-in-fact. First, 

cause-in-fact is a simple concept that most lay people are capable 

of understanding. Second, there was no disagreement with 

plaintiff's contention that the design of the hospital's windows 
contributed to Delbert's fall and injuries. The issue was simply 

whether the hospital was negligent by allowing its windows to 

remain in a condition which would permit a patient to either escape 

or fall through them. That issue was decided in Ida Busta's favor 

based on proper instructions to the jury and was supported by 

substantial and virtually uncontroverted evidence 

For these reasons, we conclude that the District Court did not 

err when it refused to give the defendant's proposed instructions 

which defined proximate cause and which stated the requirement that 

decedent's injuries be foreseeable before causation could be 

established; and that the District Court's failure to instruct the 

jury regarding the meaning of cause-in-fact was harmless error 

ISSUE 4 

Did the District Court err when it refused to offset benefits 

received by Ida Busta from the Veterans' Administration against the 

damages awarded for the decedent's wrongful death? 

Following trial, the hospital moved the court pursuant to 

5 27-1-308, MCA, to deduct from the plaintiff's judgment that 

amount Ida Busta received from the Veterans' Administration due to 

her husband's death. Section 27-1-308, MCA, provides in relevant 

part that : 

(1) In an action arising from bodily injury or death when 

the total award against all defendants is in excess of 

$50,000 and the plaintiff will be fully compensated for 

his damages, exclusive of court costs and attorney fees, 

a plaintiff's recovery must be reduced by any amount paid 

or payable from a collateral source that does not have a 

subrogation right. 
Section 27-1-307 (1) , MCA, defines "collateral source" as : 

[A] payment for something that is later included in a 

tort award and which is made to or for the benefit of a 

plaintiff or is otherwise available to the plaintiff: 

(a) for medical expenses and disability payments 

under the federal Social Security Act, any federal, 

state, or local income disability act, or any other 

public program; 

. . . . (e) any other source, except the assets of the 

plaintiff or of his immediate family if he is obligated 

to repay a member of his immediate family. 

The District Court denied the hospital's motion for offset for 

the following reasons: 

1. The court found that the heirs will not be fully 

compensated for their damages, due to the reduction of their award 

based on contributory fault; 

2. The court found that the Veterans' Administration 

benefits received by Ida Busta were not medical expenses or 

disability payments, and therefore, not "collateral source" as 

defined in § 27-1-307, MCA; and 

3. The court found that the general nature of the 

defendant's verdict form makes it impossible to determine what, if 

any, amounts were awarded by the jury for a loss against which the 

collateral source should be offset. 

On appeal, the hospital contends that the death benefits that 

Ida Busta received were included in the definition of "collateral 

source" at subsection (1) (e) of § 27-1-307, MCA, by its reference 

to "any other source.'' 
However, it is not necessary that we resolve whether death 

benefits from the Veterans' Administration are included within the 

statutory definition of "collateral source," or whether the 

plaintiff has been fully compensated where her judgment has been 

reduced by comparative negligence. Section 27-1-308, MCA, clearly 

provides for reduction of only that part of a recovery which has 

previously been compensated by a collateral source. In this case, 

Ida Busta was awarded death benefits by the Veterans' 

Administration for the economic loss which resulted from her 

husband's death. The jury, on the other hand, was instructed that 

its wrongful death damage award should include damages for not only 

financial support which the heirs lost, but also for "the value of 

the society, comfort, guidance, education, care, protection and 

companionship which Ida Busta, William Busta and Charles Busta have 

lost by reason of the death," and that its award should "include 

reasonable compensation to them [the heirs] for their grief, sorrow 

and mental anguish resulting from the death." 

The jury returned a special verdict which awarded damages to 

the heirs in the amount of $800,000. There is no indication from 

the verdict form what, if any, amount of the verdict was for the 

loss of Delbert's financial support. Therefore, there was no 

method by which the District Court could calculate what, if any 

amount, the hospital was entitled to offset by the amount of 

previous Veterans' Administration death benefits awarded to Ida. 

Because there was no factual basis upon which the District Court 
could properly grant the hospital's motion for offset, the motion 

was properly denied. For these reasons, we affirm the District 

Court's denial of the hospital's motion for statutory offset 

pursuant to § 27-1-308, MCA. 

Based on our discussion of and holding regarding each of the 

issues raised, we affirm the judgment of the District Court. 

We concur: 

Chief Justice 

Justices 
Justice Karla M. Gray, specially concurring 

I concur in the Court's opinion on issues one and two and 

specially concur on issues three and four. 

With regard to issue three, which relates to the District 

Court's failure to instruct on proximate cause, I agree with the 

result the Court reaches on the issue and with most of its 

discussion of our case law and other authorities vis-a-vis 

foreseeability as an element of proximate cause. My one 

disagreement with the Court in this regard is in its interpretation 

of § 27-1-317, MCA. I do not read the statute as precluding the 

consideration of foreseeability as part of causation. Conversely, 

however, the statute certainly does not require us to consider 

foreseeability in analyzing causation. Thus, I am persuaded by the 

remainder of the authorities cited by the Court that we erred in 

doing so in Kitchen Krafters where no intervening cause issue 

required its inclusion. 

With regard to issue four, whether the hospital was entitled 

to offset the VA benefits Ida Busta received against the wrongful 

death damages awarded, I concur in the Court's opinion. I 

specially concur only to add that the hospital prepared the Special 

Verdict which was submitted to the jury and which rendered it 

impossible for the District Court to calculate whether any offset 

was authorized (even assuming that the VA benefits met the 

statutory definition of collateral source). If the hospital wanted 

to assert entitlement to the offset, it was incumbent upon the 

hospital to structure a verdict form which would make such a 
Justice Charles E. Erdmann concurring in part and dissenting in 

part. 

I concur in the majority's opinion on Issues 1, 2, and 4, but 

write separately to dissent on Issue 3. 

I disagree with the majority's holding that the District 

Court's failure to instruct on proximate cause was harmless error. 

1 am convinced that the failure to define proximate cause for the 

jury was reversible error. In fact, the jury received no 

instructions at all which defined causation. Furthermore, I 

disagree with the majority's analysis of foreseeability as applied 

to proximate cause and therefore dissent from the majority's 

decision to overrule the requirement in Kitchen Krafters v. 

Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567, that 

causation instructions include a discussion of foreseeability. 

In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181, 

we held that it was error for the lower court to not instruct on 

proximate cause and stated that the question of proximate cause is 

an issue of fact to be decided by the jury. Davis, 796 P.2d at 

186. In order to constitute reversible error, the lower court's 

actions must affect the substantial rights of the complaining 

party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (1989), 235 

Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant 

was not prejudiced by the court's failure to instruct on proximate 

cause and therefore held the error to be harmless. Davis, 796 P.2d 

at 187. 
However, under the circumstances of the present case, I would 

hold that the District Court erred in not instructing the jury on 

proximate cause. A number of instructions given by the District 

Court contained the phrase "proximate cause," but the jury was not 

given the benefit of any guidance from the court on this crucial 

concept. It is the duty of the court to instruct the jurors fully 

and correctly on all applicable laws. Billings Leasing Co. v. 

Payne (1978), 176 Mont. 217, 224, 577 P.2d 386, 390. As this Court 

noted in Billinss Leasins Co.: 

" * * * In instructing the jurors, we must 

assume that they have no knowledge of the 

rules of law and that therefore, they must be 

instructed on all points of law which, under 

any reasonable theory, might be involved in 

their deliberations, to the end that their 

decision will be according to the law and the 

evidence and untinged by any private and 

possibly false opinion of the law that they 

entertain." 

Jury instructions are crucial to a jury's 

understanding of the case and, unfortunately, counsel 

cannot always be relied upon to provide those 

instructions. . . . 

"It is the inescapable duty of the trial 

judge to instruct the jurors, fully and 

correctly, on the applicable law of the case, 

and to guide, direct, and assist them toward 

an intelligent understanding of the legal and 

factual issues involved in their search for 

truth. The court must instruct the jury properly on the 

controlling issues in the case even though there has been 

no request for an instruction or the 

instruction requested is defective." 
Billinss Leasinq Co., 577 P.2d at 390-91 (quoting McBride, The Art 

of Instructins the Jurv at 17 (1969), and Wright & Miller, Federal 

Practice and Procedure, Civil § 2556). 

In the present case, the hospital offered an instruction on 

proximate cause which was refused by the District Court. The 

plaintiff withdrew her instructions defining causation. As a 

result, the jury was not instructed on the crucial concept of 

proximate cause which is a key element in all negligence actions. 

After analyzing foreseeability and proximate cause, the majority 

determines this to be harmless error. I differ with the majority's 

analysis and position on foreseeability and proximate cause and 

conclude that the District Court's failure to define proximate 

cause for the jury in this case was reversible error. 

The majority claims it is redundant and confusing to jurors to 

focus on foreseeability when analyzing both the "duty" element and 

"proximate cause" element of the tort of negligence. On the 

contrary, I believe that such a dual analysis of foreseeability is 

a necessary and reasonable analysis which has, unfortunately, been 

complicated in Montana by the confusing wording of the Kitchen 

Krafters instruction. 

In Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and 

its progeny, we determined that the concept of foreseeability was 

a part of the "duty" element. See Ford v. Rupple (1972), 161 Mont. 

56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167 

Mont. 24, 534 P.2d 1247; Schafer v. State (1979), 181 Mont. 102, 

592 P.2d 493; Pretty On Top v. City of Hardin (l979), 182 Mont. 
311, 597 P.2d 58; Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 

1013; Belue v. State (l982), 199 Mont. 451, 649 P.2d 752. The 

majority agrees with the rationale of this line of cases but 

concludes that, with the exception of cases involving intervening 

superseding events, foreseeability should be restricted to the 

analysis. 

In Kitchen Krafters we applied the concept of foreseeability 

to the element of causation and stated that " [plroximate cause is 

normally analyzed in terms of foreseeability. Simply stated, one 

is only liable for consequences which are considered to be 

reasonably foreseeable. " Kitchen Krafters, 789 P. 2d at 575 (citing 

Prosser and Keeton on Torts § 43 (5th ed. 1984). The line of cases 

which followed Kitchen Krafters, and which were not overruled by 

the majority, repeated the requirement that foreseeability be 

considered as part of proximate cause. See Thayer v. Hicks (1990) , 

243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457, 

802 P.2d 1248; U.S.F.& G v. Camp (1992), 253 Mont. 64, 831 P.2d 

586; King v. State (1993), 259 Mont. 393, 856 P.2d 954; Logan v. 

Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v. 

Mather (1995), 270 Mont. 188, 890 P.2d 1277. 

As noted, the majority concludes it is unnecessary to address 

foreseeability as part of the causation element, except in cases of 

intervening superseding events. I disagree and submit that the 

concept of foreseeability has a proper and distinct place in the 

analysis of both "duty" and "causation" elements--both of which 

must be satisfied in order to establish the prima facie case for 
negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36; 

McCain v. Florida Power Corp. (Fla. 1992), 593 So. 2d 500; Nelson 

by Tatum v. Com. Edison Co. (Ill. App. 2d 1984), 465 N.E.2d 513. 

The analysis of foreseeability in the "duty" context focuses 

on whether or not the plaintiff was in the zone of danger to be 

protected from the defendant's actions. As the New Mexico Supreme 

Court has recently stated: 

This case raises issues of duty and proximate cause. 

Integral in both elements is a question of 

foreseeability. In determining duty, it must be 

determined that the injured party was a foreseeable 

plaintiff--that he was within the zone of danger created 

by respondent's actions; in other words, to whom was the 

duty owed? 

Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of 

danger there was no duty and therefore no negligence. The Florida 

Supreme Court has recently held that: 

[F] oreseeability relates to duty and proximate causation 

in different ways and to different ends. The duty 

element of negligence focuses on whether the defendant's 

conduct foreseeably created a broader "zone of risk" that 

poses a general threat of harm to others. 

McCain, 593 So. 2d at 502. 

Foreseeability in the "causation" context requires an analysis 

of whether the circumstances surrounding the actual occurrence of 

the plaintiff's injury were a foreseeable result of the defendant's 

breach. It is only after a duty and breach of that duty has been 

established that the "ca~sation~~ element is analyzed with its 

distinct application of the foreseeability concept. As the 

Calkins Court stated: 
In determining proximate cause, an element of 

foreseeability is also present--the question then is 

whether the injury to petitioner was a foreseeable result 

of respondent's breach, i.e., what manner of harm is 

foreseeable? 

Calkins, 792 P.2d at 38. The McCain Court stated: 

The proximate causation element, on the other hand, is 

concerned with whether and to what extent the defendant's 

conduct foreseeably and substantially causedthe specific 

injury that actually occurred. In other words, the 

former [duty elementl is a minimal threshold legal 

requirement for opening the courthouse doors, whereas the 

latter [causation element] is part of the much more 

specific factual requirement that must be proved to win the 

case once the courthouse doors are open. As is obvious, 

a defendant might be under a legal duty of care to a 

specific plaintiff, but still not be liable for 

negligence because proximate causation cannot be proven. 

It might seem theoretically more appealing to 

confine all questions of foreseeability within either the 

element of duty or the element of proximate causation. 

However, precedent, public policy, and common sense 

dictate that this is not possible. Foreseeability 

clearly is crucial in defining the scope of general duty 

placed on every person to avoid negligent acts or 

omissions. . . , 

On the question of proximate causation, the legal 

concept of foreseeability also is crucial, but in a 

different way. In this context, foreseeability is 

concerned with the specific, narrow factual details of 

the case, not with the broader zone of risk the defendant 

created. 

McCain, 593 So. 2d at 502-03. 

Both arenas of the foreseeability analysis are independent and 

distinct from one another. Foreseeability applied to the "dutyu 

element must be decided as a matter of law by the judge using 

established legal policy to determine whether a duty was owed to 

the plaintiff. On the other hand, foreseeability applied to the 
"causationu element is a question of fact. See Calkins, 792 P.2d 

at 38. 

Without such a dual approach to the foreseeability analysis, 

the determination of whether the "causationu element is satisfied 

is reduced to a bare-bones question of cause-in-fact. In removing 

foreseeability fromthe causation analysis, the majority's approach 

results in a situation where once duty and breach are established, 

a "but-for" or "substantial factor" analysis is all that remains in 

order to satisfy the causation element--I submit that such an 

inquiry will invariably be answered in the affirmative, 

particularly when it is obvious or conceded that a duty has been 

breached. 

I must also address the majority's argument that Montana's 

statutory framework for determining liability reinforces its 

position. Section 1-1-204, MCA, does include the concept of 

foreseeability in the "duty" element when it defines negligence as 

"a want of the attention to the nature or probable consequences of 

the act or omission that a prudent man would ordinarily give in 

acting in his own concerns." However, I fail to follow the 

majority's logic when it states that the language of § 27-1-317, 

MCA, set forth below, specifically precludes the applicability of 

a foreseeability requirement to the issue of proximate cause. 

For the breach of an obligation not arising from 

contract, the measure of damages, except where otherwise 

expressly provided by this code, is the amount which will 

compensate for all the detriment proximately caused 

thereby, whether it could have been anticipated or not. 
This statute addresses damages and the language simply means that 

if the injury was foreseeable it makes no difference whether the 

damages were also foreseeable. 

Finally, I am not persuaded by the majority's position that 

lay jury members are confused by concepts such as foreseeability 

and proximate cause and therefore that they are distracted from 

their duty to decide cases based on their merits. I submit that 

such concepts are not only necessary to establish the prima facie 

case for negligence but are also, when accurately defined, the 

proper tools to enable the jury to do its job. In my view it is 

better to explain these concepts and define how they are to be used 

by the jury rather than to leave the juries' understanding of them 

to chance and differing definitions. 

In conclusion, I would be the first to admit that the language 

contained in the Kitchen Krafters instruction has caused problems 

for judges and practitioners alike. The adequacy of the 

instruction needed to be addressed and revised. However, I am not 

convinced that in remedying the instruction it is necessary to 

abandon the concept of foreseeability and its dual application to 

the analysis of both the "duty" and "causation" elements in 

negligence actions. az@2L Justice 

Chief Justice J. A. Turnage joins in the foregoing concurring and 

dissenting opinion. 

Chief Justice 
NO. 95-050 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IDA 0. BUSTA, as Personal Representative 

of the Estate of Delbert F. Busta, on 

behalf of the heirs of Delbert F. Busta, 

Plaintiff and Respondent, 

v. 

COLUMBUS HOSPITAL CORPORATION, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

~ames R. WaJsh and Dennis P. Clarke, Smith, 

Walsh, Clarke & Gregoire, Great Falls, Montana 

For ~es-pond~nt : 

Dennis Patrick Conner, Attorney at Law, 

Great Falls, Montana 

Submitted on Briefs: January 17, 1996 

Decided: M~Y 10, 1996 

Filed: 
Columbus Hospital offered testimony from Debra Gaspar, a 

registered nurse from Billings, who testified that based on her 

review of the records, Fitzgerald had complied with the standard of 

care applicable to post-surgical nurses at the time and date in 

question. However, the hospital offered no expert opinion 

regarding the reason that Delbert attempted to leave the hospital 

through the third floor window, nor did it offer expert testimony 

to the effect that the incident which caused Delbert's injuries and 

death was unforeseeable from the perspective of a hospital 

administrator or a hospital architect 

The jury's verdict and the court's orders were as previously 

stated. With this background, we will discuss the issues raised by 

the hospital on appeal. 

ISSUE 1 

Did the District Court err when it admitted a photographic 

exhibit offered by the plaintiff which depicted the decedent, 

Delbert Busta, and included a tribute from his granddaughter? . . , r 

During the testimony of Charles Busta, Delbert's son, a 

photograph of Delbert was offered as an exhibit. Attached to the 

photograph was a poetic tribute to Delbert by his granddaughter. 

The poem had apparently been submitted as part of a school project 

because next to it was a grade and a handwritten note which stated: 

"1 can tell your Grandpa was very special to you!" At the time the 

photo was offered, the attorney for the hospital objected to its 

admission on the basis that "it was written by a person who is not 
(a) Effect of erroneous ruling. Error may not be 

predicated upon a ruling which admits or excludes 

evidence unless a substantial right of the party is 

affected, and 

(1) Objection. In case the ruling is one admitting 

evidence, a timely objection or a motion to strike 

appears on the record, statina the suecific around of the 

objection, if the specific ground was not apparent from 

the context. 

(Emphasis added.) 

As we stated in Scojeldv. EstateofWood (1984), 211 Mont. 59, 63, 

683 P.2d 1300, 1302, "[aln objection raised for the first time on 

appeal is not timely. Unless a timely objection to evidence or 

testimony is raised at the trial level, it cannot be considered on 

appeal." (Citations omitted.) 

On appeal, the hospital contends that the photograph of 

Delbert should have been excluded for the reason that it included 

hearsay in violation of Rule 801, M.R.Evid. ; for the reason that it 

was irrelevant pursuant to Rule 401, M.R.Evid.; and for the reason 

that it was unduly prejudicial in violation of Rule 403, M.R.Evid. 

However, the hoqpital's hearsay objection was not stated at 

the time that the exhibit was offered and was specifically waived 

when the plaintiff's attorney offered to call the author and the 

defendant's attorney stated that it would be unnecessary. Undue 

prejudice in violation of Rule 403 was also specifically waived 

because it was not stated as a basis of the defendant's objection 

at the time the exhibit was offered. 

Although irrelevance was not specifically stated as a basis 

for the defendant's objection to the plaintiff's photographic 
During his life following his discharge from military service, 

Delbert received a small pension due to his diagnosis of simple 

schizophrenia. The jury was fully informed of that fact. 

Subsequent to Delbert's death, his surviving spouse Ida, after 

learning of the basis for his disability benefits, applied for 

death benefits which apparently were denied. For that reason, the 

same attorney who represented her in this case wrote to the 

Department of Veterans' Affairs on July 10, 1992, and requested 

that the denial be reconsidered. This letter was written over two 

years before Dr. Richard Rada was first retained and consulted on 

August 22, 1994. 

In his letter, the plaintiff's attorney provided copies of 

Delbert's records and referred to his prisoner of war experience, 

his subsequent medical diagnosis, and extensive summaries of his 

Veterans' Administration medical records since the date of his 

discharge. At the conclusion of the five-page letter, plaintiff's 

attorney expressed the opinion that based on that medical history ,. and Delbert's apparent attempt to escape from the hospital and some 

perceived danger, his death was probably related to his 

service-connected condition, and he requested that the Department 

reconsider the denial of Ida's claim for benefits. 

Copies of the medical records referred to in the letter were 

provided to the defendant and were offered as exhibits without 

objection. However, the defendant also sought to admit the 

five-page letter written by the plaintiff's attorney. When the 
objection was stated that the letter was inadmissible pursuant to 

Allersv. Willis (1982), 197 Mont. 499, 643 P.2d 592, because it related 

to a collateral source, the defendant sought to admit the letter 

after deleting the identity of the recipient and the reference to 

death benefits. However, the District Court held that because the 

letter was on plaintiff's attorney's letterhead, the potential for 

prejudice from its admission outweighed its probative value and 

denied its admission. The court did offer to allow the defendant 

to produce other evidence of the letter's contents. The defendant 

indicated it would call Ida Busta for the purpose of offering such 

evidence. However, when the District Court stated that that would 

be acceptable, the defendant declined to do so. 

On appeal, the defendant contends that its proffered letter 

from the plaintiff's attorney should have been admitted as an 

admission by the plaintiff that Delbert died as a result of his 

preexisting mental condition, rather than because of Columbus 

Hospital's negligence. It contends that because it was not , 

informed of his preexisting mental condition at the time of his 

admission to the hospital, it could not reasonably have been 

expected to protect him from harming himself. 

As stated previously, we review a district court's evidentiary 

ruling to determine whether there has been an abuse of discretion. 

Inre $23,691.00, 52 St. Rep. at 1065, 905 P.2d at 152. Furthermore, we 

- will uphold a district court's decision, if correct, even though 

its reason for that decision may have been incorrect. Normanv.City 
of Whitefih (lP93), 258 Mont. 26, 30, 852 P.2d 533, 535; DistrictNo. 5.51). 

Musselshell County (1990) , 245 Mont. 525, 527, 802 P. 2d 1252, 1253. 

The District Court held that the leEter, as modified by the 

defendant, was inadmissible for several reasons. it concluded that 

it was an offer of compromise, and theref ore inadmissible pursuant 

to Rule 408, M.R.Evid.; that it was evidence of a collateral 

source; and that when altered to exclude evidence of a collateral 

source, it was incomplete, and therefore, that its prejudicial 

impact outweighed any probative value. 

The defendant contends that the reasons given by the District 

Court for excluding its proposed exhibit lack merit and that the 

letter was relevant pursuant to Rule 401, M.R.Evid, , because it had 

a tendency to make more probable the hospital's claim that Delbert 

died as a result of his preexisting mental infirmity. 

We conclude, however, that because the author of the proposed 

letter had no qualification for expressing a medical opinion 

regarding the cause .of Delbert Is behavior on December 1, the letter 

had little probative value and that the District Court did not: 

abuse its discretion when it refused to admit the letter pursuant 

to Rule 403, M.R.Evid. Rule 403 provides that: 

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative 

evidence. 
In Mauldingv. Hardman (1993), 257 Mont. 18, 847 P.2d 292, we held 

that an attorney is not qualified to express an expert medical 

opinion regarding. a party's condition or prognosis for recovery. 

We held in that case that when the opinion was offered in the form 

of an affidavit it should have been rejected by the district court 

which should have, instead, relied on expert testimony. Maulding, 

257 Mont. at 27, 847 P.2d at 298. 

Had plaintiff's attorney been called as a witness at trial to 

express an opinion regarding the medical explanation for Delbert's 

departure from the hospital through his third floor window, the 

District Court would necessarily have had to exclude the testimony 

because he was unqualified to express such an opinion in a court of 

law. For that reason, his unqualified opinion expressed in 

correspondence to the Veterans' Administration over two years prior 

to the receipt of contrary information from a qualified expert had 

no probative value to any relevant issue in this case. On the 

other hand, simply because the proposed exhibit was authored by the I,. 

plaintiff's attorney, it presented substantial potential for 

confusing or misleading the jury. The defendant had an opportunity 

to present qualified evidence that Delbert's injuries and death 

were contributed to or caused by his preexisting mental condition. 

In fact, the District Court gave the defendant great latitude 

toward that end. However, the defendant presented. no qualified 

evidence from any medical expert or any observation by any lay 

witness that Delbert's preexisting mental condition contributed in 
any way to his behavior on the morning of December 1, 1991, or that 

the preexisting mental condition affected his behavior at any other 

time from the date on which he was discharged from military service 

until the date of his death. 

Fox these reasons, we conclude that the District Court did not 

abuse its discretion when it excluded the defendant's proposed 

exhibit which included statements from the plaintiff's attorney 

regarding Delbert's mental condition on the evening of his death. 

ISSUE 3 

Did the District Court err when it refused to give the 

defendant's proposed instructions which defined proximate cause and 

stated the requirement that the decedent's injuries be foreseeable 

before causation could be established? 

The hospital proposed, by its Instruction No. 20, that the 

District Court instruct the jury regarding the following definition 

of proximate cause: 

The proximate cause of an injury is that cause 

which, as a natural and continuous sequence, unbroken by 

any new and independent cause, produces the injury, and 

without which it would not have occurred. 

The hospital ' s proposed instructions numbered 21 and 22 

suggested the following requirements regarding foreseeability as it 

relates to proximate cause: 

DEFENDANT'S PROPOSED INSTRUCTION NO. 21 

If you find that the Defendant Columbus Hospital was 

negligent, in order for its -negligence to be the 

proximate cause of Delbezl-t Bustal s injuries and death, it 

must appear from the facts and circumstances surrounding 

the accident that the Columbus Hospital, as an ordinarily 
prudent entity, could have reasonably foreseen that 

Delbert Busta's injury would be the natural and probable 

consequence of the hospital's actions. 

DEFENDANT'S PROPOSED INSTRUCTION NO. 22 

If you find the consequences of the hospital's 

actions were not reasonably foreseeable or were generally 

freakish, bizarre, or unpredictable, the actions of the 

hospital were not the proximate cause of decedent Busta's 

injuries and death. 

The plaintiff proposed that the jury be instructed on the 

issue of causation in a format similar to the format suggested by 

our decision in Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990) , 242 

Mont. 155, 789 P.2d 567. However, the plaintiff's proposed 

instruction referred to cause-in-fact as a "substantial factor." 

The defendant objected on that basis and plaintiff's proposed 

instruction on causation was withdrawn. 

The District Court rejected the hospital's proposed 

instructions numbered 20, 21, and 22 on the basis that they did not 

satisfy the format required by Kitchen Krafters, and therefore, no 

instruction which defined proximate cause was submitted to the .I 

jury. 

After the District Court indicated which instructions it would 

give and which instructions were refused, it asked whether the 

defendant had any objections. No objection was stated at that time 

to the court's failure to provide any instruction to the jury which 

defined proximate cause. 

The jury was instructed that both parties had the burden of 

proving that the other was negligent and that the other party's 
indisputably foreseeable and there was no evidence of intervening 

acts by third parties which would interrupt the chain of causation. 

Finally, the District Court noted that part of the confusion which 

resulted in its failure to define proximate cause was attributable 

to the difficulty that district courts have dealing with that issue 

since this Court's decision in Kitchen Krapers and respectfully 

requested that this Court better settle the requirements for 

instruction of juries on the subject of causation in future cases. 

On appeal, the hospital contends that because the District 

Court referred to llproximate cause" in other instructions, it was 

necessary that the term be explained to the jury. The hospital 

further contends that because this Court included foreseeability as 

an element of proximate cause in Kitchen Krapers and because the 

foreseeability of Delbert's conduct on December 1, 1991, was a 

specific issue, it was important that the jury be specifically 

instructed regarding foreseeability. 

In response, the plaintiff contends that the defendant waived ..I 

its objection to the District Court's failure to instruct on the 

issue of proximate cause by its failure to bring the court's 

omission to its attention before the jury's verdict was returned. 

The plaintiff further contends that even if the District Court 

erred, the error was harmless because causation was established by 

the undisputed evidence, and therefore, as a matter of law. 

A district court has discretion when it decides how to 

instruct a jury and we will not reverse a district court's decision 
absent an abuse of discretion. Cechovic v. Hardin & Assoc. (Mont . 1995) , 

902 P.2d 520, 527, 52 St. Rep. 854, 860. When we review 

instructions to a jury to determine whether they were properly 

given or refused, we consider the instructions in their entirety, 

as well as in connection with the other instructions given and the 

evidence at trial. Storyv. City ofBozeman (1993) , 259 Mont. 207, 222, 

When we review a district court's refusal to give an offered 

instruction, the following rules apply: 

It is 'not reversible error for a trial court to 

refuse an offeredinstruction unless such refusal affects 

the substantial rights of the party proposing the 

instruction, thereby prejudicing him. 

A party is not prejudiced by a refusal of his 

proposed instructions where the subject matter of the 

instruction is not applicable to the pleadings and facts, 

or not supported by the evidence introduced at trial, or 

the subject matter is adequately covered by other 

instructions submitted to the jury. 

Kingv.Zimn?erman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902 (quoting 

Cottrellv. BurlingtonNor1hernR.R. Co. (19931, 261 Mont. 296, 306, 863 P.2d 

381, 387; seealso Ganzv. UnitedStatesCyclingFed'n (Mont. 1995), 903 P.2d 

212, 216, 52 St. Rep. 1030, 1033). 

The law of foreseeability, as it relates to liability law in 

Montana, has had a tortuous history. Based on the concerns 

expressed by the District Court in this case and similar sentiments 

reflected by anzicus curiae who have submitted briefs on this issue, we 

conclude that in the interest of clarifying issues involved in 

litigation where negligence is alleged, it is appropriate that we 

2 4 
address the role of foreseeability and the appropriate manner for 

instructing juries on the issue of causation. 

Any discussion of foreseeability as it relates to liability 

law begins with the oft-cited decision of the Court of Appeals of 

New York in Palsgrafv.LongIslandRailroadCo. (N.Y. 1928), 162 N.E. 99. In 

that case, the plaintiff was standing on a platform of the 

defendant's railroad when a guard attempted to assist another 

passenger aboard the departing train. In doing so, he dislodged a 

package from the passenger's hand which contained fireworks. The 

contents exploded when the package hit the ground. The shock from 

the explosion knocked down scales many feet away. The falling 

scales struck the plaintiff, and she was injured. On appeal from 

a judgment in favor of the plaintiff, Chief Justice Cardozo, 

writing for a four-person majority, reversed that judgment on the 

basis that absent a foreseeable injury to the plaintiff there was 

no duty and that absent a duty there was no negligence. In 

language that formed. the basis for a number of subsequent decisions 

,. 

in Montana, Cardozo wrote that: 

The risk reasonably to be perceived defines the duty to 

be obeyed, and risk imports relation; it is risk to 

another or to others within the range of apprehension. . . . This does not mean, of course, that one who 

launches a destructive force is always relieved of 

liability, if the force, though known to be destructive, 

pursues an unexpected path. "It was not necessary that 

the defendant should have had notice of the particular 

method in which an accident would occur, if the 

possibility of an accident was clear to the ordinarily 

prudent eye." 

Palsgraf, 162 N.E. at 100. 
Writing in dissent, Justice Andrews disagreed that duty 

requires a foreseeable plaintiff, but instead contended that all 

persons have a duty of care to the world at large. He took the 

position that if foreseeability has a place as a limitation on an 

individual's liability for damages, it is in the context of 

proximate cause. He stated that: 

What we do mean by the word "proximateu is that, because 

of convenience, of public policy, of a rough sense of 

justice, the law arbitrarily declines to trace a series 

of events beyond a certain point. This is not logic. It 

is practical politics. 

Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting) 

Andrews went on to state that in analyzing proximate cause, 

[tlhe court must ask itself whether there was a natural 

and continuous sequence between cause and effect. Was 

the one a substantial factor in producing the other? Was 

there a direct connection between them, without too many 

intervening causes? Is the effect of cause on result not 

too attenuated? Is the cause likely, in the usual 

judgment of mankind, to produce the result? Or, by the 

exercise of prudent foresight, could the result be 

foreseen? 

Palsgraf, 162 N.E. at 104 (Andrews, J., dissenting) . 

Therefore, from an early point in American jurisprudence there 

was disagreement among knowledgeable scholars regarding the role of 

foreseeability in the formulation of negligence law. The 

conviction, as expressed by Cardozo, was that without 

foreseeability there was no duty, and without duty there could be 

no liability. The view as expressed by Andrews was that 

foreseeability was an element of proximate cause and reflected the 

practical political judgment of whether effect of cause on result 
was too attenuated. Neither, however, suggested that 

foreseeability should be considered on a redundant basis as part of 

both duty and proximate cause. 

We have, as a Court, considered foreseeability in our 

discussions of proximate cause. However, originally those 

discussions were limited to situations where it was alleged that 

acts of independent third parties intervened following the 

defendant's act to sever the causal relationship between one 

person's conduct and another person's damage. Lencioni v. Long (1961) , 

139 Mont. 135, 139, 361 P.2d 455, 457. 

Other than in the context of intervening acts by third 

parties, our early decisions clearly chose to follow the majority 

view from Palsgraf. In Mangv. Eliasson (1969), 153 Mont. 431, 437, 458 

P.2d 777, 781, we cited Palsgrafwith approval and held that: 

As a classic opinion states: "The risk reasonably to 

be perceived defines the duty to be obeyed. I' Palsgrafv. Long 

Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 

1253. That is t,o say, defendant owes a duty with respect 

to those risks or hazards whose likelihood made the 

conduct unreasonably dangerous, and hence negligent in 

the first instance. 

In Mang, the plaintiff brought an action to recover damages 

for a reduced yield of alfalfa seed caused by weeds which the 

defendant allowed to be blown from his property to the plaintiff's 

property. Following a verdict for the plaintiff, the defendant 

argued on appeal that it had breached no legal duty to the 

plaintiff. This Court agreed and explained that to prove 

actionable negligence a party must prove "existence of a duty, the 

27 
breach thereof and a resulting injury." Mang, 153 Mont. at 435, 

458 P.2d at 780. We explained the role of foreseeability, as it 

relates to duty, as follows: 

Foreseeability is of prime importance in 

establishing the element of duty, and the question of 

defendants' negligence, if any, must of necessity hinge 

on the finding of a breach of that duty. If a reasonably 

prudent defendant can foresee neither any danger of 

direct injury nor any risk from an intervening cause he 

is simply not negligent. 

If the chief element in determining whether 

defendant owes a duty or obligation to plaintiff is the 

foreseeability of the risk then that factor will be of 

prime concern in every case. Further, because it is 

inherently intertwined with foreseeability, such duty or 

obligation must necessarily be adjudicated only upon a 

case-to-case basis. Therefore, we do not now 

predetermine defendants' obligations in every situation 

by a fixed category; no immutable rule can be established 

to determine the extent of that obligation for every 

circumstance of the future. We do, however, define 

guidelines which will aid in the resolution of such an 

issue as is presented in the instant case. 

. . . The obligation of defendants turns on whether: 

". .,. the offending conduct foreseeably 

involved"unreasonably great risk of harm to 

the interests of someone other than the actor. . . . Duty, in other words, is measured by the 

scope of the risk which negligent conduct 

foreseeably entails." 

. . . And absent foreseeability, there is no duty owed by 

defendants to plaintiff. . . . 

In view of our holding that plaintiff failed to show 

a breach of duty owed by defendants, thus failing to 

establish that defendants were negligent in the first 

instance, he has failed to establish any claim upon which 

relief may be granted and accordingly, it is unnecessary 

to dwell on the law of causation. . . . 
We may assume without deciding that negligence, not 

at large or in the abstract but in relation to the 

plaintiff, would entail liability for any and all 

consequence however novel or extraordinary. Palsgraf v. 

Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. at 101. 

However, the consequences to be followed must first be 

rooted in a wrong. 

Mang, 153 Mont. at 437-39, 458 P.2d at 781-82. 

In Ekwortzel v. Parker (l97l), 156 Mont. 477, 482 P.2d 559, we . 

declined to apply the foreseeability requirement set forth in Mang 

in a manner which would require that the specific accident which 

resulted be foreseen. Ekwortzel, 156 Mont. at 483, 482 P.2d +t 563. 

However, we did, from the time that Mang was decided until our 

decision in Kitchen Krafters, consistently relate the notion of 

foreseeability to the requirement of duty. See, e.g., Ford v. Rupple 

(1972), 161 Mont. 56, 504 P.2d 686; Williamsv. MontanaNat11Bank (1975), 

167 Mont. 24, 534 P.2d 1247; Schaferv. State (l979), 181 Mont. 102, 592 

P.2d 493; PretiyOnTopv. CiiyofHardin (1979), 182 Mont. 311, 597 P.2d 58; 

Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 1013; Belue v. State .,s 

(1982), 199 Mont. 451, 649 P.2d 752. 

In fact, our earlier decisions discuss causation in terms of 

cause-in-fact or the "but for" test, and discuss proximate cause 

only as it relates to continued liability following an intervening 

act. SeeFord, 161 Mont. at 65, 504 P.2d at 691; Williams, 167 Mont. 

at 30, 534 P.2d at 1250. 

In Youngv. FIatheadCounty (1988), 232 Mont. 274, 757 P.2d 772, we 

held for the first time that proof of proximate cause requires more 

2 9 
than proof of cause-in-fact or satisfaction of the "but foru test. 

However, once again, that discussion occurred in the context of 

this Court's conclusion that the chain of causation had been broken 

by independent intervening causes. We specifically reversed the 

district court because " [nlumerous interruptions in the chain of 

events occurred that could be considered the injury causing 

damage." Young, 232 Mont. at 283, 757 P.2d at 778. Although 

intervening cause was not analyzed in the typical fashion, Young was 

clearly an intervening cause case. 

The first time that the word "foreseeablen ever appeared in 

the context of "proximate cause" in one of our opinions, other than 

as related to intervening causes, was in Kitchen Kraftrs, Inc. v. Eastside Bank 

ofMontana (1990), 242 Mont. 155, 789 P.2d 567. In that case, we 

affirmed the two-tiered analysis of causation set forth in Young. 

We explained that the cause-in-fact requirement is normally 

established by the "but for" test by proving that a party's injury 

would not have occuGred "but for" the other party's conduct. We 

also reaffirmed prior decisions in which we held that if two or 

more causes concur to bring about an event, then cause-in-fact is 

established by the "substantial factor" test which we had 

previously approved in Rudeckv. Wright (1985), 218 Mont. 41, 709 P.2d 

621, and Kyrissv. State (l985), 218 Mont. 162, 707 P.2d 5. We held that 

when either the "but foru test or the "substantial factor" test was 

satisfied, a party has established that the other party's conduct 
was the cause-in-fact of an injury. We then went on to add, 

however, that once cause-in-fact is proven, "proximate causation" 

must also be established. we held for the first time that: 

Proximate cause is normally analyzed in terms of 

foreseeability. Simply stated, one is only liable for 

consequences which are considered to be reasonably 

foreseeable. Prosser & Keeton at 5 43. If the 

consequences of one's wrongful act are not reasonably 

foreseeable, then it follows that it was not proximately 

caused by that act. Using this analysis, one must look 

forward through the chain of causation in order to 

determine whether the events which occurred were 

foreseeable. If they were, the element of proximate 

cause is satisfied and liability will attach. Prosser & 

Keeton at § 43. 

KitchenKraJers, 242 Mont. at 168, 789 P.2d at 575 

Having added a requirement that foreseeability be established 

as part of causation in addition to the previous requirement that 

it be considered in determination of duty, we then went on to hold 

that juries must be specifically so instructed. We held that: 

In order to be properly instructed on proximate cause, 

the jury must be directed to look forward through the 

chain of causation, and to determine whether events which 

occurred subsequent to Eastside's wrongful act were 

foreseeable. +'A proper instruction on proximate cause 

should be worded as follows: 

In order for the defendant's negligence (failure to 

disclose) to be the proximate cause of the plaintiff's 

injury, it must appear from the facts and circumstances 

surrounding the accident [the nondisclosurel that the 

defendant as an ordinarily prudent person, could have 

foreseen that the plaintiff's injury would be the natural 

and probable consequence of the wrongful act. 

Kitchen Krajers, 242 Mont. at 169, 789 P.2d at 575 (alteration in 

original) . 
We repeated the requirement from the Kitchen Kraflers opinion that 

foreseeability be considered as part of proximate cause in Thayerv. 

Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795; Kiger v. State 

(1990), 245 Mont. 457, 460, 802 P.2d 1248, 1250; UniledStatesFidelipand 

Guaranty Co. v. Catnp (1992), 253 Mont. 64, 69, 831 P.2d 586, 589; Kingv. 

Stale (1993) , 259 Mont. 393, 397, 856 P.2d 954, 956; Logan v. Yellowstone 

County (l994), 263 Mont. 218, 222, 868 P.2d 565, 567; and Millsv. Mather 

(1995), 270 Mont. 188, 197, 890 P.2d 1277, 1283. However, all of 

these cases, other than Logan, involved issues regarding the 

foreseeability of intervening causes. In such situations we have 

traditionally held that foreseeability is an issue related to 

causation. See Halseyv. Uithof (l975), 166 Mont. 319, 328, 532 P.2d 686, 

In Sizemorev. Montana Power Company (1990), 246 Mont. 37, 803 P.2d 

629, it is interesting that we noted: 

Foreseeability can be determined in one of two ways. 

Some courts anhlyze the issue under the element of duty. 

These courts take the view that the scope of defendant's 

duty is determined by a foreseeability of any harm which 

may arise as a result of his negligent conduct. See e.g. 

Palsgrafv. LongIslandRailroadCo. (1928), 248 N.Y. 339, 162 N.E. 

99, 100. Other courts have analyzed foreseeabilityunder 

the issue of proximate cause. In doing so, they have 

taken the view that all persons owe a duty to the world 

at large to act reasonably in order to prevent injury to 

their fellow man. Palsgraf, 162 N.E. at 104 (Andrews 

dissenting). If this duty is breached, it then becomes 

necessary to determine whether the consequences of the 

breach were reasonably foreseeable to the defendant. If 

the consequences were reasonably foreseeable, proximate 

cause is established and liability will follow. 
Sizemore, 246 Mont. at 46, 803 P.2d at 635. 

Since Sizemore involved allegations of a superseding intervening 

event, we analyzed foreseeability as part of proximate cause in 

that case. We made no mention of the fact that since Kitchen Krafrers, 

Montana has two concurrent lines of authority--one which analyzes 

foreseeability as part of duty, and a second which considers it as 

part of proximate cause 

Therefore, as the law in Montana currently stands, the issue 

of foreseeability is considered twice in our analysis of liability 

for a negligent act. It is first considered as part of the 

analysis of duty and negligence pursuant to our decision in Mang, 

153 Mont. 431, 458 P.2d 777. It is then considered as part of a 

two-pronged approach to causation pursuant to our decision in Kitchen 

Krajiers, 242 Mont. 155, 789 P.2d 567. 

Although we acknowledge that there are other jurisdictions 

which engage in such a dual analysis (see, e.g., Calkins v. Cox Estates (N.M. 

.' 

1990) , 792 P.2d 36;' McCain v. Florida Power Corp. (Fla. 1992) , 593 So. 2d 

500 ; Nelson by Tatum v: Cornmonweal~h Edison Co. (Ill. App . 2d 19 84) , 4 6 5 

N.E.2d 513), knowledgeable writers and the better-reasoned 

decisions of other jurisdictions criticize such a redundant 

consideration of foreseeability. For example, in Modern Tort Law 

the authors state that: 

Much confusion has resulted from the erroneous 

application of the requirement of foreseeability to 

causation. In referring to proximate cause, many 

decisions have confused the element of fault and have 
employed foreseeability, properly an element of fault but 

not of causation. 

1 J. D. Lee and Barry A. Lindahl, Modern Tort Law § 5.01, at 153 

(rev. ed. 1990). 

At § 5.02 the same authors point out that: 

There is, unfortunately, substantial and respectable 

authoritythat foreseeability is an element of causation. . . . 

This application of foreseeability has long been the 

subject of criticism by courts and legal scholars. 

Foreseeability does not touch on the causal element. 

Foreseeability relates only to the element of fault. 

. . . As an early Minnesota case pointed out, "What 

a man may reasonably anticipate is important, and may be 

decisive, in determining whether an act is negligent, but 

is not at all decisive in determining whether that act is 

the proximate cause of an injury which ensues." 

[Christianson v. Chicago St. P., M. & 0. Ry. Co. (Minn . 18 9 6 ) , 6 9 N . W . 640.1 And the Wisconsin court has stated: 

This court is definitely committed to the 

principle that, while foreseeability is an 

element to be considered by the jury in 

determining negligence, it has no part in the 

jury's decision of whether particular 

negligenc&' found by it is causal. [Stmhlendorfv. 

WalgreenCo. (Wis. 1962), 114 N.W.2d 823.1 

Dean Prosser stated: 

It is simpler, and no doubt more accurate, to 

state the problems in terms of "duty:" is the 

defendant under a legal obligation to protect 

the plaintiff against such unforeseeable 

consequences of his own negligent acts? 

[William L. Prosser, Law of Torts 289 (3d ed. 

1964) .I 

And Harper and James said: o ore see ability of damage 

is altogether irrelevant in determining the existence of 

the cause in fact relationship." [2 Harper & James, Law 

of Torts 1135 (1956) .I 
Professor Leon Green, a persistent critic of the 

foreseeability test, as it is used in connection with 

proximate cause, remarked, "Clearly the issue of causal 

relation between the defendant's conduct and the 

plaintiff's injury is not determined by foreseeability." 

[Leon Green, The Causal Relation Issue in Negligence Law, 6 0 Mich. 

L. Rev. 543, 549 (1962).] The element of cause becomes 

operative only if a duty is breached and damages result, 

whereupon the defendant becomes liable for the damages 

directly caused by his breach of duty. . . . "Causal 

relation is a neutral issue, blind to right and wrong." 

[Green, 60 Mich. L. Rev. at 549.1 

Unfortunately, however, the application of the 

foreseeability test to causation has had a firm hold in 

legal literature, and some recent cases continue to 

compound the error. Thus, the problem of causation, 

difficult as it is, has been made more complex by 

employing foreseeability as a test of legal cause, when 

foreseeability should be restricted to the issue of 

negligence. 

1 Modern Tort Law 5 5.02 at 159-62. 

In the Law of Torts, the authors state that: 

It is obvious that under such an analysis of the duty 

problem, foreseeability is distinctly a factor that puts 

a considerable limitation on the extent of liability, 

even though it should be held to play no part whatever in 

determining the issue of proximate cause. It is also 

clear that i.f' this analysis of the duty problem is 

accepted, no good, but only confusion, can result from 

repeating the same inquiries as to foreseeability under 

the cause issue as were asked and answered (or should 

have been) under the duty issue. 

4 Fowler V. Harper, et al., The Law of Torts 5 20.5, at 139 (2d ed. 

1986) (footnotes omitted). 

Finally, in Prosser and Keeton on Torts the authors state: 

Once it is established that the defendant's conduct 

has in fact been one of the causes of the plaintiff's 

injury, there remains the question whether the defendant 

should be legally responsible for the injury. Unlike the 

fact of causation, with which it is often hopelessly 
confused, this is primarily a problem of law. It is 

sometimes said to depend on whether the conduct has been 

so significant and important a cause that the defendant 

should be legally responsible. But both significance and 

importance turn upon conclusions in terms of legal 

policy, so that they depend essentially on whether the 

policy of the law will extend the responsibility for the 

conduct to the consequences which have in fact occurred. 

Quite often this has been stated, and properly so, as an 

issue of whether the defendant is under any duty to the 

plaintiff, or whether the duty includes protection 

against such consequences. This is not a question of 

causation, or even a question of fact, but quite far 

removed from both; and the attempt to deal with it in 

such terms has led and can lead only to utter confusion. 

The term "proximate cause" is applied by the courts 

to those more or less undefined considerations which 

limit liability even where the fact of. causation is 

clearly established. The word "proximate" is a legacy of 

Lord Chancellor Bacon, who in his time committed other 

sins. The word means nothing more than near or 

immediate; and when it was first taken up by the courts 

it had connotations of proximity in time and space which 

have long since disappeared. It is an unfortunate word, 

which places an entirely wrong emphasis upon the factor 

of physical or mechanical closeness. . . . 

It is quite possible to state every question which 

arises in connection with "proximate cause" in the form 

of a single question: was the defendant under a duty to 

protect the plaintiff against the event which did in fact 

occur? . . . 

. . . "Proximate cause," in short, has been an 

extraordinarily changeable concept. "Having no 

integrated meaning of its own, its chameleon quality 

permits it to be substituted for any one of the elements 

of a negligence case when decision on that element 

becomes difficult. . . . No other formula . . . so nearly 

does the work of Aladdin's lamp." [Leon Green, Proximate 

CauseinTexasNegligenceLaw, 28 Tex. L. Rev. 471 (1950) .I 

W. Page Keeton, et al., Prosser and Keeton on Torts 5 42, at 272-76 

(5th ed. 1984) 
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-in-fact. Two of the jurisdictions in our own area which have 

done so are the states of Washington and Oregon. In Rikstudv. 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 issues 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. 

Rikstud, 456 P.2d at 358. 

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

in the Washington Court's 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 

3 7 
from the hazard in question. (See § 281, comment e, and 

§ 449.) However, courts frequently treat such problems 

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

§ 430, comment a.) 

Restatement (Second) of Torts 5 435 cmt. c (1965). 

Similar analyses in Oregon occurred in Swordenv. Gross (Or. 1966) , 

409 P.2d 897, and Brennen v. CilyofEugene (Or. 1979), 591 P.2d 719. 

We agree with the Washington Court and with the cited authors 

that the better-reasoned authorities address foreseeability as part 

of the analysis of "duty," rather than "proximate cause," and that 

to analyze it under both issues leads only to confusion which can 

be easily avoided. 

However, the arguments quoted from the previous authors and 

the reasoning of the Washington Court are even more compelling 

based on Montana's statutory framework for determining liability. 

Section 1-1-204 (1) , MCA, defines negligence as "a want of attention 

to the nature or probable consequences of the act or omission that 

a prudent man would ordinarily give in acting in his own concerns. " 

(Emphasis added.) This definition suggests that foreseeability is 

an element of .negligence, and therefore, properly considered with 

the existence of a duty. 

On the other hand, § 27-1-317, MCA, which discusses the 

damages for which a negligent actor is responsible, defines those 

damages as "the amount which will compensate for all the detriment 

proximately caused thereby, whether it- could have been anticiuated 

or not. " (Emphasis added. ) By equating damages "proximately caused 
thereby" with actual damages, whether they "could have been 

anticipated or not," our statutory scheme specifically precludes 

the applicability of a foreseeability requirement to the issue of 

proximate cause. 

We therefore reverse that part of our decision in Kitchen Krajiers, 

Inc.v.EastsideBunkofMontanu (1990), 242 Mont. 155, 789 P.2d 567, which 

requires a two-tiered analysis of causation which includes 

consideration of foreseeability in cases other than those cases 

where there has been an allegation that the chain of causation is 

severed by an independent intervening cause. There are several 

reasons which compel this result. First, that part of the opinion 

which suggests language for a proximate cause instruction 

erroneously requires proof of an intentional act, rather than a 

negligent act, when it suggests the following language: 

[I] t must appear from the facts and circumstances 

surrounding the accident . . . that defendant as an 

ordinarily prudent person, could have foreseen that 

plaintiff's injury would be the natural and probable 

consequence of.the wrongful act. 

Kitchen Krajiers, 242 Mont. at 169, 789 P.2d at 575. 

Second, the requirement that foreseeability be considered as 

part of proximate cause is redundant with the existing requirement 

that foreseeability be considered as part of the analysis of duty. 

Third, our statutory scheme of laws relating to liability 

requires that foreseeability be considered as part of the 

negligence analysis and that it not be considered as part of 

proximate cause 
Fourth, legal concepts such as "proximate causeM and 

"foreseeability" are best left to arguments between attorneys for 

consideration by judges or justices; they are not terms which are 

properly submitted to a lay jury, and when submitted can only serve 

to confuse jurors and distract them from deciding cases based on 

their merits. 

In those cases which do not involve issues of intervening 

cause, proof of causation is satisfied by proof that a party's 

conduct was a cause-in-fact of the damage alleged. As stated in 

Prosser and Keeton on Torts 5 41, at 266 (5th ed. 1984), a party's 

conduct is a cause-in-fact of an event if "the event would not have 

occurred but for that conduct; conversely, the defendant's conduct 

is not a cause of the event, if the event would have occurred 

without it." 

We hold that with the exception of those cases involving 

allegations of independent intervening cause or multiple causes, it 

is sufficient to instruct the jury, as recommended in 1989 by the ,. Montana Supreme Court Commission on Civil Jury Instructions, that: 

"The defendant's conduct is a cause of (injury/death/damage) if it 

helped produce it and if the (injury/death/damage) would not have 

occurred without it." Montana Pattern Instruction 2.08 (rev. 

11/1/89). 

In those cases where chain of causation is an issue (e.g., 

where there is an allegation of an independent intervening cause), 

we recommend, as did the Commissionin1989, the following instruction: 
The defendant's conduct is a cause of the (injury/ 

death/damage) if, in a natural and continuous sequence, 

it helped produce it and if the (injury/death/damage) 

would not have occurred without it. 

Montana Pattern Instruction 2.08 (rev. 11/1/89). 

In those cases where there are allegations that the acts of 

more than one person combined to produce a result (e.g., when the 

plaintiff alleges negligence and the defendant alleges contributory 

negligence, or when there are multiple defendants), we acknowledge 

that the recommended cause-in-fact instruction would be confusing 

and misleading. Therefore, in those cases, we recommend continued 

use of the substantial factor instruct ion approved in Rudeck v. Wright 

(19851, 218 Mont. 41, 709 P.2d 621, and Kyrissv. State (l985), 218 Mont. 

162, 707 P.2d 5. We further recommend that terms such as 

trproximate cause" or If legal cause" and "reasonable foreseeability, 

which have some significance to lawyers and judges, not be allowed 

to confuse jurors by the inclusion of those terms in jury 

instructions. To the extent that foreseeability raises a jury 

issue, it is adequdtely addressed by the definition of negligence 

included in Montana Pattern Instruction 2.00.l To the extent that 

foreseeability raises issues of public policy, such as those about 

which Justice Andrews expressed concern in his dissent in Palsgraf, 

the subject is properly dealt with as an issue of law. 

'Montana Pattern Instruction 2-.00 (rev. 2/7/91) defines 

negligence as "the failure to use reasonable care. Negligence may 

consist of action or inaction. A person is negligent if he fails 

to act as an ordinarily prudent person would act under the 

circumstances." 
contributed to Delbert's fall and injuries. The issue was simply 

whether the hospital was negligent by allowing its windows to 

remain in a condition which would permit a patient to either escape 

or fall through them. That issue was decided in Ida Bustals favor 

based on proper instructions to the jury and was supported by 

substantial and virtually uncontroverted evidence. 

For these reasons, we conclude that the District Court did not 

err when it refused to give the defendant's proposed instructions 

which defined proximate cause and which stated the requirement that 

decedent's injuries be foreseeable before causation could be 

established; and that the District Court's failure to instruct the 

jury regarding the meaning of cause-in-fact was harmless error. 

ISSUE 4 

Did the District Court err when it refused to offset benefits 

received by Ida Busta from the Veterans' Administration against the 

damages awarded for the decedent's wrongful death? 

Following trial, the hospital moved the court pursuant to 

,. 5 27-1-308, MCA, to deduct from the plaintiff's judgment that 

amount Ida Busta received from the Veterans' Administration due to 

her husband's death. Section 27-1-308, MCA, provides in relevant 

part that : 

(1) In an action arising from bodily injury or death when 

the total award against all defendants is in excess of 

$50,000 and the plaintiff will be fully compensated for 

his damages, exclusive of court costs and attorney fees, 

a plaintiff's recovery must be reduced by any amount paid 

or payable from a collateral source that does not have a 

subrogation right. 
Section 27-1-307(1), MCA, defines "collateral sourceu as: 

[A] payment for something that is later included in a 

tort award and which is made to or for the benefit of a 

plaintiff or is otherwise available to the plaintiff: 

(a) for medical expenses and disability payments 

under the federal Social Security Act, any federal, 

state, or local income disability act, or any other 

public program; 

.... 

(e) any other source, except the assets of the 

plaintiff or of his immediate family if he is obligated 

to repay a member of his immediate family. 

The District Court denied the hospital's motion for offset for 

the following reasons: 

1. The court found that the heirs will not be fully 

compensated for their damages, due to the reduction of their award 

based on contributory fault; 

2. The court found that the Veterans' Administration 

benefits received by Ida Busta were not medical expenses or 

disability payments, and therefore, not "collateral source" as 

defined in § 27-1-307, MCA; and 

3. The court found that the general nature of the 

defendant's verdict form makes it impossible to determine what, if 

any, amounts were awarded by the jury for a loss against which the 

collateral source should be offset. 

On appeal, the hospital contends that the death benefits that 

Ida Busta received were included in the definition of "collateral 

source" at subsection (1) (e) of § 27-1-307, MCA, by its reference 

to "any other source." 
However, it is not necessary that we resolve whether death 

benefits from the Veterans1 Administration are included within the 

statutory definition of "collateral source," or whether the 

plaintiff has been fully compensated where her judgment has been 

reduced by comparative negligence. Section 27-1-308, MCA, clearly 

provides for reduction of only that part of a recovery which has 

previously been compensated by a collateral source. In this case, 

Ida Busta was awarded death benefits by the Veterans1 

Administration for the economic loss which resulted from her 

husband's death. The jury, on the other hand, was instructed that 

its wrongful death damage award should include damages for not only 

financial support which the heirs lost, but also for "the value of 

the society, comfort, guidance, education, care, protection and 

companionship which Ida Busta, William Busta and Charles Busta have 

lost by reason of the death," and that its award should "include 

reasonable compensation to them [the heirs] for their grief, sorrow 

and mental anguish resulting from the death." 

The jury returned a special verdict which awarded damages to 

the heirs in the amount of $800,000. There is no indication from 

the verdict form what, if any, amount of the verdict was for the 

loss of Delbert's financial support. Therefore, there was no 

method by which the District Court could calculate what, if any 

amount, the hospital was entitled to offset by the amount of 

previous Veterans' Administration death benefits awarded to Ida. 

Because there was no factual basis upon which the District Court 
could properly grant the hospital's motion for offset, the motion 

was properly denied. For these reasons, we affirm the District 

Court's denial of the hospital's motion for statutory offset 

pursuant to § 27-1-308, MCA. 

Based on our discussion of and holding regarding each of the 

issues raised, we affirm the judgment of the District Court. 

We concur: 

Chief Justice 

Justices 
Justice Karla M. Gray, specially concurring 

I concur in the Court's opinion on issues one and two and 

specially concur on issues three and four. 

With regard to issue three, which relates to the District 

Court's failure to instruct on proximate cause, I agree with the 

result the Court reaches on the issue and with most of its 

discussion of our case law and other authorities vis-a-vis 

foreseeability as an element of proximate cause. My one 

disagreement with the Court in this regard is in its interpretation 

of § 27-1-317, MCA. I do not read the statute as precluding the 

consideration of foreseeability as part of causation. Conversely, 

however, the statute certainly does not require us to consider 

foreseeability in analyzing causation. Thus, I am persuaded by the 

remainder of the authorities cited by the Court that we erred in 

doing so in Kitchen Krafters where no intervening cause issue 

required its inclusion. 

With regard to issue four, whether the hospital was entitled 

to offset the VA benefits Ida Busta received against the wrongful 

death damages awarded, I concur in the Court's opinion. I 

specially concur only to add that the hospital prepared the Special 

Verdict which was submitted to the jury and which rendered it 

impossible for the District Court to calculate whether any offset 

was authorized (even assuming that the VA benefits met the 

statutory definition of collateral source). If the hospital wanted 

to assert entitlement to the offset, it was incumbent upon the 

hospital to structure a verdict form which would make such a 

1 
Justice Charles E. Erdmann concurring in part and dissenting in 

part. 

T concur in the majority's opinion on Issues 1, 2, and 4, but 

write separately to dissent on Issue 3. 

I disagree with the majority's holding that the District 

Court's failure to instruct on proximate cause was harmless error. 

I am convinced that the failure to define proximate cause for the 

jury was reversible error. In fact, the jury received no 

instructions at all which defined causation. Furthermore, I 

disagree with the majority's analysis of foreseeability as applied 

to proximate cause and therefore dissent from the majority's 

decision to overrule the requirement in Kitchen Krafters v. 

Eastsi.de Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567, that 

causation instructions include a discussion of foreseeability. 

In Davis v. L.D.S. Church (1990), 244 Mont. 61, 796 P.2d 181, 

we held that it was error for the lower court to not instruct on 

proximate cause and stated that the question of proximate cause is 

an issue of fact to be decided by the jury. Davis, 796 P.2d at 

186.. In order to constitute reversible error, the lower court's 

actions must affect the substantial rights of the complaining 

party. Davis, 796 P.2d at 186 (citing Rollins v. Blair (l989), 235 

Mont. 343, 767 P.2d 328. In Davis we concluded that the defendant 

was not prejudiced by the court's failure to instruct on proximate 

cause and therefore held the error to be harmless. Davis, 796 P. 2d 

at 187. 
However, under the circumstances of the present case, I would 

hold that the District Court erred in not instructing the jury on 

proximate cause. A number of instructions given by the District 

Court contained the phrase "proximate cause," but the jury was not 

given the benefit of any guidance from the court on this crucial 

concept. It is the duty of the court to instruct the jurors fully 

and correctly on all applicable laws. Billings Leasing Co. v. 

Payne (1978), 176 Mont. 217, 224, 577 P.2d 386, 390. As this Court 

noted in Billinss Leasins Co.: 

'I * * * In instructing the jurors, we must 

assume that they have no knowledge of the 

rules of law and that therefore, they must be 

instructed on all points of law which, under 

any reasonable theory, might be involved in 

their deliberations, to the end that their 

decision will be according to the law and the 

evidence and untinged by any private and 

possibly false opinion of the law that they 

entertain." 

Jury instructions are crucial to a jury's 

understanding of the case and, unfortunately, counsel 

cannot always" be relied upon to provide those 

instructions. . . . 

"It is the inescapable duty of the trial 

judge to instruct the jurors, fully and 

correctly, on the applicable law of the case, 

and to guide, direct, and assist them toward 

an intelligent understanding of the legal and 

factual issues involved in their search for 

truth. The cuurr must inshuct the jury properly on ll7e 

controlling issues in the case even though there has been 

no request for an instruction or the 

instruction requested is defective." 
Billinss Leasins Co., 577 P.2d at 390-91 (quoting McBride, The Art 

of Instructins the Jury at 17 (1969), and Wright & Miller, Federal 

Practice and Procedure, Civil § 2556). 

In the present case, the hospital offered an instruction on 

proximate cause which was refused by the District Court. The 

plaintiff withdrew her instructions defining causation. As a 

result, the jury was not instructed on the crucial concept of 

proximate cause which is a key element in all negligence actions. 

After analyzing foreseeability and proximate cause, the majority 

determines this to be harmless error. I differ with the majority's 

analysis and position on foreseeability and proximate cause and 

conclude that the District Court's failure to define proximate 

cause for the jury in this case was reversible error. 

The majority claims it is redundant and confusing to jurors to 

focus on foreseeability when analyzing both the "duty" element and 

'Iproximate causen element of the tort of negligence. On the 

contrary, I believe that such a dual analysis of foreseeability is 

a necessary and reasonable analysis which has, unfortunately, been 

complicated in Montana by the confusing wording of the Kitchen 

Krafters instruction. 

In Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777, and 

its progeny, we determined that the concept of foreseeability was 

a part of the "dutyI1 element. Ford v. Rupple (1972) , 161 Mont. 

56, 504 P.2d 686; Williams v. Montana National Bank (l975), 167 

Mont. 24, 534 P.2d 1247; Schafex v. State (1979), 181 Mont. 102, 

592 P.2d 493; Pretty On Top v. City of Hardin (l979), 182 Mont. 
311, 597 P.2d 58; Ambrogini v. Todd (l982), 197 Mont. 111, 642 P.2d 

1013; Belue v. State (1982), 199 Mont. 451, 649 P.2d 752. The 

majority agrees with the rationale of this line of cases but 

concludes that, with the exception of cases involving intervening 

superseding events, foreseeability should be restricted to the 

"duty" analysis. 

In Kitchen Krafters we applied the concept of foreseeability 

to the element of causation and stated that "[plroximate cause is 

normally analyzed in terms of foreseeability. Simply stated, one 

is only liable for consequences which are considered to be 

reasonably foreseeable." Kitchen Krafters, 789 P.2d at 575 (citing 

Prosser and Keeton on Torts § 43 (5th ed. 1984) . The line of cases 

which followed Kitchen Krafters, and which were not overruled by 

the majority, repeated the requirement that foreseeability be 

considered as part of proximate cause. See Thayer v. Hicks (19901, 

243 Mont. 138, 793 P.2d 784; Kiger v. State (1990), 245 Mont. 457, 

802 P.2d 1248; U.S.F.& G v. Camp (l99Z), 253 Mont. 64, 831 P.2d 

586; King v. State (19931, 259 Mont. 393, 856 P.2d 954; Logan v. 

Yellowstone County (1994), 263 Mont. 218, 868 P.2d 565; Miller v. 

Mather (1995), 270 Mont. 188, 890 P.2d 1277. 

As noted, the majority concludes it is unnecessary to address 

foreseeability as part of the causation element, except in cases of 

intervening superseding events. I disagree and submit that the 

concept of foreseeability has a proper and distinct place in the 

analysis of both "duty" and "causation" elements--both of which 

must be satisfied in order to establish the prima facie case for 

52 
negligence. See Calkins v. Cox Estates (N.M. 1990), 792 P.2d 36; 

McCain v. Florida Power Corp. (Fla. 19921, 593 So. 2d 500; Nelson 

by Tatum v. Com. Edison Co. (111. App. 2d 1984), 465 N.E.2d 513. 

The analysis of foreseeability in the "duty" context focuses 

on whether or not the plaintiff was in the zone of danger to be 

protected from the defendant's actions. As the New Mexico Supreme 

Court has recently stated: 

This case raises issues of duty and proximate cause. 

Integral in both elements is a question of 

foreseeability. In determining duty, it must be 

determined that the injured party was a foreseeable 

plaintiff--that he was within the zone of danger created 

by respondent's actions; in other words, to whom was the 

duty owed? 

Calkins, 792 P.2d at 38. If the plaintiff was not in the zone of 

danger there was no duty and therefore no negligence. The Florida 

Supreme Court has recently held that: 

[Floreseeability relates to duty and proximate causation 

in different ways and to different ends. The duty 

element of negligence focuses on whether the defendant's 

conduct foreseeably created a broader "zone of risk" that 

poses a genera1,threat of harm to others. 

McCain, 593 So. 2d at 502 

Foreseeability in the "causation" context requires an analysis 

of whether the circumstances surrounding the actual occurrence of 

the plaintiff's injury were a foreseeable result of the defendant's 

breach. It is only after a duty and breach of that duty has been 

established that the "ca~sation~~ element is analyzed with its 

distinct application of the foreseeability concept. As the 

Calkins Court stated: 
In determining proximate cause, an element of 

goreseeability is also present--the question then is 

whether the injury to petitioner was a foreseeable result 

of respondent's breach, i.e., what manner of harm is 

foreseeable? 

Calkins, 792 P.2d at 38. The McCain Court stated: 

The proximake causation element, on the other hand, is 

concerned with whether and to what extent the defendant s 

conduct foreseeably and substantially causedthe specific 

injury that actually occurred. In other words, the 

former [duty element] is a minimal threshold legal 

requirement for opening the courthouse doors, whereas the 

latter [causation element] is part of the much more 

specific factual requirement that must be proved to win the 

case once the courthouse doors are open. As is obvious, 

a defendant might be under a legal duty of care to a 

specific plaintiff, but still not be liable for 

negligence because proximate causation cannot be proven. 

It might seem theoretically more appealing to 

confine all questions of foreseeability within either the 

element of duty or the element of proximate causation. 

However, precedent, public policy, and common sense 

dictate that this is not possible. Foreseeability 

clearly is crucial in defining the scope of general duty 

placed on every person to avoid negligent acts or 

omissions. . . . 

On the question of proximate causation, the legal 

concept of fbkeseeability also is crucial, but :in a 

different way. In this context, foreseeability is 

concerned with the specific, narrow factual details of 

the case, not with the broader zone of risk the defendant 

created. 

McCain, 593 So. 2d at 502-03. 

Both arenas of the foreseeability analysis are independent and 

distinct from one another. Foreseeability applied to the "dutyl1 

element must be decided as a matter of law by the judge using 

established legal policy to determine whether a duty was owed to 

the plaintiff. On the other hand, foreseeability applied to the 
"causation" element is a question of fact. See Calkins, 792 P.2d 

at 38. 

Without such a dual approach to the foreseeability analysis, 

the determination of whether the "causation" element is satisfied 

is reduced to a bare-bones question of cause-in-fact. In removing 

foreseeability from the causation analysis, the majority's approach 

results in a situation where once duty and breach are established, 

a "but-for" or "substantial factor" analysis is all that remains in 

order to satisfy the causation element--I submit that such an 

inquiry will invariably be answered in the affirmative, 

particularly when it is obvious or conceded that a duty has been 

breached. 

1 must also address the majority's argument that Montana's 

statutory framework for determining liability reinforces its 

position. Section 1-1-204, MCA, does include the concept of 

foreseeability in the "duty" element when it defines negligence as 

"a want of the attention to the nature or probable consequences of 

the act or omission that a prudent man would ordinarily give in 

acting in his own concerns." However, I fail. to follow the 

majority's logic when it states that the language of 8 27-1-317, 

MCA, set forth below, specifically precludes the applicability of 

a foreseeability requirement to the issue of proximate cause. 

For the breach of an obligation not arising from 

contract, the measure of damages, except where otherwise 

expressly provided by this code, is the amount which will 

compensate for all the detriment proximately caused 

thereby, whether it could have been anticipated or not. 
This statute addresses damages and the language simply means that 

if the injury was foreseeable it makes no difference whether the 

damages were also foreseeable. 

Finally, I am not persuaded by the majority's position that 

lay jury members are confused by concepts such as foreseeability 

and proximate cause and therefore that they are distracted from 

their duty to decide cases based on their merits. I submit that 

such concepts are not only necessary to establish the prima facie 

case for negligence but are also, when accurately defined, the 

proper tools to enable the jury to do its job. In my view it is 

better to explain these concepts and define how they are to be used 

by the jury rather than to leave the juries' understanding of them 

to chance and differing definitions. 

In conclusion, I would be the first to admit that the language 

contained in the Kitchen Krafters instruction has caused problems 

for judges and practitioners alike. The adequacy of the 

instruction needed to be addressed and revised. However, I am not -2 

convinced that in remedying the instruction it is necessary to 

abandon the concept of foreseeability and its dual application to 

the analysis of both the "duty" and "causationu elements in 

Chief Justice J. A. Turnage joins in the foregoing concurring and 

dissenting opinion. 

Chief Justice