No. 90-115 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

KATRINA B. KIGER and DONALD D. KIGER, w Plaintiffs and Appellants, O 0 Z -~rn

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### 2 )3 3 THE STATE OF MONTANA; THE STATE OF MONTANA w? 

## 5 C -4 DEPARTMENT OF INSTITUTIONS;THE STATE OF ~'z~ MONTANA PAROLE BOARD, no 3 2 r- 

# rns ~0 Defendants and Respondents. 

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APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Leif B. Erickson, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Susan J. Rebeck, Great Falls, Montana Richard Dzivi, Great Falls, Montana For Respondent: Dana L. Christensen; Murphy, Robinson, Heckathorn & Phillips;Kalispell,Montana

Submitted on Briefs: August 16, 1990 Filed: Decided: December 11, 1990
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.I I Justice Fred J. Weber delivered the Opinion of the Court.

Theplaintiffs, Katrina and Donald Kiger,brought this action in theEleventh JudicialDistrict, Flathead County, to seek damages for theOctober 28, 1985 shooting of Katrina Kigerby Danny Arledge who had been paroled from the Montana State Prison on October 10, 1985. The court granted summary judgment in favor of all three State defendants. Plaintiffs appeal. We affirm. We restate the issues as follows: 1. Was it foreseeable that Arledgewould shoot Kigerupon his release on parole because the Department allegedly miscalculated Arledge's parole eligibility date? 2. Was it foreseeable thatArledge would shootKiger upon his releaseonparole becausetheDepartment failed to inform the Board of marijuana use by Arledge in Prison? Katrina Kiger was critically injured on October 28, 1985,by Danny Arledge who shot her while attempting to steal her car in downtown Kalispell 18 days after he was paroled from the Montana State Prison. Prior to parole Arledge had been serving prison terms for forgery, burglary, theft, and escape from a halfway house. In their complaint, plaintiffs alleged that the State of Montana (State), the Department of Institutions (Department)and the Parole Board (Board)were negligent during the parole process of Arledge. The State filed a Motion for Summary Judgment,asserting that the Board is immune from suit, that there is a lack of causationI I ,* I between the numerous alleged acts of negligence and the shooting of Kiger by Arledge, a lack of foreseeability, and that therewas
no breach of duty on thepart of the State, the Department,or the Board. After the filing of extensive briefs by the parties and a hearing,theDistrict Courtgranted SummaryJudgment,holding that: (1) The Board is a quasi-judicial agency and is entitled to absolute immunity. (2) The Board, the Department and State are not negligent because they could not reasonably foresee that their decisions, actions or omissionswould lead to the actions of Danny Arledge or the injuries of Plaintiff Katrina Kiger. Plaintiff concedes that the Board is immune but appeals as to the State and the Department. I Was it foreseeable that Arledge would shoot Kiger upon his release on parole because the Department allegedly miscalculated Arledge's parole eligibility date? Section 46-18-401(5), MCA, and A.R.M. 20.25.304 (2)

### , establish the rules for calculating sentences for purposes of parole when additional or consecutive sentences are involved. Statutorilythe Departmenthas a duty toproperly calculateparole eligibility dates. Because this case is on appeal from an order of summary judgmentwemustview theevidence in favor of theparty opposing the motion and assume that miscalculation did in fact

occur. Rule 56(c), M.R.Civ.P.; Thelenv. City of Billings (1989), 238 Mont. 82, 85, 776 P.2d 520, 522. Therefore for the purposesI .9 of summary judgment we can assume the facts establish a duty owed and a breach of that duty under the statutes. We move on to analyze causation. Liability for breach of duty in a negligence action attaches if the plaintiff can prove first that defendant's act is a cause in fact of injury and second that the injury is the direct or indirect result,proximately caused by the negligent act. In the past in Montana, the distinction between cause in fact and proximate cause, now occasionally referred to as legal cause,was not generallymade. Inthree recent decisions, this Court has set out to alleviate the confusion in the area of causation by clarifying the law as it now applies in Montana. See Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772; Kitchen Krafters 

### v. Eastside Bank (Mont. 1990), 789 P.2d 567, 47 St.Rep. 602;Thayerv. Hicks (Mont. 1990), 793 P.2d 784, 47 St.Rep. 1082. In Kitchen Krafters, as to cause-in-fact, we state: Indeterminingwhether a defendant'sbreach of duty caused a plaintiff's injury, one must conduct a twotiered [causation] analysis. First, one must determine whether the defendant's actions were the cause-in-fact of the plaintiff's damages. Causation in fact can be established in one of twoways. Normally, the "but-for" test is used. Under the "but-for1'test, causation in fact is established simply by proving that the plaintiff's injury would nothave occurred "but-forgv the defendant's illegal conduct. Younq, 757 P.2d at 777. Stated differently, the defendant's conduct is a cause of an event if the eventwould nothave occurred but for that conduct; conversely,thedefendant's conduct isnot a cause of the event if the event would have occurred without it. Prosser and Keeton on Torts (5th Edition) 

### 5 41.The "but for1'rule serves to explain the great majority of cases. However, there is one type of situation in which it fails. If two causes concur to bring about an event, and either one of them, alone,wouldhavebeen sufficienttocausethe identicalresult, some other test isneeded. Inresponse to thisproblem, the courts havedeveloped the l'substantialfactor test. Younq, 757 P.2d at 777. Kitchen Krafters, 789 P.2d at 574, 47 St.Rep. at 610. In this case, cause-in-fact is established through the butfor test. See Younq, 232 Mont. at 281-82, 757 P.2d at 777. Arledge was released on October 10, 1985 and Kiger was shot on October 28, 1985. Assuming a miscalculation occurred, Arledge probably would have still been in prison on October 28 and would not have been able to shoot Kiger. Once cause-in-fact has been established, plaintiff must then

move to the second tier of the causation analysis and prove that the defendant's conduct proximately caused the injury. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611. This is where Kiger's case fails because she is unable to establish proximate

cause. Theoretically consequence for one's acts could continue into eternity but at somepoint in the chain of causation the law must intervene and absolve the defendant of liability. It was this policy considerationthat led to the developmentof lvproximatell or lllegal'l cause. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at

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 and Keeton at 5 43. If the consequences of one's wrongful act are not reasonably foreseeable,then it follows that itwas notproximately 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 proximatecause is satisfied and liability will attach. Prosser and Keeton, at 5 43. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611. Inorder fortheDepartment'snegligence (failuretocalculate correctly) to be the proximate cause of Kigertsinjuries, it must appear from the facts and circumstances surrounding the incident that the Department, applying the ordinarily prudent person standard, could have reasonably foreseen that Kigerts injuries would be thenatural andprobable consequencesof thewrongful act. Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 612. If the Departmentcould not reasonably foreseethe consequences, then the consequencesshould be regardedas a supersedingeventwhichbreaks the chain of causation as to any of Kiger's injuries. Kitchen Krafters, 789 P.2d at 576, 47 St.Rep at 613. In this case there

are toomany "what ifsHthat are superseding events thatbreak the chain of causation. To cite the District Court in its Order and Rationale,p. 5: The "what ifsuare endless: if Arledge had been treated differently in prison, or at other stages in life, he might have acted differently; if he had been written up fordisciplinary actionswithin theprisonhewould have lost good time and not been eligible for parole; if any one of a number of peoplewho picked him up while he was hitchhiking to Kalispell had identified him, or driven him somewhere else; if Arledge had decided to steal someone else's car, other than Plaintiff's; if Arledge hadbeen unable topurchase ahandgun or ammunition,etc. Such speculations fail to establish a direct and proximate causebetween any acts of the State of Montana and injury to Plaintiffs. Because of these numerous interruptions in the chain of events, we agree with the analysis of the District Court that the Department could not reasonably foresee that Arledge would shootKiger. We conclude thatKigerhas failed topresent any facts that establish that her injuries were proximately caused by the Department's alleged miscalculation of eligibility for parole. Therefore, we affirm the summary judgment on behalf of the Department on this issue. Plaintiff argues that the issue of foreseeability is a jury question in this case. As stated in Brohman v. State (1988), 230 Mont. 198, 205, 749 P.2d 67, 72: Inany action fornegligence, theplaintiff must produce evidence from which it can be reasonably inferred that the negligent conduct on the part of the defendant was the proximate cause of the plaintiff's injuries. 

# . . . Under the factsof this case, the evidencepresented and the depositional testimony, it is clear that Brohman could not prove by a preponderance of the evidence that the State proximately caused her injuries. Reasonable minds could not differ in this result. Thus, when reasonable minds could reach but one conclusion, the questionof foreseeabilitymay be determined asamatter of law for purposes of summary judgment.

Was it foreseeable that Arledge would shoot Kiger upon his releaseonparole becausetheDepartment failed to inform the Board of marijuana use by Arledge in prison? In order to establish liability, Kiger must first show that the Department had a duty to inform the Board of Arledge's marijuana violation. The only duty of the Department is spelled out in 5 46-23-203, MCA, which states: It shall be theduty of all prison officials to grant to the members of the board or its properly accredited representatives access at all reasonable times to any prisoner overwhom theboardhas jurisdiction underparts 1, 2, 3 and 10 of this chapter,toprovide for the boardor suchrepresentative facilities forcommunicating with and observing suchprisoner, and to furnish to theboard such reports as the board shall require concerning the conduct and character of any prisoner in their custody and any other facts deemed by the board pertinent in determining whether such prisoner shall be paroled. Under the clear language of the statute, the Department was required only to furnish such reportsas the Board llshall require" concerning the "conduct and character and any other facts deemed by the Board tobe pertinent in determiningwhether Arledge should be paroled.I1 Kiger has failed topresent any facts that establish

a duty on the part of the Department to inform the Board of Arledgelsmarijuana violation. We conclude that since no duty to inform has been proven, the issue of foreseeability is never reached. We affirm summary judgment on behalf of the Department on this issue.

As to the State of Montana, ~iger argues that the State is liable because the Department and Board are administered by and under the jurisdictionof theState. Because theplaintiff did not appeal the judgment in favor of the Board, and because of our holding that the Department is not liable, no theory remains on which to hold the State liable, summary judgmentwas proper as to the State. The judgment of the District Court is affirmed.

We Concur: /'

Justice YJustices /