No. 90-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

KATRINA B. KIGER and DONALD D. KIGER, 

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Plaintiffs and Appellants, 0 O 

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-v- p=J C3 2 )3 3 

THE STATE OF MONTANA; THE STATE OF MONTANA w? 5 

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DEPARTMENT OF INSTITUTIONS; THE STATE OF ~'

MONTANA PAROLE BOARD, no 3 

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Defendants and Respondents. 00" cn 

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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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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

The plaintiffs, Katrina and Donald Kiger, brought this action 

in the Eleventh Judicial District, Flathead County, to seek damages 

for the October 28, 1985 shooting of Katrina Kiger by 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 Arledge would shoot Kiger upon his 

release on parole because the Department allegedly miscalculated 

Arledge's parole eligibility date? 

2. Was it foreseeable that Arledge would shoot Kiger upon his 

release on parole because the Department 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 causation 
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between the numerous alleged acts of negligence and the shooting 

of Kiger by Arledge, a lack of foreseeability, and that there was 

no breach of duty on the part of the State, the Department, or the 

Board. 

After the filing of extensive briefs by the parties and a 

hearing, the District Court granted Summary Judgment, 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 omissions would 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. 

Statutorily the Department has a duty to properly calculate parole 

eligibility dates. Because this case is on appeal from an order 

of summary judgment we must view the evidence in favor of the party 

opposing the motion and assume that miscalculation did in fact 

occur. Rule 56(c), M.R.Civ.P.; Thelen v. City of Billings (1989), 

238 Mont. 82, 85, 776 P.2d 520, 522. Therefore for the purposes 
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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 generally made. In three 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; Thayer v. Hicks (Mont. 1990), 793 P.2d 784, 47 St.Rep. 1082. 

In Kitchen Krafters, as to cause-in-fact, we state: 

In determining whether a defendant 's breach 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 two ways. 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 not have 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 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. 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, 
would have been sufficient to cause the identical result, 

some other test is needed. In response to this problem, 

the courts have developed the l'substantial factor 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 some point in the chain of causation the law must 

intervene and absolve the defendant of liability. It was this 

policy consideration that led to the development of 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 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 

and Keeton, at 5 43. 

Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611. 

In order forthe Department's negligence (failure to calculate 

correctly) to be the proximate cause of Kigerts injuries, 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 the natural and probable consequences of the wrongful act. 

Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 612. If the 

Department could not reasonably foresee the consequences, then the 

consequences should be regarded as a superseding event which breaks 

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 too many "what ifsH that are superseding events that break the 

chain of causation. 

To cite the District Court in its Order and Rationale, p. 5: 

The "what ifsu are 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 

for disciplinary actions within the prison he would have 

lost good time and not been eligible for parole; if any 

one of a number of people who 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 

had been unable to purchase a handgun or ammunition, etc. 

Such speculations fail to establish a direct and 

proximate cause between 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 shoot 
Kiger. We conclude that Kiger has failed to present 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: 

In any action for negligence, the plaintiff 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 facts of this case, the evidence presented 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 

question of foreseeability may be determined as a matter of law for 

purposes of summary judgment. 

Was it foreseeable that Arledge would shoot Kiger upon his 

release on parole because the Department 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 the duty 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 over whom the board has jurisdiction under parts 

1, 2, 3 and 10 of this chapter, to provide for the board 
or such representative facilities for communicating with 

and observing such prisoner, and to furnish to the board 

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 reports as the Board llshall require" 

concerning the "conduct and character and any other facts deemed 

by the Board to be pertinent in determining whether Arledge should 

be paroled.I1 Kiger has failed to present any facts that establish 

a duty on the part of the Department to inform the Board of 

Arledgels marijuana 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 jurisdiction of the State. Because the plaintiff 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 judgment was proper as to 

the State. 

The judgment of the District Court is affirmed. 

We Concur: /' 

Justice Y 
Justices /