No. 81-68 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

PETER KIAMAS, JR., and 

DONNA MAE KIAMAS, husband and wife, 

Plaintiff and Appellant, 

VS. 

MON-KOTA, INC., a Montana corporation, 

LARRY LEWIS, ERVIN BIEBER, DUANE BIEBER, 

and JEFF REIDLE, 

Defendants and Respondents. 

Appeal from: District Court of the Seventh Judicial District, 

In and for the County of Richland 

Honorable L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Thomas R. Halvorson, Sidney, Montana 

Anderson, Edwards and Molloy, Billings, Montana 

Richard W. Anderson argued, Billings, Montana 

For Respondents: 

Crowley, Haughey, Hanson, Toole and Dietrich, 

Billings, Montana 

L. Randall Bishop argued, Billings, Montana 

Submitted: October 20, 1981 

Decided: January 28, 1982 

8 Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Plaintiffs allege negligence on the part of Mon-Kota 

resulting in a head injury to plaintiff, Peter Kiamas, with 

severe physical and mental damage. Summary judgment was 

entered for defendant, Mon-Kota, in the District Court of 

Richland County. We affirm the District Court. 

The central issue in this case is whether the District 

Court properly granted summary judgment in favor of MonKota, impliedly holding that the "rescue doctrine" is not 

applicable to the facts of this case. 

Plaintiffs are farmers in Richland County. In June 

of 1977, plaintiff, Peter Kiamas, Jr. (Kiamas), engaged MonKota to fertilize his sugar beets by the application of top 

dressing. Kiamas had been leasing the land in question for 

a period of four or five years. Mon-Kota sent two employees 

to apply the top dressing by the use of two Mon-Kota John 

Deere tractors. The two employees did not initially realize 

that their John Deere tractor wheels were set for 26 inch 

rows rather than 24 inch rows as the beets were planted in 

the Kiamas field. Kiamas owned John Deere tractors of the 

same model as the Mon-Kota tractors, and Kiamas had changed 

the width adjustment on his own John Deere tractors many 

times. Kiamas drove out to his fields to see what was going 

on. He noticed that the beet tops in a number of rows were 

ragged and torn in appearance. One Mon-Kota tractor was 

stopped. Kiamas talked to the driver of that tractor, and 

together they halted the other tractor. There was no difficulty 

in stopping both of the Mon-Kota tractors. Kiamas and the 

Mon-Kota employees talked over the problem which was causing 

damage to the beet tops, and discovered that the Mon-Kota 
tractor wheels were set for 26 inch rows instead of the 24 

inch rows of the Kiamas field. As a result, they observed 

there was damage to the beets because the Mon-Kota tractors 

were driving over the tops of some of the beets. Kiamas 

instructed the drivers of the Mon-Kota tractors to "shut the 

tractors down" and that was done. The Mon-Kota drivers 

agreed that it was necessary to change the spacing on the 

tractor wheels before going further. 

The Mon-Kota drivers did not have tools with which to 

change the spacing, and asked Kiamas if he had a jack and 

tools which they could use to change the spacing on the 

tractor wheels. Kiamas and the two drivers rode to the 

Kiamas farmhouse and picked up the jack, tools and equipment 

necessary to perform the wheel adjustment. When they returned 

to the Mon-Kota tractors, Kiamas injured his head while 

attempting to help with the wheel adjustments. In his 

deposition, Kiamas described how his injury occurred: 

"A. Well, we got back out to the field there. 

And -- well, like you say, the boys were pretty 

young, and I didn't know if they really knew 

what was going on or not. So I've -- I guess 

I volunteered to go along with them. And to 

make sure they were going -- going to do it 

right. And so we brought everything up to -- 

the blocks, the jack, the tools -- we all 

carried something over to the tractor. And I 

just -- I grabbed ahold of a wrench, and I 

started loosening the wheel. And that's when 

it slipped off -- slipped off the nut, and I 

cracked my head against the axle. That's 

basically what happened then." 

The Mon-Kota drivers did not ask Kiamas to help in any way. 

Kiamas did not ask the Mon-Kota drivers if they knew how to 

change the wheel spacing. Kiamas explained that the wrench 

slipped off, and when asked what caused it to slip, he 

stated: 
"A. I wish I knew. But it -- the wrench was 

in good shape. That's all I got to say. I 

mean, the wrench fit on there real good. So 

the only thing I could say is their nuts must 

have been rounded off or something. 'Cause 

I've done the same thing for 15 years and 

never had anything happen to me like that 

before. " 

In substance, Kiamas did not complain that the tools were in 

any way defective or that the tractor was in any way defective 

or that the Mon-Kota drivers did not do the right thing, but 

simply that the wheels were not set right and if Mon-Kota 

had the wheels set right all this would not have happened to 

him. Mon-Kota has conceded that it was Mon-Kota's fault 

that the tractors had the incorrect wheel spacing and that 

Mon-Kota, therefore, is properly responsible for any resulting 

damage to the beet crop or land of the plaintiffs. However, 

in this case we are concerned with Kiamas' alleged injuries 

as a result of the blow on the head, which he received while 

trying to loosen a wheelnut on the Mon-Kota tractor. 

The facts disclose, without question, that the Mon-Kota 

tractors had incorrect wheel spacing, but also disclose that 

upon discovery of the incorrect spacing, the Mon-Kota 

drivers shut down the tractors so there was no further risk 

of injury to the Kiamas land or crops. The Mon-Kota drivers 

agreed with Kiamas that the wheel adjustment had to be 

changed before any further work would be done on the Kiamas 

land by the Mon-Kota tractors. 

Our basic question is whether or not Kiamas can be 

classed as being on a "rescue" mission at the time of his 

personal injury. As pointed out by the plaintiffs, the 

theory of the rescue doctrine was stated 60 years ago by 

Justice Cardozo as follows: 

"Danger invites rescue. The cry of distress 

is the summons to relief. The law does not 

ignore these reactions of the mind in tracing conduct to its consequences. It recognizes 
them as normal. It places their effect within 

the range of the natural and probable. The 

wrong that imperils life is a wrong to the 

imperiled victim; it is a wrong also to his 

rescuer. . . The railroad company whose train 

approaches without signal is a wrongdoer toward 

the traveler surprised between the rails but a 

wrongdoer also to the bystander who drags him 

from the path. . . The risk of rescue, if only 

it be not wanton, is borne of the occasion. 

The emergency begets the man. The wrongdoer 

may not have foreseen the coming of a deliverer. 

He is accountable as if he had." Wagner v. International Ry. Co. (1921), 232 N.Y. 176, 133 

N.E. 437. 

William L. Prosser in his Handbook of the Law of Torts, 

Section 44, describes the rescue doctrine as follows: 

"Upon the same basis, under the 'rescue doctrine,' 

efforts to protect the personal safety of another 

have been held not to supersede the liability 

for the original negligence which has endangered 

it. Whether or not the rescuer is to be regarded as 'foreseeable,' it has been recognized since 

the early case of the crowd rushing to assist 

the descending balloonist that he is nothing 

abnormal. 'The risk of rescue, if only it be 

not wanton, is borne of the occasion. The 

emergency begets the man.' . . . 

"Although there has been some disagreement, the 

great majority of the courts now apply the same 

rule to one who tries to rescue the property of 

another, even when he is under no duty to do so, 

and even though the property involved is that 

of the defendant. . ." Prosser, Law of Torts 

S44 (4th ed. 1971). 

It may be noted that both Justice Cardozo and Professor 

Prosser emphasize that danger of injury or damage to person 

or property is the element which invites rescue. "The 

emergency begets the man." 

Plaintiffs suggest that Ekwortzel v. Parker (1971), 156 

Mont. 477, 482 P.2d 559, is a case in which this Court 

applied the "rescue doctrine" without actually saying so. 

That case is distinguishable. The defendant there kept one 

quite obstreperous mule which had escaped the defendant's 

enclosure and entered upon the plaintiff's land where the 

mule had been for a number of days, causing significant 
problems with livestock. While plaintiff was attempting to 

round up the mule, his horse fell, breaking plaintiff's 

leg. The distinction between the two cases is the need for 

action, the "emergency" mentioned by Cardozo and Prosser 

previously. Ekwortzel acted to get the mule out of the way 

so that he could properly move his own livestock. Here, 

Kiamas was not required to act either to meet an emergency or 

otherwise, because the tractors were stopped and there was 

no further risk of damage to his growing crops and fields. 

Plaintiffs contend that swnmary judgment was not appropriate because there was an issue which should have been 

submitted to the jury as to whether or not the defendants' 

negligence and breach of duty was the cause of the injury to 

Kiamas. With regard to the entry of summary judgment where 

a plaintiff fails to establish a proximate causal connection 

or other material element in the negligence action, this 

Court in Scott v. Robson (19791, Mont. , 597 P.2d 

1150, 1154, 36 St.Rep. 1273, 1278, quoted from Pickett v. 

Kyger (1968), 151 Mont. 87, 100, 439 P.2d 57, 63, as follows: 

"'It is hornbook law requiring no citation of 

authority that the material elements that the 

plaintiff must prove in order to prevail in a 

damage action of this kind are: 

duty owing from defendant to plaintiff; 

"' (2) A breach of that duty by defendant; 

"'(3) Constituting proximate cause of; 

"'(4) Injuries and damages to plaintiff. 

"'Plaintiff must introduce evidence proving 

or tending to prove each of these material 

elements in order to be entitled to have his 

case submitted to the jury. In the instant 

case plaintiff's evidence, viewed most favorably to plaintiff, tends to establish the duty, 

breach, injury, and damages. But there is a 

total absence of any evidence tending to 

establish a proximate causal connection between the breach[ed] . . . duty and plaintiff 's injuries and damages. ' 
"In Pickett this Court directed summary judgment in favor of the defendant as a result 

of the plaintiff's failure to establish a proximate causal connection." 

Mon-Kota contends that plaintiffs have failed to establish 

a causal connection between the negligence of Mon-Kota and 

the personal injury to Kiamas. Kiamas quotes from Restatement 

(Second) of Torts, Section 290 (1965), as a basis for a 

conclusion that the defendant is required to know that 

Kiamas could be expected to act in this manner. He quotes 

from Comment 1, which in pertinent part states: 

"1. Knowledge that others will act to prevent 

harm. The actor as a reasonable man should 

realize that another whose person or goods he 

intentionally or negligently puts in peril, is 

both likely and privileged to act in its defense, 

and is also required to realize that in so doing the other may not act with perfect propriety, 

particularly where the peril is sudden and creates 

an emergency in which immediate action is required. . . So too, the actor must recognize 

the tendency of human beings to expose themselves to peril to protect not only the life 

and limb but even the property of third persons 11 ... 

As stated in the first sentence, the key element is that the 

defendant is charged with "knowledge that others will act to 

prevent harm." In the present case there was no action of 

any type by Kiamas to prevent harm. The possibility of harm 

was eliminated by Mon-Kota stopping its tractors and the 

drivers' agreement to change the wheel spacing so there 

would be no further damage to the Kiamas crops or lands. 

Not only is there a total absence of an emergency described 

above, there is a total absence of a need for action to 

prevent harm. 

Both parties rely heavily in their arguments on the 

Restatement (Second) of Torts (1965). With regard to the 

basic element of negligent conduct as cause of harm to 

another, Section 431 states: 
"The actor's negligent conduct is a legal cause 

of harm to another if 

"(a) His conduct is a substantial factor in -- - bringing about -- 

the harm, and 

" (b) There is no rule of law relieving the 

actor from liability because of the manner in 

which his negligence has resulted in the harm." 

(Underscoring added.) 

In discussing the application of Section 431, the 

Comment emphasizes the following: 

"In order to be a legal cause of another's 

harm, it is not enough that the harm would 

not have occurred had the actor not been 

negligent. . . The negligence must also be 

a substantial factor in bringing about the 

plaintiff's harm. The word 'substantial' is 

used to denote the fact that the defendant's 

conduct has such an affect in producing the 

harm as to lead reasonable men to regard it 

as a cause, using that word in the popular 

sense. . .I1 

The Comment is particularly applicable to the present case. 

It is not enough that Kiamas would not have suffered a head 

injury had Mon-Kota not been negligent in having the wrong 

spacing on its tractors. In addition, any negligence of 

Mon-Kota also must have been "a substantial factor" in 

causing the injury. Mon-Kota had stopped its tractors and 

was in the process of correcting the wheel adjustment so 

there would be no further harm to plaintiffs1 land, and no 

need for any action on the part of Kiamas. This suggests 

that plaintiffs have failed to show that the conduct of MonKota was such as to lead reasonable men to regard it as a 

cause of the personal injury. 

Restatement (Second) of Torts, Section 445 (1965), is 

particularly relied upon by the plaintiffs in their arguments. 

We find that a careful analysis of that section is decisive. 

Section 445 states: 
"If the actor's negligent conduct threatens 

harm to another's person, land, or chattels, 

the normal efforts of the other or a third 

person to avert the threatened harm are not 

a superseding cause of harm resulting from 

such efforts. " 

If we reword the section to apply to the present fact situation, 

it would read substantially as follows: 

If Mon-Kota's negligent conduct threatens harm 

to Kiamas land, the normal efforts of Kiamas 

to avert the threatened harm are not a superseding cause. 

The actions of Kiamas became a superseding cause unless he 

proved that his actions were a normal effort to "avert the 

threatened harm" to his crops and land. When Mon-Kota 

halted the tractors and proceeded to change the wheel adjustment, 

there was no longer any action required by Kiamas to avert a 

threatened harm. Our conclusion is that the actions of 

Kiamas do not fall within the provisions of the rescue 

doctrine as described in Restatement Section 445, with the 

result that the Kiamas action was a superseding cause for 

which Mon-Kota and the other defendants were not responsible. 

We affirm the summary judgment of the District Court 

for the defendants. 

We Concur: 

~A& +,PC, 

Chief ~ustice' 

Justices 
Mr. Justice John C. Sheehy concurring: 

I concur in the result. The "rescue doctrine, " though 

raised by plaintiff, is entirely irrelevant to his claim. 

He applied a wrench to loosen a nut, the wrench slipped and 

plaintiff was injured. Beyond those facts, we have nothing 

to show a duty of defendants toward plaintiff, nor a breach 

of that duty and resulting harm to plaintiff. On the basis 

simply that plaintiff fails to state a claim in tort, the 

summary judgment is proper. 
Mr. Justice Daniel J. Shea concurring: 

I agree that summary judgment was properly granted. 

The negligence of Mon-Kota stopped when the tractors were 

shut down and were no longer doing damage to the crops and 

land. Had the plaintiff been injured while running in the 

fields attempting to get the Mon-Kota employees to shut down 

the tractors, I have no doubt that the rescue doctrine would 

apply and a factual question would remain for the jury. But 

here the plaintiff seeks to recover for injuries sustained 

after the negligent acts of the Mon-Kota employees had come 

to a standstill, and where there was absolutely no need for 

the plaintiff to do anything further. He acted as a volunteer 

in undertaking to change the wheel spacing on the Mon-Kota 

tractors, and he has alleged no negligence of the Mon-Kota 

employees after the tractors were shut down. Whatever injuries 

he received were not proximately caused by the negligence of 

Mon-Kota or its employees. 

I concur with the foregoing.