### 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 

### ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

Plaintiffs allege negligence on the part of Mon-Kota resulting ina head injury toplaintiff, Peter Kiamas, with

severephysical and mental damage. Summary judgment was entered for defendant, Mon-Kota, inthe DistrictCourt of Richland County. Weaffirm the DistrictCourt. The central issue inthiscase iswhether the District Court properly granted summary judgment in favor of MonKota, impliedly holding that the "rescue doctrine" 

### is not applicable tothe facts of this case. Plaintiffs arefarmers inRichland County. InJune of 1977, plaintiff, Peter Kiamas, Jr. (Kiamas), engaged MonKota to fertilizehis sugar beets by the applicationof top dressing. Kiamas had been leasing the land inquestion for a period of four or fiveyears. Mon-Kota senttwo employees toapply 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 astheMon-Kota tractors, and Kiamas had changed thewidth adjustment on his own John Deere tractors many 

### times. Kiamas drove out to his fields to seewhat was going

on. He noticed that the beet tops in a number of rows were ragged and torn inappearance. One Mon-Kota tractor was stopped. Kiamas talked tothe 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-Kotatractor wheels were set for 26 inch rows instead of the 24 inch rows of the Kiamas field. As a result, they observed therewas 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 thatwas 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 toperform the wheel adjustment. When they returned to the Mon-Kota tractors, Kiamas injured his head while attempting tohelp 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, likeyou 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 togo along with them. And to make sure they were going

## -- going todo 

### it right. And sowe brought everything up to

### -- theblocks, 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 thewheel. 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 tohelp 

### inany way. Kiamas did not ask the Mon-Kota drivers if they knew how to change thewheel spacing. Kiamas explained that thewrench slipped off, and when asked what caused it to slip, he stated:"A. I wish I knew. But it 

### -- the wrench was ingood shape. That's allI got to say. I mean, the wrench fiton 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 15years and never had anything happen to

### me like that before.

### " In substance, Kiamas did not complain that the tools

### were in any way defectiveor that the tractor 

### was inany way defective

or that theMon-Kota drivers did not do the right thing, but simply that the wheels 

### werenot 

### set right and if Mon-Kota had the wheels 

### set right allthiswould 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, isproperly responsible for any resulting damage tothe beet crop or land of the plaintiffs. However, inthis case

### we areconcerned 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 theMon-Kota tractors had incorrect wheel spacing, but alsodisclose that upon discovery of the incorrect spacing, the Mon-Kota drivers shut down the tractors so therewas no further risk of injury to the Kiamas land or crops. The Mon-Kota drivers agreed with Kiamas that the wheel adjustment had tobe changed before any further work would be done on the Kiamas land by theMon-Kota tractors. Our basic question 

### iswhether or not Kiamas can be classed asbeing on a "rescue" mission atthe time of his personal injury. As pointed out by the plaintiffs, the theory of the rescue doctrinewas stated 60 years ago by Justice Cardozo as follows: "Danger invites rescue. The cry of distress 

### is the summons torelief. The 

### lawdoes not ignore these reactions of themind intracing conduct to 

### its consequences. Itrecognizesthem as normal. Itplaces their effectwithin the range of the natural and probable. The wrong that imperils life

### is a wrong to the imperiled victim; 

### it is a wrong alsotohis 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, isborne of the occasion. The emergency begets theman. 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. WilliamL. Prosser inhis Handbook of the Law of Torts, Section 44, describes the rescue doctrine as follows: "Upon the same basis, under the 'rescue doctrine,' efforts toprotect 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 tobe regarded as 'foreseeable,' 

### it has been recognized since the early case of the crowd rushing toassist the descending balloonist thathe 

### is nothing abnormal. 'The risk of rescue, if only 

### it be notwanton, isborne of the occasion. The emergency begets theman.' 

# . . . "Although there has been some disagreement, the greatmajority of the courts now apply the same rule toone who tries torescue the property of another, even when he 

### isunder no duty todo so, and even though the property involved 

### is that of the defendant. 

# .

# ."Prosser, Law of Torts S44 (4thed. 1971). Itmay be noted thatboth Justice Cardozo and Professor Prosser emphasize that danger of injury or damage toperson

or property is the element which invites rescue. "The emergency begets theman." Plaintiffs suggest that Ekwortzel v. Parker (1971), 156 Mont. 477, 482 P.2d 559, is a case inwhich this Court applied the "rescue doctrine" without actually saying so. That case is distinguishable. The defendant there kept one quiteobstreperous 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 significantproblems with livestock. While plaintiff 

### was attempting to round up the mule, his horse fell, breaking plaintiff's leg. The distinctionbetween the two cases isthe need for action, the "emergency" mentioned by Cardozo and Prosser previously. Ekwortzel acted to get themule out of the way

so that he could properly move his own livestock. 

### Here, Kiamas 

### was not required to acteither tomeet an emergency or otherwise, because the tractors were stopped and there

### was

no further risk of damage tohis growing crops and fields. Plaintiffs contend that swnmary judgment was not appropriatebecause there was an issuewhich should have been submitted to thejury as towhether or not the defendants' negligence and breach of duty was the cause of the injury to Kiamas. With regard tothe entry of summary judgment where

a plaintiff fails to establish a proximate causal connection

or other material element inthe negligence action, this Court inScottv. Robson (19791, Mont. 

## , 597 P.2d 1150, 1154, 36 St.Rep. 1273, 1278, quoted from Pickett v. Kyger (1968), 151Mont. 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 inorder toprevail ina damage action of this kind are: duty owing from defendant toplaintiff; 

## "'(2) A breach of that duty by defendant; "'(3) Constituting proximate cause of; "'(4) Injuries and damages toplaintiff. "'Plaintiff must introduce evidence proving or tending toprove each of these material elements inorder tobe entitledtohave his case submitted tothe jury. In the instant caseplaintiff's evidence, viewed most favorably toplaintiff, tends toestablish 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.

## '"InPickett this Court directed summary judgment infavor of the defendant as a result of the plaintiff's failuretoestablish 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 toKiamas. Kiamas quotes from Restatement (Second) of Torts, Section 290 (1965), as a basis for a conclusion that the defendant is required toknow that Kiamas could be expected to act in thismanner. Hequotes from Comment 1, which inpertinent part states: "1. Knowledge that others 

### willact toprevent harm. The actor as 

### a reasonable man should realize that another whose person or goods he intentionally or negligently puts inperil, is both likely and privileged to act in

### its defense, and 

### is alsorequired torealize that in so doing the other may not actwith perfect propriety, particularly where the peril is sudden and creates an emergency inwhich immediate action 

### isrequired. 

# .. So too, the actor must recognize the tendency of human beings to expose themselves toperil toprotect 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 

### willactto prevent harm." In the present case therewas no action of any type by Kiamas toprevent harm. The possibility of harm

was eliminated by Mon-Kota stopping its tractors and the drivers' agreement tochange 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 intheir 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 toanother if "(a) Hisconduct 

### is a substantial factor in 

### -- - bringing about the harm, and -- 

### "(b) There isno rule of law relieving the actor from liabilitybecause of themanner in which his negligence has resulted inthe harm." (Underscoring added.) In discussing the application of Section 431, the Comment emphasizes the following: "In order tobe 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 alsobe a substantial factor inbringing about the plaintiff's harm. The word 'substantial' is used todenote the fact that the defendant's conduct has such an affect inproducing the harm as to lead reasonable men toregard 

### it as a cause, using thatword inthe popular sense. 

# . .I1 The Comment 

### isparticularly applicable tothe present case. It is not enough that Kiamas would not have suffered a head injury had Mon-Kota not been negligent inhaving the wrong spacing on its tractors. In addition, any negligence of Mon-Kota alsomust have been "a substantial factor" in causing the injury. Mon-Kota had stopped 

### its tractors and

was inthe process of correcting the wheel adjustment so therewould be no further harm toplaintiffs1land, and no need for any action on the part of Kiamas. This suggests thatplaintiffs have failed to show that the conduct of MonKota was such as to lead reasonable men toregard it as a

cause of the personal injury. Restatement (Second) of Torts, Section 445 (1965), is particularly relied upon by theplaintiffs intheir arguments. Wefind 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 arenot a superseding cause of harm resulting from such efforts.

### " If we reword the section toapply tothe present fact situation, it would read substantially as follows: If Mon-Kota's negligent conduct threatens harm toKiamas land, the normal effortsof Kiamas toavert the threatened harm arenot a superseding cause. The actions of Kiamas became a superseding cause unless he proved thathis actions

### were a normal effortto "avert the threatened harm" tohis crops and land. When Mon-Kota halted the tractors and proceeded to change thewheel adjustment, therewas no longer any action required by Kiamas to avert a threatened harm. Our conclusion is that the actions of Kiamas do not fallwithin the provisions of the rescue doctrine as described inRestatement Section 445, with the result that the Kiamas actionwas a superseding cause for which Mon-Kota and the other defendants were not responsible. Weaffirm the summary judgment of the District Court for the defendants.

WeConcur: 

### ~A&

# +,PC, Chief ~ustice'

JusticesMr. 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 toplaintiff. On the basis simply that plaintiff fails to state a claim 

### intort, the summary judgment 

### isproper.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 tothe crops and land. Had theplaintiff been injured while running inthe fields attempting toget the Mon-Kota employees toshut down the tractors, I have no doubt that the rescue doctrine would apply and a factual question would remain for the jury. But here theplaintiff seeks to recover for injuries sustained afterthe negligent acts of the Mon-Kota employees had come toa standstill, and where therewas absolutely no need for the plaintiff todo anything further. He acted as a volunteer inundertaking tochange thewheel spacing on the Mon-Kota tractors, and he has alleged no negligence of the Mon-Kota employees afterthe tractors 

### were shut down. Whatever injuries he received 

### werenot proximately caused by the negligence of Mon-Kota or 

### its employees.

I concur with the foregoing.