No. 87-293 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

PATRICIA L. COOPER, 

Plaintiff and Appellant, 

-vsKARL F. ROSSTON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein, 

Billings, Montana 

For Respondent: 

Poore, Roth & Robinson; C. Richard Anderson, Butte, 

Montana 

Filed: MAY 3 I 1988 

- - 

Submitted: April 5, 1988 

Decided: !.qay 31, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Patricia L. Cooper (Cooper) appeals a Second Judicial 

District Court, Silver Row County, jury verdict award of 

damages for injuries she sustained in a pedestrian/automobile 

accident in Rutte, Montana. We reverse and remand for a new 

trial. 

This case involves an accident that occurred on 

Saturday, November 19, 1983, in the parking lot of the War 

Bonnett Inn, a motel in Rutte, Montana. At approximately 

11:OO p.m. that evening, a 1974 one-ton Chevrolet four-door 

pickup truck ran over Cooper. The driver of the pickup truck 

was Karl F. Rosston (Rosston) who was sixteen years old at 

the time. 

Earlier that evening, Rosston picked-up six juvenile 

acquaintances to attend a game at a state girls basketball 

tournament in Butte. Prior to attending the game, the seven 

boys purchased three six packs of beer at a local grocery 

store. The boys drank some of the beer with food at around 

7:00 p.m. and then went to a basketball game at the Butte 

Civic Center. They left the Civic Center at around 10:OO 

p.m. and drove around for about an hour. 

At approximately 11:OO p.m., Rosston drove his father's 

pickup truck onto the entry ramp of the War Bonnett Inn. 

Twenty-seven year old Patricia Cooper and some of her girl 

friends were leaving the War Bonnett Inn at the time Rosston 

and the other boys arrived. Cooper and her friends were also 

in Butte to attend the basketball games. Prior to leaving 

the War Bonnett Inn, Cooper and her friends had been drinking 

alcoholic beverages in the motel lounge. 

As the women exited the motel, Rosston's passengers 

exited the pickup truck and began to tease Cooper and her 
friends. Rosston did not participate in the teasing but 

stood next to his pickup truck and watched for the three or 

four minutes of the conversation. One of Rosston' s 

passengers, Chris Albrecht, attempted to take a beer cooler 

from the back of Cooper's pickup truck. One of the women 

demanded that Albrecht return the cooler and he complied with 

the demand. The boys then left the immediate vicinity in 

Rosston's pickup truck. 

Instead of exiting the parking lot, Rosston circled 

around and parked within thirty or forty feet of the women. 

Some of the boys testified at trial that they went back 

specifically to attempt to take the beer cooler. Rosston's 

passengers once again exited his vehicle and one of the boys 

took Cooper's beer cooler. Rosston remained standing at the 

door of his vehicle until the boys started running back to 

the truck with the beer cooler. Rosston got into his vehicle 

and began to drive away with the back doors open as his 

acquaintances jumped in with the cooler. Meanwhile, Cooper 

and her friends chased down Rosston's vehicle and one woman, 

Kellie Reed, grabbed on to the driver's side mirror. Rosston 

felt a bump and thought that he had run over a speed bump. 

Kellie Reed then yelled that Rosston had run over Cooper. 

Cooper had attempted to jump on to Rosston's moving vehicle 

and had fallen underneath the rear tires. Rosston stopped 

his vehicle, got out, and ran back to find Cooper on the 

ground with extensive injuries. 

The authorities were called and Cooper was taken to the 

hospital. By the time the police arrived, Rosston's 

passengers had all left the scene. When questioned by the 

police as to what happened, Cooper's friends failed to 

identify Rosston as the driver of the pickup truck. In a 

verbal statement at the scene, and an hour later in a written 

statement, Rosston told the police that one of the other hovs 
drove the pickup truck at the time Cooper was injured. 

Rosston also failed to immediately identify two of the boys 

involved in the incident and did not inform the authorities 

that he had consumed some alcohol earlier in the evening. 

Later that evening, Rosston's acquaintances contacted the 

police about their involvement in the accident. 

Approximately ninety minutes after his first statement, 

Rosston changed his story and informed the police that he was 

the driver of the vehicle that ran over Cooper. Rosston has 

not since denied his involvement. 

On January 9, 1984, Cooper filed a complaint and demand 

for jury trial with allegations of negligent, willful and 

reckless conduct. Cooper asked for general and punitive 

damages. Prior to trial, Rosston sought by a motion in 

limine to exclude any evidence pertaining to Rosston's 

original story that someone else drove the pickup truck, his 

failure to identify all of the boys involved at the time of 

the accident, and his failure to inform authorities that he 

had consumed alcoholic beverages that evening. The ~istrict 

Court granted the motion and excluded the evidence. During 

trial the District Court also struck Cooper's claim for 

punitive damages on the grounds that there was no evidence of 

willful or reckless misconduct. 

The jury found both Rosston and Cooper fifty percent 

negligent and found Cooper's total damages to be $30,000. 

Cooper's total recovery after the reduction for her 

percentage of the negligence was $15,000 plus $775.95 in 

costs. Notably, Cooper's actual medical expenses and lost 

wages totaled just under $15,000. Plaintiff Cooper appeals 

from the judgment and we identify the following four issues: 

1. Did the District Court err in prohibiting the 

introduction of evidence regarding Rosston's 
misrepresentations and omissions made to law enforcement 

officials immediately after the accident? 

2. Did the District Court err in instructing the jury 

that a juvenile is held to a lesser standard of care than an 

adult under the circumstances of this case? 

3. Did the District Court err in refusing to instruct 

the jury as to the elements of theft, reckless driving, and 

willful and wanton misconduct? 

4. Did the District Court err in striking Cooper's 

claim for punitive damages? 

In her first issue, Cooper claims that the District 

Court should have allowed the introduction of evidence 

regarding Rosston's misdeeds immediately after the accident. 

We begin our analysis of evidentiary rulings with the 

recognition that issues concerning the admissibility of 

evidence are within the discretion of the district court. 

Moen v. Peter Kiewit & Sons' Co. (1982), 201 Mont. 425, 439, 

655 P.2d 482, 489. A district court's ruling on the 

admissibility of certain evidence will not be disturbed 

absent a showing of an abuse of that discretion. Britton v. 

Farmers Ins. Group (Mont. 1986), 721 P.2d 303, 315, 43 

St.Rep. 641, 654. In its order of June 15, 1987, the 

District Court granted Rosston's motion in limine to exclude 

evidence of the following: 

1. Statements made by Karl Rosston 

immediately following the accident, 

wherein he denied being the driver of the 

vehicle involved in this accident; 

2. Inconsistencies in the statements 

given by Karl Rosston following this 

accident to investigating officers, 

wherein he did not identify certain boys 

who where at or near the scene of the 

accident; 
3. Any and all other inconsistencies in 

the statements provided by Karl Rosston 

subsequent to this accident, including 

but not limited to, whether he had 

consumed alcoholic beverages; ... 

The above misrepresentations and omissions, Cooper contends, 

were relevant to impeach Rosston's credibility at trial and 

were relevant on the issue of punitive damages. Rosston 

counters by arguing that this evidence constitutes 

impeachment on collateral matters and that the prejudicial 

effect of the evidence outweighs any probative value. 

At trial, Rosston identified the other juveniles in his 

pickup truck, admitted that he was the driver of the vehicle 

that ran over Cooper, and admitted that he had been drinking 

prior to the accident. Rosston contends that, because these 

facts were not at issue in the trial, the excluded evidence 

constitutes impeachment on collateral matters. We agree that 

the evidence in question was collateral to all issues in this 

case except two -- the issue of Rosston's credibility as a 

witness and the issue of punitive damages as will be 

discussed later in this opinion. 

Section 26-1-302, MCA, provides as follows: 

A witness is presumed to speak the truth. 

The jury or the court in absence of the 

jury is the exclusive judge of his 

credibility. This presumption may be 

controverted and overcome by any matter 

that has a tendency to disprove the 

truthfulness of a witness' testimony; 

such matters include but are not limited 

to: 

(7) inconsistent statements of the 

witness; 

(8) an admission of untruthfulness by 

t.he witness; 
(9) other evidence contradicting the 

witness' testimony. 

Rule 401 of the Montana Rules of Evidence provides that 

"[rlelevant evidence may include evidence bearing upon the 

credibility of a witness or hearsay declarant." Credibility 

evidence, though relevant, "may be excluded if its probative 

value is substantially outweighed by the danger of unfair 

prejudice . . . Rule 403 M.R.Evid. Evidence of Rosston's 

misrepresentations and omissions is relevant to the issue of 

his credibility as a witness and we are not convinced that 

the admission of this evidence prejudices Rosston to the 

point of outweighing its probative value. The jury is the 

exclusive judge of Rosston's credibility and the District 

Court erred in excluding evidence bearing on that 

credibility. Section 26-1-302, MCA. 

We also note that the "collateral matters" rule, as 

argued by Rosston, was abolished in favor of the above 

relevancy approach upon the adoption of Rule 607, M.R.Evid., 

in 1977. The Commission Comments on Rule 607 contain the 

following language pertinent to this issue: 

[Tlhe Commission intends the broad 

language of Rule 607, allowing the 

reliability of a witness to be attacked, 

to mean that impeachment is only limited 

by the ingenuity of counsel to show any 

reason to disbelieve a witness' testimony 

and by consideration of relevancy under 

Rules 401 and 403. 

The limitation of impeachment by 

considerations of relevancy is a change 

in Montana law to the extent that it 

abolishes the collateral matters rule. 
The many cases considering collateral 

matters indicate that it is a troublesome 

doctrine. The Commission believes that 

the limitation of impeachment by Rule 

401, defining relevant evidence as 

ineluding impeaching evidence, and Rule 

403, allowing the court to exclude 

relevant evidence if its probative value 

is outweighed by prejudice, confusion, 

waste of time, will allow the same result 

to be reached through a more flexible 

means than currently used with the 

collateral matters rule. Therefore, 

Section 93-401-25, R.C.M. 1947 

[superseded], (to the extent that it is 

concerned with collateral- matters) and 

case law stating the collateral matters 

rule are abolished in favor of the 

relevancy approach. 

Commission Comments, Rule 607, M.R.Evid. We recognize the 

existence of post-1977 cases which refer to the collateral 

matters rule. See e.g., Moen, 655 P.2d at 488; State v. 

Harvey (1979), 184 Mont. 423, 432, 603 ~.2d 661, 666. 

However, this Court favors the relevancy analysis under Rules 

401 and 403, M.R.Evid. 

The evidence proffered by Cooper is also relevant on 

the issue of punitive damages in this case. It was not until 

several hours after the accident that Rosston admitted that 

he was the driver of the vehicle that ran over Cooper, that 

he had been drinking that evening, and that he knew the 

identities of the other juvenile boys. Cooper contends that 

Rosston's misrepresentations and omissions as to his actions 

that night deprived the investigating officers of reason to 

test Rosston's blood alcohol content. This deliberate 

attempt to mislead law enforcement officials, Cooper argues, 

is evi-dence of Rosston's willful and wanton conduct. We 

agree. 
In Lauman v. Lee (Mont. 1981), 626 P.2d 830, 38 St.Rep. 

499, this Court determined that evidence of a deliberate 

destruction of physical evidence can provide the basis for 

actual or punitive damages. The defendant in Lauman, Larry 

Lee, wiped mud from the headlights of an automobile 

involved in an accident. The investigating officer testified 

at trial that the physical evidence concerning the 

illuminating characteristics of the headlights at the time of 

the accident was crucial to the determination of fault. 

Lauman, 626 P.2d at 833. The lack of evidence concerning the 

headlights decreased the settlement potential of Lauman's 

case or the probability of a plaintiff's verdict. Lauman, 

626 P.2d at 833. The jury awarded Lauman $17,500 in punitive 

damages and Lee appealed. 

On appeal, Lee argued that the award of punitive 

damages was excessive. According to Lee, his conduct in 

wiping the headlights was innocuous and an award of punitive 

damages was, therefore, the result of the inflamed passion 

and prejudice of the jury. Lauman, 626 P.2d at 834. This 

Court declined to disturb the jury's award of punitive 

damages and stated the following: 

We have recently discussed the jury' s 

prerogative in setting exemplary damages 

. . . The jury may consider such 

attendant circumstances as the malice or 

wantonness of the act, the injury 

intended, the motive for the act, the 

manner of the commission and the 

deterrent effect on others, as well as 

the defendant's wealth . . . The jury had 

discretion reasonably to calculate a 

suitable punishment for Lee's actions 

after listening to the testimony and 

weighing the evidence. [Citations 

omitted. I 

Lauman, 626 P.2d at 834. 
Sections 27-1-220 and 27-1-221, MCA, authorize an award 

of punitive damages "where the defendant has been guilty of 

either actual or implied malice. " Lauman, 626 P.2d at 832. 

"Liability for punitive damages must be determined by the 

trier of fact, whether judge or jury." Section 27-1-221(6), 

MCA . Rosston admits that he lied to law enforcement 

authorities concerning his involvement in the accident. In 

her offer of proof, Cooper contends that the investigating 

officers would have administered a blood alcohol test if they 

had known that Rosston was the driver of the vehicle that 

injured Cooper. As in Lauman, we are unable to determine the 

precise extent of Cooper's damages that might be attributable 

to Rosston's obstruction of the accident investigation. 

Whether Rosston's misrepresentations and omissions give rise 

to an award of punitive damages in this case was a question 

of fact for the jury to determine. Section 26-1-202, MCA. 

The excluded evidence was, therefore, relevant to the issue 

of punitive damages. Rule 401, M.R.Evid. Accordingly, we 

hold that the District Court erred in excluding evidence of 

Rosston's misrepresentations and omissions to law enforcement 

officials. 

In her second issue, Cooper contends that the District 

Court erred in giving the following instruction: 

A child is not held to the same standard 

of care as an adult. A child is 

negligent if he fails to use that degree 

of care which is ordinarily exercised by 

children of the same age, intelligence, 

knowledge and experience under the 

circumstances then existing. 

A sixteen year old (Rosston) with a valid Montana driver's 

license is held to the same standard of care while driving an 

automobile as an adult in the same circumstances. Wollaston 

v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d 
1277. The issues in this case centered around Rosston's 

actions in driving a vehicle. The instruction in question 

impermissibly allowed the jury to hold Rosston to a lesser 

standard of care than an adult while driving a vehicle. We 

hold that the District Court erred in giving the above 

instruction in this case. 

Cooper argues in her third issue that the District 

Court erred in refusing to submit Cooper's proposed 

instructions with regard to the elements of theft, reckless 

driving, malice, and willful misconduct. She contends that 

the evidence and testimony create a question of fact as to 

whether Rosston had committed acts amounting to malice or 

willful and wanton conduct. We agree. 

"[Wlhere a statute specifically proscribes conduct 

which is actually malicious such as theft . . . punitive 

damages may be sought for violation of such a statute." 

Owens v. Parker Drilling Co. (1984), 207 Mont. 446, 449, 676 

P.2d 162, 163-164. This Court adopted the following standard 

in Owens regarding presumed malice: 

When a person knows or has reason to know 

facts which create a high degree of risk 

of harm to the substantial interests of 

another, and either deliberately proceeds 

to act in conscious disregard of or 

indifference to that risk, or recklessly 

proceeds in unreasonable disregard of or 

indifference to that risk, his conduct 

meets the standard of willful, wanton, 

and/or reckless to which the law of this 

State will allow imposition of punitive 

damages on the basis of presumed malice. 

Owens, 676 P.2d at 164. The Court went on to conclude that, 

"[wlhere a statute is designed to protect the substantial 

interests of a person from a high degree of risk, and the 

statute is violated either intentionally or recklessly, a 
jury question of punitive damages is raised." Owens, 676 

P.2d at 165. 

The evidence in this case gave rise to questions of 

fact regarding Rosston's participation in the theft of the 

beer cooler, his operation of a motor vehicle in a reckless 

manner, and his misrepresentations and omissions to law 

enforcement officials as previously discussed. The District 

Court determined that the evidence did not support 

instructions on theft, reckless driving, malice, and willful 

and wanton misconduct. We have reviewed the same evidence 

and conclude that reasonable minds could differ as to whether 

Rosston's actions constituted malicious, willful, wanton, or 

reckless conduct for which punitive damages may be awarded. 

Mallory v. Cloud (1975) , 167 Mont. 115, 118, 535 P.2d 1270, 

1272. The testimony presented the District Court with a 

triable issue of fact regarding these matters relating to 

Cooper's case and failure to instruct the jury on these 

elements constitutes reversible error. Tacke v. Vermeer Mfg. 

Co. (Mont. 1986), 713 P.2d 527, 534, 43 St.Rep. 123, 131. 

We note that Cooper argues that her recovery would not 

have been reduced had Rosston been found guilty of willful 

and wanton misconduct. Cooper cites to Derenberger v. Lutey 

(1983), 207 Mont. 1, 674 P.2d 485, to argue that simple 

negligence cannot be compared with willful misconduct. 

However, this Court recently overruled Derenberger in Martel 

v. Montana Power Co. (Mont. 1988), 752 P.2d 140, 45 St.Rep. 

460. Negligence in all forms can now be compared under 

Montana's comparative negligence statute, S 27-1-702, MCA. 

Martel, 752 P.2d at 143, (citing Bielski v. Schulze (Wis. 

1962), 114 N.W.2d 111-114). 

In light of the foregoing discussion, we must also 

conclude that the District Court erred in striking Cooper's 

claim for punitive damages during trial. First Nat. Rank of 
Libby v. Twombly (Mont. 1984), 689 P.2d 1226, 1229, 41 

St.Rep. 1948, 1953. The evidence in this case presented the 

jury with numerous questions of malicious, willful, wanton or 

reckless conduct which may have warranted an award of 

punitive damages. As the trier of fact, the jury was 

entitled to hear argument and jury instructions with respect 

to punitive damages. 

Reversed and remanded for a new trial. f 

f 

We concur: / 

&?!Z ustices 

~4a,J.~&,4 

Honorable ~ra& I. Qaswell. 

retired Chief Justice, sitting 

for Mr. Justice Fred J. Weber