No. 91-281 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

UNITED STATES FIDELITY 

AND GUARANTY COMPANY, 

Plaintiff and Appellant, 

MIKE CAMP, as Phillips County Sheriff, 

and FWNDALL KIM BROADBROOKS, 

Defendants and Respondents, 

APPEAL FROM: District Court of the Seventeenth Judicial 

District, In and for the County of Phillips, 

The Honorable Leonard H. Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph M. Sullivan, Emrnons & Sullivan, 

Great Falls, Montana 

For Respondent: 

Norman H. Grosfield, Utick & Grosfield, 

Helena, Montana 

Submitted on Briefs: September 24, 1991 

Decided: April 30, 1992 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Plaintiff/appellant United States Fidelity and Guaranty 

Company brought an action in negligence to recover moneys paid to 

its insured for damages resulting from a fire in an apartment 

building. The suit named as defendants Randall Broadbrooks, who 

allegedly started the fire, and Phillips County Sheriff Mike Camp. 

Broadbrooks was an escapee from the Phillips County Jail at the 

time of the fire. Broadbrooks never appeared in the action and a 

default judgment was entered against him. Defendant/respondent 

Camp moved for summary judgment which was granted by the Phillips 

County District Court. It is from this grant of summary judgment 

that USF&G appeals. We affirm. 

The following issues are raised on appeal: 

1. Did the District Court err in finding that as a matter of 

law the USF&G negligence action must fail because the required 

element of proximate cause could not be proven? 

2. Did the District Court err in determining that Sheriff 

Camp was immune from suit under the judicial immunity statute found 

at 5 2-9-112, MCA? 

3. If Sheriff Camp enjoyed judicial immunity, was it waived 

to the extent that there was insurance coverage for the liability? 

The appellant made a number of arguments under issue two 

concerning the District Court's determination that the respondent 

enjoyed judicial immunity for the alleged acts of negligence. 

Appellant argued that a sheriff would not, under these 

circumstances, be entitled to rely on the immunity granted to the 
judiciary. Additionally, appellant contended that a finding that 

the sheriff had judicial immunity violated the separation of powers 

doctrine as set forth in Article 111, Section 1, of the Montana 

Constitution, and that such a finding reinvoked sovereign immunity 

in contradiction to Article 11, Section 18, of the Montana 

Constitution. concerning issue three, the appellant argued that 

pursuant to this Court's recent decision in Crowell v. School 

District No. 7 of Gallatin County (1991), 247 Mont. 38, 805 P.2d 

522, any immunity was waived to the extent that insurance coverage 

existed for the liability. We will not address issues two and 

three in this opinion, as our decision concerning the first issue 

requires that we affirm the decision of the District Court. 

On September 23, 1987, Randall Broadbrooks pled guilty to 

Driving While Under the Influence of Alcohol, Fourth Offense, and 

Driving While an Habitual Traffic Offender. The District Court 

sentenced Broadbrooks to one year in the county jail, but suspended 

all but three months of the sentence. The three months not 

suspended were to be served under a work release arrangement in 

which Broadbrooks would be released from the jail each week day 

from 8 a.m. to 5 p.m. in order to continue his employment as 

janitor for the Phillips County Courthouse complex. 

The Phillips County Sheriff's Department had no set procedure 

for work release inmates. The sheriff's department did not attempt 

to monitor Broadbrooks during release time to ensure that he 

remained within the confines designated in the work release 

arrangement. The method used to keep track of the time at which 
Broadbrooks left in the morning and returned in the evening was not 

entirely accurate. In fact, not all of the law enforcement 

officers of the sheriff's department were even aware of when 

Broadbrooks was to be released and returned, or where he could go 

while he was released. 

On the evening of Friday, October 2, 1987, Broadbrooks did not 

return to the jail at 5 p.m. as required by the work release 

arrangement. At this point, the officer on duty called the 

undersheriff to inform him that the inmate had not returned. The 

undersheriff directed the officer on duty to try and locate the 

inmate and incarcerate him. 

The officer on duty went to Broadbrooks' apartment and knocked 

on the door, but did not find Broadbrooks. The officer then went 

to the home of a female friend of Broadbrooks, but he was not 

there. The officer checked a local bar in Malta where he learned 

that Broadbrooks had been in earlier and purchased a six-pack of 

beer and left. After supper, the officer again checked with 

Broadbrooks' female friend and went back to Broadbrooks1 apartment 

but did not locate him. A warrant to enter Broadbrooks' apartment 

was not sought and no additional members of either the sheriff's 

department or the city police were involved in the search. 

During the early morning hours of Saturday, October 3, 1987, 

at approximately 2:30 a.m., a fire broke out at Broadbrooks' 

apartment. The origin of the fire has not been judicially 

determined, but for purposes of this appeal both parties concede 

that the fire was started when a cigarette Broadbrooks was smoking 
fell and ignited a couch in the apartment. Broadbrooks awoke at 

some point after the fire had started and was able to escape 

without injury. 

The officer who had been on duty the previous evening when 

Broadbrooks failed to return to the jail again went to the home of 

Broadbrooks' female friend at about 4 a.m. on Saturday morning. 

She informed the officer that Broadbrooks was passed out in her 

apartment. The officer did not take Broadbrooks into custody at 

this time, but did inform the sheriff's office of his whereabouts. 

Finally, around 9 a.m. on Sunday the undersheriff went to the 

residence of Broadbrooks' female friend and took him into custody. 

Appellant brought this action as a subrogation claim to 

recover amounts paid to appellant's insureds, the owners of the 

apartment building damaged by the fire. Appellant named 

Broadbrooks as a defendant, alleging that he was negligent in 

starting the fire. Appellant also brought suit against Mike Camp, 

as Phillips County Sheriff, for negligently allowing Broadbrooks to 

escape and for negligently failing to apprehend Broadbrooks once 

the escape was discovered several hours after the fact. 

Broadbrooks did not appear in the action and a default judgment was 

entered against him on March 28, 1990. Respondent Camp moved for 

summary judgment on November 28, 1990, and appellant filed a 

cross-motion for partial summary judgment on December 28, 1990. On 

March 15, 1991, the District Court granted respondent's motion for 

summary judgment and denied appellant's motion for partial summary 

judgment. Following a motion to reconsider, which the District 
Court denied, a judgment in favor of the respondent was entered on 

April 26, 1991. 

Did the District Court err in finding that as a matter of law 

the appellant's negligence action must fail because the required 

element of proximate cause could not be proven? 

Appellant contends that while the issue of proximate cause was 

before the District Court by way of the respondent's motion for 

summary judgment, the District Court did not even reach the issue 

of proximate cause. It is clear from reading the memorandum, 

opinion, and order of the District Court that the primary basis for 

granting respondent's motion for summary judgment was the District 

Court's finding that the respondent enjoyed judicial immunity. 

However, the court also stated that based upon the reasoning in 

several recent decisions of this Court, the respondent was entitled 

to summary judgment on the grounds that appellant could not meet 

the required element of proximate cause necessary to maintain an 

action for negligence. The court did not elaborate on the issue of 

proximate cause as a basis for granting the summary judgment motion 

because the court had "already determined that Defendant's Motion 

for Summary Judgment should be granted on the grounds of judicial 

immunity." While there was no detailed discussion of the issue of 

proximate cause, the District Court did rule on the issue and it is 

properly before this Court on appeal. 

In order to maintain an action in negligence, this Court has 

stated that a plaintiff must prove four elements: 

1. Existence of a duty; 
2. Breach of the duty; 

3. Causation; and 

4. Damages. 

Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126. 

All of these elements are necessary to successfully bring an action 

in negligence. In this case, the respondent has alleged that the 

third element, causation, cannot be proven by the appellant. 

This Court has separated the element of causation into two 

separate components, causation in fact, and proximate or legal 

causation, both of which must be proven to prevail in an action for 

negligence. Young v. Flathead County (1988), 232 Mont. 274, 757 

P.2d 772. Prior to the Youns decision, the distinction between 

causation in fact and proximate causation was not generally 

recognized in Montana. However, in Younq this Court adopted a 

two-tier analysis to determine if a defendant's breach of duty 

caused a plaintiff's injury. We have subsequently explained this 

analysis stating that: 

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. 

Kiger v. State Dept. of Institutions (1990), 245 Mont. 457, 459, 

802 P.2d 1248, 1250. The first step in the analysis is to 

determine if the defendant's breach of duty was the cause-in-fact 

of the plaintiff's injury or damage. Concerning cause-in-fact we 

have stated that: 
Causation in fact can be established in one of two ways. 

Normally, the 'but for1 test is used. Under the 'but 

fort test, causation in fact is established simply by 

proving that the plaintiff's injury would not have 

occurred 'but for7 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. 

Kitchen Krafters v. Eastside Bank of Montana (1990) 242 Mont. 155, 

167, 789 P.2d 567, 574. In some unusual circumstances, 

cause-in-fact may also be established by application of the 

"substantial factor test." However, in this case cause-in-fact is 

clearly established through the llbut-foru test. 

Once cause-in-fact is established, the plaintiff must still 

prove that the defendant's conduct proximately caused the 

plaintifffs injury. Kitchen Krafters, 789 P.2d at 574. This 

second tier of analysis in considering causation is necessary 

because : 

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 flproximatell or "legaln 

cause. 

Kiqer, 802 P.2d at 1250. Proximate cause is analyzed in terms of 

foreseeability . I1A defendant is liable for his wrongful conduct if 

it is reasonably foreseeable that plaintiff s injury may be the 

natural and probable consequence of that conduct. " Thayer v. nicks 

(lggo), 243 Mont. 138, 155, 793 P.2d 784, 795. In Younq, we 

defined proximate cause stating that "proximate cause is one which 
in a natural and continuous sequence, unbroken by any new, 

independent cause, produces injury . . . ." Youns, 757 P.2d at 

777. However, not all intervening causes will act so as to absolve 

the defendant of liability. The chain of causation will only be 

broken, thereby cutting off the defendant's liability, if the 

intervening cause is reasonably unforeseeable. Thayer, 793 P.2d at 

795. However, if the intervening cause is one that the defendant 

might reasonably foresee as probable, or one that the defendant 

might reasonably anticipate under the circumstances, then the 

intervening act does not absolve the defendant of liability. 

Nehring v. LaCounte (19861, 219 Mont. 462, 712 P.2d 1329. 

In this case, the respondent is not liable in negligence for 

the intervening acts of Broadbrooks and the consequences that 

followed such acts if, applying the ordinarily prudent person 

standard, they were not reasonably foreseeable by the respondent. 

Kiqer, 802 P.2d at 1251. In this instance, Broadbrooks escaped, 

apparently became intoxicated, passed out in his apartment while 

smoking, and then started a fire when he allowed his cigarette to 

fall onto the couch. We hold that such actions and their 

consequences were not reasonably foreseeable and act as supervening 

causes of appellant's injury, thereby absolving the respondent of 

liability. 

Appellant contends that the issue of foreseeability is one for 

the jury to decide. While the issue of foreseeability is generally 

an issue for the jury, this Court has held that when it is clear 

that plaintiff cannot prove by a preponderance of the evidence that 
the defendant proximately caused the injury in question then 'Ithe 

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

purposes of summary judgment.f1 Kiqer, 802 P.2d at 1251. The 

District Court did not err in granting summary judgment for the 

respondent in this case. 

The judgment of the District Court is affirmed. 

We concur: 
Justice Terry N. Trieweiler specially concurring. 

I concur in the result arrived at by the majority opinion. 

However, I do not agree with all that is said therein about the 

discussion of foreseeability in the context of proximate cause. I 

would hold that foreseeability is an element of duty and that none 

was established under the facts in this case.