No. 14491 INTHE SUPREMECOWOF THE STATE OF M3NTANA 1979

ScHAFER

### and DONNA

### SCHAFER,Parents 

### and natural guardians of BETTY MAE 

### SCHAFER, Plaintiffs andAppellants,

STATE OF lDNTANA, DEPARTMENT OF rnSrITUTIONS, muJYTAINVIEW 

### SCHOOL, Defendants and Respondents.
Appeal froan: DistrictCourt of the Second JudicialDistrict, Honorable

### James D. Freeborn, Judge presiding. Counsel of Record: For Appellants: Jack M. Scanlon, Anaconda, mntana Garrity, Keegan and Brown, Helena, mntana For Respondents: Garlington, I;ohn 

### and Robinson, Missoula, Mntana

Suldttedonbriefs: January 24, 1979 Decided: 

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## jg& Filed:Mr. 

### ~ustice Gene B. 

### Daly delivered the Opinion of the Court. PlaintiffsAlbert and Donna Schafer brought this action
on ~pril 15, 1977, as parents and natural guardians of Betty Mae 

### Schafer (BettyMae) for personal injuries arising outof
an automobile accident. The StateDepartment of Institutions (theState) answered, alleging affirmative defenses of contributory negligence and supervening cause inaddition to general denials of negligence and causation. On completion of discovery, the State filed a motion for summary judgment on theprimary basis that, as a 

### matter of law, none of the actsof the State

### were negligent nor did they constitute the proximate cause of Betty Mae's injuries. On August 1, 

### 1978, the District 

### Court of the Second Judicial District, 

### SilverBow County, granted summary judgment in favor of the State. Schafers appeal from thisorder. The factsunderlying this appeal begin inMarch 1973. At

### that time, 

### Betty Mae, the true plaintiff ininterest, was committed to theMountain View 

### School for Girls

### under order of the District 

### Court of the Third Judicial District. 

### She
was 

### then thirteen years old. Both Mountain View 

### School and theAftercare Services Bureau, responsible for supervising a child after release from Mountain View, 

### are inthe Corrections Division of the StateDepartment of Institutions. Unfortunately, Betty Mae was not an idealparticipant ineither theMountain View 

### orAftercare programs. She repeatedly ran away from Mountain View. 

### When placed ina foster home inHarlem pursuant toa formal Aftercare agreement, she ran away and was, infact, "kicked out" of that home, returning toMountain View 

### inOctober 1974. A 

### 1975 placement ina Job Corps program inOregon was alsounsuccessfulbecause Betty Mae 

### ran away.In January 1976, Betty Mae 

### was again transferred to the foster home inHarlem. This time, while she had some prob

### lems, Betty Mae did obtain a job and, according toAftercare personnel, her overall behavior improved. In September 1976, she requested and received an authorized leave for a home visit toAnaconda for ten days. According toher deposition, Betty Mae had made such visitspreviously without incident, always returning when she 

### was supposed to. This 

### time, however, Betty Mae decided to stay inAnaconda and find a job. She contacted the local Aftercare counselor for an extension of her leave for an additional week until she found a job. The counselor gave her permission to do that. Betty Mae did find a job, but apparently
a decision had not yet been made as to the wisdom of allowing Betty Mae toremain inAnaconda. Her parents saw no problem, but both the Deer Lodge County truancy officer and the Anaconda City Police juvenile officer 

### were opposed. No formal modification of the original Aftercare agreement transferring Betty Mae toHarlem was executed. Betty Mae's activities during this home visit are disputed by the parties. It appears she stayed with her parents for a few days but eventually moved intoher sister's apartment. There 

### is also some indication in the record that she frequented local taverns, although the Aftercare workers deny any knowledge of these activities. It does appear undisputed that Betty Mae did attend parties atwhich she consumed liquor and used drugs. It 

### was following such 

### a party that the automobile accident giving 

### rise to the instant litigation occurred. On October 18, 1976, after leaving a party, Betty ~ae was a passenger in a car driven by Mark Stigen. Stigen was driving

### from Anaconda toButte atnight on an icy highway ata speed inexcess of 80

### milesper hour. He 

### lostcontrol of his vehicle, and itrolled, throwing Betty Mae out. Stigen has admitted driving ina careless and negligent manner. This actionwas then brought seeking damages for the injuries sustained by Betty Mae. In its simplest form the issuepresented for review is 

### whether the trialcourt properly granted summary judgment in favor of the State. The Schafers' theory of the case, and the reason suit
was 

### brought against these defendants, is 

### that the Statewas negligent infailing toproperly supervise Betty Mae in allowing her toremain inAnaconda and eventually tobe injured inthe automobile accident. In support of this theory, Schafers repeatedly cite toBetty Mae's past behavior, to the official reports and recommendations that she be closely supervised atalltimes, 

### and tothe failureof Aftercare toexercise this supervision during the days immediately prior to the accident. From this sequence of events, Schafers would hold the State liable for the injuries Betty Mae suffered. While we

### agree that Betty Mae had a history of irresponsiblebehavior which the Statewas charged to control, we 

### cannot agree that theresponsibility or liability of the Stateextends to the incident involving or injuries incurred by Betty Mae under the circumstances. The crux of this case is 

### the element of negligence known as foreseeability. This element serves as 

### a limit

### on liabilityfor actswhich might, under other circumstances, be negligent. The substance of foreseeability as it relates 

### tonegligence is 

### that a defendant who could not foresee anydanger of injury from his conduct or any risk from an intervening force 

### isnot negligent. Mang v. Eliasson (1969), 153 Mont. 431, 436, 458 P.2d 777, 780. Absent foreseeability, there isno duty; absent duty, there 

### is no negligence. Foreseeability ismeasured on a scale of reasonableness; 

### it is not measured abstractly. Ford 

### v. Rupple (1972), 161Mont. 56, 64, 504 P.2d 686, 691. The perspective 

### is from the time of the allegedly negligent act: 

# ".

. . inweighing the likelihood of harm, the seriousness of injury and the value of the in

### terest tobe sacrificed--the law judges the actor's conduct inthe lightof the situation as itwould have appeared to the reasonable man inhis shoes atthe time of the actor omission complained of. Not what actually happened, but what the reasonably prudent person would then have foreseen 

### as likely to

### happen, is the key to the question ofreasonableness 

# . . ." Mans v. ~liasson, 153Mont. 

### at 436-37, 458 P.2d at-781. (Emphasis inoriginal.) As the law isnot concerned with what actually happened, neither 

### is it concerned with 

### merepossibilities: 

# ".

. . Negligence 

### carries with 

### it liabilityfor consequences which inthe lightof attendant circumstances could reasonably have been anticipated by 

### a prudent man, but not for casualties which, though possible, 

### werewholly improbable." Jackson 

### v. William Dingwall Co. (1965), 145Mont. 127, 135, 399 P.2d 236, 240. Applying these principles to the facts of the case at hand, 

### we areunable to 

### see how the State could have possibly foreseen the sequence of events leading toBetty Mae's injuries. The intervening factors of 

### (1)a possibly intoxicated third person (2) driving 

### atnight (3) too fast 

### (4) on
an icy road resulting ininjuries toBetty Mae, who voluntarily chose tobe a passenger in the automobile, completely
sever any liability for any alleged negligence on the part of the State. To stretch the concept of foreseeability to this extent 

### is to do away with the element entirely and makethe State the absolute insurer of any person under 

### its supervision. Furthermore, with regard to the foreseeability of the acts of third persons, this Court stated inLencioni
v. Long (1961), 139 Mont. 135, 139, 361 P.2d 455, 457: "I. 

# . . Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he 

### isnot bound to anticipate the general probability of such acts, any more than a particular actby this or that individual. 

# . .1 11 This statement applies to the foreseeability by the State of Stigen's negligent driving. Schafer relies on the similar cases of Gibson v. United States (3rd Cir. 1972), 457 F.2d 1391, and Bjornemo v. United States (D. Mont. 1976), No. CV-75-73-BU. These cases
aredistinguishable on their facts. Inboth cases, a Job Corps enrollee injured a third person: in Gibson, by plunging 

### a screwdriver through the temple of a Job Corps instructor; inBjornemo, by smashing a stolen taxi into another vehicle atan intersection. Inboth cases the United Stateswas held negligent for failing toproperly supervise and restrain the enrollees who were known to have behavior problems. In the instant case, however, 

### it was not Betty Mae who, because of lack of restraint, injured a third party. Instead, she was a "passive" participant inan automobile accident, an event which easily could have occurred no matter what type of supervision the State exercised over her, short of locking her ina room somewhere. Such restrictive detention 

### isnot the goal of our juvenile institutions and programs. See section 80-1410, R.C.M. 1947, now section 53-30-202 MCA. Nor do the statutes governing these programs impose such a duty upon them. See sections 80-1401, -1410, R.C.M. 1947, now sections 53-1-201, 53-30-202 MCA.In short, the factthe accident occurred 

### as it did had
no relation to the State's course of action immediately prior to the accident. Betty Mae 

### was showing an apparent improvement inher behavior, had secured proper permission tocome toAnaconda for a home visit, and once inAnaconda had received permission toremain and look for a job which she found. Under the circumstances the State could not be called negligent, especially when the purpose of the Aftercare program 

### is toease the transition from institution to community. Section 80-1414, R.C.M. 1947, now section 53-30- 226 MCA. Indeed, the type of accident inwhich Betty 

### Mae
was involved could have happened as easily inHarlem with her foster parents driving 

### as inAnaconda with Mark Stigen driving. Finally, Schafers argue that the element of foreseeability always creates an issue for the jury and quote the following excerpt from 57 Am.Jur.2d Negligence 5205 at579: "Where 

### it 

### is claimed that the defendant's act was not the proximate cause of the injury because the result could not reasonably have been foreseen, 

### it 

### isordinarily a question for the jury whether the result should reasonably have been foreseen. Even though the facts 

### are not disputed, if there 

### ---- isroom for a reasonable differenceof opinion as towhether an intervening act

### was negligent and foreseeable, the question isone for the jury." (Emphasis added.) Accord, Stenbergv. Beatrice Foods Co. (1978), Mont

# .

, 576 P.2d 725, 727, 35 St.Rep. 294, 296. The emphasized portions of this quote point out the weakness of Schafers' argument. We conclude, asdid the District Court, that there isno "room for a reasonable difference of opinion
as towhether [theState's] actwas negligent and foreseeable." If 

### wewere toadopt Schafers' position, every negligence case would have togo to the jury, thus eliminatingthe summary judgment procedure which 

### is a part of our legal process. The judgment of the District Court 

### is affirmed.

We concur:

Chief Justice