No. 14491 

IN THE SUPREME COW OF THE STATE OF M3NTANA 

1979 

ScHAFER and DONNA SCHAFER, Parents 

and natural guardians of BETTY MAE SCHAFER, 

Plaintiffs and Appellants, 

STATE OF lDNTANA, DEPARTMENT OF 

rnSrITUTIONS, muJYTAIN VIEW SCHOOL, 

Defendants and Respondents. 

Appeal froan: District Court of the Second Judicial District, 

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 

Suldtted on briefs: January 24, 1979 

Decided: MAT! 2 1 im . - " k?' , jg& Filed : 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Plaintiffs Albert and Donna Schafer brought this action 

on ~pril 15, 1977, as parents and natural guardians of Betty 

Mae Schafer (Betty Mae) for personal injuries arising out of 

an automobile accident. The State Department of Institutions (the State) answered, alleging affirmative defenses of 

contributory negligence and supervening cause in addition to 

general denials of negligence and causation. 

On completion of discovery, the State filed a motion 

for summary judgment on the primary basis that, as a matter 

of law, none of the acts of 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, Silver Bow County, granted summary judgment in 

favor of the State. Schafers appeal from this order. 

The facts underlying this appeal begin in March 1973. 

At that time, Betty Mae, the true plaintiff in interest, was 

committed to the Mountain 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 

the Aftercare Services Bureau, responsible for supervising a 

child after release from Mountain View, are in the Corrections Division of the State Department of Institutions. 

Unfortunately, Betty Mae was not an ideal participant 

in either the Mountain View or Aftercare programs. She 

repeatedly ran away from Mountain View. When placed in a 

foster home in Harlem pursuant to a formal Aftercare agreement, she ran away and was, in fact, "kicked out" of that 

home, returning to Mountain View in October 1974. A 1975 

placement in a Job Corps program in Oregon was also unsuccessful because Betty Mae ran away. 
In January 1976, Betty Mae was again transferred to the 

foster home in Harlem. This time, while she had some problems, Betty Mae did obtain a job and, according to Aftercare 

personnel, her overall behavior improved. In September 

1976, she requested and received an authorized leave for a 

home visit to Anaconda for ten days. According to her 

deposition, Betty Mae had made such visits previously without incident, always returning when she was supposed to. 

This time, however, Betty Mae decided to stay in Anaconda 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 to remain in Anaconda. 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 to Harlem 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 into her 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 at which 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 to Butte at night on an icy highway at a speed 

in excess of 80 miles per hour. He lost control of his 

vehicle, and it rolled, throwing Betty Mae out. Stigen has 

admitted driving in a careless and negligent manner. This 

action was then brought seeking damages for the injuries 

sustained by Betty Mae. 

In its simplest form the issue presented for review is 

whether the trial court 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 State was 

negligent in failing to properly supervise Betty Mae in 

allowing her to remain in Anaconda and eventually to be 

injured in the automobile accident. In support of this 

theory, Schafers repeatedly cite to Betty Mae's past behavior, 

to the official reports and recommendations that she be 

closely supervised at all times, and to the failure of 

Aftercare to exercise 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 irresponsible behavior which the State was charged to control, we 

cannot agree that the responsibility or liability of the 

State extends 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 

liability for acts which might, under other circumstances, 

be negligent. The substance of foreseeability as it relates 

to negligence is that a defendant who could not foresee any 
danger of injury from his conduct or any risk from an intervening force is not negligent. Mang v. Eliasson (1969), 153 

Mont. 431, 436, 458 P.2d 777, 780. Absent foreseeability, 

there is no duty; absent duty, there is no negligence. 

Foreseeability is measured on a scale of reasonableness; it is not measured abstractly. Ford v. Rupple (1972), 

161 Mont. 56, 64, 504 P.2d 686, 691. The perspective is 

from the time of the allegedly negligent act: 

". . . in weighing the likelihood of harm, the 

seriousness of injury and the value of the interest to be sacrificed--the law judges the 

actor's conduct in the light of the situation 

as it would have appeared to the reasonable man 

in his shoes at the time of the act or 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, 153 Mont. at 436-37, 458 P.2d at-781. 

(Emphasis in original.) 

As the law is not concerned with what actually happened, 

neither is it concerned with mere possibilities: 

". . . Negligence carries with it liability for 

consequences which in the light of attendant 

circumstances could reasonably have been anticipated by a prudent man, but not for casualties 

which, though possible, were wholly improbable." 

Jackson v. William Dingwall Co. (1965), 145 Mont. 

127, 135, 399 P.2d 236, 240. 

Applying these principles to the facts of the case at 

hand, we are unable to see how the State could have possibly 

foreseen the sequence of events leading to Betty Mae's 

injuries. The intervening factors of (1) a possibly intoxicated third person (2) driving at night (3) too fast (4) on 

an icy road resulting in injuries to Betty Mae, who voluntarily chose to be 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 make 
the 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 in Lencioni 

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 is not bound to 

anticipate the general probability of such acts, 

any more than a particular act by 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 

are distinguishable on their facts. In both cases, a Job 

Corps enrollee injured a third person: in Gibson, by 

plunging a screwdriver through the temple of a Job Corps 

instructor; in Bjornemo, by smashing a stolen taxi into 

another vehicle at an intersection. In both cases the 

United States was held negligent for failing to properly 

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 in an automobile 

accident, an event which easily could have occurred no 

matter what type of supervision the State exercised over 

her, short of locking her in a room somewhere. Such restrictive detention is not 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 fact the 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 in her behavior, had secured proper permission 

to come to Anaconda for a home visit, and once in Anaconda 

had received permission to remain 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 to ease the transition from institution to 

community. Section 80-1414, R.C.M. 1947, now section 53-30- 

226 MCA. Indeed, the type of accident in which Betty Mae 

was involved could have happened as easily in Harlem with 

her foster parents driving as in Anaconda 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 at 579: 

"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 is ordinarily a question for the 

jury whether the result should reasonably have 

been foreseen. Even though the facts are not 

disputed, if there ---- is room for a reasonable 

differenceof opinion as to whether an intervening act was negligent and foreseeable, the 

question is one for the jury." (Emphasis added.) 

Accord, Stenberg v. 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, as did the District Court, 

that there is no "room for a reasonable difference of opinion 

as to whether [the State's] act was negligent and foreseeable." If we were to adopt Schafers' position, every negligence case would have to go to the jury, thus eliminating 
the summary judgment procedure which is a part of our legal 

process. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice