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No. 98-345

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 221

JONATHAN CUSENBARY, 

Plaintiff and Respondent,

v.

GLEN A. MORTENSEN, d/b/a

TOWN TAVERN,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Matthew Hutchison, McPherson & Hutchison; Great Falls, Montana

For Respondent:

Norman L. Newhall & J. Kim Schulke; Linn Newhall, Martin & Schulke;

Great Falls, Montana

Submitted on Briefs: February 11, 1999 

Decided: September 22, 1999

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

1. ¶On July 2, 1996, Jonathan Cusenbary brought this action in the Eighth Judicial 

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District Court, Cascade County, to recover damages he suffered after being injured 

on July 28, 1993, by a vehicle driven by James Wells. Cusenbary brought this action 

against Glen Mortensen doing business as the Town Tavern for serving Wells 

alcohol immediately prior to the incident. On March 30, 1998, a jury returned a 

verdict against Mortensen in the amount of $750,000 and this appeal followed. We 

affirm the judgment of the District Court.

2. ¶The issues presented on appeal are as follows:

3. ¶1. Did the District Court abuse its discretion when it dismissed Mortensen's 

proposed jury instruction regarding his defense of intervening, superseding cause?

4. ¶2. Did the District Court err when it excluded evidence of criminal proceedings 

against James Wells which arose from this incident?

5. ¶3. Did the District Court err when it allowed evidence and testimony regarding 

James Wells' blood alcohol content and evidence regarding the amount of alcohol 

James Wells consumed prior to arriving at the Town Tavern?

6. ¶4. Did the District Court properly dismiss Mortensen's third party complaint and 

refuse to permit the jury to apportion the alleged negligence of James Wells, Pamela 

Wells, and Georgina Wells?

FACTUAL AND PROCEDURAL BACKGROUND

1. ¶James Wells suffered a broken neck in an automobile accident in 1991. Although 

initially paralyzed, Wells recovered to the point of being able to walk without a 

limp. When Wells consumes alcohol, however, he loses control of his legs.

2. ¶On the evening of July 28, 1993, Wells was driven to the Town Tavern in Great 

Falls, Montana by his niece. Glen Mortensen owns the Town Tavern. Several 

members of Wells' family including Katherine Wells, Pamela Wells, and Georgina 

Wells assisted Wells from the vehicle into the Tavern. Witnesses also saw Wells' 

family members helping him to move from a chair at a table in the Tavern to his 

wheelchair, and assisting him to the restroom. After approximately two hours in the 

Tavern, Wells' family members pushed him out of the Tavern and placed him in the 

passenger side of a vehicle. Wells estimated that he had consumed "about eight" 

beers while in the Tavern.

3. ¶Tavern patron Korey McGaffey observed Wells' behavior while Wells was in the 

Tavern. To McGaffey, Wells was "obviously drunk, in a bad mood." McGaffey 

observed Wells shout and yell and saw him "tip over and hold his head in his hand 

and swerve and weave up and yell." He saw Wells "pound a drink and slam it 

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down," and noticed that Wells' speech was "very slurred." He also noticed that 

Wells would get "real quiet and groggy down and explosively snap up and start 

barking at people." To McGaffey, Wells was "very obviously" intoxicated. 

McGaffey recalls being relieved when Wells finally left because other patrons were 

"trying to avoid" Wells and because Wells had created a "bad situation."

4. ¶Another patron, Jarrod Hall noticed Wells immediately after entering the bar 

because Wells was "loud, obnoxious, and acting intoxicated." Hall recalls that Wells 

was arguing and talking loudly and was "obviously intoxicated." He also noticed 

that Wells' speech was "very slurred" and hard to understand.

5. ¶While sitting in the car, Wells apparently moved into the driver's seat of the 

vehicle, started the vehicle, and drove it through the south wall of the Tavern 

injuring Jonathan Cusenbary, another patron of the Tavern. Wells was arrested, 

charged, and pled guilty to several felonies. He was sentenced to 20 years in prison. 

Wells testified that he has no recollection of driving through the Tavern wall and 

believes he was "too intoxicated to exercise good judgment."

6. ¶Toxicologist Dr. Brian Finkle estimated that Wells' blood alcohol concentration 

(BAC) at the time of the accident was between .28 percent and .30 percent. Dr. 

Finkle identified slurred speech, staggered walk, talkativeness, and "fighting" 

behavior as subjective signs of intoxication that can be readily observed and which 

most people recognize as drunkenness. Dr. Finkle stated that as a person's blood 

alcohol concentration increases, the subjective signs of intoxication such as slurred 

speech also increase. Dr. Finkle also stated that an estimated blood alcohol 

concentration of .28 percent to .30 percent is "very high" such that it would "most 

certainly" render a person visibly "grossly intoxicated." He testified that such 

persons have "great difficulty" with speech; their personality is distorted, and they 

may be on the verge of falling asleep or "fighting and antagonistic." Dr. Finkle 

testified that "without question" Wells would have been showing obvious signs of 

intoxication at least one hour prior to the incident.

7. ¶Jonathan Cusenbary commenced the present action by filing a complaint against 

Glen Mortensen, d/b/a/ Town Tavern, for the injuries he received as a result of 

Wells' conduct. Cusenbary claims that Mortensen's employees "negligently served 

intoxicating liquors and alcoholic beverages to James Wells" when Wells was 

already visibly intoxicated. Cusenbary alleges that Mortensen violated § 27-1-710, 

MCA, the dram shop act, when he furnished alcoholic beverages to a person who is 

"visibly intoxicated."

8. ¶Mortensen asserted as an affirmative defense that Wells' conduct of driving the 

vehicle through the Tavern wall was an intervening, superseding cause which was 

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not reasonably foreseeable to Mortensen and thus severed the chain of causation. 

The District Court excluded all evidence that Wells' actions were intentional, that he 

had been convicted of several felonies for his actions, and that he was sentenced to 

serve 20 years in the Montana State Prison. The District Court dismissed 

Mortensen's affirmative defense and ruled Wells' conduct did not constitute an 

intervening, superseding cause and was foreseeable as a matter of law. The District 

Court also denied all of Mortensen's instructions that related to this defense.

9. ¶By third party complaint, Mortensen sued James Wells, Pamela Wells, and 

Georgina Wells. Cusenbary released these third party defendants and the District 

Court dismissed Mortensen's complaint against them. The District Court limited 

Mortensen's defense to the sole issue of whether Wells was visibly intoxicated and 

refused to allow the jury to apportion any percentage of negligence to the third party 

defendants.

ISSUE I

1. ¶Did the District Court abuse its discretion when it denied Mortensen's proposed 

jury instruction regarding his defense of intervening, superseding cause?

2. ¶On appeal Mortensen claims that Cusenbary's damages proximately resulted from 

an intervening, superseding, new and independent cause which was not reasonably 

foreseeable to Mortensen and thus severed the chain of causation from his original 

negligent acts. He maintains that the District Court erred when it dismissed his jury 

instruction regarding this affirmative defense and concluded that Wells' conduct was 

foreseeable. He maintains that the District Court should have left the issue of 

foreseeability for the jury to decide.

3. ¶A district court has discretion regarding the instructions it gives or refuses to give 

and will not be reversed absent an abuse of discretion. See Busta v. Columbus Hosp.

(1996), 276 Mont. 342, 359, 916 P.2d 122, 131; Lacock v. 4-B's Restaurant (1996), 

277 Mont. 17, 20, 919 P.2d 373, 375. When reviewing an instruction to determine 

whether it was properly refused, the appellate court considers the instructions in 

their entirety, as well as in connection with the other instructions given and the 

evidence at trial. See Busta, 276 Mont. at 359, 916 P.2d at 131; Lacock, 277 Mont. 

at 20-21, 919 P.2d at 375. It is not reversible error to refuse an offered instruction 

unless the refusal affects the substantial rights of the party proposing the instruction. 

See Busta, 276 Mont. at 360, 916 P.2d at 132; Lacock, 277 Mont. at 21, 919 P.2d at 

375. A party is not prejudiced by a refusal of his or her proposed instructions when 

the subject matter of the instruction is not supported by the evidence introduced at 

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trial. See Busta, 276 Mont. at 360, 916 P.2d at 132.

4. ¶The issue of causation requires a determination, ordinarily by the fact finder, that a 

defendant's conduct helped produce the injury and that the injury would not have 

occurred without it. As we explained in Estate of Strever v. Cline (1996), 278 Mont. 

165, 175, 924 P.2d 666, 672, however, in cases involving alleged intervening 

causes, foreseeability is properly considered with respect to causation. According to 

the facts presented here, we conclude as we did in Strever, that failure of proof of 

causation can be determined as a matter of law.

5. ¶Accordingly, we review a district court's conclusions of law to see whether the 

courts interpretation of the law is correct. See Carbon County v. Union Reserve Coal 

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department 

of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04); see also Kreger 

v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674. 

6. ¶In order for Cusenbary to prevail against Mortensen on a claim for negligence, he 

must establish the following: (1) the existence of a legal duty from Mortensen to 

Cusenbary; (2) a breach of that duty; (3) causation; and (4) damages to Cusenbary. 

See White v. Murdock (1994), 265 Mont. 386, 389, 877 P.2d 474, 476. If a plaintiff 

is unable to establish any one element, the negligence claim fails. See White, 265 

Mont. at 389-90, 877 P.2d at 476; Dvorak v. Matador Serv., Inc. (1986), 223 Mont. 

98, 107, 727 P.2d 1306, 1311.

7. ¶The dram shop act codified at § 27-1-710, MCA, provides that a tavern owner is 

liable for foreseeable injury-producing accidents of a patron if the tavern owner 

provided alcohol to a "visibly intoxicated" patron. Section 27-1-710 (3)(b), MCA, 

provides in relevant part:

(3) Furnishing a person with an alcoholic beverage is not a cause of, or grounds for 

finding the furnishing person or entity liable for, injury or damage wholly or partly arising 

from an event involving the person who consumed the beverage unless:

. . . .

(b) the consumer was visibly intoxicated. 

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Mortensen has maintained that it was not foreseeable to him or his employees at the Town 

Tavern that a wheelchair-bound patron, apparently disabled in such a manner and to such 

an extent that he was to all appearances incapable of operating his wheelchair himself, and 

assisted by family members, would somehow get into the driver's seat of a vehicle and 

drive the vehicle through the wall of the Tavern.

1. ¶The District Court concluded that the conduct of Wells did not constitute an 

intervening, superseding cause and was foreseeable to Mortensen as a matter of law. 

2. ¶Cusenbary maintains that the District Court did not err because when an 

intervening cause is reasonably foreseeable it does not absolve the defendant of 

liability. See USF&G v. Camp (1992), 253 Mont. 64, 70, 831 P.2d 586, 589. 

Cusenbary notes the following facts to establish that the intervening cause--Wells 

driving a vehicle through the wall of the Tavern--was foreseeable: Wells was 

already intoxicated when he arrived at the Town Tavern; other patrons saw 

numerous signs of Wells' drunken behavior and observed that his intoxication was 

obvious; and the Town Tavern continued to serve alcohol to Wells for a period of 

approximately two hours by which time Wells was "grossly intoxicated." Cusenbary 

supports the District Court's conclusion that if one furnishes alcoholic beverages to 

such a person, it is reasonably foreseeable that the person will thereafter engage in 

drunken behavior that may endanger others.

3. ¶In order for Mortensen's conduct of serving alcohol to Wells to be considered a 

cause of Cusenbary's injuries, it must be a cause in fact, or actual cause of the 

injury. In this case, actual causation is not at issue. Rather, this case involves the 

allegation that the chain of causation was severed by an independent intervening act. 

However, not all intervening acts are independent. Those that are foreseeable do not 

break the chain of causation. In other words, if one of the reasons that makes a 

defendant's act negligent is a greater risk of a particular harmful result occurring, 

and that harmful result does occur, the defendant is generally liable. The test is 

based on foreseeability. See Camp, 253 Mont. at 69-70, 831 P.2d at 589.

4. ¶Mortensen claims, that unlike a direct cause case in which the facts present an 

uninterrupted chain of events from the time of the negligent act to the time of the 

plaintiff's injury, this case is one involving an independent, intervening cause. An 

intervening cause case is one in which the facts indicate that a force came into 

motion after the time of the defendant's negligent act and combined with the 

negligent act to cause the injury to the plaintiff. Whether an intervening force will 

cut off a defendant's liability for the plaintiff's injury is, once again, determined by 

foreseeability. See Strever, 278 Mont. at 175-76, 924 P.2d at 672.

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5. ¶Mortensen's theory is that in this case there was an intervening force that produced 

an unforeseeable result that supersedes and serves to break the causal connection 

between Mortensen's initial act of serving Wells alcohol, and Cusenbary's injury. He 

maintains that the intervening force was Wells' act of getting into the driver's seat of 

a vehicle and driving it through the Tavern wall. Mortensen maintains that this act 

itself becomes a direct, immediate cause of Cusenbary's injury and, thus, relieves 

Mortensen of liability for the consequences of his negligent act.

6. ¶In Busta we held that in direct cause cases--those in which no independent 

intervening forces are present, proof of causation is satisfied by proof that the 

defendant's conduct was the cause in fact or actual cause of the damage alleged, and 

no consideration of the concept of foreseeability is required on the issue of 

causation. See Busta, 276 Mont. at 373, 916 P.2d at 140. Otherwise, in all cases 

involving independent, intervening forces, we consider the question of 

foreseeability. 

7. ¶We have previously examined situations in which an alleged independent, 

intervening act potentially supersedes the original negligent act to relieve the 

defendant of liability, and we find this case to be dissimilar. In Strever, several 

youths including Strever and Cline, stole a gun from an unlocked vehicle. Some 

time thereafter, while Cline was attempting to remove the ammunition clip from the 

gun, the gun discharged, killing Strever. We affirmed the district court's grant of 

summary judgment in favor of the vehicle owner on the basis that the vehicle 

owner's negligence was superseded by the independent, intervening criminal and 

grossly negligent acts of Cline and his companions.

8. ¶In this case, unlike the act of leaving a vehicle unlocked, the act of Mortensen in 

serving alcohol to Wells is the very act which caused the conduct that resulted in the 

injury to Cusenbary. The consequences of serving alcohol to a person who is visibly 

intoxicated are reasonably foreseeable precisely because of the causal relationship 

between serving alcohol and drunken conduct. Wells' drunken conduct was not 

freakish, bizarre, or unpredictable as Mortensen asserts. Rather, drunken conduct is 

the expected, predictable, and therefore reasonably foreseeable outcome of serving 

alcohol to a person who is already intoxicated. As Justice Andrews explained in his 

dissent in the oft-cited decision of the Court of Appeals of New York in Palsgraf v. 

Long Island Railroad (1928), 162 N.E. 99, 104 (Andrews, J. dissenting):

The court must ask itself whether there was a natural and continuous sequence between 

cause and effect. Was the one a substantial factor in producing the other? Was there a 

direct connection between them, without too many intervening causes? Is the effect of 

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cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, 

to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen?

Cited in Busta, 276 Mont. at 361, 916 P.2d at 133. The situation presented in this case 

meets this standard.

1. ¶The facts of the present case and the facts in Strever both involve intervening 

causes. However, the intervening cause in Strever (criminal and grossly negligent 

acts by several juveniles) was not the foreseeable result of the original negligence 

complained of (leaving a vehicle unlocked). On the other hand, the intervening 

cause in the present case (Wells' drunken driving) is the reasonably foreseeable 

result of the original negligence complained of (Mortensen's serving of alcohol to 

Wells who was already intoxicated). In Strever, the affirmative defense of 

intervening, superseding cause applied. In this case it does not.

2. ¶Other cases involving intervening causes such as Camp and King v. State of 

Montana (1993), 259 Mont. 393, 856 P.2d 954, are distinguishable from this case on 

the same basis as Strever. In Camp, a prison escapee accidentally started a fire when 

he fell asleep and dropped a lit cigarette on a couch. USF&G sued the Phillips 

County Sheriff alleging negligence in allowing the escape. Similarly, in King, a 

mental patient murdered the plaintiff's son after escaping from the Montana State 

Hospital. Plaintiff sued the State alleging negligence in allowing the release.

3. ¶These cases are distinguishable because in Camp, the conduct which resulted in the 

injury (dropping a lit cigarette) was not the forseeable result of the negligent 

conduct complained of (negligence that allowed escape). Similarly, in King, the 

offending conduct (murder), was not the forseeable result of the negligence 

complained of (release of a mental patient). In contrast, as we held in Nerhing v. 

LaCounte (1986), 219 Mont. 462, 712 P.2d 1329, it is foreseeable that serving 

alcohol to one who is already intoxicated causes drunken conduct that may endanger 

others. 

4. ¶Because this case involves foreseeability with respect to a tavern owner and the 

application of the dram shop act, mention must be made of the application of 

foreseeability as it is specifically applied in liquor liability cases. Montana's earliest 

liquor liability case explained that dram shop liability evolved because it became 

widely known that an intoxicated patron may attempt to drive home from a bar or 

tavern and become involved in an accident. See Deeds v. U.S. (D. Mont. 1969), 306 

F.Supp. 348. In Deeds the court noted:

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The increasing frequency of serious accidents caused by drivers who are intoxicated is a 

fact which must be well known to those who sell and dispense liquor. This lends support 

to those cases which have found the automobile accident to be "the reasonably 

foreseeable" result of furnishing liquor to the intoxicated driver, at least where the person 

furnishing the liquor knew that the intoxicated person would be driving on a public 

highway.

Deeds, 306 F.Supp at 358. 

1. ¶In Jevning v. Skyline Bar (1986), 223 Mont. 422, 726 P.2d 326, we described what 

type of conduct is foreseeable to bar owners serving alcohol:

"[C]onsumption of the alcoholic beverages served, subsequent driving, and the likelihood 

of an injury-producing accident are foreseeable intervening acts which do not relieve the 

tavern owner of liability for negligence." Nehring, 712 P.2d at 1335, 43 St.Rep. at 99. In 

Bissett v. DMI, Inc., we held that a tavern owner who serves an intoxicated minor could be 

held liable for injuries sustained by that minor in a motor vehicle accident, and that the 

minor's acts in drinking alcoholic beverages served to her and then becoming involved in 

an injury-producing accident were reasonably foreseeable events that would no longer 

protect a defendant from liability for negligence. Bissett v. DMI, Inc., 717 P.2d at 547-48, 

43 St.Rep. at 255.

Jevning, 223 Mont. at 424, 726 P.2d at 327 (emphasis added).

1. ¶In Nehring, we also discussed foreseeability as it relates to tavern owners:

Both Deeds, 306 F.Supp. 348, and Johnson v. United States (D.Mont.1980), 496 F.Supp. 

597, considered Montana law on negligence and held the seller of alcoholic beverages 

liable to third parties injured by an intoxicated patron. After establishing the seller's duty 

to the injured party, Deeds discussed the element of causation and held that the operators 

who served alcoholic beverages 

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. . . could reasonably foresee or anticipate some accident or injury as a reasonable and 

natural consequence of their illegal and negligent acts, particularly in view of the ever 

increasing incidence of serious automobile accidents resulting from drunken driving. 

. . . .

We adopt this approach in the case at bar and hold that consumption of the alcoholic 

beverages served, subsequent driving, and the likelihood of an injury-producing accident 

are foreseeable intervening acts which do not relieve the tavern operator of liability for 

negligence.

Nehring, 219 Mont. at 469-70, 712 P.2d at 1334-35 (emphasis added).

1. ¶ When one consumes alcohol in Montana, subsequent driving resulting in an injuryproducing accident is an intervening act, but it is an intervening act we have 

determined to be reasonably foreseeable as a matter of law. We recognize that in 

this case the driver of the vehicle appeared to the tavern owner to be physically 

incapable to drive a vehicle and, thus, regardless of the amount of alcohol served, 

unable to cause an injury-producing accident. In fact, as Mortensen claims, Wells 

appeared to have been wheelchair-bound and under the complete care and 

supervision of his family. It is because of this that Mortensen argues that Wells' 

conduct functions to sever the otherwise foreseeable causal chain of events in a 

typical liquor liability case. We disagree.

2. ¶Pursuant to the dram shop act, § 27-1-710, MCA, a tavern owner is prohibited from 

furnishing alcoholic beverages to a person who is "visibly intoxicated." Nowhere in 

the statute exists a requirement that the tavern owner assess the medical condition of 

the patron in conjunction with the patron's level of intoxication. The tavern owner is 

simply responsible for assessing visible intoxication regardless of the physical 

ability and condition of the patron. Medical conditions vary from person to person 

and exhibit themselves in ways that individuals without medical training may not 

recognize or correctly interpret. This is obviously one such case. The bartenders at 

the Town Tavern were convinced that Wells was a quadriplegic when, in fact, his 

medical condition was far from that. Wells was able-bodied enough to get behind 

the wheel of a vehicle and drive. It is because of situations such as this that the only 

subjective symptoms that § 27-1-710, MCA, requires a tavern owner to interpret are 

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those which indicate visible intoxication.

3. ¶As we stated in Kieger v. State (1990), 245 Mont. 457, 462, 802 P.2d 1248, 1251, 

when reasonable minds could reach but one conclusion, the question of 

foreseeability may be determined as a matter of law. Accordingly, we conclude that 

as a matter of law Wells' conduct of driving a vehicle while intoxicated, through the 

wall of the Town Tavern, was a foreseeable intervening cause that did not serve to 

supersede or break the causal chain between Mortensen's original negligence and the 

injury to Cusenbary. The District Court correctly interpreted the law and did not 

abuse its discretion when it denied Mortensen's proposed jury instruction.

ISSUE 2

1. ¶Did the District Court err when it excluded evidence of criminal proceedings 

against James Wells which arose from this incident?

2. ¶Wells pled guilty to several felony charges as a result of this incident and was 

sentenced to 20 years in prison. Mortensen requested that the District Court take 

judicial notice of Wells' judgment of conviction and sentencing order. Mortensen 

also requested a limiting instruction that the conviction be admissible "only for the 

purpose of instructing the jury of the crimes of which Wells was sentenced and the 

necessary elements of each crime." The District Court denied Mortensen's requests 

and disallowed evidence of Wells' criminal proceedings. 

3. ¶On appeal, Mortensen claims that Wells' judgment of conviction was relevant to 

his principal defense that it was not foreseeable to Town Tavern personnel that a 

wheelchair-bound patron would somehow drive a vehicle through the wall of the 

building. Mortensen claims that Wells' act was intentional and, therefore, criminal. 

He argues that in Strever we held that one normally has less reason to anticipate acts 

on the part of others which are "malicious and intentionally damaging" and 

especially when "such acts are criminal." Strever, 278 Mont. at 176-77, 924 P.2d at 

672-73.

4. ¶However, we noted in Strever, 278 Mont. at 176, 924 P.2d at 673, that this rule 

applies "in the absence of any reason to expect the contrary." As discussed earlier, in 

Strever we concluded that the owner of an unlocked truck had no reason to 

anticipate the criminal and grossly negligent conduct of the youths who stole a gun 

from the truck. Here, Mortensen is the very person who served the alcohol that 

resulted in Wells' drunken conduct. Thus, Mortensen had every reason to "expect 

the contrary" that Wells would engage in drunken conduct.

5. ¶Mortensen concedes that the dram shop act and Montana case law have established 

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that it is foreseeable as a matter of law that an intoxicated tavern patron may drive a 

vehicle while intoxicated and that an injury-producing accident may result. 

However, he maintains that when this conduct is criminal and intentional, it 

supersedes the tavern owner's original liability. The question, however, is not 

whether Wells' conduct was criminal and intentional, but whether it was forseeable. 

As we discussed in Strever, some criminal conduct may be reasonably foreseeable. 

6. ¶Accordingly, we conclude that the District Court did not abuse its discretion 

because evidence of Wells' criminal convictions in relation to this matter are 

inadmissible for the same reasons that Mortensen's affirmative defense of 

intervening, superseding cause is inadmissible. It was reasonably foreseeable as a 

matter of law that Wells would engage in this type of drunken conduct.

ISSUE 3

1. ¶Did the District Court err when it allowed evidence and testimony regarding James 

Wells' blood alcohol content and evidence regarding the amount of alcohol James 

Wells consumed prior to arriving at the Town Tavern?

2. ¶We have held that a district court has broad discretion to determine whether 

evidence is admissible, and its evidentiary rulings should not be overturned absent 

an abuse of discretion. See Bueling v. Swift, 1998 MT 112, ¶ 24, 958 P.2d 694, ¶ 24.

3. ¶At trial, Mortensen contended that the test results of Wells' blood alcohol content 

taken by the hospital shortly after the incident were not admissible because the 

standard for civil liability pursuant to § 27-1-710, MCA, is "visible intoxication," 

rather than "legal intoxication." The District Court granted Mortensen's motion in 

limine and refused evidence of the BAC test results. The District Court later held, 

however, that if Cusenbary's expert on the issue of blood alcohol content, 

toxicologist Dr. Brian Finkle, could be qualified to give an opinion of blood alcohol 

content from a hypothetical situation, rather than from the hospital's BAC test 

results, then the court would allow the opinion. Based upon the District Court's 

ruling, Cusenbary did not introduce any evidence of the BAC test results from the 

hospital. Instead, Cusenbary's counsel asked Dr. Finkle a hypothetical based upon 

the testimony of Wells in which he had to estimate Wells' BAC content on the 

evening in question based upon Wells' own testimony of the number of drinks he 

consumed that evening.

4. ¶Mortensen asserts that Dr. Finkle's estimate of blood alcohol content should be 

excluded "because eye witness testimony is the only kind of evidence that is 

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relevant to the issue of how Wells appeared." However, Dr. Finkle expressly 

testified that there is a direct correlation between the level of alcohol in a person's 

blood and observable signs of intoxication. Dr. Finkle explained that the subjective, 

observable signs of intoxication include slurred speech, staggered walk, 

talkativeness, and fighting behavior. He explained that the more a person drinks the 

more severe and obvious the symptoms of intoxication become because there is a 

proportional relationship to the rising blood alcohol concentration and the severity 

of the symptoms of intoxication.

5. ¶It is apparent that the District Court agreed with Mortensen's contention that the 

BAC test results were not probative of the issue of visible intoxication at the time 

that Wells was served alcohol. However, based upon a hypothetical set of facts 

taken directly from the testimony of Wells and relating to the amount of alcohol 

consumed, the rate of consumption, and other variables, Dr. Finkle was able to 

estimate a range of Wells' probable blood alcohol concentration at the time of the 

accident. Thus, Dr. Finkle's testimony is not based upon BAC test results taken after 

the accident. Rather, he provided expert opinion testimony concerning his estimate 

of Wells' blood alcohol concentration at the time of the accident. As explained by 

Dr. Finkle, blood alcohol concentration at the time of the accident is directly related 

to the visible signs of intoxication that a person may exhibit.

6. ¶Accordingly, based upon Dr. Finkle's estimate of blood alcohol concentration, it 

was probable that Wells was displaying observable signs of intoxication while 

served alcohol by Mortensen. Therefore, we conclude that Dr. Finkle's opinion was 

relevant pursuant to Rule 401, M.R.Evid., and the District Court did not abuse its 

discretion.

ISSUE 4

1. ¶Did the District Court properly dismiss Mortensen's third party complaint and 

refuse to permit the jury to apportion the alleged negligence of James Wells, Pamela 

Wells, and Georgina Wells?

2. ¶Approximately nine months after Cusenbary filed his complaint, Mortensen filed a 

third party complaint against James Wells, Georgina Wells, Pamela Wells, Virginia 

Wells, Jane Does I-IV, and John Does I-IV. Having no insurance or other resources 

with which to defend the allegations in Mortensen's third party complaint, James, 

Georgina, and Pamela failed to appear. Virginia Wells could not be located in order 

to be served with the complaint. Mortensen took the default and now contends that 

by reason of their default James, Georgina, and Pamela admitted that Wells 

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negligently caused injuries to Cusenbary, and that they provided alcoholic beverages 

to Wells. Having determined that James, Georgina, and Pamela were judgmentproof, Cusenbary released each of them from liability for the nominal consideration 

of $1.

3. ¶With regard to Mortensen's claim that by default the third party defendants 

admitted Wells' negligence, it is well settled that an admission predicated upon a 

default is effective only against the particular party who makes the default, and does 

not bind any other party to the litigation. See 46 Am. Jur. 2d Judgments § 321. The 

admissions obtained by default against James, Georgina, and Pamela were 

admissible only on the issue of their negligence and not that of Mortensen. 

4. ¶Mortensen maintains that the release Cusenbary gave to the third party defendants 

was not in good faith pursuant to State ex rel. Deere & Co. v. District Court (1986), 

224 Mont. 384, 730 P.2d 396, because Pamela and Georgina were not indigent as 

Cusenbary claims they were. Our review of the deposition and testimony of the third 

party defendants, however, reveals otherwise. 

5. ¶James Wells has no income or property and is serving time in prison. Georgina 

Wells has a monthly income of $700 but no property, no bank account, and no cash 

or other assets. Pamela Wells has a stereo, television, a monthly income of $1219, 

and a 1980 pickup truck, but has no real property, no bank account, no home, and no 

cash. Based on this information we conclude that although these third party 

defendants have some nominal assets, they can be reasonably considered to be 

indigent and, therefore, the money paid and the release given in this case was in 

good faith.

6. ¶Mortensen further maintains that the jury was entitled to apportion fault to the 

settling third party joint tortfeasors even though those third parties were judgmentproof and released from liability by Cusenbary. This, however, is contrary to the law 

in Montana regarding apportionment of negligence among tortfeasors that controlled 

this case. In Newville v. State Department of Family Services (1994), 267 Mont. 

237, 247-49, 883 P.2d 793, 799-800, we noted that the 1987 amendments to § 27-1-

703, MCA (1981), were designed to apportion responsibility for a person's damages 

among all those who might have contributed as a cause of those damages in order 

that those defendants named by a plaintiff could avoid paying a judgment 

disproportionate to their respective degree of fault. We ultimately struck down the 

critical language in the 1987 amendments on due process grounds, concluding that 

the legislation lacked sufficient procedural safeguards to insure a fair apportionment 

of negligence to plaintiffs and unrepresented nonparties. See Newville, 267 Mont. at 

252, 883 P.2d at 802.

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7. ¶In response to Newville, the 1995 Legislature again amended § 27-1-703, MCA, 

reviving the nonparty defense which had been found unconstitutional, and inserting 

procedural requirements which had not been present in the 1987 version of the 

statute. In Plumb v. Fourth Judicial District (1996), 279 Mont. 363, 927 P.2d 1011, 

we addressed the 1995 amendments and noted that the legislation still lacked a 

mechanism for unnamed third parties to appear and defend themselves. We 

observed that pursuant to the statute it would be entirely possible that the negligence 

apportioned to an unrepresented party who had not appeared to defend himself or 

herself, would not be an accurate reflection of the true degree of that person's fault. 

See Plumb, 279 Mont. at 377-78, 927 P.2d at 1019-20.

1. ¶Mortensen contends that Plumb does not control the facts of this case. Mortensen 

argues that he filed a third party action against the Wells who were thus put on 

notice with an opportunity to defend themselves and hire counsel. Even though the 

defendants did not appear and their default was taken, Mortensen argues that this is 

an entirely different situation than Plumb in which the party was unnamed either as 

a defendant or third party defendant.

2. ¶An examination of Mortensen's third party complaint discloses that he was seeking 

contribution and indemnity from the Wells defendants. Once Cusenbary settled with 

these defendants, Mortensen's third party claim for contribution was extinguished. 

See Deere, 224 Mont. at 396-97, 730 P.2d at 404-05. At that point in time the same 

due process concerns we noted in Newville and Plumb appeared. There is no 

mechanism provided in § 27-1-703, MCA (1995), by which the negligence of 

nonparties, including third party defendants released from liability, can be fairly 

apportioned by a jury.

3. ¶Mortensen points out that in Whiting v. State (1991), 248 Mont. 207, 810 P.2d 

1177, the state was allowed to apportion negligence against a defendant who had 

previously settled with the plaintiff. Our review of Whiting, however, discloses that 

the issue of apportionment was never raised by the plaintiff, at least on appeal. In 

Whiting, the state argued that it should not be responsible for all the damages when 

the jury found that it was only 58 percent negligent. In that case we held that § 27-1-

703, MCA (1987), still retained joint and several liability as to defendants found 

more than 50 percent responsible for the plaintiff's injuries.

4. ¶Accordingly, we conclude that the District Court properly refused to permit the 

jury to apportion negligence to third party defendants who were released from 

liability by Cusenbary and who were impecunious and judgment-proof.

5. ¶We affirm the jury's verdict and the judgment of the District Court. 

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/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER 

Justice W. William Leaphart, dissenting.

1. ¶I concur with the resolution of issue four and dissent from issues one, two and 

three. 

2. ¶In issue one, the Court concludes that the District Court did not abuse its discretion 

when it denied Mortensen's proposed jury instruction on intervening, superseding 

cause. In reaching that conclusion, the Court reasons that:

The consequences of serving alcohol to a person who is visibly intoxicated are reasonably 

foreseeable precisely because of the causal relationship between serving alcohol and 

drunken conduct. Wells' drunken conduct was not freakish, bizarre, or unpredictable as 

Mortensen asserts. Rather, drunken conduct is the expected, predictable, and therefore 

reasonably foreseeable outcome of serving alcohol to a person who is already intoxicated.

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1. ¶In concluding that all "drunken conduct" is the reasonably foreseeable result of 

serving alcohol, the Court casts with too broad a net. Under the Court's reasoning, 

absolutely anything that Wells did after Mortensen served him would constitute 

"drunken conduct" and thus be foreseeable. If he had traveled in his wheelchair 

down the street and robbed the local convenience store in order to obtain more 

alcohol, that too would be drunken conduct, but could Mortensen have reasonably 

foreseen this conduct? I doubt it. 

2. ¶At best it can be argued that if one serves alcohol to an already intoxicated person, 

it is foreseeable that you will further impair that person's senses and coordination, 

thus increasing the likelihood that he/she will engage in negligent conduct that 

results in an accident. When, however, the intoxicated person engages in intentional, 

criminal conduct, the foreseeability is greatly attenuated.

3. ¶It may be that a jury would determine that Wells' intentional act of driving through 

the wall of the tavern was foreseeable. However, given that Wells was brought into 

the tavern in a wheelchair and that, later, two of his companions had to lift him back 

into the wheelchair to wheel him out of the tavern where he was then placed in the 

car by his niece, reasonable minds could certainly disagree as to whether it would be 

foreseeable that he would then drive a car through the tavern wall. In Estate of 

Strever, we "emphasize[d] that a cause of action involving superseding intervening 

acts, whether criminal or non-criminal, normally involves questions of fact which 

are more properly left to the finder of fact for resolution." Estate of Strever, 278 

Mont. at 178, 924 P.2d at 673-74. Rather than establish a precedent that all drunken 

conduct is foreseeable as a matter of law, I would reverse the District Court's refusal 

of the jury instruction on intervening, superseding cause and submit the issue to the 

jury. 

4. ¶I also dissent from the Court's resolution of issue two. I would reverse the District 

Court's exclusion of evidence of the criminal proceedings against James Wells. As a 

result of the incident at the Town Tavern, Wells was arrested and charged with four 

felony counts, including two counts of criminal endangerment, § 45-5-207, MCA, 

which requires a showing that he knowingly engaged in specific conduct, and felony 

criminal mischief, § 45-6-101, MCA, which requires knowing and purposeful 

conduct. Wells pled guilty to all four counts thereby admitting that he had acted 

intentionally and purposefully when he drove through the tavern wall. 

5. ¶Mortensen argues that Wells' convictions should have been admissible to prove 

that Wells' conduct was intentional, criminal and therefore not foreseeable since one 

normally has less reason to anticipate acts that are " 'malicious and intentionally 

damaging,' " especially when " 'such acts are criminal.' " Estate of Strever, 278 

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Mont. at 176, 924 P.2d at 672 (citation omitted). The Court skirts this rule by noting 

that in Estate of Strever we stated that the rule applies " 'in the absence of any 

reason to expect the contrary . . . .' " Estate of Strever, 278 Mont. at 176-77, 924 

P.2d at 673 (citation omitted). The Court reasons that Mortensen, as the server of the 

alcohol, had every reason to "expect the contrary," that Wells would engage in 

drunken conduct; that under the dram shop act, it is foreseeable as a matter of law 

that an intoxicated tavern patron may drive a vehicle while intoxicated and that an 

injury-producing accident may result. The Court states: "The question, however, is 

not whether Wells' conduct was criminal and intentional, but whether it was 

foreseeable." That begs the question. The intentional and criminal nature of Wells' 

conduct goes to the question of whether Wells' conduct could reasonably be 

foreseen. As it did in resolving the first issue, the Court reasons that all drunken 

conduct of tavern patrons is reasonably foreseeable. Again, I disagree with that 

broad proposition. Furthermore, I do not see any basis for concluding that the dram 

shop act stands for that proposition. As the majority points out, under the dram shop 

act, a tavern owner must reasonably foresee that an intoxicated patron may drive a 

vehicle and that an injury producing "accident" may result. Whether Wells acted 

intentionally is relevant to the question of whether the incident was an accident. 

Mortensen should not have been precluded from introducing evidence that this was 

no "accident" and that it was the result of Wells' intentional, criminal conduct which 

Wells admitted to when he pled guilty to the felony criminal charges. 

6. ¶I would reverse the District Court and allow the introduction of the criminal 

convictions for the jury to consider in determining whether or not Wells' conduct 

was an intervening, superseding cause. 

7. ¶Finally, as to issue three, Mortensen contended that the test results of Wells' blood 

alcohol content taken by the hospital shortly after the incident were not admissible 

because the standard for civil liability pursuant to § 27-1-710, MCA, is "visible 

intoxication," rather than "legal intoxication." The District Court agreed and granted 

his motion in limine excluding evidence of the BAC results. Having concluded that 

actual blood alcohol content was not admissible, the District Court resorted to 

legerdemain and allowed Cusenbary's expert to testify as to a hypothetical blood 

alcohol content and what that signified in terms of visible signs of intoxication. This 

ruling truly befuddles me. Either blood alcohol content is relevant or it is not. If it is, 

then actual, not hypothetical, blood alcohol content is more probative. I agree that 

blood alcohol content in any form was not relevant to the question of whether Wells 

was visibly intoxicated. That question should have been resolved with testimony 

from those who saw Wells in the tavern. The expert testimony as to Wells' 

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hypothetical blood alcohol content should have been excluded. I would reverse the 

District Court on that issue. 

8. ¶In conclusion, under issue four I concur that the District Court properly dismissed 

Mortensen's third party complaint. However, I would reverse and remand for a new 

trial on the remaining issues.

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray joins in the foregoing dissenting opinion of Justice W. William 

Leaphart.

/S/ KARLA M. GRAY

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