NO. 95578

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

WADE KOLAR,

Plaintiff and Appellant,

v.

DENNIS, BERGO, LINDA BERGO,

DAVID SALVI, and RICHARD JERGESEN,

Defendants and Respondents.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable John R. Christensen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James Stogsdill; Attorney at Law;

Lewistown, Montana

L. Randall Bishop; Jarussi & Bishop;

Billings, Montana

For Respondents:

Steven J. Harman; Brown, Gerbase, Cebull,

Fulton, Harman & Ross; Billings, Montana

(for Dennis Bergo)

Robert J. James; James, Gray & McCafferty;

Great Falls, Montana

(for Linda Bergo)

Carey E. Matovich; Matovich, Addy & Keller;

Billings, Montana

(for David Salvi)

Charles R. Johnson; Marra, Wenz, Johnson &

Hopkins; Great Falls, Montana

(for Richard Jergesen)

Submitted on Briefs: October 10, 1996

December 17, 1996

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Justice Charles E. Erdmann delivered the opinion of the Court.

Wade Kolar appeals from an order and memorandum issued by the

Tenth Judicial District Court, Fergus County, granting summary

judgment to defendants Linda Bergo and David Salvi. We reverse and

remand.

The sole issue on appeal is whether the District Court erred

in granting summary judgment to Linda Bergo and David Salvi.

FACTS

On the day of April 1, 1993, David Salvi and his children had

been playing practical jokes on each other, as it was April Fool's

Day. They decided to play a joke on Dennis Bergo since Dennis and

Linda Bergo were close family friends. The essence of the joke was

to make Dennis believe that nine-year-old Marie Salvi was home

alone, frightened, and in distress.

Marie called the Bergo residence and spoke with Linda who told

Marie that Dennis was not home but that she would try and locate

him. Linda called Dennis, who was at the house of his friend,

Richard Jergesen, and relayed Marie's message to him. Dennis had

gone over to Jergesen's in the afternoon and discovered that he and

some friends were working on a gravel moving project. Dennis had

a beer at Jergesen's, returned home to change clothes, and went

back to Jergesen's to help with the work. Later Jergesen ordered

pizza to reward his friends for their help and Dennis had three or

four more beers during that period of time.

2
1n the meantime, Marie had called Linda a second time and

asked for Dennis. She pretended that she was home alone, did not

know where her father was, and indicated she was becoming

increasingly anxious and afraid. Linda decided she should go over

to the Salvi residence as quickly as possible and when she arrived

she discovered that David and Marie were trying to play a practical

joke on Dennis.

While Linda and David were visiting in the kitchen, Marie

called Dennis herself at Jergesen's and told him she was home alone

and wanted him to come over. She was crying and sounded fearful

and in distress. Dennis rushed out of Jergesen's house, jumped

into his pick-up truck and headed over to the Salvi residence. In

his hurry to respond to Marie's call for help, Dennis failed to

adequately check traffic at the truck by-pass intersection 1.4

miles west of Lewistown. Dennis drove through a stop sign and

pulled directly in front of Wade Kolar, who was approaching the

intersection on his motorcycle. Kolar was seriously injured.

Kolar filed a complaint for negligence against Dennis and a

demand for jury trial. During discovery, Dennis blamed the

accident on the practical joke and his concern about getting over

to the Salvi residence. Kolar subsequently amended his complaint

and named Linda and David as additional defendants. He later filed

a second amended complaint alleging that Jergesen was also

responsible for the accident as a social host. Linda and David

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each filed motions for summary judgment which the District Court

granted. This appeal followed.

STANDARD OF REVIEW

Our standard of review in appeals from summary judgment is

de now. Motarie v. Northern Montana Joint Refuse Disposal Dist.

(1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc.

(1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a

district court's grant of summary judgment, we apply the same

evaluation as the district court based on Rule 56, M.R.Civ.P.

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d

901, 903.

DISCUSSION

Did the District Court err in granting summary judgment to

Linda Bergo and David Salvi?

The District Court stated that the only factual dispute before

the court was the extent of Dennis's concern and anxiety for Marie

when he left Jergesen's. The court determined that this dispute

was not a "material issue of genuine fact" prohibiting the granting

of summary judgment to Linda and David. Instead, the court focused

on foreseeability and stated that 'I [hlad the result been in any way

foreseeable, it is doubtful the practical joke would have ever been

played."

The court stated there was no reason for Linda and David to

believe that Dennis was consuming alcohol while he was at

Jergesen's and/or that he would not be able to drive to the Salvi

4
residence without being involved in an accident. The court held

that in this case reasonable minds could not differ as to the issue

of foreseeability and that, even though the results of the

practical joke were tragic, they were not in any way foreseeable by

Linda and David.

Kolar argues that it was Dennis, and not him, that brought

Linda and David into the case when Dennis defended the complaint by

stating that the practical joke was a superseding intervening cause

of the accident. Kolar claims that if we allow the District Court

to dismiss Linda and David as defendants, then his remaining claim

against Dennis will be compromised since the jury will undoubtedly

reduce Dennis's degree of fault due to the circumstances

surrounding the practical joke. According to Kolar, the jury will

know Dennis was a victim too.

Kolar argues that in responding to the motions for summary

judgment he met his burden to establish a genuine issue of material

fact concerning Dennis's state of mind when he left Jergesen's to

rush over to the Salvis'. Kolar claims that the court erred by

requiring him to prove that Linda and David were able to foresee

the specific scenario that resulted in the accident and his

injuries.

Kolar argues that public policy requires that liability be

imposed upon practical jokers when their acts lead in a natural and

continuous sequence to injury. He relies on § 444 of the

Restatement (Second) of Torts concerning acts done under an

5
impulsion of an emotional disturbance to argue that as a matter of

law, practical jokers cannot rely upon a foreseeability analysis to

break the chain of causation. Finally, Kolar argues that the

District Court erred in refusing to apply the "substantial factor"

test of causation.

Linda and David argue that no genuine issues of material fact

exist in this case to preclude summary judgment in their favor.

They claim that there can be no showing that the practical joke

constituted a danger from which a reasonable person could have been

expected to foresee any resulting risk of harm. They note that

neither of them dialed the telephone or spoke to Dennis from the

Salvi residence and that neither of them could have known that

Dennis had been drinking.

Linda and David further argue that they should not be held

strictly liable as practical jokers, and they claim that negligence

and foreseeability are the proper legal theories which should be

applied to this case. They argue that hindsight is not the measure

for determining foreseeability, but that the focus should be on

what a reasonably prudent person would have foreseen as likely to

happen at the time. Linda and David argue that § 444 of the

Restatement (Second) of Torts is not applicable to this case since

Dennis was acting under the influence of alcohol and not under an

impulsion of emotional disturbance. Finally, Linda and David claim

that dismissing them from this action does not compromise Kolar's

remaining claims.

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This Court has repeatedly stated that the purpose of summary

judgment is to encourage judicial economy by eliminating

unnecessary trials, but that summary judgment is only proper when

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Nichols v. Corntassel

(1993), 258 Mont. 173, 852 P.2d 583; Kenyon v. Stillwater County

(1992), 254 Mont. 142, 835 P.2d 742; Cereck v. Albertson's, Inc.

(1981), 195 Mont. 409, 637 P.2d 509. The moving party has the

burden of showing a complete absence of any genuine issue as to all

facts considered material in light of the substantive principles

that entitle the moving party to judgment as a matter of law and

all reasonable inferences are to be drawn in favor of the party

opposing summary judgment. Nichols, 852 P.2d at 586.

Moreover, we have stated that ordinarily issues of negligence

are questions of fact not susceptible to summary judgment. Dillard

v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018. Liability

should not be determined upon a motion for summary judgment where

factual issues concerning negligence and causation are presented.

Dillard, 824 P.2d at 1018-19 (citing Duchesneau v. Silver Bow

County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931). In certain

cases, however, where reasonable minds could reach but one

conclusion as to the cause of an accident, questions of fact may be

determined as a matter of law. Dillard, 824 P.2d at 1019 (citing

Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70).

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We determine that the present case is not one in which

reasonable minds could reach but one conclusion as to the cause of

the accident and Kolar's subsequent injuries. Nor are we convinced

that reasonable minds could not differ as to whether the accident

should have been foreseeable by Linda and David. Linda testified

that Dennis visited Jergesen's almost weekly and that he was

sometimes known to take a drink or two while there. Linda stated

that she expected Dennis to react to Marie's urgent telephone call

in much the same way she had done when she rushed over to the Salvi

residence. Linda knew that Dennis would have to use a highway

intersection which she stated "isn't a good intersection" and she

knew it was dark which made visibility even worse.

Dennis testified that Marie was crying over the telephone and

that it sounded real to him. He stated that when he rushed out of

Jergesen's house he was hyped-up and worried. Both Dennis and

Jergesen testified that it was the practical joke and not Dennis's

drinking that was the primary cause of the accident.

We conclude that, in this case, Dennis's state of mind when he

left Jergesen's house, and the extent to which Kolar's injuries

should have been foreseeable by Linda and David, are questions of

fact for the jury. However, we are not suggesting that instructions

beyond those referred to in Busta v. Columbus Hospital (Mont.

1996)) 916 P.2d 122, 53 St. Rep. 428, are necessary in order to

frame that issue.

8
Similar to Busts., this case involves allegations of

contributory negligence, multiple causes, and multiple defendants.

The use of the substantial factor test of causation is therefore

appropriate. In addition, we reject Linda's and David's contention

that they may rely upon the defense of superseding intervening

cause and determine that this affirmative defense is not available

to them as a matter of law. Neither Linda nor David have met their

burden of demonstrating that no genuine issues of material fact

exist, and we therefore hold that the District Court erred in

granting summary judgment in their favor.

Reversed and remanded for further proceedings consistent with

this opinion.

2

Justice

We concur: