No. 88-126 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DENNIS B. PHILLIPS, BETTY PHILLIPS 

AND OWEN HAKE, 

Plaintiffs and Appellants, 

-vsCITY OF BILLINGS, 

Defendant and Respondent, 

-vsJAMES BUFFALOHORN, 

Defendant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. S~eare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark D. Parker; Parker Law Firm, Billings, Montana 

For Respondent: 

Charles R. Cashmore; Crowley Law Firm, Billings, 

Montana 

Francis X. Lame Bull, Billings, Montana 

Submitted on Briefs: June 16, 1988 

Decided: August 111 1988 

Filed: NU6 1 1 19@' 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal from the Thirteenth Judicial District 

involves appellants Phillips' and Hake's (Phillips) claims 

against the City of Billings (Billings) for the alleged 

negligence of two city police officers. The District Court 

granted summary judgment to Billings. We affirm. 

The undisputed facts are as follows: At approximately 

6:00 a.m., on February 28, 1986, a car driven by James 

Buffalohorn entered a Billings intersection against a red 

light and collided with a car occupied by "Dennis" Phillips 

and Owen Hake. Hake and Phillips suffered injuries as a 

result of the collision. Blood alcohol testing indicated 

that Buffalohorn was intoxicated at the time of the accident. 

Approximately two hours prior to the accident, Billings 

police officers Randy Vogel and Keith Buxbaum had detained 

and questioned Buffalohorn in connection with a report made 

by motorist Shane Stamm. Prior to the report, sheriff's 

deputy Bill Michaelis had observed Stamm drive his vehicle 

off the road. Michael-is stopped Stamm and questioned him 

concerning the accident. Stamm told Michaelis that a light 

colored Pinto had swerved into his lane and forced him off 

the road. 

Stamm's allegation was communicated to Officer Vogel, 

and Vogel began to search the area for the Pinto. Moments 

later he observed Buffalohorn and a companion standing next 

to a light colored Pinto parked on a Billings street. Vogel 

drove to the car, detained the two individuals, and. performed 

a pat down search for weapons. Vogel noticed that the car 

had been recently driven. Buxbaum arrived with Stamm to 

identify the car. Stamm viewed the vehicle and insisted that 

the Pinto was not involved in the accident. Buxbaum and 
Vogel deposed that they suspected Stamm was less than candid 

as to the other vehicle involved. They speculated that Stamm 

was actually to blame for his vehicle leaving the road, and 

that now that police had found the other vehicle, Stamm was 

unwilling to blame the individuals driving the car he had 

described to police. 

Buxbaum and Vogel noticed alcohol on the breath of 

Buffalohorn and his companion. Buxbaum noticed pop and beer 

cans and other garbage in Buffalohorn's vehicle. The 

officers stated that Buffalohorn and his companion were 

polite and cooperative, and that even though they smelled of 

alcohol, neither appeared to be in a state of extreme 

intoxication. Buxbaum and Vogel also stated that they did 

not believe probable cause existed to arrest either 

individual for a DUI violation because neither was seen in 

control of the car. However, Buxbaum remembers Vogel telling 

the suspects to refrain from driving the car. The officers 

then returned to where Stamm ran off the road, investigated 

the accident, and cited Stamm for careless driving and 

failure to carry proof of insurance. 

On these facts, the District Court granted summary 

judgment to Billings. The lower court reasoned that absent 

probable cause to arrest, no duty flowed from the officers to 

Phillips to protect Phillips from the actions of Buffalohorn. 

We agree. 

The precise issue here is offered by respondent 

Billings: Did the District Court properly grant summary 

judgment on the grounds that probable cause to arrest was 

absent as a matter of law and no other source of legal duty 

exists? Appellant Phillips presents four issues for review. 

However, each issue presented by Phillips, as well as the 

various contentions under each issue, may be more clearly 
discussed as contentions under the single issue offered by 

Billings. 

The first made by Phillips is that the lower court 

failed to justify its decision under any theory of Montana 

tort law. This has no bearing on our resolution of the issue 

because this Court affirms district court decisions which are 

correct regardless of the lower court's reasoning in reaching 

its decision. Norwest Bank v. Murnion (Mont. 1984), 684 P.2d 

1067, 1071, 41 St.Rep. 1132, 1136. Thus, this contention 

fails. 

The second contention made by Phillips is that the 

District Court erred because it granted summary judgment by 

holding that the officers had no duty to Phillips beyond the 

mere duty to arrest Buffalohorn. Phillips presents the 

following conclusion from the District Court's memorandum: 

The court further concludes that under the 

circumstances as set forth herein that the police 

officers had no duty to stay with either the 

suspects or its [sic] vehicle beyond the time that 

they did nor did they have any duty to arrest the 

suspects or prevent them further from operating 

this vehicle. 

Phillips, citing S 319 of the Restatement (Second) of Torts, 

argues that the officers had a duty to control the 

potentially dangerous actions of Buffalohorn. Section 319 of 

the Restatement (Second) of Torts, reads: 

One who takes charge of a third person whom he 

knows or should know to be likely to cause bodily 

harm to others if not controlled is under a duty to 

exercise reasonable care to control the third 

person to prevent him from doing such harm. 

Restatement (Second) of Torts, S 319 (1965) (emphasis added). 

We reject this argument because imposition of a duty under S 

319 depends on an ability to control the third person. 
Abernathy v. United States (8th ~ir. 1985), 773 F.2d 184, 

189. Thus, under the circumstances of this case, absent 

probable cause, no duty existed. See, e. g. , Harris v. Smith 

(Cal.App. 1984), 157 Cal.App.3d 100, 203 Cal.Rptr. 541; Leake 

v. Cain (Colo.App. 1986), 720 P.2d 152. 

Phillips contends liability may be predicated on a duty 

to investigate effectively because an effective investigation 

would have ripened into probable cause and resulted in arrest 

of Buffalohorn. We disagree. Closeness of the connection 

between the defendant's conduct and the injury suffered is a 

factor courts have considered in imposing a duty of due care. 

Harris, 203 Cal.Rptr. at 545. Here, the possibility that 

further investigation could have ripened into probable cause 

provides only a tenuous connection between the officer' s 

conduct and Phillips' injuries. See, e.g., Harris, 203 

Cal.Rptr. at 545; Leake, 720 P.2d at 161. Moreover, Phillips 

can only speculate as to how a more thorough investigation 

would have revealed probable cause to arrest. Thus, this 

contention fails. 

Phillips argues the duty exists here because the risk 

was foreseeable. We disagree. Courts consider other factors 

in addition to foreseeability in deciding the existence of a 

duty. Harris, 203 Cal.Rptr. at 545. Some of these factors 

include: the moral blame attached to the defendant's conduct, 

the policy of preventing future harm, the extent of the 

burden to the defendant and consequences to the community of 

imposing a duty to exercise care with resulting liability for 

breach, and the availability, cost, and prevalence of 

insurance for the risk involved. Harris, 203 Cal.Rptr. at 

545. Thus, we refuse to find the duty here on the basis of 

foreseeability alone. 

Phillips contends that the officers' duty to plaintiffs 

as members of the traveling public created a duty in this 
case. The majority rule states that the general duty to 

protect does not give rise to liability for a particular 

individual's injury absent a greater duty imposed by a 

special relationship. See Annotation, Drunk Drivers: Duty to 

Arrest, 48 A.L.R.4th 320, 326. Under the facts of this case, 

we agree with the majority rule and refuse to find a duty 

based on the officers' general duty to protect the traveling 

public. 

Phillips contends that the officers' duty to act with 

reasonable care under the circumstances exists as a duty 

apart from any specific duty, and thus summary judgment was 

improper. We disagree. See Whitfield v. Therriault Corp. 

(Mont. 1987), 745 P.2d 1126, 1128, 44 St.Rep. 1896, 1898. 

Without a showing that the officers had a duty to protect 

Phillips from danger posed by Buffalohorn, we conclude that 

the District Court properly granted summary judgment. 

Whitfield, 745 P.2d at 1128. 

Phillips contends that the officers had probable cause 

to arrest Buffalohorn. We disagree. Stamm's failure to 

identify Buffalohorn and his vehicle, coupled with the lack 

of any other information indicating that Buffalohorn had 

operated the vehicle, constituted lack of probable cause to 

arrest Buffalohorn for DUI or any charge in connection with 

operation of the car. 

Phillips contends that the presence of beer cans in the 

vehicle gave the officers probable cause to arrest for 

violation of the Billings open container ordinance. This 

connection is too tenuous to establish duty for failure to 

restrain Buffalohorn. 

Phillips contends that summary judgment was improper 

under this Court's decision in Lindquist v. Moran (1983), 203 

Mont. 268, 662 P.2d 281. The facts of this case distinguish 

Lindquist. - Tn Lindquist the officers had the ability to 
control the tortfeasor's operation of the vehicle in 

question. No such showing was made here. 

Fourth amendment rights naturally compete with a police 

officer's duty to protect the public. Court's facing the 

issue we face today are wary to force police officers to 

choose between liability for failure to arrest, and liability 

for false arrest. Lack of probable cause denied the officers 

in this case the legal authority to arrest. Thus, we agree 

with the District Court that lack of probable cause 

demonstrates lack of a material fact question, and entitles 

Rillinqs to judgment as a matter of Law. Whitfield, 745 P.2d 

at 1128. 

s-cy. /d,/ 

/ Ehief Justice