No. 99-580

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 133

PARNACITA SAMSON, for herself and as 

Personal Representative of the Estate of 

MATTHEW “MARK” SAMSON, on behalf

of the heirs and successors of decedent, 

Plaintiff and Appellant, 

v.

THE STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, Cause No. ADV-97-1380

Honorable Kenneth R. Neill, Judge Presiding

COUNSEL OF RECORD:

For Appellant: 

Joseph C. Engel III, Attorney at Law, Great Falls, Montana 

Dane J. Durham, Attorney at Law, Missoula, Montana 

For Respondent:

Honorable Mike McGrath, Attorney General; John C. Melcher, Assistant

Attorney General, Helena, Montana 

Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, P.C., 

Great Falls, Montana

Submitted on Briefs: October 11, 2001 

 Decided: April 29, 2003

Filed:

__________________________________________

Clerk
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Appellant Parnacita Samson (Samson), Personal Representative for the Estate of

Michael “Mark” Samson (Mark), appeals the jury verdict entered in the Eighth Judicial

District Court, Cascade County, finding the State of Montana (State) was not negligent in the

death of Mark. We affirm.

¶2 The following issues are dispositive:

¶3 1. Whether the jury’s verdict for the State was supported by substantial evidence.

¶4 2. Whether the District Court erred in admitting evidence that the shooting was an

unforeseeable accident.

¶5 3. Whether the District Court erred in failing to give Plaintiff’s instruction on the

meaning of negligent homicide.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 The Cascade County Youth Court committed Bridger Bercier (Bercier) to Pine Hills

as a serious juvenile offender in January 1995. He was fifteen years old at the time. On

February 10, 1996, following Bercier’s completion of a successful home visit and continued

improved behavior, Pine Hills released Bercier for a trial community placement at Youth

Evaluation Program (YEP), a non-secure supervised facility in Great Falls. YEP is a

licensed youth group home used to transition boys from Pine Hills to community placements.

Bercier’s stay at the YEP was uneventful. However, on March 16, 1996, he walked out of

the facility. Bercier’s leaving was timely reported to law enforcement.
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¶7 Bercier remained at large in Great Falls for nine days. During the evening of March

25, 1996, Bercier and two other youths, Dale Brott (Brott) and Tony Samson (Tony), were

socializing in the basement of the Samson family home. Bercier had been over at the

Samson home earlier in the day helping the Samson family push a car off the street and into

the driveway. Brott saw that Bercier had a gun that afternoon, and Bercier had the gun with

him at the Samson house that evening. All three boys were drinking beer they had retrieved

from Bercier’s house. The three boys were joined by Mark, Tony’s younger brother.

¶8 Bercier passed Mark the gun without the clip. When Mark returned the gun to Bercier,

all four boys were sitting on a couch. Mark sat next to Bercier on the couch. Bercier began

pulling the clip in and out of the gun, and cocking and uncocking the gun. Bercier then

discharged one round, killing Mark. The next morning Bercier surrendered to the Great Falls

police. He pled guilty to negligent homicide and was returned to Pine Hills.

¶9 Samson then brought a negligence action against the State of Montana. After a sixday trial, the jury returned a verdict for the State. Samson appeals from the judgment.

DISCUSSION

¶10 Was the jury’s verdict in favor of the State supported by substantial evidence?

¶11 We review a jury’s verdict to determine whether there is substantial credible evidence

in the record to support it. Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, ¶ 4, 13

P.3d 390, ¶ 4, citing Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 33, 909 P.2d 700,

705. It is not our function to agree or disagree with the jury’s verdict and, consequently, if

conflicting evidence exists, we do not retry the case because the jury chose to believe one
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party over the other. Magart, ¶ 4, citing Barnes, 275 Mont. at 33, 909 P.2d at 705. It is only

in rare cases that a jury verdict should be set aside. Magart, ¶ 4. Moreover, in reviewing the

sufficiency of the evidence to support a jury verdict, we review the evidence in a light most

favorable to the prevailing party. Magart, ¶ 4; Morgan v. Great Falls School Dist. No. 1,

2000 MT 28, ¶ 8, 298 Mont. 194, ¶ 8, 995 P.2d 422, ¶ 8.

¶12 Samson argues that uncontradicted, credible evidence shows that the State was

negligent. Samson points out that the record demonstrates Pine Hills transferred Bercier to

a non-secure facility without obtaining a complete psychological evaluation during the

thirteen months that he was at Pine Hills, a violation of the court order committing Bercier

to Pine Hills. Additionally, Pine Hills transferred Bercier to a non-secure group home in

Great Falls even though he was ineligible for leave and on disciplinary status. Moreover, the

record shows the State failed to contact Bercier’s parents during the nine days between his

escape from the group home and the shooting. 

¶13 The State contends it presented evidence contesting that these failures constituted

negligence. Testimony from the State’s witnesses explained the lack of a psychological

evaluation of Bercier while he was at Pine Hills. Prior to arriving at Pine Hills, Bercier had

a chemical dependency evaluation that was used in developing his treatment plan. Also, an

intake evaluation of Bercier had been conducted which indicated that he had no serious

mental illness that would require a further psychological evaluation. In June 1996, after the

shooting, a psychological evaluation of Bercier was conducted. Looking at those results, the
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social worker at Pine Hills testified that she would not have altered Bercier’s treatment plan

in 1995 had the results of the psychological evaluation been available to her at that time.

¶14 Witnesses from Pine Hills also explained why Bercier was transferred from Pine Hills

to a non-secure home in Great Falls, even though he was not eligible for leave and was on

disciplinary status. When the decision to transfer Bercier to YEP was initially made, he was

rated at a Level III behavioral level, the highest and most favorable level. However, at the

time of transfer, Bercier had been downgraded to a Level I, due to an altercation with another

person at Pine Hills. The Pine Hills team working on Bercier’s case determined that, despite

the drop in his behavioral level, it was in Bercier’s best interest to transfer him because at

the YEP facility he could receive chemical dependency treatment that could not be obtained

at Pine Hills. In regard to Bercier’s escape, the State presented evidence that YEP had

properly reported his escape to law enforcement and that the staff had no authority or

responsibility to track down Bercier. The State acknowledged that staff did not contact

Bercier’s parents about his escape, but offered that his parents had previously been

uncooperative with the State on issues regarding Bercier’s actions and whereabouts.

¶15 It is not the duty of this Court to retry the case and evaluate the facts to determine if

the State was negligent. Rather, we review a jury’s verdict to determine whether there is

substantial credible evidence in the record to support it. Magart, ¶ 4. Based on a review of

the record before us, we conclude there was sufficient evidence presented to support the

jury’s conclusion that the State was not negligent. Therefore, we will not overturn the jury’s

verdict.
6

¶16 Did the District Court err in admitting evidence that the shooting was an

unforeseeable accident?

¶17 The standard of review for evidentiary rulings is whether the district court abused its

discretion. State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313. The trial court

exercises broad discretion in determining relevance of evidence. State v. Smith, 1998 MT

257, ¶ 6, 291 Mont. 236, ¶ 6, 967 P.2d 424, ¶ 6.

¶18 Samson argues the District Court erred in allowing the State to present evidence and

to argue that the shooting was an “unforeseeable accident.” Samson contends the court

abused its discretion in denying Samson’s Motion to Disallow Testimony of Ken Baker, an

expert witness for the State.

¶19 Baker has an extensive background in law enforcement, including service as chief of

the behavior sciences unit of the United States Secret Service. His experience and training

includes study and work in the assessment and predictability of an individual’s potential for

violent behavior, particularly toward governmental and corporate officials. Baker assessed,

and offered testimony regarding, the predictability of Bercier’s violence, which the District

Court allowed. 

¶20 The State correctly observes that Samson has appeared to abandon her challenge to

Baker’s qualifications to testify as an expert under Rule 702, M.R.Evid., which was one

basis for her argument in the District Court. Instead, Samson focuses on her contention that

Baker, though sufficiently qualified in his particular field, did not offer testimony

constituting “scientific, technical or other specialized knowledge” that would “assist the trier
7

of fact,” as also required by Rule 702. In other words, Samson, describing Baker’s testimony

as “psycho-babble,” argues that the jury was perfectly capable of determining the

predictability of Bercier’s actions by assessing the evidence, and did not need, nor was

assisted by, Baker’s expert testimony.

¶21 After testifying regarding his qualifications and his assessment of this matter, Baker

opined that the shooting here was accidental and not predictable, focusing on factors such

as his analysis of the crime scene, Bercier’s post-shooting behavior, and particularly,

Bercier’s personal history. He testified:

Baker: . . . I saw nothing in his background that involved weaponry. . . . I

didn’t see in Bridger Bercier’s background crimes of violence against people.

I saw lots of crimes against property and thefts and thievery and stealing and

such. But I did not see crimes that involved attacking people or especially

with weapons or knives or guns or that type of thing.

Def. Cnsl: Is that significant to you?

Baker: Absolutely significant.

Def. Cnsl: Why so?

Baker: Well, because the absence of that deals with predictability . . . . [I]n

terms of predictability, it certainly makes a big difference to me after having

looked at the record as to whether or not this crime was predictable in [sic] my

opinion is that it was not predictable.

Def. Cnsl: Well –

Baker: It was not foreseeable. 

¶22 It is necessary, in order to sustain a negligence action, that the plaintiff establish a

legal duty on the part of the defendant, a breach of that duty, causation, and damages. Lopez
8

v. Great Falls Pre-Release Services, Inc., 1999 MT 199, ¶ 18, 295 Mont. 416, ¶ 18, 986 P.2d

1081, ¶ 18. Further, in LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d

1010, we explained that in cases involving a dispute over the intervening criminal act of a

third party, as here, foreseeability must be analyzed twice: first, with regard to the existence

of a legal duty, and second, with regard to proximate causation. LaTray, ¶ 17. “[A]nalyzing

foreseeability in the duty context, we look to whether or not the injured party was within the

scope of risk created by the alleged negligence of the tortfeasor–that is, was the injured party

a foreseeable plaintiff?” Lopez, ¶ 28. In analyzing foreseeability in the context of proximate

cause, “we are concerned with whether and to what extent the defendant’s conduct

foreseeably and substantially caused” the injury sustained by the plaintiff. Lopez, ¶ 32. 

¶23 Further, we have explained that:

in cases involving intervening superseding acts of a criminal or noncriminal

nature, “trial courts must continue to carefully review each fact situation . . .

on a case-by-case basis . . . .” Estate of Strever, 278 Mont. at 179, 924 P.2d

at 674. The causal issue of intervening criminal or noncriminal acts “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 674.

Lopez, ¶ 34.

¶24 The State contends that it was necessary for its defense to present the testimony of

Baker. Because the jury was required to determine the foreseeability of the intervening act,

it needed information relating to the foreseeability of Bercier’s actions, and thus, the State

argues Baker’s testimony was relevant and necessary and aided the jury. 
9

¶25 As we held in Lopez and LaTray, determining causation requires a consideration of

the foreseeability of the intervening criminal act. In LaTray, where a defendant’s liability

under similar circumstances was at issue, we stated:

Here, as in Lopez, we are concerned with whether Shawn’s assault was a

superseding cause of the harm incurred by LaTray which, if not reasonably

foreseeable, would break the chain of causation and absolve the City of

liability.

LaTray, ¶ 28. See also Lacock v. 4B’s Restaurants, Inc. (1996), 277 Mont. 17, 919 P.2d

373. Thus, it was necessary for the jury to determine whether the chain of causation was

broken by the unforeseeability of Bercier’s conduct, and, in that regard, Baker’s testimony

offered an analysis which purported to assess predictability of Bercier’s actions. As stated

above, the trial court exercises broad discretion in determining the relevancy of evidence.

Smith, ¶ 6. Given the jury’s need to determine the foreseeability of Bercier’s actions, we

determine that, under the particular challenge made here, the District Court did not abuse its

discretion in allowing the testimony of Baker and denying Samson’s Motion to Disallow

Testimony of Ken Baker.

¶26 An inconsistency has developed in our cases involving, as here, the foreseeability of

an intervening cause, and it is appropriate that we resolve that conflict. In Lacock, we held

that when considering foreseeability as an element of causation:

[I]t will be necessary for the court to discuss foreseeability in the course of

explaining to the jury which intervening causes sever the chain of causation

and which do not. In doing so, it will be necessary to instruct the jury

consistently with the provisions of § 27-1-317, MCA, that is, that the specific

injury to a plaintiff need not have been foreseen.
10

Lacock, 277 Mont. at 22, 919 P.2d at 375-76 (emphasis added). However, despite this clear

holding, language which would require a jury to determine the foreseeability of a plaintiff’s

“specific injury” has crept back into our opinions. See Lopez, ¶ 32, and LaTray, ¶ 28. While

it was not the Court’s intention in either Lopez or LaTray to revise Lacock’s holding on this

issue, the language used in those cases is clearly contradictory thereto. Therefore, we take

this opportunity to resolve this inconsistency by reaffirming our holding in Lacock,

confirming that in cases alleging an intervening cause, juries must be instructed that the

specific injury to the plaintiff need not have been foreseen.

¶27 Did the District Court err in failing to give Plaintiff’s instruction on the meaning

of negligent homicide?

¶28 It is within a district court’s discretion to decide how to instruct the jury, taking into

account the theories of the contending parties. Allison v. Town of Clyde Park, 2000 MT

267, ¶ 11, 302 Mont. 55, ¶ 11, 11 P.3d 544, ¶ 11. This Court will not overturn a district

court for instructions given to a jury without an abuse of discretion. Allison, ¶ 11. This

Court reviews the instructions as a whole and in light of all the instructions and the evidence

introduced at trial. Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 44, 297 Mont. 33,

¶ 44, 991 P.2d 915, ¶ 44. Absent prejudice, the trial court’s decision will be affirmed.

Federated Mut., ¶ 44. No prejudice can be shown where the jury instructions in their

entirety state the applicable law of the case. Federated Mut., ¶ 44.
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¶29 Samson argues that the District Court abused its discretion in rejecting her proposed

jury instruction defining the mental state of negligent homicide. Samson’s proposed

instruction reads as follows:

Instruction No. 30: In this case, you, the jury, must accept as conclusively

established that Bridger Bercier, in his answering true to the accusation in

Youth Court that he committed the crime of negligent homicide, admitted that

his conduct toward Michael “Mark” Samson, in causing his death, was a

“gross deviation from the standard of care.” For purposes of this case and for

your deliberations, you are to accept as conclusive that Bridger Bercier’s

conduct toward Michael “Mark” Samson was “a gross deviation from the

standard of care.”

¶30 Without this instruction, Samson claims it was impossible for the jury to understand

the significance of Bercier’s guilty plea to the charge of negligent homicide and, thus, the

jury could not place Bercier’s guilty plea within the proper context. By denying Samson’s

instruction, Samson asserts that the jury was left with only Instruction No. 10’s definition

of negligence, given to judge the State’s conduct herein, and was therefore required, even

“directed,” to conclude therefrom that Bercier had admitted only to the lack of ordinary or

reasonable care when he pled guilty to negligent homicide. Samson then posits that, because

of this misdirection, the jurors were not instructed in a manner that would allow them to

appreciate that the State was making what Samson contends was an “inconsistent”

argument–that the State could charge and accept a plea from Bercier for negligent homicide

and then also argue in this action that the shooting was an unforeseeable accident. Samson

contends that it was a gross injustice for the State to take these inconsistent positions, and
12

error for the District Court to deny her instruction meant to highlight the State’s

fundamentally unfair posture.

¶31 Samson relies on this Court’s holdings in Rix v. General Motors (1986), 222 Mont.

318, 723 P.2d 195, and Chambers v. Pierson (1994), 266 Mont. 436, 880 P.2d 1350, to claim

the District Court committed reversible error. In those cases we stated, “A party has a right

to jury instructions adaptable to his theory of the case when the theory is supported by

credible evidence. It is reversible error to refuse to instruct on an important part of a party’s

theory of the case.” Rix, 222 Mont. at 323, 723 P.2d at 198.

¶32 The State argues that it was not necessary for the District Court to instruct the jury on

the mental state of the crime of negligent homicide. According to the State, when taken as

a whole, the instructions given by the District Court properly instructed the jury on the

State’s duty of custody and supervision, set out the elements for recovery based on

negligence, defined negligence, and instructed the jury to find the State liable if the State’s

negligence was a cause of the death of Mark Samson. The State asserts the instructions

properly included the key concepts in this wrongful death action. Relying on Busta v.

Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122, the State contends trial courts

should not instruct on related legal concepts which do not control issues before the jury.

According to the State, the mental state of Bercier at the time he committed the crime was

not a controlling issue in the wrongful death case, and the District Court properly exercised

its discretion in denying Samson’s proposed Instruction No. 30.
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¶33 On appeal, Samson has not argued that the State was in any way estopped by the

homicide proceeding from defending this action with a foreseeability-related causation

defense. In the District Court, Samson argued that the State was judicially estopped from

offering its foreseeability theory, and tendered Instruction No. 30 in conjunction with that

estoppel defense, which was denied. Here, Samson simply challenges the denial of the

instruction itself, without the accompanying estoppel argument. 

¶34 Samson also offered Instruction No. 30 to boost her own foreseeability theory, which

defined Bercier’s conduct as reckless and postulated therefrom that it was foreseeable

because of his background. Using this argument, Samson sought to undermine the State’s

contention that this was an accidental shooting which could not have been foreseen. 

¶35 However, the fundamental issue in this wrongful death action concerned the State’s

negligence, not the mental state of Bercier, and the instructions given by the District Court

properly reflected that. When viewed in their entirety, the jury instructions given by the

District Court properly stated the applicable law of the case. As such, the instructions given

were adaptable to Samson’s argument, and it was within the District Court’s discretion to

deny the proposed instruction. 

¶36 Further, the denial of the proposed instruction did not prejudice Samson’s case, as

Samson was nonetheless able to present her foreseeability theory. Of course, it was not lost

on anyone involved in the trial, including the jury, that this tragic incident arose from an utter

lack of caution or care. Samson’s counsel elicited from the deputy county attorney who

prosecuted Bercier that he had determined that Bercier’s actions constituted “a gross
14

deviation from the standard of care,” from which Samson’s counsel argued in his closing

argument that the shooting was much more than an accident. Therefore, while the proposed

instruction may have been helpful to Samson’s presentation, she was not prevented from

asserting her theory on the foreseeability of this tragedy under the instructions which were

given, and thus, sustained no prejudice as a result of the District Court’s denial. 

¶37 Finding no abuse of discretion nor prejudice to the plaintiff herein, the decision of the

District Court is affirmed.

/S/ JIM RICE

We concur: 

/S/ JAMES C. NELSON

/S/ JIM REGNIER
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Justice W. William Leaphart dissenting. 

¶38 I dissent from the ruling on issue two. Samson has appealed from the District Court’s

denial of her motion to disallow testimony of Ken Baker. Baker, an FBI profiler, offered

expert testimony concluding that it was not foreseeable that Bercier would escape from YEP

and would act violently and shoot Mark. In her motion, Samson argued that Baker’s

“profile” of Bercier was little more than projection of his own issues, needs and morality.

She contended that such “opinion” from a non-psychologist “is the epitome of ‘junk,’” is not

scientific, and does not assist the trier of fact to understand the evidence, as required by

Rule 702, M.R.Evid. On appeal she contends that Baker’s “profile” testimony did not

involve any legitimate area of specialized knowledge and thus does not come within Rule

702. Rule 702, M.R.Evid., provides as follows:

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise. 

¶39 I agree with Samson that “profiling” was not established as a scientific or specialized

area of knowledge which would assist the trier of fact in determining the question of whether

Bercier’s actions were foreseeable. The District Court erred in not granting Samson’s

motion to disallow the expert “profile” testimony of Ken Baker. I would reverse Samson’s

conviction and remand for a new trial. 

/S/ W. WILLIAM LEAPHART
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Justice Terry N. Trieweiler concurring and dissenting.

¶40 I concur with the majority's conclusions that there was sufficient evidence to support

the jury's verdict and that the District Court did not abuse its discretion by admitting the

testimony of Ken Baker. 

¶41 However, I dissent from the majority's conclusion that the District Court did not abuse

its discretion when it refused to instruct the jury on the mental state required for negligent

homicide. While the issue in this action may, as suggested in the majority Opinion, be

limited to the State's negligence, the State defended this action by contending that Bercier's

conduct was an unforeseeable accident. As the majority notes, foreseeability is necessary

to establish duty which is an element of negligence and was presented to the jury by way of

the State's claim that there was an independent intervening cause.

¶42 The State concedes on appeal that "the intentional or accidental nature of the

intervening act is clearly relevant" to foreseeability and that the purpose for offering Ken

Baker's testimony was to establish that Bercier's conduct which caused Mark Samson's death

was merely an unforeseeable accident. However, the State's position was inconsistent with

its prior position when it prosecuted Bercier. In that case, the State contended and, in fact,

accepted Bercier's plea that his conduct exceeded the degree of culpability required for civil

negligence. The State incarcerated Bercier because of that conduct. 

¶43 When the State prosecuted Bercier and accepted his guilty plea for negligent

homicide, it established that he acted with the following degree of culpability:
17

[A] person acts negligently and with respect to a result or to a circumstance

described by a statute defining an offense when the person consciously

disregards a risk that the result will occur or that the circumstance exists or

when the person disregards a risk of which the person should be aware that the

result will occur or that the circumstance exists. The risk must be of a nature

and degree that to disregard it involves a gross deviation from the standard of

conduct that a reasonable person would observe in the actor's situation.

"Gross deviation" means a deviation that is considerably greater than lack of

ordinary care. Relevant terms, such as "negligent" and "with negligence",

have the same meaning. 

Section 45-2-101(42), MCA (emphasis added).

¶44 In other words, while the State contended in this case that the occurrence in question

was "accidental," offered testimony from Bercier and Ken Baker to establish that fact, and

contended that, therefore, it could not have been foreseen, its position previously had been

significantly different. In order to convict Bercier and imprison him, it alleged that his

conduct was "considerably greater than lack of ordinary care."

¶45 The misimpression given to the jury was compounded by the fact that the only

definition of negligence the jury received was Instruction Number 10 which defined the

standard of care in a civil proceeding. There, the jury was led to believe that negligence was

simply a "lack of ordinary care." It is no consolation to the plaintiff that the jury was told

that Bercier pled guilty to negligent homicide if the only definition of "negligence" that it

was given was specifically excluded from the statutory definition of negligent homicide.

¶46 The State concedes that the degree of Bercier's culpability was relevant to the issue

of foreseeability. The issue of foreseeability was relevant to the State's negligence and the

issue of causation. Therefore, the jury was entitled to know what the State's position was

regarding Bercier's degree of culpability on a previous occasion under circumstances where
18

it was not in the State's interest to minimize his conduct. The State should not have been

allowed to make up the facts as it went along based on its own interests. I conclude that

because the jury was denied that information, the plaintiff was denied a fair trial. For these

reasons, I dissent from the majority Opinion. I would reverse the judgment of the District

Court and remand for a new trial with proper instructions to the jury.

/S/ TERRY N. TRIEWEILER