No

No. 97-373

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 182

JOHN L. GENTRY, individually and as Personal

Representative of the Estate of Barbara Gentry, and as 

parent and next friend of Kalen Gentry and Kallie Gentry,

Plaintiff and Appellant,

v.

DOUGLAS HEREFORD RANCH, INC., a Montana Corporation;

and PARD CATTLE COMPANY, a limited liability company,

Defendants and Respondents.

 APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Wibaux,

The Honorable Dale Cox, Judge presiding.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (1 of 12)4/19/2007 10:23:41 AM
No

COUNSEL OF RECORD:

For Appellant:

Gary L. Zadick; Ugrin, Alexander, Zadick & Higgins; Great Falls, Montana;

and Ron Efta; Attorney at Law; Wibaux, Montana

For Respondents:

Carolyn S. Ostby; Crowley, Haughey, Hanson, Toole & Dietrich;

Billings, Montana (for Douglas Hereford Ranch)

Robert Savage; Habedank, Cumming, Best & Savage; 

Sidney, Montana (for Pard Cattle Company)

Submitted on Briefs: January 15, 1998

Decided: July 21, 1998

Filed:

__________________________________________

Clerk

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (2 of 12)4/19/2007 10:23:41 AM
No

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The plaintiff, John L. Gentry, brought this action in the District Court for the 

Seventh Judicial District in Wibaux County to recover damages from the defendants, 

Douglas Hereford Ranch, Inc., and Pard Cattle Company, for the wrongful death of 

Barbara Gentry, and for damages she sustained prior to her death. The District 

Court awarded summary judgment to both defendants. Gentry appeals from the 

District Court's order and judgment. We affirm the judgment of the District Court.

¶2 The issues are:

¶3 1. Did the District Court err when it concluded as a matter of law that the 

defendants were not negligent?

¶4 2. Did the District Court err when it concluded as a matter of law that defendant 

Douglas Hereford Ranch, Inc., was not vicariously liable for the negligence of Brent 

Bacon?

DISCUSSION

¶5 Defendant Douglas Hereford Ranch, Inc., is the owner of ranch land located in 

Wibaux County, Montana. The principal shareholder in the ranch company is 

Cleone Elizabeth Douglas, the grandmother of Chris Ann Douglas who, at the time 

relevant to this action, was married to Brent Bacon. Defendant Pard Cattle Company 

was the lessee of the ranch land.

¶6 Sometime prior to November 5, 1994, Chris had offered to assist Cleone by 

painting the interior of a house known as the "new house" located on the ranch 

property. Chris's friend, Barbara Gentry, offered to assist her with the painting 

project in return for assistance Chris had previously provided to Barbara.

¶7 Chris and Barbara intended to paint the interior of the house on November 5, 

1994. However, the previous night, or that morning, they were advised that the 

furnace in the house was not operating. Cleone assumed that it would simply need to 

be turned on. Therefore, on the morning of November 5, Brent Bacon drove from 

Wibaux, where the couple lived, to the ranch with the intention of first starting the 

furnace and then hunting for deer on the ranch property. He took with him a Marlin 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (3 of 12)4/19/2007 10:23:41 AM
No

lever action 30-30 rifle and headed to the ranch in his personal vehicle. 

¶7 On his way to the ranch, Brent observed a fox, loaded six or seven rounds of 

ammunition into the rifle magazine, "cocked in a shell," and fired one shot at the fox. 

He apparently missed and "cocked in a second shell," but was too late to fire a 

second shot. According to his statement to investigators, he then pulled the trigger 

and released the hammer so that the hammer was resting on a live round of 

ammunition. He then proceeded to the ranch, where he helped Cleone dislodge her 

garage door, and then visited with her for awhile. After Chris, Barbara, and several 

of their children arrived in the ranch pickup, he walked to the "new house," which 

was then unoccupied, to check on the furnace. He left his rifle in his vehicle. After 

repeated efforts, Brent was unable to start the furnace. So, after exchanging 

pleasantries with Chris and Barbara who had, by then, arrived at the "new house," 

he started a fire in the fireplace and announced that he was leaving to go hunting. He 

walked back to his car, retrieved his rifle, put a box of shells in his pocket and 

returned to the "new house" to get the ranch pickup which he intended to drive to 

the point where he would begin his hunt.

¶8 Adjoining the house was a wooden deck accessed by two wooden steps. As Brent 

approached the deck, he was holding his rifle on his shoulder with his right hand. He 

had three of his fingers on the lever and one of them on the trigger. His thumb was 

on the hammer. At about the time he reached the deck, Barbara exited the house to 

retrieve a radio from the ranch pickup. She headed in the same direction that Brent 

was going and did not see him. As he reached the deck and was watching her, he 

stumbled and fell. Sometime after he stumbled, but before he landed on the deck, his 

rifle discharged; the bullet struck Barbara in the head; and, after surviving for a 

period of sixty-nine days, she died from the head injuries she sustained when she was 

shot.

¶9 In a taped interview given by Brent Bacon later in the day on November 5, he was 

asked the following question and gave the following answer:

Q: You don't know how you slipped or . . . ?

A: I don't know how I slipped . . . .

¶10 On January 3, 1996, John L. Gentry, the personal representative and surviving 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (4 of 12)4/19/2007 10:23:41 AM
No

spouse of Barbara Gentry, brought this action to recover damages for her wrongful 

death and a survival action to recover those damages sustained by Barbara Gentry 

prior to her death. The ranch company, the cattle company, and Brent Bacon were 

all originally named as defendants. Bacon was later dismissed when he sought 

protection in bankruptcy court.

¶11 In his complaint, Gentry alleged that Bacon had been negligent while working 

for the ranch company; that the ranch company was vicariously liable for Bacon's 

negligence; and that the ranch company and cattle company were also negligent for 

allowing an unsafe and dangerous condition (the stairs to the deck and the area 

surrounding the stairs) to exist on the ranch property. He alleged that the 

combination of Bacon's negligence and the dangerous condition of the stairs 

contributed to cause Barbara Gentry's injuries and death.

¶12 After all three denied liability, the ranch company moved for summary 

judgment. That motion was later joined by the cattle company. As the basis for their 

motions, the defendants contended that: (1) they owed no duty to Barbara which 

had, in fact, been breached; (2) Barbara's injuries were neither caused in fact nor 

proximately caused by any condition on the ranch property; and (3) because Bacon 

was not an employee of the ranch company at the time that he shot Barbara, the 

ranch company was not vicariously liable for his conduct.

¶13 In opposition to the defendants' motions, Gentry contended that: (1) Bacon was 

the employee of the ranch because he was there at the request of its owner to perform 

repairs; (2) the loose condition of the bottom step which led to the deck, and the 

clutter around the step, created an inherently dangerous condition which contributed 

to Bacon's fall and Barbara's injury; and (3) pursuant to § 27-1-317, MCA, and 

Lacock v. 4B's Restaurants, Inc. (1996), 277 Mont. 17, 919 P.2d 373, the defendants' 

duty to Barbara did not depend on whether the specific circumstances of her injury 

were foreseeable.

¶14 The District Court granted the defendants' motions for summary judgment 

based on the following conclusions:

¶15 1. The District Court concluded that the defendants had no duty to Barbara 

because the risk of this type of accident was not foreseeable. Its opinion stated: "It is 

inconceivable that a person standing well away from the zone of risk would be shot."

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (5 of 12)4/19/2007 10:23:42 AM
No

¶16 2. The District Court concluded that no unsafe condition had been shown to exist 

on the defendants' property.

¶17 3. The District Court held that no evidence had been offered to prove that the 

condition of the steps was either the actual or proximate cause of Barbara's injuries.

¶18 4. The District Court concluded that even if the defendants were negligent, the 

manner in which Bacon handled his firearm was so unforeseeable that it was an 

intervening, superseding cause of Barbara's injuries.

¶19 5. The District Court concluded that principles of respondeat superior were not 

applicable because Bacon was not an employee of the ranch company on the date in 

question, and even if he had been earlier in the day, his actions at the time of 

Barbara's injuries were unrelated to any duties he had performed for the ranch.

¶20 This appeal followed. Because we conclude that no proof has been presented to 

establish that a condition on the ranch property contributed as an actual cause of 

Barbara's injury, and that Bacon was not acting as an employee or servant of the 

ranch company at the time of Barbara's injury, we will not discuss the other 

conclusions of the District Court, nor the other issues raised on appeal.

ISSUE 1

¶21 Did the District Court err when it concluded as a matter of law that the 

defendants were not negligent?

¶22 When we review appeals from an order which grants summary judgment, our 

review is de novo. We review the facts presented to the district court to determine 

whether, based on Rule 56, M.R.Civ.P., the prevailing party is entitled to judgment 

as a matter of law. See Schmidt v. State (Mont. 1997), 951 P.2d 23, 26, 54 St. Rep. 

1321, 1322; Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 338, 922 P.2d 485, 487.

¶23 In Bruner v. Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901, we held 

that after the moving party demonstrates that no genuine issue of material fact exists, 

the burden shifts to the party opposing summary judgment to prove by more than 

mere denial and speculation that a genuine issue does exist. See Bruner, 272 Mont. at 

264, 900 P.2d at 903; see also Heiat v. Eastern Montana College (1996), 275 Mont. 322, 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (6 of 12)4/19/2007 10:23:42 AM
No

327, 912 P.2d 787, 791.

A negligence action requires proof of four elements: (1) existence of a duty; (2) breach of 

the duty; (3) causation; and (4) damages. If the plaintiff fails to offer proof of one of these 

elements, the action in negligence fails and summary judgment in favor of the defendant is 

proper. U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. 

The causation element requires proof of both cause in fact and proximate cause. Kitchen 

Krafters v. Eastside Bank (1990), 242 Mont. 155, 167-68, 789 P.2d 567, 574.

White v. Murdock (1994), 265 Mont. 386, 389-90, 877 P.2d 474, 476.

¶24 We have since overruled Kitchen Krafters to the extent that it required proof of 

proximate cause in every negligence action. In Busta v. Columbus Hospital Corp.

(1996), 276 Mont. 342, 371, 916 P.2d 122, 139, we held that:

In those cases which do not involve issues of intervening cause, proof of causation is 

satisfied by proof that a party's conduct was a cause-in-fact of the damage alleged. As 

stated in Prosser and Keeton on Torts § 41, at 266 (5th ed. 1984), a party's conduct is a 

cause-in-fact of an event if "the event would not have occurred but for that conduct; 

conversely, the defendant's conduct is not a cause of the event, if the event would have 

occurred without it."

¶25 In those cases, such as this case, where an independent intervening act is alleged, 

proximate cause and the attendant notion of foreseeability is still an issue. See Estate 

of Strever v. Cline (1996), 278 Mont. 165, 175, 924 P.2d 666, 672. Therefore, in this 

case, as we noted in White, proof of causation required proof of cause in fact and 

proof of proximate cause. We limit our discussion, however, to our conclusion that 

Gentry failed to prove cause in fact.

¶26 Gentry alleged that the ranch company and the cattle company were negligent 

by failing to maintain the stairs to the deck adjoining the "new house" in a 

reasonably safe condition. He contended that the bottom stair was unstable and that 

the area leading to it was cluttered by debris, including a drain pipe, electric wires, 

and rocks. However, the defendants' motions for summary judgment were based on 

Bacon's testimony that he was unable to attribute his fall to any of those conditions. 

When he was deposed on May 2, 1997, he gave the following testimony in response to 

the following questions:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (7 of 12)4/19/2007 10:23:42 AM
No

Q: Do you remember stumbling as you started up the steps?

A: I don't remember hardly anything.

. . . .

Q: And you don't remember exactly where you were when you began to stumble; is that 

right?

A: That's correct.

Q: And you don't know whether it was -- whether there was even some object that caused 

you to slip or stumble; is that right?

A: I don't remember anything.

. . . .

Q: You don't remember where you were?

A: No.

Q: And from the time after the rifle discharged, you don't know exactly where you were 

when you fell or what caused you to fall; is that right?

A: Correct.

. . . .

Q: And you don't recall if you had even reached the steps at the time that you fell; is that 

right?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (8 of 12)4/19/2007 10:23:42 AM
No

A. That's correct.

. . . .

Q: Did you want to add something?

A: Yes. I've stated umpteen numerous times that I don't remember if I tripped or if I was 

just clumsy or if I missed the step or hit it or whatever. I've stated that and stated that, and 

I don't recall.

¶27 Bacon also testified that while he had stumbled climbing those same steps prior 

to the incident in question, he had done so as the result of his own clumsiness, and 

not because of the condition of the steps.

¶28 In response to Bacon's deposition testimony, which was cited to the District 

Court in support of the defendants' motions for summary judgment, Gentry cited the 

District Court, and now cites this Court, to the following statement made by Bacon 

during an interview with investigators on November 16, 1995.

TW: Okay. So, you remember stumbling, and you don't remember on what?

BB: No, I don't remember if I went to step up on the step or if . . . there's a rock there also 

underneath the step to keep it level. I don't think it was that, I think it was the step.

¶29 Gentry contends that based on this isolated statement a reasonable finder of fact 

could infer that it was the step which caused Bacon's fall. However, earlier in the 

same interview, he was asked the following question and gave the following answer:

TW: Do you remember what you stumbled on?

BB: No I don't.

¶30 Furthermore, when asked in his deposition whether, at the time of his 

November 16 statement, he had remembered what caused him to fall, he testified 

that he had not. That testimony was consistent with his statement on the date of the 

incident in which he stated that he did not know how he fell.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (9 of 12)4/19/2007 10:23:42 AM
No

¶31 Finally, even the isolated statement relied on by Gentry does not support the 

contention that it was the condition of the step or the area surrounding the step 

which caused Bacon to stumble and fall. The most that could be inferred was that he 

was about to ascend the stairs when he did stumble and fall. Why he stumbled and 

fell would still require speculation. In the context of summary judgment proceedings, 

we have previously held that neither a suspicion nor speculation is sufficient to defeat 

a motion for summary judgment. In Benson v. Diehl (1987), 228 Mont. 199, 203, 745 

P.2d 315, 317, we held that:

A suspicion, regardless of how particularized it may be, is not sufficient to sustain an 

action or to defeat a motion for summary judgment. Unsupported conclusory or 

speculative statements do not raise a genuine issue of material fact. The trial court 

has no duty to anticipate possible proof. Gates v. Life of Mont. Ins. Co. (1982), 196 

Mont. 178, 638 P.2d 1063, 1066.

¶32 The facts presented in this case are similar to those presented in Krone v. 

McCann (1982), 196 Mont. 260, 638 P.2d 397, overruled on other grounds by 

Richardson v. Corvallis Public School Dist. (Mont. 1997), 950 P.2d 748, 756, 54 St. 

Rep. 1422, 1428. In that case, the plaintiff sought damages for injuries she sustained 

while walking on property owned by the defendant. She was injured when she 

stumbled over some object on the property. However, she was unable to identify 

what it was that caused her to stumble. We affirmed summary judgment for the 

defendant for the following reasons:

More importantly, the fact is undisputed that the appellant cannot describe what caused 

her injury. She does not know if it was merely a mound of dirt or an old corral pole.

In an action for negligence, a plaintiff must produce evidence from which it can be 

reasonably inferred that negligent conduct on the part of the defendant or its agents was 

the proximate cause of the plaintiff's injuries. Flansberg v. Montana Power Company

(1969), 154 Mont. 53, 460 P.2d 263, approved in Scott v. Robson, supra, 597 P.2d at 

1155. Here, the appellant simply does not know exactly what caused her injury. As noted 

above, the respondents cannot be the insurers of the appellant and held liable for her injury 

merely because an accident happened on their land.

Krone, 196 Mont. at 266, 638 P.2d at 400-01.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (10 of 12)4/19/2007 10:23:42 AM
No

¶33 Likewise, Gentry has offered no substantial evidence that any condition on the 

property owned by the ranch company and leased by the cattle company caused 

Bacon to stumble and fall immediately before his rifle discharged and struck the 

decedent, Barbara Gentry. Therefore, we conclude that cause in fact cannot be 

proven as a matter of law, and the District Court did not err when it held that the 

defendants, Douglas Hereford Ranch, Inc., and Pard Cattle Company were not 

negligent in a manner that contributed to the injuries and death of Barbara Gentry.

ISSUE 2

¶34 Did the District Court err when it concluded as a matter of law that defendant 

Douglas Hereford Ranch, Inc., was not vicariously liable for the negligence of Brent 

Bacon?

¶35 Gentry contends that even if a dangerous condition on the ranch property was 

not responsible for Barbara Gentry's injury and death, the ranch company is 

vicariously liable for the negligence of Bacon because he was at the ranch to perform 

services for the ranch company on the date of Barbara's injury. However,

A claim of respondeat superior against an employer requires there to have been an 

employment relationship between the defendant and the tortfeasor when the injury to the 

third party occurred. In the absence of statutory or contractual provisions to the contrary, a 

public or private entity is ordinarily not vicariously liable for, or obligated to pay expenses 

associated with, the tortious acts of those who are not its employees. Distinctions between 

the terms employer and employee, master and servant, and principal and agent are 

immaterial for respondeat superior purposes.

27 Am. Jur. 2d Employment Relationship § 461 (1996). 

¶36 We apply the same limitation to the principle of respondeat superior in Montana. 

See Clawson v. Schroeder (1922), 63 Mont. 488, 498-99, 208 P. 924, 927.

¶37 Furthermore, an employment relationship is contractual in nature and generally 

requires the mutual assent of the parties, as well as consideration. See 27 Am. Jur. 2d 

Employment Relationship § 14 (1996). In this case, none of the elements of an 

employment relationship were proven. Bacon's gratuitous offer to help his wife's 

grandmother open the garage door, and his willingness to help start the furnace so 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (11 of 12)4/19/2007 10:23:42 AM
No

that his wife and her friend would be warmer while they painted the walls of the 

"new house" did not make him the ranch's employee.

¶38 Finally, respondeat superior only applies to an employee or agent who is acting 

within the scope of his duties owed to his employer or principal. See Kornec v. Mike 

Horse Mining Co. (1947), 120 Mont. 1, 8, 180 P.2d 252, 256; Hoffman v. Roehl (1921), 

61 Mont. 290, 298-99, 203 P. 349, 350. In this case, it is undisputed that Bacon was 

not acting on behalf of the ranch company or the cattle company at the time that his 

conduct caused Barbara's injury. He had abandoned his effort to start the furnace in 

the "new house." He had gone to his personal vehicle to pick up his rifle, and was 

returning to borrow the pickup so that he could go hunting. Nothing about his 

activity at the time that he stumbled and shot Barbara was remotely related to ranch 

business.

¶39 For these reasons, we conclude that the District Court did not err when it held, 

as a matter of law, that Douglas Hereford Ranch, Inc., was not vicariously liable for 

the acts or omissions of Brent Bacon on November 5, 1994, when he injured Barbara 

Gentry.

¶40 We affirm the judgment of the District Court.

/S/ TERRY N. TRIEWEILER

We Concur:

 /S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-373%20Opinion.htm (12 of 12)4/19/2007 10:23:42 AM