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Busta v. Columbus Hospital Corp.5/10/1996
the "causation" element is satisfied is reduced to a bare-bones question of cause-in-fact. In removing foreseeability from the causation analysis, the majority's approach results in a situation where once duty and breach are established, a "but-for" or "substantial factor" analysis is all that remains in order to satisfy the causation element — I submit that such an inquiry will invariably be answered in the affirmative, particularly when it is obvious or conceded that a duty has been breached.
I must also address the majority's argument that Montana's statutory framework for determining liability reinforces its position. Section 1-1-204, MCA, does include the concept of foreseeability in the "duty" element when it defines negligence as "a want of the attention to the nature or probable consequences of the act or omission that a prudent man would ordinarily give in acting in his own concerns." However, I fail to follow the majority's logic when it states that the language of § 27-1-317, MCA, set forth below, specifically precludes the applicability of a foreseeability requirement to the issue of proximate cause.
For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
This statute addresses damages and the language simply means that if the injury was foreseeable it makes no difference whether the damages were also foreseeable.
Finally, I am not persuaded by the majority's position that lay jury members are confused by concepts such as foreseeability and proximate cause and therefore that they are distracted from their duty to decide cases based on their merits. I submit that such concepts are not only necessary to establish the prima facie case for negligence but are also, when accurately defined, the proper tools to enable the jury to do its job . In my view it is better to explain these concepts and define how they are to be used by the jury rather than to leave the juries' understanding of them to chance and differing definitions.
In conclusion, I would be the first to admit that the language contained in the Kitchen Krafters instruction has caused problems for judges and practitioners alike. The adequacy of the instruction needed to be addressed and revised. However, I am not convinced that in remedying the instruction it is necessary to abandon the concept of foreseeability and its dual application to the analysis of both the "duty" and "causation" elements in negligence actions.
CHIEF JUSTICE TURNAGE joins in the foregoing concurring and dissenting opinion.
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