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Estate of Strever v. Cline6/27/1996
53 St.Rep. 576
Submitted January 30, 1996.
Eleven-year-old Robert Strever died May 3, 1992, as a result of a single gunshot wound to the head. Robert was shot with a handgun that he and several companions had stolen from a vehicle. Robert's mother brought an action against the owner of the vehicle and the three boys present at the time of the shooting. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment in favor of the vehicle owner and one of the boys and entered default against the remaining two boys. The District Court subsequently granted Plaintiffs' Motion for Rule 54(b) Certification to this Court. We affirm.
The issues presented for review are:
1. Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.
2. Whether the District Court erred in determining that, even if Thomas Susanj owed a legal duty to Robert Strever, the breach of that duty was not a proximate cause of Robert's death.
Background Facts
On Friday, May 1, 1992, Robert contacted his mother at work and requested permission to go on a weekend fishing trip with his friend, Brent McKellip. Robert's mother instructed him to contact his grandmother, Josephine Strever, and have her speak with Brent's father to get the details of the trip. Josephine called the McKellip home and spoke with an individual who represented himself as Mr. McKellip. He stated that the boys would be leaving for the fishing trip on Friday evening and that they would return to Billings on either Saturday or Sunday.
When the boys came to collect Robert's clothing for the weekend trip, Josephine expressed her suspicions of Mr. McKellip's youthful sounding voice. Robert and Brent told her that it was due to Mr. McKellip having a sore throat. After Robert's death, it came to light that the fishing trip was a ruse and that fourteen-year-old Steven Cline pretended to be Mr. McKellip to obtain permission for Robert to spend the weekend with Brent.
On Saturday evening, May 2nd, Robert, Cline and another boy, Bowen Racine, attended a movie. After leaving the movie theater, the boys decided to enter several parked vehicles in the neighborhood and steal their contents.
Tom Susanj was in Billings that weekend to visit his father who had been transferred to St. Vincent's Hospital for medical care. Susanj had parked his pickup on the street in front of a relative's home and had left it for the night. Located in the cab of his pickup were a Spectrum radar detector, keys, a micro cassette recorder, jumper cables, a Black & Decker car light, Bushnell binoculars, a Shakespeare fishing rod and case, a tape case with 30 cassette tapes, a small tool box, and a Fujica camera. Underneath the seat of the pickup, in a white bag, was a Ruger 22-caliber semiautomatic pistol and ammunition.
In the early morning hours of May 3rd, the three boys entered Susanj's pickup and removed several items. Although Susanj testified that it was his normal practice to lock his pickup, there was no evidence of forced entry. Susanj was not aware, nor had he reason to be aware, of a crime problem, if any, in that neighborhood.
Sixteen-year-old Thomas Morris joined Robert, Cline and Racine after noticing them near Susanj's pickup. All four boys then returned to the pickup to search for more items to steal. Morris took the white bag from under the driver's seat and discovered that it contained the handgun and ammunition. An animated discussion ensued over who should have the gun. After removing the gun from the bag, Morri
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