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Estate of Strever v. Cline6/27/1996
he child wandered across the apartment parking lot, which separated the apartment complex from an irrigation ditch adjacent to but not on apartment property, and slipped or fell into the ditch, causing the child's death one day later. The ditch was not fenced from the apartment complex.
In Limberhand, this Court said that § 27-1-701, MCA, relating to duty of landowners, made no distinction between social guests, invitees or persons even though they may be trespassers. However, this was stated in reference to such individuals as civil guests, invitees or trespassers and not as to criminal thieves or burglars. Limberhand had nothing to do with and said nothing about such criminals. Now such criminals are joining the list of those to whom property owners owe a legal duty predicated upon claimed negligence.
I acknowledge that we live in a society in which many innocent people are victims of crime. However, if we have reached a stage in our society in which all of us are under a legal duty to foresee that our homes and property will be burglarized, we as Montanans are indeed living in perilous times.
The majority's response to the special concurrence and dissent requires a further comment in support of the dissent.
The dispositive resolution of this appeal is found in Issue 2, where this Court's majority holds that the District Court's grant of summary judgment to defendant Susanj holding him not liable was proper because of the series of intervening acts including two criminal acts of the thieves and one grossly negligent act. I concur with this holding and dispositive resolution of this case.
This Court has on countless occasions stated in its decisions that issues not necessary to the disposition of an appeal need not and will not be discussed. Advisory and gratuitous statements should not be indulged in by this Court. I can only speculate as to why then, the majority of this Court wrote at great length to establish a new public policy that as a matter of law Susanj, as owner of a firearm, has a legal duty to thieves who have stolen the firearm and that not only Susanj but the general public as well has a like duty to thieves.
One other comment must be made in relation to the majority response to the dissent.
The majority states that trespassing, by definition, is criminal , citing Title 45, Chapter 6, MCA. This statement is not accurate and must be clarified. A civil trespass upon premises or land of another does not without more become a criminal trespass. Privilege to enter or remain upon land is extended by the landowner failing to post notice denying entry onto private land. This privilege may be revoked at any time by personal communication of notice by the landowner to the entering person. Only then does such trespass become a criminal misdemeanor. Section 45-6-201, MCA. Premises is defined in § 45-2-101(58), MCA, as including any type of structure or building and any real property.
The distinction between a civil and criminal trespass is clear under the statutes. To be criminal, the trespass requires the requisite act as well as the criminal state of mind of knowingly.
The type of criminal act in this case has nothing to do with the misdemeanor trespass statute. The criminal acts in this case involved entry into Susanj's vehicle and theft of his property.
I would affirm the District Court's conclusion that Susanj could not foresee the criminal act of the thieves and did not breach a legal duty.
JUSTICE ERDMANN joins in the dissent of CHIEF JUSTICE TURNAGE.
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