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Estate of Strever v. Cline6/27/1996
s either handed the gun to Cline at Cline's request or Cline took the gun from Morris. Either way, Cline gained control of the gun. Prior to the incident Cline had been smoking marijuana and had informed Morris he was "high".
Morris testified that Cline waved the gun around while his finger continually rested on the trigger. In the process of examining the gun, Cline ejected a live shell from the chamber. Cline was attempting to remove the ammunition clip from the gun when the gun discharged, the bullet striking Robert in the head. Susanj later testified that he did not keep the clip in the gun. However, Morris and Cline testified that the clip was in the gun when they took it from the bag.
After Robert fell to the ground, the other boys panicked. Morris and Racine ran down an alley and Cline followed, still carrying the gun. Morris and Racine urged Cline to put the gun down and he complied. Cline went to a nearby convenience store and called the police. The police later retrieved the gun from the spot where Cline placed it. Cline was convicted of negligent homicide for the death of Robert Strever.
Plaintiffs brought a civil action against the vehicle owner, Susanj, claiming that his negligent act of leaving his vehicle unattended and unlocked in a public thoroughfare contributed to the wrongful death of Robert Strever. Plaintiffs claimed that Robert's three companions, Morris, Cline and Racine, should also be held liable for Robert's death because they were involved in stealing the handgun from Susanj's pickup. Plaintiffs claimed that Morris, as the oldest of the boys and the one with some familiarity of handguns, was negligent in failing to prevent harm to Robert and in failing to warn Robert of the danger involved with a loaded gun.
The District Court granted summary judgment in favor of Susanj and Morris on the grounds that neither of them owed a duty to Robert. The District Court further held that even if Susanj and Morris owed a duty to Robert, their actions or inactions were not the proximate cause of Robert's death. The District Court entered default against the remaining two defendants, Cline and Racine, for failure to appear.
Upon motion by Plaintiffs and without objection by Morris and Susanj, the District Court granted Plaintiff's Motion for Rule 54(b), M.R.Civ.P., Certification to this Court. Morris was subsequently dismissed from the appeal.
Standard of Review
Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we said:
The movant must demonstrate that no genuine issues of material fact exist. [Citation omitted.] Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. [Citation omitted.] Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [Citation omitted.] We review the legal determinations made by a district court as to whether the court erred. [Citation omitted.]
Bruner, 900 P.2d at 903.
Discussion
In order to sustain a negligence action, the plaintiff must establish a legal duty, breach of that duty, and damages proximately caused by that breach. Whitfield v. Therriault Corp. (1987), 229 Mo
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