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Estate of Strever v. Cline6/27/1996
nt. 195, 197, 745 P.2d 1126, 1127.
Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty; the existence of a legal duty is a question of law to be determined by the district court. Nautilus Insurance Co. v. First National Insurance (1992), 254 Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802, 803.
Yager v. Deane (1993), 258 Mont. 453, 456, 853 P.2d 1214, 1216.
Issue 1
Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.
The District Court determined that Susanj did not owe a legal duty to Robert because Susanj was unaware of previous thefts in that area of Billings that would compel him to lock his vehicle, because Susanj did not permit the boys to enter his vehicle, because Susanj did not have an open display of his firearm to lure the boys into entering his vehicle and stealing the firearm, and because Robert was not an innocent party but, rather, was a participant in the burglary.
Plaintiffs contend that Susanj had a legal duty to the general public to lock his vehicle to prevent the gun from falling into "improper hands." Susanj argues that vehicle owners have no duty to protect burglars from injuries they inflict upon themselves in the course of their criminal acts. We conclude that Susanj did owe a duty to not only Robert but also to the public in general to store his firearm and ammunition in a safe and prudent manner.
Negligence denotes "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." Section 1-1-204(4), MCA. Moreover, every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of his rights. Section 28-1-201, MCA.
At common law, a property owner's potential liability for injuries suffered by one who entered onto his land was determined by the injured party's status as an invitee, licensee or trespasser.
A trespasser is one who enters the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duties to the owner, but merely for his own purposes, pleasure or convenience.
Williams v. Bill's Custom Fit, Inc. (Tex. Ct. App. 1991), 821 S.W.2d 432, 433. Although most cases have involved trespassers on land, these same rules have been applied to trespassers on personal property. Williams, 821 S.W.2d at 433 (citing Prosser and Keeton, The Law of Torts ยง 58 (5th ed. 1984)).
A trespasser could recover under the common law "only for intentional, wanton, or willful injury or the maintenance of a hidden engine of destruction." Alston v. Baltimore & Ohio Railroad Co. (D.D.C. 1977), 433 F. Supp. 553, 560. In those states still adhering to the common-law classifications of licensee, invitee and trespasser, the general rule is that while a landowner cannot intentionally injure or lay traps for a trespasser upon his land, he owes no other duty to a trespasser. McKinsey v. Wade (Ga. Ct. App. 1975), 220 S.E.2d 30, 32 (where a storekeeper set a trap with dynamite in a vending machine and a sixteen-year-old boy was killed in the act of stealing from the machine).
While many jurisdictions still adhere to this concept, many, including Montana, have abandoned the common-law classifications of invitee, licensee and trespasser and have adopted a uniform standard of r
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