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Estate of Strever v. Cline6/27/1996
easonable care under the circumstances. Yalowizer v. Husky Oil Co. (Wyo. 1981), 629 P.2d 465, 467.
In Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 140, 706 P.2d 491, 496, this Court held that the test for determining the duty owed by a landowner to an injured party is "not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner." In Limberhand, we cited § 27-1-701, MCA, which provides:
Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
Limberhand, 706 P.2d at 496. Thus, the question in the case before us becomes, did Susanj exercise ordinary care in storing his gun and ammunition clip under the seat of his unlocked pickup.
The existence of a duty of care depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability. Maguire v. State (1992), 254 Mont. 178, 189, 835 P.2d 755, 762. The policy considerations to be weighed in determining whether to impose a duty include: (1) the moral blame attached to the defendant's conduct; (2) the desire to prevent future harm; (3) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (4) the availability, cost and prevalence of insurance for the risk involved. Phillips v. City of Billings (1988), 233 Mont. 249, 253, 758 P.2d 772, 775.
Applying these policy considerations in the present case, reasonable minds could attach moral blame to Susanj's act of storing his gun and ammunition in an unlocked vehicle on a public street with numerous other items of attractive personal property in plain view easily accessible to thieves or simply to curious small children. In addition, requiring a gun owner to safely store his firearm (for example, in this case, by merely locking the vehicle, locking the gun in the glove compartment or removing the gun and ammunition from the vehicle) would not impose an undue burden upon the gun owner in light of the danger involved and the necessity of preventing thefts of firearms or accidental shootings. Finally, various types of liability insurance policies are readily available at a reasonable cost and cover the risks inherent in the negligent use and storage of firearms.
Moreover, in our recent opinion of Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, we stated that duty "is measured by the scope of the risk which negligent conduct foreseeably entails." Busta, 916 P.2d at 134 (quoting Mang v. Eliasson (1969), 153 Mont. 431, 438, 458 P.2d 777, 781).
In like manner, in Prosser and Keeton on Torts the authors state:
The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous . . . must exercise a great amount of care because the risk is great. They may be required to take every reasonable precaution suggested by experience or prudence.
W. Page Keeton et al., Prosser and Keeton on Torts § 34, at 208 (5th ed. 1984). We cited with approval this same rule in Mang when we said:
As a classic opinion states: "The ri
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