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Estate of Strever v. Cline6/27/1996
not have occurred without it. Proximate cause is proved by establishing cause in fact, i.e., the "but for" test or "substantial factor" test. Prosser and Keeton on Torts § 41, at 263-72.
We recently determined in Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, 138, that ordinarily foreseeability is part of the analysis of "duty," rather than "proximate cause," and that to analyze it under both issues leads only to confusion. In Busta, we overruled that part of our decision in Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567, that required a two-tiered analysis of causation in cases other than those where there has been an allegation that the chain of causation is severed by an independent intervening cause. Since the case before us is just such an intervening causation case, foreseeability is properly considered with respect to causation on that basis, and, under the facts here, we conclude that failure of proof of causation can be determined as a matter of law.
We have previously stated that a defendant's liability for his wrongful act will not be severed by the intervening act of a third party if the intervening act is one that the defendant might reasonably foresee as probable or one that the defendant might reasonably anticipate under the circumstances. Thayer v. Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795 (citing Nehring v. LaCounte (1986), 219 Mont. 462, 470, 712 P.2d 1329, 1334).
As to intervening acts by third parties in relation to a defendant's conduct, Prosser and Keeton state:
The question is always one of whether the defendant is to be relieved of responsibility, and the defendant's liability superseded, by the subsequent event. In general, this has been determined by asking whether the intervention of the later cause is a significant part of the risk involved in the defendant's conduct, or is so reasonably connected with it that the responsibility should not be terminated. It is therefore said that the defendant is to be held liable if, but only if, the intervening cause is "foreseeable."
Prosser and Keeton on Torts § 44, at 302.
In Mills v. Mather (1995), 270 Mont. 188, 890 P.2d 1277, we recognized that although most negligence actions contemplate some action on the part of a defendant which is the actual and proximate cause of the plaintiff's damages, failure to act can also form the basis for a claim of negligence.
There are . . . situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal , misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct. . . .
Mills, 890 P.2d at 1283-84 (quoting Restatement (Second) of Torts § 302B cmt. e (1965)).
However, we have also stated that the criminal or intentional actions of a third person may not be foreseeable. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 47, 803 P.2d 629, 635-36 (citing Cole v. German Savings and Loan Society (8th Cir. 1903), 124 F. 113). Similarly, a grossly negligent act on the part of a plaintiff may also be considered unforeseeable. Sizemore, 803 P.2d at 636.
Along these same lines, in Prosser and Keeton on Torts the authors state:
There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinar
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