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Estate of Strever v. Cline6/27/1996
y and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law.
Prosser and Keeton on Torts ยง 33, at 201. With that in mind, a review of some of our prior cases involving intervening criminal acts by third parties is appropriate.
In 1990, the relatives of a minor killed by an ex-convict sued the State of Montana over the convict's release. VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 932. Plaintiffs claimed that the state has a duty to avoid the release of prisoners whose mental illnesses render them dangerous to society. The District Court found that plaintiffs' theories of proximate cause were too speculative and that the state's acts were not the proximate cause of plaintiffs' injuries. Although this case involved an intervening act by a third party, we did not reach that point in our analysis since we held that the state did not owe a duty to plaintiffs because once the inmates' sentence had expired, the state had no choice but to release him.
Three months later, in Kiger v. State (1990), 245 Mont. 457, 802 P.2d 1248, we were faced with a similar situation when the state was again sued over the release of a Montana State Prison inmate. In Kiger, several days after his release on parole, a former prison inmate shot a woman while attempting to steal her car. Plaintiff claimed the state was negligent in releasing the parolee. In Kiger we analyzed proximate cause in terms of foreseeability because of the intervening act and we said that in this case "there are too many `what ifs' that are superseding events that break the chain of causation." Kiger, 802 P.2d at 1251.
Two years later, in U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 70, 831 P.2d 586, 589, we said that not all intervening causes will act so as to absolve the defendant of liability. The plaintiff in Camp brought an action in negligence to recover moneys paid to its insured for damages resulting from a fire in an apartment building. In Camp, we said:
The chain of causation will only be broken, thereby cutting off the defendant's liability, if the intervening cause is reasonably unforeseeable. Thayer, 793 P.2d at 795. However, if the intervening cause is one that the defendant might reasonably foresee as probable, or one that the defendant might reasonably anticipate under the circumstances, then the intervening act does not absolve the defendant of liability. Nehring v. LaCounte (1986), 219 Mont. 462, 712 P.2d 1329.
Camp, 831 P.2d at 589.
The following year in King v. State (1993), 259 Mont. 393, 856 P.2d 954, the parents of a young man murdered by a former mental patient of the Montana State Hospital brought suit against the state for negligence in releasing the patient to the community. In King, we relied on our three prior opinions in VanLuchene, Kiger and Camp and reiterated that the intervening acts must be reasonably foreseeable to establish proximate cause. We also stated in King that
if a plaintiff's injury is caused by the intervening act of a third party, the defendant's actions cannot be viewed as the proximate cause of that injury. [Emphasis added.]
King, 856 P.2d at 956 (citing Graham v. Montana State University (1988), 235 Mont. 284, 289-90, 767 P.2d 301, 304). Our use of the word "cannot" in this statement was an unfortunate choice as Graham does not state such a hard and fast rule and we had not intended to, nor did we, set forth such a hard and fast rule in King. In actuality, we said in Graham that:
If there is no room for a reasonable differ
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