Cusenbary v. Mortensen

• Decision Date: 22 September 1999
• Docket Number: No. 98-345.,98-345.
• Citation: 296 Mont. 25,1999 MT 221,987 P.2d 351
• Parties: Jonathan CUSENBARY, Plaintiff and Respondent, v. Glen A. MORTENSEN, d/b/a Town Tavern, Defendant and Appellant.
• Court: Montana Supreme Court

987 P.2d 351

1999 MT 221

296 Mont. 25

Jonathan CUSENBARY, Plaintiff and Respondent, v. Glen A. MORTENSEN, d/b/a Town Tavern, Defendant and Appellant.

No. 98-345.

Supreme Court of Montana.

Submitted on Briefs February 11, 1999.

Decided September 22, 1999.

Matthew Hutchison, McPherson & Hutchison; Great Falls, Montana, For Appellant.

Norman L. Newhall & J. Kim Schulke; Linn Newhall, Martin & Schulke; Great Falls, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 On July 2, 1996, Jonathan Cusenbary brought this action in the Eighth Judicial District Court, Cascade County, to recover damages he suffered after being injured on July 28, 1993, by a vehicle driven by James Wells. Cusenbary brought this action against Glen Mortensen doing business as the Town Tavern for serving Wells alcohol immediately prior to the incident. On March 30, 1998, a jury returned a verdict against Mortensen in the amount of $750,000 and this appeal followed. We affirm the judgment of the District Court.

¶ 2 The issues presented on appeal are as follows:

¶ 3 1. Did the District Court abuse its discretion when it dismissed Mortensen's proposed jury instruction regarding his defense of intervening, superseding cause?

¶ 4 2. Did the District Court err when it excluded evidence of criminal proceedings against James Wells which arose from this incident?

¶ 5 3. Did the District Court err when it allowed evidence and testimony regarding James Wells' blood alcohol content and evidence regarding the amount of alcohol James Wells consumed prior to arriving at the Town Tavern?

¶ 6 4. Did the District Court properly dismiss Mortensen's third party complaint and refuse to permit the jury to apportion the alleged negligence of James Wells, Pamela Wells, and Georgina Wells?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 James Wells suffered a broken neck in an automobile accident in 1991. Although initially paralyzed, Wells recovered to the point of being able to walk without a limp. When Wells consumes alcohol, however, he loses control of his legs.

¶ 8 On the evening of July 28, 1993, Wells was driven to the Town Tavern in Great Falls, Montana by his niece. Glen Mortensen owns the Town Tavern. Several members of Wells' family including Katherine Wells, Pamela Wells, and Georgina Wells assisted Wells from the vehicle into the Tavern. Witnesses also saw Wells' family members helping him to move from a chair at a table in the Tavern to his wheelchair, and assisting him to the restroom. After approximately two hours in the Tavern, Wells' family members pushed him out of the Tavern and placed him in the passenger side of a vehicle. Wells estimated that he had consumed "about eight" beers while in the Tavern.

¶ 9 Tavern patron Korey McGaffey observed Wells' behavior while Wells was in the Tavern. To McGaffey, Wells was "obviously drunk, in a bad mood." McGaffey observed Wells shout and yell and saw him "tip over and hold his head in his hand and swerve and weave up and yell." He saw Wells "pound a drink and slam it down," and noticed that Wells' speech was "very slurred." He also noticed that Wells would get "real quiet and groggy down and explosively snap up and start barking at people." To McGaffey, Wells was "very obviously" intoxicated. McGaffey recalls being relieved when Wells finally left because other patrons were "trying to avoid" Wells and because Wells had created a "bad situation."

¶ 10 Another patron, Jarrod Hall noticed Wells immediately after entering the bar because Wells was "loud, obnoxious, and acting intoxicated." Hall recalls that Wells was arguing and talking loudly and was "obviously intoxicated." He also noticed that Wells' speech was "very slurred" and hard to understand.

¶ 11 While sitting in the car, Wells apparently moved into the driver's seat of the vehicle, started the vehicle, and drove it through the south wall of the Tavern injuring Jonathan Cusenbary, another patron of the Tavern. Wells was arrested, charged, and pled guilty to several felonies. He was sentenced to 20 years in prison. Wells testified that he has no recollection of driving through the Tavern wall and believes he was "too intoxicated to exercise good judgment."

¶ 12 Toxicologist Dr. Brian Finkle estimated that Wells' blood alcohol concentration (BAC) at the time of the accident was between.28 percent and .30 percent. Dr. Finkle identified slurred speech, staggered walk, talkativeness, and "fighting" behavior as subjective signs of intoxication that can be readily observed and which most people recognize as drunkenness. Dr. Finkle stated that as a person's blood alcohol concentration increases, the subjective signs of intoxication such as slurred speech also increase. Dr. Finkle also stated that an estimated blood alcohol concentration of .28 percent to .30 percent is "very high" such that it would "most certainly" render a person visibly "grossly intoxicated." He testified that such persons have "great difficulty" with speech; their personality is distorted, and they may be on the verge of falling asleep or "fighting and antagonistic." Dr. Finkle testified that "without question" Wells would have been showing obvious signs of intoxication at least one hour prior to the incident.

¶ 13 Jonathan Cusenbary commenced the present action by filing a complaint against Glen Mortensen, d/b/a/ Town Tavern, for the injuries he received as a result of Wells' conduct. Cusenbary claims that Mortensen's employees "negligently served intoxicating liquors and alcoholic beverages to James Wells" when Wells was already visibly intoxicated. Cusenbary alleges that Mortensen violated § 27-1-710, MCA, the dram shop act, when he furnished alcoholic beverages to a person who is "visibly intoxicated."

¶ 14 Mortensen asserted as an affirmative defense that Wells' conduct of driving the vehicle through the Tavern wall was an intervening, superseding cause which was not reasonably foreseeable to Mortensen and thus severed the chain of causation. The District Court excluded all evidence that Wells' actions were intentional, that he had been convicted of several felonies for his actions, and that he was sentenced to serve 20 years in the Montana State Prison. The District Court dismissed Mortensen's affirmative defense and ruled Wells' conduct did not constitute an intervening, superseding cause and was foreseeable as a matter of law. The District Court also denied all of Mortensen's instructions that related to this defense.

¶ 15 By third party complaint, Mortensen sued James Wells, Pamela Wells, and Georgina Wells. Cusenbary released these third party defendants and the District Court dismissed Mortensen's complaint against them. The District Court limited Mortensen's defense to the sole issue of whether Wells was visibly intoxicated and refused to allow the jury to apportion any percentage of negligence to the third party defendants.

ISSUE I

¶ 16 Did the District Court abuse its discretion when it denied Mortensen's proposed jury instruction regarding his defense of intervening, superseding cause?

¶ 17 On appeal Mortensen claims that Cusenbary's damages proximately resulted from an intervening, superseding, new and independent cause which was not reasonably foreseeable to Mortensen and thus severed the chain of causation from his original negligent acts. He maintains that the District Court erred when it dismissed his jury instruction regarding this affirmative defense and concluded that Wells' conduct was foreseeable. He maintains that the District Court should have left the issue of foreseeability for the jury to decide.

¶ 18 A district court has discretion regarding the instructions it gives or refuses to give and will not be reversed absent an abuse of discretion. See Busta v. Columbus Hosp. (1996), 276 Mont. 342, 359, 916 P.2d 122, 131; Lacock v. 4B's Restaurants (1996), 277 Mont. 17, 20, 919 P.2d 373, 375. When reviewing an instruction to determine whether it was properly refused, the appellate court considers the instructions in their entirety, as well as in connection with the other instructions given and the evidence at trial. See Busta, 276 Mont. at 359, 916 P.2d at 131; Lacock, 277 Mont. at 20-21, 919 P.2d at 375. It is not reversible error to refuse an offered instruction unless the refusal affects the substantial rights of the party proposing the instruction. See Busta, 276 Mont. at 360, 916 P.2d at 132; Lacock, 277 Mont. at 21, 919 P.2d at 375. A party is not prejudiced by a refusal of his or her proposed instructions when the subject matter of the instruction is not supported by the evidence introduced at trial. See Busta, 276 Mont. at 360, 916 P.2d at 132.

¶ 19 The issue of causation requires a determination, ordinarily by the fact finder, that a defendant's conduct helped produce the injury and that the injury would not have occurred without it. As we explained in Estate of Strever v. Cline (1996), 278 Mont. 165, 175, 924 P.2d 666, 672, however, in cases involving alleged intervening causes, foreseeability is properly considered with respect to causation. According to the facts presented here, we conclude as we did in Strever, that failure of proof of causation can be determined as a matter of law.

¶ 20 Accordingly, we review a district court's conclusions of law to see whether the courts interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04); see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674.

¶ 21 In order for Cusenbary to prevail against Mortensen on a claim for negligence, he must establish the following: (1) the existence of a legal duty from Mortensen to Cusenbary; (2) a breach of that duty; (3) causation; and (4) damages to Cusenbary. See White v. Murdock (1994), 265 Mont. 386, 389, 877 P.2d 474, 476. If a plaintiff...