Jacques v. Montana Nat. Guard
| Decision Date | 23 August 1982 |
| Docket Number | No. 81-440,81-440 |
| Citation | 199 Mont. 493,39 St.Rep. 1565,649 P.2d 1319 |
| Court | Montana Supreme Court |
| Parties | Michael R. JACQUES, Plaintiff, Respondent and Cross-Appellant, v. The MONTANA NATIONAL GUARD, Department of Military Affairs of the State of Montana, and The State of Montana, Defendants, Appellants and Cross-Respondents. |
Johnson, Skakles & Kebe, Anaconda, Greg J. Skakles argued, Anaconda, for plaintiff, respondent and cross-appellant.
This is an appeal by defendant from judgment entered May 15, 1981, by the Third Judicial District Court following a jury verdict in favor of plaintiff for $1,390,000.00 and from the order entered thereafter on post-trial motions. Plaintiff cross-appeals.
Plaintiff's legs were traumatically amputated by an explosion on February 6, 1977. Plaintiff, employed at the Anaconda Smelter in Anaconda, Montana, had been engaged in a conversation with a co-employee, Larry Raver. During the conversation, Raver picked up a "projectile" or large shell from his nearby truck and was holding it in his hands. Raver explained to the plaintiff that the shell was a dud but that it was designed to "go off" in a certain manner. When Raver was concluding this statement, the plaintiff, concerned of the danger, began running for safety. The shell exploded. Raver was killed and plaintiff's injuries ensued.
Plaintiff filed suit against the Montana National Guard and the State of Montana alleging that the decedent Raver obtained the shell from the National Guard firing range in the Deer Lodge-Mt. Powell area. Plaintiff's proof established that the National Two other issues are presented for review. Defendants contend that the present limitation on state liability for damages should apply or, in the alternative, that any recovery should be limited to applicable insurance limits. In a cross-appeal plaintiff challenges the constitutionality of section 2-9-317, MCA, which exempts the State from paying interest on judgments for a two year period. The sufficiency of evidence question must be decided first.
Guard held exercises in this area and that large ammunition was left after the exercises. Plaintiff alleged negligence in failure to clean up the area and in leaving live ammunition where the public had access to it. Substantial credible evidence established a case of negligence and defendants do not appeal that determination. Defendants contend that plaintiff totally failed to prove that Raver obtained the shell in question from the firing range near Deer Lodge.
Plaintiff's case for proximate cause was supported by the following:
(1) Plaintiff's testimony that the shell which caused his injuries was approximately eighteen inches long and about three inches in diameter;
(2) Evidence from the National Guard that exercises near Deer Lodge had included the firing of a projectile about eighteen inches long with a three-four inch diameter;
(3) Testimony from several witnesses that large live rounds had been found in the area of Mt. Powell;
(4) Deposition testimony from Larry Raver's widow establishing that Raver had traveled by motorcycle in the Mt. Powell area and during his motorcycle travels had collected what might be termed "junk items";
(5) Larry Raver, while demonstrating a large shell to a co-employee prior to this accident, stated that he had found the shell;
(6) Other sources of the shell in question were few, if any.
Defendant countered with expert testimony tending to prove that the round which exploded and injured the plaintiff was a 2.75 inch rocket round with a mark-176 fuse. Defendants' evidence further sought to prove that such a rocket round had never been fired by the Montana National Guard at the Deer Lodge firing range.
The issue is whether plaintiff's circumstantial evidence was sufficient to create a jury issue on proximate cause. It is incumbent upon the plaintiff to present evidence from which a jury might reasonably infer that Larry Raver obtained the shell in question from the National Guard firing range near Deer Lodge. Circumstantial evidence sufficient to prove proximate cause in a civil cause need not exclude every reasonable conclusion other than the conclusion sought to be established. Lenherr v. NRM Corp. (D.Kan.1980), 504 F.Supp. 165. Plaintiff's evidence is sufficient if it affords a basis for a reasonable inference by the trier of fact although there are other reasonable inferences which might be drawn by that trier of fact. Arterburn v. St. Joseph Hospital and Rehabilitation Center (1976), 220 Kan. 57, 61, 551 P.2d 886, 891.
With these rules in mind, we will now review that evidence offered by plaintiff to prove the proximate cause thesis. Upon this evidence, the plaintiff's contention for a submissible jury issue must rise or fall.
The following testimony was given by Gerald Effing, retired National Guard Colonel:
The following testimony of the plaintiff was offered to show the similarity of the shell which injured the plaintiff. Mickey Jacques testified:
Plaintiff sought through several witnesses to establish the existence of similar rounds following National Guard exercises. The following testimony is illustrative. Charles Fudge, Forester, U.S. Forest Service, testified:
Defense cross-examination of Charles Fudge revealed the following:
Laurence Lambert, Montana State Prison employee, testified:
Other corroborative evidence was received but the testimony quoted above represents the type of proof offered by the plaintiff to establish the existence of large shells in the area of the Deer Lodge firing range.
Plaintiff produced through deposition testimony of Larry Raver's widow, evidence that Raver traveled in the area where similar rounds were known to have existed. In pertinent part, she testified as follows:
Plaintiff offered the testimony of co-employees, that Raver had displayed a large projectile to them at a time prior to this accident, and had told them where he had found it. Defendants objected on the basis of...
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