Kolar v. Bergo

Decision Date17 December 1996
Docket NumberNo. 95-578,95-578
Citation280 Mont. 262,929 P.2d 867
PartiesWade KOLAR, Plaintiff and Appellant, v. Dennis BERGO, Linda Bergo, David Salvi, and Richard Jergesen, Defendants and Respondents.
CourtMontana Supreme Court

James Stogsdill; Lewistown, L. Randall Bishop; Jarussi & Bishop; Billings, for Wade Kolar.

Steven J. Harman; Brown, Gerbase, Cebull, Fulton, Harman & Ross; Billings, for Dennis Bergo.

Robert J. James; James, Gray & McCafferty; Great Falls, for Linda Bergo.

Carey E. Matovich; Matovich, Addy & Keller; Billings, for David Salvi.

Charles R. Johnson; Marra, Wenz, Johnson & Hopkins; Great Falls, for Richard Jergesen.

ERDMANN, Justice.

Wade Kolar appeals from an order and memorandum issued by the Tenth Judicial District Court, Fergus County, granting summary judgment to defendants Linda Bergo and David Salvi. We reverse and remand.

The sole issue on appeal is whether the District Court erred in granting summary judgment to Linda Bergo and David Salvi.


On the day of April 1, 1993, David Salvi and his children had been playing practical jokes on each other, as it was April Fool's Day. They decided to play a joke on Dennis Bergo since Dennis and Linda Bergo were close family friends. The essence of the joke was to make Dennis believe that nine-year- old Marie Salvi was home alone, frightened, and in distress.

Marie called the Bergo residence and spoke with Linda who told Marie that Dennis was not home but that she would try and locate him. Linda called Dennis, who was at the house of his friend, Richard Jergesen, and relayed Marie's message to him. Dennis had gone over to Jergesen's in the afternoon and discovered that he and some friends were working on a gravel moving project. Dennis had a beer at Jergesen's, returned home to change clothes, and went back to Jergesen's to help with the work. Later Jergesen ordered pizza to reward his friends for their help and Dennis had three or four more beers during that period of time.

In the meantime, Marie had called Linda a second time and asked for Dennis. She pretended that she was home alone, did not know where her father was, and indicated she was becoming increasingly anxious and afraid. Linda decided she should go over to the Salvi residence as quickly as possible and when she arrived she discovered that David and Marie were trying to play a practical joke on Dennis.

While Linda and David were visiting in the kitchen, Marie called Dennis herself at Jergesen's and told him she was home alone and wanted him to come over. She was crying and sounded fearful and in distress. Dennis rushed out of Jergesen's house, jumped into his pick-up truck and headed over to the Salvi residence. In his hurry to respond to Marie's call for help, Dennis failed to adequately check traffic at the truck by-pass intersection 1.4 miles west of Lewistown. Dennis drove through a stop sign and pulled directly in front of Wade Kolar, who was approaching the intersection on his motorcycle. Kolar was seriously injured.

Kolar filed a complaint for negligence against Dennis and a demand for jury trial. During discovery, Dennis blamed the accident on the practical joke and his concern about getting over to the Salvi residence. Kolar subsequently amended his complaint and named Linda and David as additional defendants. He later filed a second amended complaint alleging that Jergesen was also responsible for the accident as a social host. Linda and David each filed motions for summary judgment which the District Court granted. This appeal followed.


Our standard of review in appeals from summary judgment is de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.


Did the District Court err in granting summary judgment to Linda Bergo and David Salvi?

The District Court stated that the only factual dispute before the court was the extent of Dennis's concern and anxiety for Marie when he left Jergesen's. The court determined that this dispute was not a "material issue of genuine fact" prohibiting the granting of summary judgment to Linda and David. Instead, the court focused on foreseeability and stated that "[h]ad the result been in any way foreseeable, it is doubtful the practical joke would have ever been played."

The court stated there was no reason for Linda and David to believe that Dennis was consuming alcohol while he was at Jergesen's and/or that he would not be able to drive to the Salvi residence without being involved in an accident. The court held that in this case reasonable minds could not differ as to the issue of foreseeability and that, even though the results of the practical joke were tragic, they were not in any way foreseeable by Linda and David.

Kolar argues that it was Dennis, and not him, that brought Linda and David into the case when Dennis defended the complaint by stating that the practical joke was a superseding intervening cause of the accident. Kolar claims that if we allow the District Court to dismiss Linda and David as defendants, then his remaining claim against Dennis will be compromised since the jury will undoubtedly reduce Dennis's degree of fault due to the circumstances surrounding the practical joke. According to Kolar, the jury will know Dennis was a victim too.

Kolar argues that in responding to the motions for summary judgment he met his burden to establish a genuine issue of material fact concerning Dennis's state of mind when he left Jergesen's to rush over to the Salvis'. Kolar claims that the court erred by requiring him to prove that Linda and David were able to foresee the specific scenario that resulted in the accident and his injuries.

Kolar argues that public policy requires that liability be imposed upon practical jokers when their acts lead in a natural and continuous sequence to injury. He relies on § 444 of the Restatement (Second) of Torts concerning acts done under an impulsion of an emotional disturbance to argue that as a matter of law, practical jokers cannot rely upon a foreseeability analysis to break the chain of causation. Finally, Kolar argues that the District Court erred in refusing to apply the "substantial factor" test of causation.

Linda and David argue that no genuine issues of material fact exist in this case to preclude summary judgment in their favor. They claim that there can be no showing that the practical joke constituted a danger from which a...

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