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NO.

95-327

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

EMMA L. PESCHKE and WILLIAM PESCHKE, individually and on behalf of BYLLI PESCHKE and ALICE PESCHKE, minors; and HOPE PESCHKE, Plaintiffs and Appellants, v. CARROLL COLLEGE, Defendant and Respondent

APPEAL FROM:

District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD: For Appellants: James D. Walen; Stacey & Walen; Billings, Montana Norman H. Grosfield; Utick & Grosfield; Helena, Montana For Respondent: Thomas Q. Johnson; Keller, Reynolds, Drake, Johnson & Gillespie; Helena, Montana

Submitted on Briefs: Filed:

November 7, 1996

Decided: December 23, 1996

Justice Charles E. Erdmann delivered the opinion of the Court. Plaintiffs appeal from the judgment entered by the First Judicial District Court, Lewis and Clark County, which ordered that plaintiffs take nothing by reason of their complaint against Carroll College for negligence surrounding a shooting incident

which occurred on the Carroll campus.

We affirm.

The issues on appeal are as follows: 1. verdict? 2. 3. Did the District Court properly instruct the jury? Did the District Court err by allowing the jury to view Was there substantial evidence to support the jury

a video-taped reenactment of the events which occurred prior to the shooting incident? FACTS The fact are not in dispute. In May 1990, summer school was

in session at Carroll College. Emma Peschke was working in the school cafeteria located on campus in the Carroll Commons. She was

a food service employee for the Marriott Corporation which had the food service contract at Carroll. At approximately 3:00 p.m. on May 18, 1990, Father Humphrey J. Courtney had taken his mother to the chapel located in Borromeo Hall where he was conducting Mass. When Father Courtney got to the

front door of the chapel he encountered John Aills and a woman companion, Marie Terese. He told Aills and Terese that they would

have to keep quiet if they were going to stay in the chapel. Aills and Terese followed Father Courtney into the chapel. 2 Father

Courtney left the chapel to find a chair for his mother and then went back to the sacristy to prepare for Mass. When Father

Courtney came out of the sacristy and before he started Mass, he observed that Aills had a hand gun that was stuck in the front of his trousers. Father Courtney started the Mass and Aills began to make noises and disrupt things by hollering and banging on a pew. demeanor was boisterous and

Father Courtney testified that Aills' loud,

and that Aills was making grunting or hooting noises. He

decided to ask Aills to leave the chapel and walked up to the pew area where he could talk to Aills face to face. smell alcohol on Aills' drunk. He was able to

breath and felt that Aills was probably took him by the arm and the dormitory building.

Father Courtney approached Aills,

escorted him out into the hallway of

Father Courtney then went back to the chapel and was unaware of Aills' college employee. subsequent cafeteria, actions. and Aills left the chapel, entered the Peschke and one other Marriott

shot

Peschke was shot in the chest and hospitalized, and the

other employee died from her injuries. On December 3, 1992, Peschke and her family, consisting of

husband William and daughters Bylli, Alice, Teresa, and Hope, filed a complaint for negligence and a demand for jury trial against Carroll seeking compensatory and special damages. alleged that Carroll, through its agents The and complaint employees,

specifically Father Courtney and others who observed Aills prior to the shooting, was negligent by failing to warn others or call 3

campus security or local

police

to

have

Aills

arrested,

disarmed,

or removed from campus.

Teresa's claim for loss of consortium was

dismissed prior to trial since she was over the age of eighteen. A jury trial was conducted between April 17 and 25, 1995. jury returned a special verdict The

finding that Carroll was not

negligent. On April 28, 1995, the District Court entered judgment. Peschke filed a motion for a new trial, which the court denied on June 13, 1995. This appeal followed ISSUE 1 Was there substantial evidence to support the jury verdict? In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court discussed our standard of review of a jury verdict in a civil case: Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the Finally, upon reviewing a jury verdict to evidence. determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party. Kane -r 152, 893 P.2d at 857 (quoting Hansen v. Hansen (1992), 254 Mont. 157, 835 P.2d 748, 750-51).

The tort of negligence has four elements: (1) existence of a duty; (2) breach of that duty; U.S. Fidelity and Guar. Co. (3) causation; and (4) damages.

v. Camp (1992), 253 Mont. 64, 68, 831

4

P.2d 586, 588-89. A plaintiff must establish all of these elements to succeed on an action in negligence. Camp,
831

P.2d at 589.

In the present case, a special verdict form was provided to the jury. follows: QUESTION NO. 1: Was the defendant, Carroll College, negligent? ANSWER: Yes No The relevant questions on the special verdict were as

If you answered Question No. 1 "No", the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 1 "Yes", then answer Question No. 2. QUESTION NO. 2: Was the negligence of Carroll College a cause in fact of the injuries and damages to the plaintiffs? ANSWER: Yes No

If you answered Question No. 2 "No", the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 2 "Yes", then answer Question No. 3. QUESTION NO. 3: Was the negligence of defendant Carroll College a proximate cause of the plaintiffs' injuries and damages? ANSWER: Yes No

If you answered Question No. 3 "No", the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 3 "Yes", then answer both Question No. 4 and Question No. 5. [dealing with damage amounts]. The jury found that Carroll was not negligent and answered the first question "No." As a result, it did not answer any further

questions. The parties agree that the issue during trial was whether Carroll breached its duty. If it did,
5

then that element of the

pvimafacie case

of negligence would have been met and then, and only

then,

would the jury have had to move on to Questions 2 and 3 By checking "No" to Question No. 1, the Moreover, the

relating to causation.

jury found that Carroll had not breached its duty. parties agree

that the issue on appeal is whether there was

substantial evidence to support the jury's finding that Carroll did not breach its duty. Peschke states in her brief that "[w]e need

not concern ourselves with the issues of cause in fact or proximate cause. " The pretrial order, to which the parties agreed, stated that: Defendant had the duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition for individuals lawfully on its premises. This may include a duty to warn when reasonable and when the danger is reasonably foreseeable. The District Court adopted the foregoing language verbatim into its Instruction No. 10 given to the jury. Peschke argues on appeal that, given Father Courtney's duty to act as an ordinarily careful person under the circumstances, he should have arrested, disarmed, or removed Aills from the campus under the circumstances that existed at the time. She points to

evidence that Aills was obviously intoxicated; had no business being on campus; was loud, boisterous, and disruptive; and was in possession of a handgun. Peschke also argues that it was not only Father Courtney who was negligent. Peschke claims she presented evidence to show that

there was a complete lack of security on the Carroll campus, which 6

may have led to the laxity of Father Courtney and other employees. She notes that at the time of the shooting incident, Carroll did not have a campus police or security department, but relied on the Helena Police Department to provide security. Peschke points out

that there was no specific policy regarding intoxicated persons on campus and that it was a judgment call as to whether someone who was intoxicated should be removed from campus. maintains no judgment was exercised. Peschke also points out that others observed Aills prior to the shooting. Todd Little, a Carroll student and member of the Here, Peschke

grounds crew, Margaret Hoy, a student who was working at the desk in Borromeo Hall, and Joyce Schnablegger, a janitor who was doing cleaning work in the dormitory building prior to the shooting, all observed Aills on campus before the shooting. Peschke notes that,

while none of these individuals saw a gun, they most likely would have reported Aills before he ever made his way inside the chapel had they been advised as to what procedure to follow with regard to a drunken transient on campus. Peschke called Mark Warrington to testify as a security expert. Warrington was critical of Carroll for not posting the 911

emergency telephone number on all of its telephones and handbooks. He also criticized Carroll for its lack of radio communications, claiming that only one member of the Carroll crew had a radio. Peschke is correct in asserting that she presented substantial evidence in therefore, support Carroll, of her claim that Father Courtney, and

breached the duty to provide reasonable

security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition, which may

have included the duty to warn when reasonable and when danger was foreseeable. Peschke's. However, Carroll presented evidence contrary to

In this regard, the jury heard evidence that there had

never before been a serious problem at Carroll caused by transients or homeless people visiting or passing through the campus. The

jury also heard testimony that there had never before been a serious crime--defined as murder, rape, assault or armed robbery-at Carroll. Father Courtney testified that Terese mentioned Father

Kirchen, another campus priest, which indicated that she was not a stranger to campus. Father Courtney stated that he did not observe He did see Aills

Aills threaten anyone or be abusive to anyone.

with a handgun, but testified that he was not brandishing the gun or waving it around in any fashion. Father Courtney testified that

Aills did not resist when he ushered Aills out of the chapel. Little testified that he had seen Aills and Terese near campus two different times prior to the shooting and that he was never close enough to Aills to determine whether Aills was intoxicated or not. Hoy stated that Aills and Terese looked like they had been on She stated that,

campus before and knew where they were going.

although she talked to Terese, she never talked to Aills and was not ever close enough to Aills to determine if he was intoxicated. Schnablegger stated that she was never afraid, nor felt threatened by the couple at any time. 8

Carroll's

cross-examination

of

Warrington

produced

testimony

that Warrington had not reviewed crime statistics for Carroll or for the city of Helena and/or Lewis and Clark County. He had never

been to the Carroll campus or to the City of Helena prior to the evening that, before his testimony. Furthermore, there was testimony

although the 911 number was capable of being used, it was

still in the testing process and was not published for use at the time. Testimony also revealed that all of the desk clerks had

radios and could communicate with one another and the "night man." In this case, the jury was presented with conflicting evidence regarding whether Carroll breached its duty. breach had occurred. It determined that no

It is within the province of the jury to

determine the weight to be given to evidence presented and to judge the credibility of witnesses, and in reviewing the jury's verdict, we must view the evidence in the light most favorable to the prevailing (1992)) (1992), party. See Hogan v. Flathead Health Center, Inc.

255 Mont. 388, 842 P.2d 335; Silvis Through Silvis v. Hobbs 251 Mont. 407, 824 P.2d 1013. We conclude that when the

evidence in this case is viewed in the light most favorable to Carroll, evidence. ISSUE 2 Did the District Court properly instruct the jury? We have previously stated that the district court has the jury's verdict is supported by substantial credible

discretion when it decides how to instruct the jury, taking into consideration the parties' theories, and that we will not overturn 9

the court's decision absent an abuse of discretion.

Cechovic v.

Hardin & Associates, Inc. (1995), 273 Mont. 104, 116, 902 P.2d 520, 527 (citing Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259, 267, 856 P.2d 217, 222). When we examine whether jury instructions were properly given or refused, their entirety, as well as we consider the instructions in in connection with the other

instructions given and the evidence at trial. at 527.

Cechovic, 902 P.2d

Peschke argues that the District Court erred when it refused Peschke's proposed Instruction Nos. 12, 18, Peschke also argues that the court erred 18A, 19, when it and 20. gave its

Instruction

No.

12 over Peschke's objection.

We address her

arguments in turn. Peschke's proposed Instruction No. 12 read as follows: You are instructed that defendant was negligent as a matter of law. The plaintiffs have the burden of proving: 1. That the plaintiff Emma Peschke was injured.

2. That defendant Carroll College's negligence was both the cause in fact and the proximate cause of the injury to Emma Peschke. 3. The amount of money that will compensate Peschke for her injury. Peschke requested this instruction based on her Emma that

contention

Carroll had breached its duty and was therefore negligent as a matter of law. However, this matter is resolved by our decision in

Issue 1 that substantial credible evidence supports the jury's verdict that Carroll was not negligent, that is, that Carroll did

10

not breach its duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a

reasonably safe condition, which may have included the duty to warn when reasonable and when danger was foreseeable. Peschke's proposed Instruction No. 12 would have essentially directed a verdict for her on the negligence issue. A directed

verdict is proper only in the complete absence of any evidence to warrant submission to the jury. Head v. Central Reserve Life of P.2d 735, 742. See

North America (1993), 256 Mont. 188, 199, 845 also Rule 50(a), M.R.Civ.P. Here,

in light of our holding in

Issue 1 that there was substantial evidence to support the jury's verdict that Carroll was not negligent, there was certainly not a complete absence of any evidence to submit to the jury, directed verdict was therefore not proper. and a

We conclude that the

District Court did not abuse its discretion in refusing Peschke's proposed Instruction NO. 12. Instruction No. 12 given by the District Court, a verbatim recitation of Montana to which Pattern

Peschke objected, is

Instruction 2.04 and reads as follows: Every person has a right to assume that every other person will act with reasonable care. In the absence of a reason to think otherwise, it is not negligent for a person to fail to anticipate an injury which can only result from another's violation of the law or failure to use reasonable care. Peschke argues that this instruction, while not an inaccurate

statement of the law, is incomplete with regard to anticipation of criminal conduct on Carroll's premises. Peschke maintains that the

11

jury should have been instructed that Carroll had a duty to take precaution to protect persons lawfully on campus from criminal conduct. She notes that this is not a case of a customer walking

into a fast food restaurant and suddenly firing into a crowd. Here, according to Peschke, Carroll, through its agents, had

contact and conversation with Aills, and noticed that he was in possession of a firearm and was intoxicated. Peschke's argument falls short of the mark in that it fails to take into account the key language of Instruction No. states 12 that The

'I [iln the absence of a reason to think otherwise."

instruction does not, as Peschke contends, instruct that it is not negligent not to anticipate Aills' criminal conduct. It

specifically poses the question of whether the circumstances created a reason to think otherwise. Peschke argues that there was

a reason to think otherwise, and Carroll argues that there was not. This was precisely the issue that was before the jury. The jury

found in Carroll's favor, and we have held in Issue 1 that there was substantial evidence to support the jury's verdict. Moreover, we examine jury instructions in their entirety.

Cechovic, 902 P.Zd at 527. follows:

The court's Instruction No. 10 read as

Defendant had the duty to provide reasonable security and a reasonably safe place to work, as well as to maintain safe its premises in a reasonably condition for individuals lawfully on its premises. This may include a duty to warn when reasonable and when the danger is reasonably foreseeable.

12

This instruction correctly sets forth the law applicable to this case. When read together with the court's Instruction No. 12, it

fully and fairly instructed the jury on Peschke's theory of the case. 527-28. The law requires nothing more. See Cechovic, 902 P.2d at

We therefore conclude that the District Court did not 12 over

abuse its discretion when it gave its Instruction No. Peschke's objection.

Peschke's proposed Instruction Nos. 18, 18A and 19 all come from the Restatement (Second) of Torts. Peschke's proposed

Instruction Nos. 18 and 18A, respectively, read as follows: An act or an omission may be negligent if the actor should realize involves an realizes or that it unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal. A failure to act may be negligent in situations in which the actor fails 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 relationship toward the one who suffers the harm, which includes the duty to protect him against intentional misconduct. Section 302B of the Restatement (Second) of Torts is Peschke's In addition, Peschke cites

authority for these two instructions.

to

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