Smith v. Oliszczak , 303 Mont. 539 ( 2000 )


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    No. 00-036
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2000 MT 384N
    SAMUEL TIMOTHY SMITH,
    Plaintiff and Appellant,
    v.
    COREY OLISZCZAK, THE KING COMMUNITY HOME,
    and YELLOWSTONE TREATMENT CENTER,
    Defendants and Respondents.
    APPEAL FROM: District Court of the Thirteenth Judicial District,
    In and for the County of Yellowstone,
    The Honorable Susan P. Watters, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    William D'Alton; Brown Law Firm, Billings, Montana
    For Respondents:
    Laurence R. Martin; Felt, Martin, Frazier, Jacobs & Rapkoch,
    Billings, Montana
    Submitted on Briefs: August 24, 2000
    Decided: December 28, 2000
    Filed:
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    __________________________________________
    Clerk
    Justice Karla M. Gray delivered the Opinion of the Court.
    ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
    Rules, the following decision shall not be cited as precedent. It shall be filed as a public
    document with the Clerk of the Supreme Court and shall be reported by case title,
    Supreme Court cause number and result to the State Reporter Publishing Company and to
    West Group in the quarterly table of noncitable cases issued by this Court.
    ¶2 Samuel Timothy Smith filed this action in the Thirteenth Judicial District Court,
    Yellowstone County, to recover damages for injuries he suffered while downhill skiing.
    He alleged that his injuries were caused by Corey Oliszczak, a minor living in the King
    Community Home foster care group home run by Yellowstone Treatment Centers. The
    District Court granted summary judgment to the defendants, ruling that Smith had failed to
    prove any facts to support his theory that the group home defendants were negligent in
    supervising Oliszczak while skiing. Smith appeals. We affirm.
    ¶3 The issue is whether the District Court erred in granting summary judgment on the
    basis that Smith failed to raise an issue of material fact as to the foreseeability that
    Oliszczak would present a risk to others while skiing.
    ¶4 A negligence cause of action has four elements: legal duty, breach of that duty,
    causation, and damages. Wiley v. City of Glendive (1995), 
    272 Mont. 213
    , 217, 
    900 P.2d 310
    , 312. In the face of a defense motion for summary judgment, a plaintiff's failure to
    establish a material issue of fact as to any one element of the negligence cause of action
    may warrant summary judgment. 
    Wiley, 272 Mont. at 216
    , 900 P.2d at 312. The existence
    of the first element, duty, depends upon the foreseeability of the risk and a weighing of
    policy considerations for and against the imposition of liability. Estate of Strever v. Cline
    (1996), 
    278 Mont. 165
    , 173, 
    924 P.2d 666
    , 670.
    ¶5 In this case, the District Court determined that the defendants had a duty to supervise
    Oliszczak that was commensurate with foreseeable risk. The court determined it was not
    foreseeable, however, that Oliszczak would create an unreasonable risk to others while
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    skiing. Smith's disagreement with that determination underlies this appeal.
    ¶6 Smith asserts that Oliszczak presented a risk to all skiers on Red Lodge Mountain on
    the day he went skiing there. He points out that a member of the group home's staff
    admitted that he allowed Oliszczak to ski on an advanced hill alone, in contravention of
    the group home's general policy that youths were never allowed to be out of a staff
    member's sight at an event or outing. That admission, however, goes to the standard of
    care, not to foreseeability.
    ¶7 Smith points out that Oliszczak had a history of threatening his mother, depression, and
    stealing. As the District Court noted, though, the record describes Oliszczak as a generally
    well-behaved resident of the group home. Also, deposition testimony described Oliszczak
    as a skilled skier. "Based on his past record of being responsible," wrote the District Court,
    "it is reasonable to assume that [Oliszczak] would ski in a responsible manner and not
    create an unreasonable risk to others."
    ¶8 In arguing the defendants' legal duty to him to properly supervise Oliszczak, Smith
    cites Lopez v. Great Falls Pre-Release Services, Inc., 
    1999 MT 199
    , 
    295 Mont. 416
    , 
    986 P.2d 1081
    . Lopez is clearly distinguishable from the present case because it involved the
    duty to supervise prison inmates, not youths in foster care. Nothing in the record before us
    indicates that Oliszczak had a propensity for violence or an intent to harm others. Nor is
    an accident while skiing an intentional or violent act. There is simply nothing to suggest
    that the defendants had knowledge of a specific risk to an identifiable and foreseeable
    victim. See Lopez, ¶ 28. We conclude that the District Court was correct in ruling that
    Smith failed to establish an issue of material fact as to the foreseeability that Oliszczak
    would present a risk to others while skiing. As a result, we hold that the District Court did
    not err in granting summary judgment for the defendants.
    ¶9 Affirmed.
    /S/ KARLA M. GRAY
    We concur:
    /S/ JIM REGNIER
    /S/ TERRY N. TRIEWEILER
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    /S/ JAMES C. NELSON
    /S/ W. WILLIAM LEAPHART
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Document Info

Docket Number: 00-036

Citation Numbers: 2000 MT 384N, 18 P.3d 1033, 303 Mont. 539, 2000 Mont. LEXIS 543

Filed Date: 12/28/2000

Precedential Status: Precedential

Modified Date: 3/29/2018