Incompetent Defendant Appeared Pro Se

Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Montana Supreme Court recently.

Stewart v. Rice, 2013 MT 55

The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on Old Highway 97 on the Crow Reservation in Big Horn County. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.

At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.

On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”

On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.

A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.

However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.

The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.

Negligence per se

Montana law holds us liable for both our intentional and negligent acts. Because intentional acts tend to be very obvious, most legal cases are more concerned with negligence. I’ve discussed it before on here, but negligence happens when a person fails to exercise “reasonable care.” But, deciding this happens after the fact and usually requires a jury. One exception to that is negligence per se.

Negligence per se translates to negligence in itself. Basically, some acts are so obviously problematic that it doesn’t matter whether or not they’re done with reasonable care. If something is negligence per se, the person who commits that act is liable for the reasonably foreseeable consequences of that action. No matter how careful they were. Basically, this refers to the violation of a statute. Specifically, this refers to the violation of a statute intended to protect the plaintiff that injures the plaintiff.

In Montana, a plaintiff must establish five elements to bring a negligence per se claim: (1) that the defendant violated a particular statute; (2) that the statute was enacted to protect a specific class of persons; (3) that the plaintiff is a member of the class; (4) that the plaintiff’s injury is the kind of injury that the statute was enacted to prevent; and (5) that the statute was intended to regulated members of the defendant’s class.

If the plaintiff proves these elements, a defendant is negligent as a matter of law. But that’s just the first step. The plaintiff must still succeed in proving causation and damages to establish liability. If a plaintiff fails to do that, his claim fails as a matter of law. The defendant’s actions must have caused the alleged damages. Similarly, a claim fails as a matter of law if the plaintiff fails to establish the material elements of the claim, including damages.

What does all that mean? Basically that negligence law continues to apply. The four common elements of damages are duty, breach, causation, damages. Instead of a traditional duty analysis, we have the five factor test discussed above. But that’s only the first step – and the remaining three steps continue to apply. Because it short-circuits the duty requirement, negligence per se can be a powerful claim. But, it’s important to remember that it carries its own set of requirements and shouldn’t be reduced to just “breaking a law.”

Contributory Negligence in Montana

Under § 27-1-702, MCA, contributory negligence does not bar recovery in an action for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought. This means that a plaintiff could be found partially negligent but he could still recover damages from his suit.

For example, imagine that Fred is bicycling down the road in Kalispell when he is struck by Ben who is driving on the same road. Even if the jury finds that Fred was negligent in his bike riding because he was wearing headphones while riding, he can still recover damages in a suit against Ben so long as the jury finds that Ben’s negligence was greater than Fred’s. To put a number on it, so long as Fred was only 49% negligent, Ben’s negligence is greater than Fred’s and Fred can still prevail.

However, “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.” This means that while Fred can recover damages in his suit against Ben, those damages must be reduced by whatever percentage negligent Fred was. So, in the earlier example where Fred was 49% negligent, any damages that were awarded to Fred in his suit would be reduced by 49%. He can still recover 51% of whatever is awarded to him, the percentage that Ben was responsible for.

If the jury finds that Fred’s negligence is equal to or greater than Ben’s negligence, then Fred will be unable to collect any damages under the Montana rule. In a case with multiple defendants, the combined negligence of all the defendants is compared with that of the plaintiff to make the same determination.

How to Attach a Roof

Goles v. Neumann

John Neumann built an addition to his barn on his property near Pipestone, Montana in 2005. Two years later, the new roof blew off and cut a power line on the Goles’ property which sparked a fire consuming outbuildings, fences, corrals, trees, a field, and personal property. The Goaleses sued for negligent construction of the roof, alleging that he should have used “storm collars” to secure the roof in high winds.

The case proceeded to trial and each party introduced expert testimony. The Goles’ expert testified that he always used storm collars in windy areas and believed that the lack of collars was not reasonable and prudent, rendering the roof insufficient. On Neumann’s behalf, a wood science expert testified that while storm collars are commonly used in windy areas, the fact that Neumann had used 550 nails to secure the roof was significant. He believed it would have required winds of 100-105 mph to lift the roof, compared to 90 mph which was the standard.

Judge Tucker, the trial judge, gave the following instruction to the jury:

Negligence is not proven merely because someone later demonstrates that there would have been a better way. Reasonable care oes not require prescience nor is it measured with the benefit of hindsight.

The Goleses objected to the instruction, claiming that it was cumulative, unnecessary, and a comment on the evidence. Judge Tucker over ruled the objection and the jury returned a verdict in Neumann’s favor.

The Montana Supreme Court disagreed, holding that jurors could have reasonably inferred from the instruction that the testimony of both experts as to the efft that storm collars make better roofs should be disregarded. The majority held that jurors following this instructions could ahve concluded that they were obligated to disregard much of the evidence, instead of using their own sense of which evidence to accept and which to reject.

Justices Rice and Baker dissented on the grounds that the instruction was not an incorrect statement of negligence law and had previously been held proper in a Montana negligence case.

Negligent Traffic Director

Lokey v. Breuner and A.M. Welles Inc.

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September of 2006, Charles Lokey was bicycling through Bozeman when a Welles dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw Andrew Breuner who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind Breuner and were beginning to pass him on his right.

The dump truck stopped and motioned for Breuner to make his turn, which Breuner did, and collided with Lokey who had not stopped along with the dump truck. Lokey sued both drivers for his injuries.

At the District Court, Judge Swandal ruled that the dump truck driver was “no more responsible for Lokey than he was for any of the hudreds of other drivers on the road,” and that there is “no authority for Lokey’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” Lokey appealed this decision to the Montana Supreme Court.

The Montana Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for Breuner to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused Lokey’s injuries and damages.

The Elements of Negligence

Earlier, we discussed what negligence is. At it’s most basic, negligence is the failure of a person to exercise reasonable care. But, like all things lawyers touch, this is a complicated concept. There are different ways to think about negligence, but a case generally boils down to 4 elements: duty, breach, causation, and damages. There are different formulations of this breakdown, but I like the 4-part explanation best.


All negligence claims are based on a duty. Most often, that is the general duty we all have to exercise reasonable care when interacting with the world. Most often, this forms the basis of a negligence claim. But some people, when performing certain tasks, are held to a higher standard of care. A doctor, for example, can be held legally negligent for failing to do something that an ordinary person would never be expected to do. This is a large part of why all injury and negligence cases are so different. Analyzing what happened depends on who did it, and in what capacity they were acting.


Once we have established what duty was owed, we need to determine whether there was a breach of that duty. Although it can be a significant factor, the fact that an injury occurred does not necessarily mean that there was a breach of the duty. As the standard of care rises and the task being performed becomes more complex, it can be harder and harder to tell whether a breach occurred. In the case of the doctor mentioned above, it may require expert testimony by another doctor to determine whether the first doctor took the precautions that were reasonable. In more ordinary circumstances, like a driver who failed to secure his trailer, common sense intuitions about safety can go a long way – but fall short in unexpected ways. The bottom line is that a trained negligence lawyer will probably be necessary to determine whether there was a breach or not. And sometimes, the area is just so gray that a judge or a jury is required to make the final determination.


For a negligence claim, it is not enough that a duty was breached. The injured party must also show that the breach was the cause of the damages that he sustained. This can be a very complicated step. A law school trick for determining causation is the but-for test. Ask yourself, “but for the defendant’s actions, would the injury have taken place.” If, in a world without the defendant’s action, the injury still would have occurred, we probably don’t have causation. On the other hand, if we take away the defendant’s action and the injury disappears, that’s a good sign that causation exists. It’s important to remember that there is some limit on causation. People are only responsible for the reasonably foreseeable results of their actions. If the damage was a result of a long and windy path of improbable and unlikely reactions, it may be that legal causation will limit the defendant’s responsibility and determine that causation doesn’t exist. Again, this is highly fact specific and worth consulting an expert about for your situation.


Finally, a negligence case must have damages. It’s not enough that a duty was breached and that breach caused something to happen to a victim. The breach must cause damage to the victim. Damages are about placing a monetary value on the harm to a victim. They are imperfect and occasionally insulting, but the best our legal system has to offer. There are different types of damages. Special damages are quantifiable dollar amounts that the victim lost because of the harm. They include compensatory damages. They might include lost wages, medical bills, or damage to your car as examples. General damages are reflective of harm that doesn’t have a specific dollar amount. Pain and suffering a commonly used example. Finally, we have punitive damages which are intended to punish the negligent party for his actions. They don’t exist to compensate and aren’t tied to the harm suffered but instead to how badly the defendant acted.

What is Negligence?

Negligence is a legal concept that anyone who has been injured is likely to hear a lot about. It is central to injury law in Montana and across the country. Broadly speaking, negligence is a failure to exercise reasonable care. The law likes to talk about reasonableness and pretend that it is a concept that can be described concretely. You can think of reasonable care as the care that a reasonably prudent person would exercise in the same situation.

The basic idea behind negligence is that everyone should exercise reasonable care when they act, and doing that means taking into account the potential harm their actions could foreseeably cause others. Those who fail to take reasonable care, are liable for the reasonably foreseeable results of their actions. So, for example, if you fail to tie down some furniture in the back of your pick-up truck which then falls out while you’re driving down the highway and hits the driver behind you, you were negligent and responsible for the foreseeable results of your actions. And since it doesn’t take a Stephen King to imagine that driving with loose furniture could be a danger to those behind you, the damages you caused were probably foreseeable.

But often, it’s not so clear whether or not someone was negligent. In that situation, it may take a Court to determine whether a party was negligent and liable for the damage they caused. Injury lawsuits in Montana can be fought over liability, damages, or both. If the parties are arguing over whether someone was negligent, they are arguing over liability.

The thing to remember is that when you go out in the world, you are expected to behave in a reasonably prudent manner. Be careful. And watch out for everyone else too. The law may presume that people will act with reasonable care, but you’ll probably be safer if you assume the opposite.