                               NO. 88-305

              IN THE SUPR.EME COURT OF THE STATE OF MONTANA
                                  1988




KIMBERLY ANN GRAHAM and SHARON
GRAHAM,
                Plaintiffs and Appellants,
       -vs-
MONTANA STATE UNIVERSITY,
                Defendant and Respondent.




APPEAL FROM:    District Court of the Seventeenth Judicial District,
                In and for the County of Blaine,
                The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:

       For Appellant:
                Robert D. Morrison; Morrison, Young, Melcher and
                Brown, Havre, Montana
       For Respondent:
                James M. Scheier, Agency Legal Services Bureau,
                Helena, Montana



                                  Submitted on Briefs:   Mov. 17, 1988
                                    Decided:   December 30, 1988
Mr. Justice R.    C. McDonough delivered the Opinion of the
Court.

      Kimberly and Sharon Graham appeal from the order of the
District Court of the Seventeenth Judicial District, Blaine
County, granting summary judgment in favor of Montana State
TJniversity (MSU). We affirm.
     The Grahams present three issues for review:
      1. Whether the District Court erred in determining that
MSU had no duty to supervise Kimberly Graham as a matter of
   .
1-aw
       2. Whether the District Court erred in determining that
the risk to Kimberly Graham was unforeseeable as a matter of
law.
       3. Whether the District Court erred in dismissing Sharon
Graham's claim for loss of consortium.
     Kimberly Graham (Kimberly) participated in the Minority
Apprenticeship Program (MAP) at MSU during the summer of
1984.   MAP is designed to encourage minority high school
students to pursue careers in the sciences by providing
work-related experience in various scientific research taking
place at MSU. Kimberly was 16 when she was accepted for the
program, and was a student at Hays-Lodgepole High School.
     The students in the program lived on-campus in a
university dormitory or "residence hall" and worked as
research assistants to MSU scientists. MSU hired Vaschelle
LaForge as a residence hall advisor/supervisor for MAP
participants. Her job was to act as a friend and role model
for the MAP students, and to enforce the rules of conduct
adopted by MSU for program participants:
       1. Consumption of alcoholic beverages in any form
       is strictly prohibited by all MAP participants.
       2. Be on time to all scheduled activities.
     3. Written notice and approval are required from
     parents and [the program director] before leaving
     Bozeman any time between initial arrival and the
     end of the scheduled program (July 27).
     4. Not permitted to drive or accept rides in
     vehicles other than those provided by the Minority
     Apprenticeship Program staff.
     5. Required to be on the assigned residence hall
     floor by 10:30 p.m. week nights (Sunday-Thursday)
     and 12:OO a.m weekends (Friday-Saturday) and in own
     room by 11:00 p.m. weeknights and 1-2:30 a.m.
     weekends.
     6 . No visitors allowed after the 11:00 p.m. curfew
     weeknights and the 12:30 curfew on weekend-s.
     Failure to comply with any of these rules will
     result in discipl-inary action which may lead to
     dismissal from the Minority Apprenticeship Program.
A copy of these rules had been provided to the Grahams before
Kimberly was actually accepted for the program.
     On a Sunday afternoon approximately two weeks after the
program began, Kimberly and several other MAP participants
obtained LaForgels permission to visit the off-campus
residence of Darryl J. Tincher. While it is not settled in
the record, there is deposition testimony that a party had.
been taking place at this residence since the previous
evening.   LaForge testified in deposition that she did not
know of the partv.
     At the party, Kimberlv drank beer and became "a little
drunk."   Deposition testimony also conflicts as to whether
LaForge knew Kimberly was drinking at the party. According
to Kimberlv's deposition, LaForge came to the residence, saw
Kimberly and other MAP students drinking, but took no action.
LaForge testified in her deposition that she did not see anv
drinking by MAP students, and indeed did not enter the house
when Kimberly said she did.
     At some point in the afternoon, Tincher offered Kimberly
a motorcycl-e ride, which she accepted.   They first drove a
short distance to a convenience store, where Tincher bought
gasoline for the motorcycle and beer. They then proceeded to
Rig Sky, where they stopped at a bar and drank a total of
four mixed drinks between them.      On the return trip to
Bozeman, Tincher's motorcycle left the highway and hit an
embankment.    Kimberly was seriously injured.        Tincher
testified in deposition that he had turned around to speak to
Kimberly when the accident occurred.
     The Grahams filed suit against Tincher, MSU and the
owners of the bar in Big Sky alleging negligence on the
behalf of all defendants that caused Kimberly's injuries.
MSU moved for summary judgment, arguing (1) MSU owed no duty
to Kimberly and (2) any alleged negligence on MSU's part was
not the proximate cause of Kimberly's injuries. The District
Court granted the motion, and this appeal followed.
     The standard for review of a summary judgment is the
same as that used by the trial court granting the judgment.
In order for summary judgment to issue, the movant must show
that there is no genuine issue as to all facts that are
material in light of the substantive principles entitling the
movant to judgment as a matter of law.             Frigon v.
Morrison-Maierle, Inc. (Mont. 1988), 760 P.2d 57, 45 St.Rep.
1344.
     The basis of the District Court's decision in this case
is foreseeability, an element of both duty and proximate
cause in negligence cases. The court relied on our decision
in Schafer v. State Dept. of Institutions (1979), 181 Mont.
102, 592 P.2d 493.    On the question of duty, the Schafer
decision stated:
     This element serves as a limit on liability for
     acts which might, under other circumstances, be
     negligent.   The substance of foreseeability as it
     relates to negligence is that a defendant who could
     not foresee any danger of insury from his conduct
     or any risk from an intervening force is not
     negligent.  [citation] Absent foreseeability,
     there is no duty; absent duty, there is no
     negligence.
Schafer, 592 P.2d at 495. While we agree with the court that
foreseeability is an issue on the question of dutv in this
case, we are troubled by the implications of eliminating a
university's duty toward a juvenile such as Kimberly.
     The court discounted two arguments put forth by the
Grahams in their effort to prove that MSU owed a duty to
Kimberly.    The Grahams relied on two sections of the
Restatement (Second) of Torts.       Section 314A(4) of the
Restatement imposes a duty to aid or protect on some one who
voluntarily takes custody of another under circumstances that
deprive the    latter of his normal opportunities for
protection.   Section 323 of the Restatement provides that
once some one undertakes to provide some service that imposes
a duty toward another person, he will be liable for any
failure to exercise due care in carrving           out that
undertaking.
     According to the Grahams, MSU assumed a duty to protect
Kimberly because it effectively took custody of her while she
participated in the MAP program, thereby eliminating her
normal opportunity for parental protection.     MSU was also
bound to exercise due care in supervising ~imberly and the
other MAP participants, a service the university voluntarily
undertook by hosting the MAP program.
     The two cases central to MSU's argument on this point
are Bradshaw v. Rawlings (3d Cir. 1979), 612 F.2d 135, and
Beach v. University of Utah (Utah 1986), 726 P.2d 413. Both
cases note the demise of the - -in loco parentis status once
occupied by universities, and hold that universities no
longer have a special, custodial relationship to their adult
students.    However, the reasoning employed in both cases
shows a distinction between them and the case at bar.
     The Bradshaw court found no duty running from the
university to Bradshaw, because "[c]ollege students today are
no longer minors." The court noted college students' ability
to vote, marry, make a will and the like, which had wrought a
change in their relationship with universities:

                                  -
     There was a time when colleqe administrators and
     faculties assumed a role - - parentis.
                                    in loco
     Students were committed to their charge because the
     students were considered minors.         A special
     relationship was created between college and
     student that imposed a duty on the college to
     exercise control over student conduct, and,
     reciprocally, gave the students certain rights of
     protection by the college.
Rradshaw, 612 F.2d at 139.     The IJtah Supreme Court cited
Bradshaw with favor in Reach, and further noted:
     Elementary and high schools certainly can          be
     characterized as a mixture of custodial           and
     educational institutions, largely because those   who
     attend them are juveniles. However, colleges      and
     universities are ed.ucationa1 institutions,       not
     custodial.
Beach, 726 P.2d at 419.
     The plaintiff in this case is a minor high school
student.   When MSU undertook to have Kimberly live on its
campus and supervise her during the MAP program, it assumed a
custodial role similar to that imposed on a high school
because Kimberly is a juvenile. Once MSU assumed that role,
it was charged with exercising reasonable care in supervising
the MAP participants.
     Kimberly testified that LaForge knew there would he
drinking at the party, and indeed witnessed MAP participants
at the party drinking beer.    LaForge denies knowing of or
seeing any drinking by MAP participants.        Given MSU's
custodial role regarding MAP participants, this is a dispute
as to a material fact.
     If LaForge did in fact know of or see drinking by minor
MAP participants at the party, that knowledge would render
her duty immediate. Her failure to act would be a breach of
that duty, and could be negligence imputable to MSU if the
circumstances warrant. On the other hand, if LaForge did not
have actual knowledge of the drinking, the extent of her duty
would depend on what she reasonably could foresee as the
possible result of allowing the MAP students in her charqe to
visit Tincher's house.
     In contrast to the question of MSU's duty toward
Kimberly, foreseeability is dispositive of the question of
proximate cause.    If the Grahams establish MSU's duty and
show that LaForge's inaction amounted to a breach of that
duty, they must still prove that the breach was the proximate
cause of Kimherlv's injuries. Without a showing of proximate
cause, a negligence claim fails. 57 Am Jur 2d Negligence 5
128.
     Simply stated, the record shows that Kimberly's drinking
at the party was not the proximate cause of her injuries.
Tincher consumed enough alcohol that day to be charged with
driving under the influence of alcohol or drugs. He later
pled guilty to that charge. Tincher also testified that he
was driving with his head turned away from the road in order
to talk to Kimberly, who was riding behind him on the
motorcycle. Tincher therefore could not see the road ahead,
or where the motorcycle was headed. Tincher's actions caused
the motorcycle to leave the highway, and were therefore the
intervening cause of Kimberly's injuries. Her injuries were
not reasonably foreseeable consequences of LaForge's failure
to take action regarding Kimberly's drinking.
     If there is no room for a reasonable difference of
opinion as to whether the action of a party other than the
defendant is the intervening cause of the plaintiff's injury,
summary judgment based on proximate cause is proper.
Schafer, 592 P.2d at 496.        Tincher's actions leave no
question of material fact as to proximate cause in this case.
That element of the Grahams' case is missing, and their
claims therefore necessarily fail.
     We affirm the decision of the District Court.
