                             No. 94-389
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1995


DEBRA M. LUCERO, on behalf of
REBECCA L. BASTIAN, a minor child,
          Plaintiff and Appellant,
     v.
JESSICA MOORE,
          Defendant and Respondent.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Michael J. Lilly, Esq., Berg, Lilly, Andriolo   &
                 Tollefsen, P.C., Bozeman, Montana
          For Respondent:
                 Gene I. Brown, Esq., Landoe, Brown, Planalp &
                 Braaksma, P.C., Bozeman, Montana


                                Submitted on Briefs:   July 13, 1995
                                            Tkcided:   August 8, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.
        Debra Lucero, on behalf of her daughter Rebecca Bastian,l sued

Jessica Moore claiming Moore's negligent operation of a motor

vehicle caused Bastian's injuries.           In a trial before the District

Court for the Eighteenth Judicial District, Gallatin County, a jury

found Moore's negligence was not the cause of Bastian's injuries.

Bastian appeals.          We affirm in part and reverse in part.
        The issues on appeal are:

        1.     Did the District Court err in giving Jury Instruction No.

7 on intervening, superseding         causation?

        2.     Did the District Court err in refusing to give Bastian's

proposed Jury Instruction No. 18 on concurrent causation?

        3.     Did the District Court err in giving Jury Instruction No.

8 on foreseeability of the intervening act?

        Moore, Bastian, and Stephanie Fratz were high school friends.

On the evening of May 29, 1992,             the three girls left Belgrade,

Montana,        to take the short drive to Bozeman to go to a movie.

Moore drove her parents' Subaru station wagon.          She picked up Fratz

and Bastian and the three girls proceeded toward Bozeman on Montana

Highway 10.         Bastian sat in the rear seat and Fratz sat in the

front        passenger   seat.   Fratz was turned sideways in her seat,

enabling her to converse with Bastian in the rear seat.

        Moore held the steering wheel with one hand placed at the

bottom center of the wheel.          In an attempt to "liven up the mood"


        1
              For simplicity, we will refer to plaintiff in this case as
Bastian.
                                        2
of   her   passengers,   Moore pumped the gas pedal and jiggled or
"tweaked" the steering wheel.      The vehicle swerved slightly from
side to side.

      At this point the girls' stories vary.       Moore   and   Bastian
testified that Fratz reached across the front seat and grabbed the

steering wheel with her right hand.     They claimed Fratz took hold

of the steering wheel at approximately the one o'clock position and

pulled it to approximately the five o'clock position.      This caused

the vehicle to swerve drastically to the right.
      Fratz denied "grabbing" the steering wheel.      Rather,     Fratz
testified that she merely contacted it with her left hand.         Fratz

claimed that she only moved the steering wheel a few inches.

      In any event, after Fratz touched the steering wheel, Moore

grasped the wheel with both hands and attempted to control the

vehicle.     Moore overcorrected and was unable to regain control.

The vehicle swerved off the left side of the highway and rolled.

Bastian was thrown from the vehicle.     The vehicle came to rest on

top of Bastian, pinning her underneath it.

      Bastian suffered three broken bones in her neck as well as a

fractured jaw.    She was required to wear a neck brace and underwent

extensive    rehabilitation.

      Bastian brought suit, claiming that her injuries were a result

of Moore's negligent operation of the vehicle.     Moore argued that

Bastian's    injuries were caused by Fratz's intervening negligence.




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        Following trial, the jury was presented with a special verdict
form.     The jury found that Moore was negligent but also found that

her negligence was not the cause of Bastian's injuries.

        Bastian appeals on the grounds that the jury was improperly

instructed on the law relevant to the facts presented at trial.

                                   Issue 1

        Did the District Court err in giving Jury Instruction No. 7 on

intervening,    superseding    causation?

        The District Court has discretion in instructing the jury and

we will not overturn the court's decision concerning jury instruc-

tions absent an abuse of discretion.          Chambers v. Pierson (1994),

266 Mont. 436, 442, 880 P.2d 1350, 1354. Jury instructions must be

read as a whole, taking into account the parties' claims and the

evidence     presented.     Hall v. Big Sky Lumber and Supply,           Inc.

(1993),    261 Mont. 328, 863 P.2d 389. We will reverse the district

court if the instructions are so inconsistent or contradictory that

they would confuse the average juror.             Goodnough v. State (1982),

199 Mont. 9, 14, 647 P.2d 364, 367.

        The District Court's Jury Instruction No. 7 reads as follows:

             A superseding intervening event is an unforeseeable
        event that occurs after the Defendant's original act of
        negligence, and the superseding intervening event cuts
        off the Defendant's liability.

Bastian argues that this instruction is improper.           She first claims

that this instruction is inapplicable to the evidence introduced at

trial.     She argues that, based on the evidence introduced, this is

a   case of    concurrent     causation,    not    intervening,   superseding

causation.       Bastian    insists   that because Fratz's        negligence

                                      4
occurred simultaneously with, or in immediate succession to MooreIs

negligence, concurrent causation, and not intervening, superseding

causation,   is the applicable legal doctrine in this case.        See
Halsey v. Uithof (1975), 166 Mont. 319, 532      P.2d 686; Restatement

(Second) of Torts § 433 and comments.

     First, we note that the court sufficiently instructed the jury

on Bastian's theory of the case.       Instruction No. 5 reads:

           The defendant is liable if her negligence was the
     cause in fact and proximate cause of plaintiff's inju-
     ries.

          The defendant's conduct is a cause in fact of the
     plaintiff's injuries if it is a substantial factor in
     bringing them about.

          The defendant's conduct is a proximate cause of the
     plaintiff's injuries if it appears from the facts and
     circumstances surrounding the incident that an ordinarily
     prudent person could have foreseen that injury would be
     a natural and probable consequence of the conduct.
     However, the specific injury that actually occurred need
     not have been foreseen.

Instruction No. 6 reads:

           In order for the Defendant's conduct to be the
     proximate cause of the Plaintiff's injuries, it must
     appear from the facts and circumstances surrounding the
     accident that the Defendant as an ordinarily prudent
     person could have foreseen that the Plaintiff's injuries
     would be the natural and probable consequences of that
     conduct.

Pursuant to these instructions, the jury could have determined that

Moore's negligence and Fratz's negligence were concurrent causes of

the accident and that each was a proximate cause of Bastian's

injuries.    The Court notes that Instruction No. 5 is not grounds

for reversal but is not recommended for future use on the issue of

concurrent   causation.

                                   5
       Bastian argues that Moore was not entitled to Instruction No.
7 because the two acts of negligence occurred simultaneously or in

immediate    succession.            As such, Bastian argues this is a case of
concurrent causation, not intervening, superseding causation.

       We   disagree.          Determining whether two negligent acts are

concurrent       causes of an injury or if one is an              intervening,

superseding cause is not controlled by proximity in time,                     but
rather must be determined on a case-by-case basis.

       The facts in this case warranted an instruction on interven-

ing,   superseding           causation.     In a factually similar case,      the
Minnesota Supreme Court phrased the issue and the applicable test

to be applied as follows:

       Was the act of defendant Butler in grabbing the steering
       wheel of the automobile which plaintiff was driving and
       swinging the vehicle to the left across the highway and
       into the ditch on the plaintiff's left side such an
       intervening force as to supersede the original negligence
       of defendant Knudsen?
             .   .   .   .

            Tested in the light of the above rules, we believe
       that the act of Butler was unforeseeable; that it was not
       the normal response to the situation created by Knudsen;
       and that it was so extraordinary that it must be held to
       constitute an efficient intervening cause.

Robinson v. Butler (Minn. 19481,              33 N.W.2d 821, 824. The doctrine

of intervening, superseding causation is relevant to the facts of

this case and the court did not abuse its discretion in giving an

instruction on that theory.

       We   conclude         that    the   District   Court did not   abuse   its

discretion by giving Instruction No. 7, and that the court did not


                                              6
err by failing to instruct further on intervening,          superseding
cause.

                               Issue 2

     Did the District Court err in refusing to give Bastian's

proposed Jury Instruction No. 18 on concurrent causation?

     Bastian's proposed Jury Instruction No. 18 reads:

          More than one person may be liable for causing an
     injury. A defendant may not avoid liability by claiming
     that some other person, whether or not named as a
     defendant in this action, helped cause the injury.

Bastian   argues her proposed Instruction No. 18 is a proper

statement of Montana law and is applicable to this case.

     Bastian's theory of the case is concurrent causation.       Moore's
theory of the case is intervening,        superseding   causation.   The

court adequately instructed the jury on Bastian's theory of the

case in Instruction Nos. 5 and 6.       The court adequately instructed

the jury on Moore's theory of the case in Instruction No. 7.

     We conclude that the District Court adequately instructed the

jury on Bastian's theory of the case.       We hold that the court did

not abuse its discretion in refusing Bastian's proposed Instruction

No. 18 as it was repetitive,   incomplete and confusing in light of

the facts and the other instructions given by the court.

                               Issue 3

     Did the District Court err in giving Jury Instruction No. 8 on

foreseeability of the intervening act?

     Instruction No. 8 reads as follows:
          Plaintiff has the burden of proving by a preponder-
     ance of the evidence that the acts of Stephanie Fratz
     were foreseeable by the Defendant, Jessica Moore.
                                    7
Moore raised the issue of intervening,             superseding   cause   as   an
affirmative defense in her Answer to Complaint and Demand for jury

Trial.

        The burden of proof is upon the party raising an affirmative

defense.      In E.F. Matelich Const. Co. v. Goodfellow Bros., Inc.

(1985),     217 Mont. 29, 702 P.2d 967, we stated "[wlaiver is an

affirmative defense (Rule 8(c), M.R.Civ.P.) and thus the burden of

proof is on the party raising the affirmative defense."                   E.F.

Matelich, 702 P.2d at 969.           Therefore, the burden of proof is upon

Moore     to establish that Fratz's conduct was an intervening,

superseding cause of the accident.

        Instruction No. 8 shifts the burden of proof of the affirma-

tive defense of intervening, superseding cause to Bastian.               Under

that instruction, Bastian is required to prove that Fratz's conduct

was     not an     intervening,      superseding   cause of   the   accident.

Therefore,       Instruction   No.    8 wrongfully shifts the burden of

proving an affirmative defense from the defendant Moore to the

plaintiff    Bastian.

        We conclude that the District Court abused its discretion in

giving Instruction No. 8.
        The decision of the District Court is affirmed in part and

reversed in part and remanded for a new trial.

        Pursuant to Section I, Paragraph 3(c),        Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document



                                         8
with the Clerk of this Court and by a report of its result to the
West Publishing Company.




                                        Chief Justice



We concur:




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