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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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