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Montana Supreme Court Upholds Jury Verdict in Death Action

In this case involving an escaped teenage prisoner who shot and killed
another boy, the Montana Supreme Court upheld a jury's verdict in favor of
the state.

Originally committed to the Pine Hills youth prison as a serious juvenile
offender, Bridger Bercier, 15, was released on a trial basis to the Youth
Evaluation Program (YEP), a non-secure supervised facility. On March 16,
1996, Bercier walked away from YEP. His leaving was timely reported to
police. Nine days later, while drinking beer with some boys in the
basement of the Samson family home, Bercier shot and killed Mark Samson
while playing with a loaded gun. Bercier pled guilty to negligent homicide
and was returned to Pine Hills.

On behalf of Mark's estate, Parnacita Samson sued the state of Montana for
negligence. A jury found in favor of the state and Samson appealed.
The Montana Supreme Court affirmed the jury's verdict, holding:

1) Sufficient evidence was presented to support the jury's conclusion that
the state was not negligent.

2) The trial court did not err in admitting testimony from one of the
state's expert witnesses who opined that the shooting was an unforeseeable
accident. The court reasoned that this testimony was admissible because
the jury was required to determine if Brecier's actions were foreseeable.

3) The failure of the trial court to give the jury Samson's instruction on
the meaning of negligent homicide was not error since "the instructions
given by the District Court properly stated the applicable law of the

See: Samson v. The State of Montana, 316 Mont. 90, 69 P.3d 1154 (MT 2003).

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Related legal case

Samson v. The State of Montana

Samson v. State, 316 Mont. 90, 69 P.3d 1154, 2003 MT 133 (Mont. 04/29/2003)

[1] Montana Supreme Court

[2] No. 99-580

[3] 316 Mont. 90, 69 P.3d 1154, 2003 MT 133, 2003

[4] April 29, 2003

[5] As amended April 30, 2003.


[7] APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. ADV-97-1380 Honorable Kenneth R. Neill, Judge Presiding

[8] Counsel OF Record:

[9] For Appellant:

[10] Joseph C. Engel III, Attorney at Law, Great Falls, Montana Dane J. Durham, Attorney at Law, Missoula, Montana For Respondent:

[11] Honorable Mike McGrath, Attorney General; John C. Melcher, Assistant Attorney General, Helena, Montana Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana

[12] The opinion of the court was delivered by: Justice Jim Rice

[13] Submitted on Briefs: October 11, 2001

[14] ¶1 Appellant Parnacita Samson (Samson), Personal Representative for the Estate of Michael "Mark" Samson (Mark), appeals the jury verdict entered in the Eighth Judicial District Court, Cascade County, finding the State of Montana (State) was not negligent in the death of Mark. We affirm.

[15] ¶2 The following issues are dispositive:

[16] ¶3 1. Whether the jury's verdict for the State was supported by substantial evidence.

[17] ¶4 2. Whether the District Court erred in admitting evidence that the shooting was an unforeseeable accident.

[18] ¶5 3. Whether the District Court erred in failing to give Plaintiff's instruction on the meaning of negligent homicide.


[20] ¶6 The Cascade County Youth Court committed Bridger Bercier (Bercier) to Pine Hills as a serious juvenile offender in January 1995. He was fifteen years old at the time. On February 10, 1996, following Bercier's completion of a successful home visit and continued improved behavior, Pine Hills released Bercier for a trial community placement at Youth Evaluation Program (YEP), a non-secure supervised facility in Great Falls. YEP is a licensed youth group home used to transition boys from Pine Hills to community placements. Bercier's stay at the YEP was uneventful. However, on March 16, 1996, he walked out of the facility. Bercier's leaving was timely reported to law enforcement.

[21] ¶7 Bercier remained at large in Great Falls for nine days. During the evening of March 25, 1996, Bercier and two other youths, Dale Brott (Brott) and Tony Samson (Tony), were socializing in the basement of the Samson family home. Bercier had been over at the Samson home earlier in the day helping the Samson family push a car off the street and into the driveway. Brott saw that Bercier had a gun that afternoon, and Bercier had the gun with him at the Samson house that evening. All three boys were drinking beer they had retrieved from Bercier's house. The three boys were joined by Mark, Tony's younger brother.

[22] ¶8 Bercier passed Mark the gun without the clip. When Mark returned the gun to Bercier, all four boys were sitting on a couch. Mark sat next to Bercier on the couch. Bercier began pulling the clip in and out of the gun, and cocking and uncocking the gun. Bercier then discharged one round, killing Mark. The next morning Bercier surrendered to the Great Falls police. He pled guilty to negligent homicide and was returned to Pine Hills.

[23] ¶9 Samson then brought a negligence action against the State of Montana. After a six-day trial, the jury returned a verdict for the State. Samson appeals from the judgment.


[25] ¶10 Was the jury's verdict in favor of the State supported by substantial evidence?

[26] ¶11 We review a jury's verdict to determine whether there is substantial credible evidence in the record to support it. Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, ¶ 4, 13 P.3d 390, ¶ 4, citing Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 33, 909 P.2d 700, 705. It is not our function to agree or disagree with the jury's verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other. Magart, ¶ 4, citing Barnes, 275 Mont. at 33, 909 P.2d at 705. It is only in rare cases that a jury verdict should be set aside. Magart, ¶ 4. Moreover, in reviewing the sufficiency of the evidence to support a jury verdict, we review the evidence in a light most favorable to the prevailing party. Magart, ¶ 4; Morgan v. Great Falls School Dist. No. 1, 2000 MT 28, ¶ 8, 298 Mont. 194, ¶ 8, 995 P.2d 422, ¶ 8.

[27] ¶12 Samson argues that uncontradicted, credible evidence shows that the State was negligent. Samson points out that the record demonstrates Pine Hills transferred Bercier to a non-secure facility without obtaining a complete psychological evaluation during the thirteen months that he was at Pine Hills, a violation of the court order committing Bercier to Pine Hills. Additionally, Pine Hills transferred Bercier to a non-secure group home in Great Falls even though he was ineligible for leave and on disciplinary status. Moreover, the record shows the State failed to contact Bercier's parents during the nine days between his escape from the group home and the shooting.

[28] ¶13 The State contends it presented evidence contesting that these failures constituted negligence. Testimony from the State's witnesses explained the lack of a psychological evaluation of Bercier while he was at Pine Hills. Prior to arriving at Pine Hills, Bercier had a chemical dependency evaluation that was used in developing his treatment plan. Also, an intake evaluation of Bercier had been conducted which indicated that he had no serious mental illness that would require a further psychological evaluation. In June 1996, after the shooting, a psychological evaluation of Bercier was conducted. Looking at those results, the social worker at Pine Hills testified that she would not have altered Bercier's treatment plan in 1995 had the results of the psychological evaluation been available to her at that time.

[29] ¶14 Witnesses from Pine Hills also explained why Bercier was transferred from Pine Hills to a non-secure home in Great Falls, even though he was not eligible for leave and was on disciplinary status. When the decision to transfer Bercier to YEP was initially made, he was rated at a Level III behavioral level, the highest and most favorable level. However, at the time of transfer, Bercier had been downgraded to a Level I, due to an altercation with another person at Pine Hills. The Pine Hills team working on Bercier's case determined that, despite the drop in his behavioral level, it was in Bercier's best interest to transfer him because at the YEP facility he could receive chemical dependency treatment that could not be obtained at Pine Hills. In regard to Bercier's escape, the State presented evidence that YEP had properly reported his escape to law enforcement and that the staff had no authority or responsibility to track down Bercier. The State acknowledged that staff did not contact Bercier's parents about his escape, but offered that his parents had previously been uncooperative with the State on issues regarding Bercier's actions and whereabouts.

[30] ¶15 It is not the duty of this Court to retry the case and evaluate the facts to determine if the State was negligent. Rather, we review a jury's verdict to determine whether there is substantial credible evidence in the record to support it. Magart, ¶ 4. Based on a review of the record before us, we conclude there was sufficient evidence presented to support the jury's conclusion that the State was not negligent. Therefore, we will not overturn the jury's verdict.

[31] ¶16 Did the District Court err in admitting evidence that the shooting was an unforeseeable accident?

[32] ¶17 The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313. The trial court exercises broad discretion in determining relevance of evidence. State v. Smith, 1998 MT 257, ¶ 6, 291 Mont. 236, ¶ 6, 967 P.2d 424, ¶ 6.

[33] ¶18 Samson argues the District Court erred in allowing the State to present evidence and to argue that the shooting was an "unforeseeable accident." Samson contends the court abused its discretion in denying Samson's Motion to Disallow Testimony of Ken Baker, an expert witness for the State.

[34] ¶19 Baker has an extensive background in law enforcement, including service as chief of the behavior sciences unit of the United States Secret Service. His experience and training includes study and work in the assessment and predictability of an individual's potential for violent behavior, particularly toward governmental and corporate officials. Baker assessed, and offered testimony regarding, the predictability of Bercier's violence, which the District Court allowed.

[35] ¶20 The State correctly observes that Samson has appeared to abandon her challenge to Baker's qualifications to testify as an expert under Rule 702, M.R.Evid., which was one basis for her argument in the District Court. Instead, Samson focuses on her contention that Baker, though sufficiently qualified in his particular field, did not offer testimony constituting "scientific, technical or other specialized knowledge" that would "assist the trier of fact," as also required by Rule 702. In other words, Samson, describing Baker's testimony as "psycho-babble," argues that the jury was perfectly capable of determining the predictability of Bercier's actions by assessing the evidence, and did not need, nor was assisted by, Baker's expert testimony.

[36] ¶21 After testifying regarding his qualifications and his assessment of this matter, Baker opined that the shooting here was accidental and not predictable, focusing on factors such as his analysis of the crime scene, Bercier's post-shooting behavior, and particularly, Bercier's personal history. He testified:

[37] Baker: . . . I saw nothing in his background that involved weaponry. . . . I didn't see in Bridger Bercier's background crimes of violence against people. I saw lots of crimes against property and thefts and thievery and stealing and such. But I did not see crimes that involved attacking people or especially with weapons or knives or guns or that type of thing.

[38] Def. Cnsl: Is that significant to you?

[39] Baker: Absolutely significant.

[40] Def. Cnsl: Why so?

[41] Baker: Well, because the absence of that deals with predictability . . . . [I]n terms of predictability, it certainly makes a big difference to me after having looked at the record as to whether or not this crime was predictable in [sic] my opinion is that it was not predictable.

[42] Def. Cnsl: Well -

[43] Baker: It was not foreseeable.

[44] ¶22 It is necessary, in order to sustain a negligence action, that the plaintiff establish a legal duty on the part of the defendant, a breach of that duty, causation, and damages. Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, ¶ 18, 295 Mont. 416, ¶ 18, 986 P.2d 1081, ¶ 18. Further, in LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d 1010, we explained that in cases involving a dispute over the intervening criminal act of a third party, as here, foreseeability must be analyzed twice: first, with regard to the existence of a legal duty, and second, with regard to proximate causation. LaTray, ¶ 17. "[A]nalyzing foreseeability in the duty context, we look to whether or not the injured party was within the scope of risk created by the alleged negligence of the tortfeasor-that is, was the injured party a foreseeable plaintiff?" Lopez, ¶ 28. In analyzing foreseeability in the context of proximate cause, "we are concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused" the injury sustained by the plaintiff. Lopez, ¶ 32.

[45] ¶23 Further, we have explained that:

[46] in cases involving intervening superseding acts of a criminal or non-criminal nature, "trial courts must continue to carefully review each fact situation . . . on a case-by-case basis . . . ." Estate of Strever, 278 Mont. at 179, 924 P.2d at 674. The causal issue of intervening criminal or non-criminal acts "normally involves questions of fact which are more properly left to the finder of fact for resolution." Estate of Strever, 278 Mont. at 178, 924 P.2d at 674. Lopez, ¶ 34.

[47] ¶24 The State contends that it was necessary for its defense to present the testimony of Baker. Because the jury was required to determine the foreseeability of the intervening act, it needed information relating to the foreseeability of Bercier's actions, and thus, the State argues Baker's testimony was relevant and necessary and aided the jury.

[48] ¶25 As we held in Lopez and LaTray, determining causation requires a consideration of the foreseeability of the intervening criminal act. In LaTray, where a defendant's liability under similar circumstances was at issue, we stated:

[49] Here, as in Lopez, we are concerned with whether Shawn's assault was a superseding cause of the harm incurred by LaTray which, if not reasonably foreseeable, would break the chain of causation and absolve the City of liability. LaTray, ¶ 28. See also Lacock v. 4B's Restaurants, Inc. (1996), 277 Mont. 17, 919 P.2d 373.

[50] Thus, it was necessary for the jury to determine whether the chain of causation was broken by the unforeseeability of Bercier's conduct, and, in that regard, Baker's testimony offered an analysis which purported to assess predictability of Bercier's actions. As stated above, the trial court exercises broad discretion in determining the relevancy of evidence. Smith, ¶ 6. Given the jury's need to determine the foreseeability of Bercier's actions, we determine that, under the particular challenge made here, the District Court did not abuse its discretion in allowing the testimony of Baker and denying Samson's Motion to Disallow Testimony of Ken Baker.

[51] ¶26 An inconsistency has developed in our cases involving, as here, the foreseeability of an intervening cause, and it is appropriate that we resolve that conflict. In Lacock, we held that when considering foreseeability as an element of causation:

[52] [I]t will be necessary for the court to discuss foreseeability in the course of explaining to the jury which intervening causes sever the chain of causation and which do not. In doing so, it will be necessary to instruct the jury consistently with the provisions of § 27-1-317, MCA, that is, that the specific injury to a plaintiff need not have been foreseen. Lacock, 277 Mont. at 22, 919 P.2d at 375-76 (emphasis added).