05/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0175
OP 22-0175
T.M.B., by and through DARCY SAUNDERS,
FILED
Capital Case Management, Inc., Guardian and MAY 1 0 2022
Conservator, Buvv ri
Cterk of Suprern, Court
State of Montana
Petitioner,
ORDER
v.
MONTANA FIRST JUDICIAL DISTRICT
COURT, Hon. Michael Menahan, presiding,
Respondent.
By petition filed April 11, 2022, the above-captioned petitioner (T.M.B.) petitions
this Court for exercise of supervisory control in the underlying matter of T.M.B. v. West
Mont. and Montana Department of Public Health and Human Services, Cause No.
ADV-2020-1599, Montana First Judicial District Court, Lewis and Clark County. The
petition seeks extraordinary review of the District Court's February 16, 2022 order granting
summary judgment to the underlying co-defendant, Montana Department of Public Health
and Human Services (MDPHHS), on T.M.B.'s asserted negligence and negligent
supervision claims against MDPHHS.
As evident from the petition and submitted exhibits, T.M.B.'s second amended
complaint essentially alleges, inter alia, that: (1) T.M.B. is an adult female with a
"developmental disability," as defined by § 53-20-202(3), MCA; (2) MDPHHS is a state
government entity authorized pursuant to Title 52, ch. 2-3, MCA, to "establish and
administer" comprehensive developmental disability services, programs, or facilities,
which may include "community home[s] for persons with developmental disabilities" in
"family-oriented" residential settings provided "indirectly through contract . . .
arrangements" with qualified private providers, subject to applicable state and federal
regulations; (3) West Mont was at all times pertinent a private non-profit organization
engaged in the operation of qualified developmental disability "community homes," and
the provision of related residential services for voluntarily admitted residents, in
accordance with Title 53, ch. 20, part 3, MCA, and (4) T.M.B. was a voluntarily admitted
resident of a developmentally disabled community home (i.e. group home) operated by
West Mont in Lewis and Clark County under a MDPHHS contract and who was allegedly
subjected to sexual intercourse without consent (SIWC) by a West Mont employee in the
home.
T.M.B.'s negligence claim against 1V1DPHHS asserts that MDPHHS is liable to her
for the alleged SIWC committed by the West Mont employee as a breach of the asserted
non-delegable duty of MDPHHS to protect T.M.B. from such harm. T.M.B.'s related
negligent supervision claim alternatively asserts that MDPHHS is liable to her for the
alleged SIWC as a breach of the asserted duty of MDPHHS to adequately supervise the
conduct of West Mont and its employees to protect T.M.B. from such harm. T.M.B. asserts
that those duties arise from the applicable provisions of § 53-20-101, et seq., MCA, and
Title 37, ch. 34, Admin. R. M., and the nature thereunder of the relationships between
MDPHHS, T.M.B., and West Mont.
In granting summary judgment to MDPHHS on T.M.B.'s asserted negligence and
negligent supervision claims, the District Court essentially ruled pursuant to the general
rule stated in Beckman v. Butte- Silver Bow County, 2000 MT 112, ¶ 12, 299 Mont. 389, 1
P.3d 348, and the recognized nondelegable duty exception thereto stated in Restatement
(Second) of Agency § 214, and as analyzed in Paull v. Park County, 2009 MT 321, ¶ 37,
352 Mont. 465, 218 P.3d 1198, and implicated in Maguire v. State, 254 Mont. 178, 182-83,
835 P.2d 755, 758-59 (1992), that there is no genuine issue of material fact on the M. R.
Civ. P. 56 factual record presented that the West Mont employee committed the alleged
SIWC outside the course and scope of his employment and that MDPHHS had no
nondelegable duty to protect T.M.B. from such conduct under those circumstances.
T.M.B.'s petition essentially asserts that the District Court erroneously construed and
2
applied the Restatement (Second) of Agency § 214 nondelegable duty exception too
narrowly. In their responses to the petition, MDPIIHS and West Mont respectively assert
that supervisory control is inappropriate here because T.M.B. has failed to demonstrate that
the District Court is proceeding under a manifest error of law for which ordinary appeal
would be an inadequate remedy.
As pertinent here, supervisory control is proper only in our discretion upon an
affirmative showing that: (1) the lower court is proceeding under a manifest mistake of law
involving purely legal questions not dependent on disputed material facts; (2) under
circumstances involving issues of statewide importance, danger of inevitable procedural
entanglement, or where the disputed ruling will dramatically affect the cost and scope of
trial preparation, presentation and claim settlement dynamics; and (3) which will thus result
in gross injustice for which ordinary appeal will be an inadequate remedy. M. R. App. P.
14(3)(a) and (b); Stokes v. Mont. Thirteenth Judicial Dist. Court (Stokes 1), 2011 MT 182,
¶¶ 6-8, 361 Mont. 279, 259 P.3d 754; Truman v. Mont. Eleventh Judicial Dist. Court, 2003
MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654; Park v. Mont. Sixth Judicial Dist. Court, 1998
MT 164, ¶ 13, 289 Mont. 367, 961 P.2d 1267; Plumb v. Mont. Fourth Judicial Dist. Court,
279 Mont. 363, 370, 927 P.2d 1011, 1015-16 (1996). However, we will not allow
supervisory control to substitute for ordinary appeal at the convenience of the parties—it
is generally appropriate "[o]nly in the most extenuating circumstances." State ex reL Ward
v. Schmall, 190 Mont. 1, 617 P.2d 140 (1980).
Upon due consideration pursuant to M. R. App. P. 14(7) of T.M.B.'s petition,
submitted exhibits (i.e. her second amended complaint and the subject written ruling and
judgment of the District Court), and the respective response of MDPHHS and West Mont,
we find and conclude that, without prejudice to ordinary appeal, supervisory control is not
necessary or appropriate here because T.M.B. has demonstrated neither that the District
Court is proceeding under a manifest mistake of law, nor that ordinary appeal would be
inadequate to remedy such error even if so.
3
IT IS ORDERED therefore that the above-referenced Petition for exercise of
supervisory control is hereby DENIED.
The Clerk of this Court is hereby directed to provide immediate notice of this Order
to all counsel of record in this matter and to the Clerk and presiding judge in the underlying
matter of T.M.B. v. West Mont. and Montana Department of Public Health and Human
Services, Cause No. ADV-2020-1599, Montana First Judicial District Court, Lewis and
Clark County, Hon. Michael Menahan, presiding.
DATED this » day of May, 2022.
(94
,%
4