concurring:
I concur in the result. In my view there are genuine issues of material fact precluding summary judgment, Rule 56(a), M.R.Civ.P.
There are genuine issues of material fact concerning whether the school authorities followed the statutes defining the student’s eligiblity for the special education program, whether the school authorities followed the statute requiring a free appropriate public education in the least restrictive environment and whether the nature and severity of the child’s handicap was such that education in regular classes could not be achieved satisfactorily. These facts are germane in determining whether the child was afforded procedural due process in her placement and training.
There are also genuine issues of material fact relating to negligence of the defendants. The gist of the claim is negligent misclassification of the student as mentally retarded and subject to special education and negligent misplacement in a segregated classroom.
This is not a case of educational malpractice of the genre of Peter W. v. San Francisco Unified School Dist. (1976), 60 Cal.App.3d 814, 131 Cal.Rptr. 854, or Donohue v. Copiague Union Free School Dist. (1979), 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1 A.L.R.4th 1133, involving negligent failure to adequately educate a child in basic academic skills. No action lies for this type of claim for public policy reasons, and Annot, Tort Liability of Public Schools and Institutions of Higher Learning for Educational Malpractice, 1 A.L.R.4th 1133 (1980). Here the claim involves violation of mandatory statutes alleged to constitute negligence and denial of procedural due process.
I agree with the majority’s remarks regarding sovereign immunity. However, the statutes make it clear that the governmental employer will ultimately bear the burden of liability for torts committed by its employees in the scope of their employment.
*66Section 2-9-102, MCA, provides in pertinent part:
“Governmental entities liable for torts except as specifically provided by legislature. Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties. . .” (Emphasis added.)
Section 2-9-305(4), MCA, provides in pertinent part:
“(4) In any action in which a governmental entity employee is a party defendant, the employee shall be indemnified by the governmental entity employer for any money judgments or legal expenses to which he may be subject as a result of the suit. . .”
Moreover, for a governmental employer to be held responsible there must be some direct, detailed or daily supervision over the employee, State v. District Court of the Thirteenth Judicial District (1976), 170 Mont. 15, 550 P.2d 382. Here the primary defendants are the school authorities. Plaintiff has joined a multitude of other defendants in her claim including the County of Valley and Jones, the psychologist at the Eastern Montana Regional Mental Health Center. If subsequent discovery or evidence adduced at trial reveals that some of the defendants had no such close connection with the governmental employees they should be dismissed from the suit on appropriate motions.
For the above reasons, I concur in the result.