No. 85-131
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
W. D. CONSTRUCTION, I N C . , ROYAL VILLAGE,
I N C . , W. E . DITEMAN a n d LANORA DITEMAN,
VALLEY RANK OF BELGRADE, a M o n t a n a b a n k i n g
c o r p o r a t i o n , MIKE N. S T E I N E R , ELIZABETH M.
S T E I N E R , P A T R I C I A M. S T E I N E R , MARK S T E I N E R
a n d MONTANA WILLIAMS DOUBLE DIAMOND CORPORATION,
a M o n t a n a c o r p o r a t i o n , L I L L I A N E . WILLIAMS, i t s
president,
Defendants, P l a i n t i f f s , Third Party
Plaintiffs and Appellants,
THE BOARD O F COUNTY COMMISSIONERS OF GALLATIN
COUNTY, MONTANA,
Defendant, Third P a r t y Defendant
and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
N a s h , W e l l c o m e , F r o s t , G u e n t h e r & Zimmer; P a g e
Wellcome, Bozeman, Montana (W.D. C o n t r u c t i o n , R o y a l
V i l l a g e , W.E. D i t e m a n , L a n o r a D i t e m a n , V a l l e y B a n k of
Belgrade)
M c K i n l e y A n d e r s o n argued f o r M i k e S t e i n e r , E l i z a b e t h
S t e i n e r , P a t r i c i a S t e i n e r & Mark S t e i n e r , B o z e m a n ,
Montana
G o e t z , Madden & Dunn; W i l l i a m L. Madden, Bozeman,
Montana ( M o n t . P7il l i a m s D o u b l e D i a m o n d C o r p . , L i l l i a n
E. W i l l i a m s , P r e s i d e n t )
F o r Respondent:
A. M i c h a e l S a l v a g n i , C o u n t y A t t o r n e y , B o z e m a n , M o n t a n a
I , a n d o e , B r o w n , P l a n a l p , Komrners & Johnstone; C a l v i n
Braaksma a r g u e d , Bozeman, Montana
Joseph S a b o l , B o z e m a n , M o n t a n a
Submitted: S e p t e m b e r 19, 1 9 8 5
Decided: O c t o b e r 31, 1 9 8 5
Filed:
oc I- 3 1 ./$I85
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Mark Steiner (Steiner), brought a negligence
action against Gallatin County (County) and the Board of
County Commissioners of Gallatin County (Commissioners) for
damages a llegedly arising when the Commissioners granted
final approval of the plat of Royal Village Subdivision
without requiring subdivision improvements or a bond guaran-
teeing such improvements. The Gal-latinCounty District Court
concluded that the County and Commissioners were immune from
suit under S 2-9-111, MCA, and dismissed them from the case
on the grounds Steiner had failed to state a cause of action
upon which relief could be granted. All other parties to the
suit appeal. We affirm.
The issue on appeal is:
Are Gallatin County and the Commissioners immune from
suit for negligence in the administration of state statutes
or subdivision regulations in connection with the approval of
the plat of Royal Village Subdivision in Gallatin County?
Steiner's complaint alleged the following facts:
That on the 26th day of February, 1975
. ..Commissioners adopted the regula-
tions known as the "Gallatin County
Subdivision Regulation1' ...
That said regulations were designed for
the purpose of insuring that all improve-
ments required by the Gallatin County
Subdivision Regulation would be in place
or necessary escrow deposits or bonds
would be furnished before the developers
of the subdivision would be able to file
their subdivision plat and sell lots to
the general pub1 ic; that said regulations
were specifically intended for the pro-
tections of the buyers of the subdivision
lots in order to insure that the utili-
ties would be in place, and that said
buyers could use said lots for building
purposes; ...
That ..
. Cornmi.ssioners ...
have
violated the ...
regulation ...
by
granting final approval of the plat of
Royal Village Subdivision . ..
without
requiring the subdivider, Royal Village,
Inc., Wallace E. Diteman and LaNora
Diteman, to have first installed all of
the required improvements, ...
or, in
the alternative, to have first entered
into a writ.ten subdivision improvement
agreement with ... Commissioners ...
posting a bond guaranteeing the construc-
tion and installation of all required
improvements ...
That as a direct and proximate result of
the carelessness, negligence, failure,
omission or refusal of the ...
Commis-
sioners ... to, follow and abide by
Gallatin County Subdivision regulations
pertaining to approval of the subdivision
plat for Royal Village Subdivision, the
Plaintiff ... has sustained damages in
a sum that is at this time undetermined
...
A Commissioner stated by deposition that at the time the
plat was approved a good share of the utilities were already
in place. The roads were partially complete and some of the
water and sewer lines were in. The Commissioner further
stated that the Board did not require Diteman to complete the
improvements or post a bond because everything was in
progress and looked like it was going to be finished.
Steiner contends that the Commissioners' failure to
comply with its own subdivision regulations is negligence
governed by 5 2-9-102, MCA:
Governmental entities liable for torts
except as specifically provided & legis-
1ature. Every governmental entity is
subject to liability for its torts and
those of its employees acting within the
scope of their employment or duties
whether arising out of a governmental or
proprietary function except as specifi-
cally provided by the legislature under
Article 11, section 18, of The Constitu-
tion of the State of Montana.
Commissioners contend that a legislative body and its
members are immune from suit for damages arising from
legislative acts or omissions under 2-9-111, MCA. That
section provides:
Immunity - - -
from suit for legislative acts
and omissions.
(1) As used in this section:
(a) the term "governmental entity"
includes the state, counties, municipali-
ties, and school districts;
(b) the term "legislative body" includes
the legislature vested with legislative
power b y A r t i c l e V o f The C o n s t i t u t i o n of
t h e S t a t e o f Montana and a n y l o c a l gov-
e r n m e n t a l e n t i t y g i v e n l e g i s l a t i v e powers
by statute, including school boards.
( 2 ) A g o v e r n m e n t a l e n t i t y i s immune from
s u i t f o r an a c t o r omission o f i t s legis-
l a t i v e body o r a member, o f f i c e r , o r
agent thereof.
( 3 ) A member, o f f i c e r , o r a g e n t o f a
l e g i s l a t i v e body i s immune f r o m s u i t f o r
damages a r i s i n g f r o m t h e l a w f u l d i s c h a r g e
of an o f f i c i a l d u t y a s s o c i a t e d w i t h t h e
introduction o r consideration of legisla-
t i o n o r a c t i o n b y t h e l e g i s l a t i v e body.
( 4 ) The i m m u n i t y p r o v i d e d f o r i n t h i s
s e c t i o n does n o t extend t o any t o r t
c o m m i t t e d b y t h e u s e o f a motor v e h i c l e ,
aircraft, or other means of
transportation.
S t e i n e r argues t h a t under § 2-9-102, MCA, t h e C o u n t y a n d
Commissioners a r e r e s p o n s i b l e i n t o r t f o r t h e f a i l u r e o f t h e
Commissioners to comply with their own subdivision
regulations. In particular, Steiner argues that B.M. v.
S t a t e o f Montana (Mont. 1 9 8 2 ) , 649 P.2d 4 2 5 , 39 S t . R e p . 1285,
i s d i s p o s i t i v e of t h i s i s s u e . I n B.M. v. S t a t e a minor c h i l d
brought a claim against the State and other school
authorities f o r damages a r i s i n g f r o m p l a c e m e n t i n a s p e c i a l
education program. The issue of immunity u n d e r § 2-9-111,
MCA, was n e i t h e r r a i s e d nor discussed i n B.M. v. S t a t e and
therefore t h a t case is not dispositive of the issue before
us.
Section 2-9-111, MCA, was enacted in 1977. In
determining t h e l e g i s l a t i v e i n t e n t , t h i s Court looks f i r s t t o
t h e p l a i n meaning o f t h e words used i n t h e s t a t u t e . Dorn v.
Bd. of Trust. o f B i l l i n g s Sch. D i s t . (Mont. 1 9 8 3 ) , 6 6 1 P.2d
426, 430, 40 St.Rep. 348, 352. By its terms, this code
s e c t i o n answers t h e i s s u e presented.
Subsection (2) of B 2-9-111, MCA, declares that a
g o v e r n m e n t a l e n t i t y i s immune f r o m s u i t f o r a n o m i s s i o n o f
its legislative body. In this instance, the claimed
n e g l - i g e n t a c t was t h e f a i l u r e o f t h e C o m m i s s i o n e r s t o r e q u i r e
compliance w i t h subdivision r e g u l a t i o n s p r i o r t o approval o f
the plat. That comes expressly within the plain language of
subsection (2) . In substance, that paragraph provides that
Gallatin County is immune from suit for an act of its
legislative body, the Board of County Commissioners.
In a similar manner, subsection (3) of § 2-9-111
provides that a member of a legislative body is immune from
suit for damages arising from the lawful discharge of an
official duty. Again, by the express terms of the statute,
the members of the Board of County Commissioners are immune
from suit for damages arising from a discharge of their
official duty, that being the approval of a plat.
We therefore hold that Gallatin County and the Board of
County Commissioners of Gallatin County are immune from suit
for negligence in the administration of state statutes and
subdivision regulations in connection with the approval of
the plat of Royal Village Subdivision.
We affirm the judgment of the District Court.
We concur: