No. 8 9 - 0 4 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA, ex rel.,
ROBERT ECCLESTON, KEVIN SULLIVAN
AND ELMER CARSONE,
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MONTANA THIRD JUDICIAL DISTRICT COURT,
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DEER LODGE COUNTY, and THE HONORABLE w. --:
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TED MIZNER, Presiding District Judge, _.,
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ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relator:
C. Richard Anderson argued & John P. Davis; Poore, Roth
& Robinson, Butte, Montana
Timothy McKeon; McKeon & McKeon, Anaconda, Montana
For Respondents:
Hon. Marc Racicot, Attorney General, Helena, Montana
Clay R. Smith, Solicitor, Helena
Joseph C. Connors argued, Anaconda, Montana
Bernard J. Everett argued; Knight, Dahood, McLean &
Everett, Anaconda, Montana
For Amicus Curiae:
Bruce W. Moerer, Montana School Boards Association,
Helena, Montana
Submitted: September 25, 1989
Decided: November 22, 1 9 8 9
b
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This case is an original proceeding in this Court
involving an application for a writ of supervisory control.
The issues presented for our determination originated in
Fitzpatrick v. School District No. 10, a negligence case
currently before the Third Judicial District Court.
Relators, defendants below, are employees of the original
named defendant, School District No. 10. Relators seek
relief via supervisory control from the District Court's
order granting plaintiffs leave to belatedly amend their
complaint to name relators as defendants in the action below.
In the same order, the District Court granted summary
judgment dismissing the original defendant, chairman of the
board of trustees of the school district, from the action.
In a subsequent order, the District Court granted defendant
school district's motion to be dismissed as a party to the
suit. Both dismissals were based on the immunity provisions
of S 2-9-111, MCA.
At plaintiff's request, we identified the following
issues for determination upon supervisory control:
1) Whether this is a proper case for this Court's
consideration upon a writ of supervisory control?
2 Whether the District Court erred in granting
plaintiffs leave to amend their complaint pursuant to Rule
15(c) to name the school district employees as new parties
after expiration of the statute of limitations?
3) Whether § 2-9-111 (2) and (3), MCA, grants immunity
from tort liability to a school district and its employees
for conduct by the latter admittedly within the course and
scope of their employment and not involving the use of a
motor vehicle, aircraft, or other means of transportation?
After careful consideration of these issues and the
facts of this case, we conclude this case is appropriate
for determination upon the writ. Further, we conclude that
the District Court did not abuse its discretion in allowing
the amendment; however, the recent case law interpreting S
2-9-111, MCA, clearly renders the relators immune from suit.
On March 4th, 1985 plaintiff Mary Fitzpatrick fell down
the alley stairs leading down to the Memorial Gymnasium in
Anaconda, Montana. The gym is owned by School District No.
10. On August 26, 1987 plaintiffs Mary and Frank Fitzpatrick
filed a complaint against School District No. 10 and the
District's chairman of the board of trustees Ty Tyvand. The
complaint alleged that defendants were negligent in failing
to properly light and remove ice and snow from the stairway.
Defendants filed an answer on October 7, 1987. Pursuant to
stipulation, defendants amended their Answer to plead the
affirmative defense of immunity from plaintiffs' claims
pursuant to S 2-9-111, MCA. Defendants filed their amended
answer more than three (3) months before the running of the
statute of limitations. On July 7, 1988, plaintiffs moved
for leave to amend their complaint to name Robert Eccleston
and Kevin Sullivan, the school janitors, and Elmer Carsone,
the school principal, as defendants in the suit. The motion
was filed four months after running of the statute of
limitations. On July 29, 1988, the original defendants filed
a motion for summary judgment based on their immunity
defense.
In September 1988 the District Court dismissed
Chairperson Tyvands based on § 2-9-111, MCA , but not School
District No. 10. In the same order, the court also granted
plaintiffs leave to amend their complaint adding employee
relators as defendants, concluding that the amendment related
back to the lawsuit's filing date under Rule 15(c),
M.R.Civ.P., and thus was not barred by the three year statute
of limitations. The relators and school district immediately
moved for dismissal of the amended complaint on immunity and
statute of limitations grounds. On Decemher 19, 1988 the
District Court granted the motion with respect to School
District No. 10 but denied it as to relators. On January
25, 1989 relators filed the present application for writ of
supervisory control. The sole issue raised in the
application is whether the District Court erred in
determining that the amendment related back to the original
filing date.
In opposing the application, plaintiffs suggested that
the relation-back issue will eventually become moot because
the District Court erred in dismissing the school district on
immunity grounds and because recovery against the school
district will bar the claims against relators under §
2-9-305(5), MCA. Plaintiffs requested "the opportunity to
fully brief the immunity issues" to avoid "piecemeal appeals"
and to place the Court "in a position of rendering a decision
with the benefit of all relevant facts and argument." On May
9, 1989 this Court entered an order identifying the issues
listed above for oral argument.
I.
Article VII, Section 2 of the Montana Constitution
gives this Court "original jurisdiction to issue, hear, and
determine writs. . . . " The same section also gives us
"general supervisory control over all other courts" in the
State. Art. VII, Sec. 2, Mont.Const. Recently, we
summarized the standards for granting a writ of supervisory
control. - State ex rel. Fitzgerald v. District Court
See
(1985), 217 Mont. 106, 114, 703 P.2d 148, 153-54. One of the
functions of the writ is to control the course of litigation
in lower courts, where those courts are proceeding within
their jurisdiction but under mistake of law by doing a gross
injustice, and there is no appeal or the remedy by appeal is
inadequate. State ex. rel. Shores v. District Court (1903),
27 Mont. 349, 71 P. 159; State ex. rel. Whiteside v. District
Court (1900), 24 Mont. 539, 63 P. 395.
There are no written regulations or laws respecting our
power of supervisory control. Rather, we have proceeded on a
case-by-case basis being careful not to substitute the power
of supervisory control for an appeal provided by statute.
State ex rel. Reid v. District Court (1953), 126 Mont. 489,
255 P.2d 693. However, if a relator will be deprived of a
fundamental right, both justice and judicial economy req.uire
us to assume jurisdiction and resolve the issue in favor of
the relator. Thus, if the cause below is mired in procedural
entanglements and appeal is not an adequate remedy, we will
issue a writ of supervisory control. State ex rel. Levitt v.
District Court (1977), 172 Mont. 12, 560 P.2d 517.
In the case at bar, the lack of any issue of material
fact clearly renders this case appropriate for disposition
upon summary judgment . Rule 56 (c), M. R. Civ. P. The problem
confronted by the District Court in this case is whether the
law, specifically 2-9-111, MCA, does in fact provide
immunity to the individual employee relators, thereby
entitling them to summary judgment. Determination of this
question will directly bear on the propriety of the District
Court's refusal to dismiss the relators and may also
determine the propriety of the amendment naming relators as
parties to the lawsuit below. Therefore, we conclude that a
writ of supervisory control is appropriate in this case for
the purpose of clarifying the law and in the interests of
judicial economy.
Defendants rely primarily on Kilkenny v. Arco ~ a r i n e ,
Inc. (9th Cir. 1986), 800 F.2d 853, in contending that the
amendment adding them should not relate back under Rule
15(c), M.R.Civ.P. The Rule provides:
Rule 15(c). Relation back of amendments. Whenever
the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occ,urrence set forth or attempted to be set forth
in the original pleading, the amendment relates
back to the date of the original pleading. An
amendment changing the party against whom a claim
is asserted relates back if the foregoing provision
is satisfied and, within the period provided by law
for commencing the action against him, the party to
be brought in by amendment (1) has received such
notice of the institution of the action that he
will not be prejudiced in maintaining his defense
on the merits, and (2) knew or should have known
that, but for a mistake concerning the identity of
the proper party, the action would have been
brought against him. ...
Rule 15 (c), M.R.Civ.P. - - Schiavone v. Fortune (1986),
See also
477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18, 27.
Kilkenny holds that the extent of the information the pleader
obtains respecting another as a potential defendant, after
filing of the original complaint and before the limitations
period expires, is relevant to whether the potential
defendant knew or should have known that they would be named
but for a mistake in identity. Kilkenny, 800 F.2d at 857.
The defendants point out that the Fitzpatricks had
deposed and taken statements from the relators prior to
expiration of the statute of limitations. Defendants argue
further that plaintiffs had notice of their mistake in naming
the proper parties when defendant school district amended its
answer to assert the immunity defense. Relators contend that
the extent of this information held by the plaintiffs caused
them to believe that they were not named because of strategic
reasons rather than as a result of mistaken identity.
However, Kilkenny can be distinguished from the case at
bar. The amended answer in Kilkenny not only alleged that
the original named defendant was not a proper party to the
suit; it also identified the parties who were the proper
defendants to the suit. In this case defendants' amended
answer merely notified plaintiffs of the possible impropriety
of the school district as a defendant. The amended answer did
not indicate that the relators alone might be or were in fact
the proper parties to the suit. Furthermore, because the
immunity issue presents a novel question under the facts of
this case, plaintiffs did not know that the school district
is immune from suit under S 2-9-111 (2), MCA. In fact, they
still contend that the district is not immune. Thus, the
first time that the plaintiffs had an indication that the
relator employees were the proper parties to the suit is when
the District Court dismissed the school district and
Chairperson Tyvands after the expiration of the statute of
limitations. Thus, our determination should focus on the
threshold question of whether the proposed defendants knew or
should have known that but for a mistake in identity of the
proper parties the suit would have been brought against them.
In this regard the defendant employees are the
personification of the school district. They were deposed and
involved in the litigation from the outset and cannot claim
that they did not have notice of the institution of the
action. Considering the obvious link between the district
employees and the school district itself, and in light of the
arguably unsettled immunity question presented in this case,
we agree with the District Court's conclusion that:
there was no mistake as to the identity of the
District employees who were involved in the
circumstances that led to the filing of this
lawsuit. However there was a mistake as to --
the
identity - - proper parties to this lawsuit as
of the
contemplated by Section 15 (c), P4.R.Civ.P. .
. .
(Emphasis by the District Court.)
Order of December 15, 1988. The mistake in this case being
related to the identity of the proper parties and the
relators having ample notice of the action so as not to he
prejudiced, we find no abuse of discretion by the District
Court in allowing the amendment.
We now come to the determinative issue in this case
requiring issuance of the writ. The issue involves the scope
of the immunity granted by B 2-9-111, MCA, to a school
district and its employees for torts committed within the
course and scope of employment and not involving the use of a
motor vehicle, aircraft, or other means of transportation.
The statute provides:
2-9-111. Immunity from suit for legislative acts
and omissions.
(1) As used in this section: (a) the term
"governmental entity" includes the state, counties,
municipalities, and school districts; (b) The term
"legislative body" includes the legislature . . .
and any local governmental entity given legislative
powers by statute, including school boards.
(2) A governmental entity is immune from suit
for an act or omission of its legislative body or a
member, officer, or agent thereof.
(3) A member, officer, or agent of a
legislative body is immune from suit for damages
arising from the lawful discharge of an official
duty associated with the introduction or
consideration of legislation or action by the
legislative body.
(4) The immunity provided for in this section
does not extend to any tort committed by the use of
a motor vehicle, aircraft, or other means of
transportation.
Section 2-9-111, MCA.
Plaintiffs argue that the past cases construing the
statute and relied upon by defendants are distinguishable
from the case at bar. See e.g., Limberhand v. Big Ditch
- -
Co.(1985), 218 Mont. 132, 706 P.2d 491; W.D. Construction
Inc. v. Board of County Commissioner's of Gallatin County
(1985), 218 Mont. 348, 707 P.2d 1111; Bieber v. Broadwater
County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218; Peterson
v. Great Falls School District No. 1 and A (Mont. 1989), 773
P.2d 316, 46 St.Rep. 880. Plaintiffs contend that Barnes and
W.D. Construction can be distinguished because those cases
involved clearly legislative rather than administrative
functions. This contention carries no weight. Our recent
decisions in Bieber and Peterson, clearly disposed of this
issue. While the statute is entitled "Immunity from suit for
legislative acts and omissions", we held in Peterson and
Bieber that the plain meaning of the statute's actual
language is much broader in that "action by the legislative
body need not be legislative in nature to afford immunity."
Peterson, 773 P.2d at 318. Accordingly, we decline to give
credence to the ~laintiffs'distinction between administrative
and legislative acts "because the plain 1ang.uage of the
statute makes no such distinction". -Bieber, 759 P.2d at 147.
-
We will not delve outside the plain meaning of the words used
in a statute. W.D. Construction, 707 P.2d at 1113, Barnes v.
Koepke (Mont. 1987), 736 P.2d 132, 134, 45 St.Rep. 810, 812.
Plaintiffs also contends that § 2-9-111, MCA, does not
grant immunity to the relators in this case. They argue that
the statute requires involvement by a legisl-ative body, i.e.
the school board, before immunity can arise. Plaintiffs
concede that the school district is a governmental entity and
the school board is a legislative body under subsection (1).
However, plaintiffs argue that the school district, not the
school board, owns the gymnasium and employs the custodians
and the principal. Thus, plaintiffs argue the operative
provision of subsection (3) has no application to the case at
bar as no member, officer, or agent of any legislative body
is being sued.
We disagree. Clearly, the relators in this case are
agents of the school board:
(2) A servant - - agent employed by a master to
is an
perform
- service in his affairs whose - - physical
conduct in the performance of the service is
controlled or is subject to the right to control by
the master. (Emphasis added.)
Restatement 2d of Agency, 52. Thus, an agent includes one
who performs only manual labor as a servant. Restatement 2d
of Agency, 51, comment (el . The board of trustees for each
school district has the power to:
(2) Employ and dismiss administrative personnel,
clerks, secretaries, teacher aides, custodians,
maintenance personnel, school bus drivers, food
service personnel, nurses, and any other personnel
deemed necessary to carry out the various services
- -- district.
of the ... (Emphasis added).
Section 20-3-324, MCA. A school "district" is defined as:
the territory, regardless of county
boundaries, organized under the provisions of this
title to provide public educational services under
the jurisdiction - - trustees prescribed by this
of the
title. ... (Emphasis added).
Section 20-6-101(1), MCA. Thus, the school board is the
governing body--i.e., the legislative body--of the
governmental entity, the school district. The janitors
cannot be said to be agents of either the board or district
to the exclusion of the other. Rather, they are agents of
the district as manifested by their agency with the
district's governing school board. It simply does not make
sense to say that relators are agents of the district but not
the board responsible for hiring them and governing the
district and the district's employees.
F,urthermore, in Bieber we construed the phrase in
subsection (3) of 5 2-9-111, MCA, "with the introduction and
consideration of legislation or action by the legislative
body" to be disjunctive. Thus, subsection (3) grants
immunity to members, officers, or agents of a legislative
body for "the lawful discharge of an official duty
associated with the introduction or consideration of
legislation - action - - -
or by the legislative body." Peterson,
-
773 P.2d at 317-318.
Here, the omission by relators arose from the lawful
discharge of an official duty associated with alleged
omissions by the legislative body. A failure to take
legislative action, i.e., a legislative omission, will give
rise to the immunity afforded by the statute. Section
2-9-lll(2) MCA. Limberhand, 706 P.2d at 498. Any alleged
failure by the school district to provide sufficient funding
for maintenance of the stairs and employment of additional
custodians are omissions by its legislative body, the school
board. The omissions of the relators occurred during the
lawful discharge of duties associated with these omissions by
the board. Thus, the relators are immune under subsection
(3) of the statute.
Plaintiffs also contend that subsection (2) of 5
2-9-111, MCA, does not grant immunity to the school district
in this case. Once again, we disagree. Subsection (2) of
the statute clearly affords immunity to a governmental entity
"for an act or omission of its legislative body or a member,
officer, or agent thereof." In the case at bar, the act
complained of was an omission by agents of the school
board--i.e., failure by the janitors to remove snow and
failure by the principal to supervise the janitors. Under
the plain language of subsection (2) the school district is
clearly immune for an omission by an agent of the school
board. The District Court did not err in granting summary
judgment to the school district on its immunity defense.
Finally, plaintiffs argue that the interpretation given
the statute violates the rule that any reinstatement of
governmental immunity must he strictly construed.
Plaintiffs rely on B. M. v. State (1982), 200 Mont. 58, 649
P.2d 425, 33 A.L.R. 4th 1157, where we held that it is "our
duty to strictly construe any attempted governmental
immunity--that is, every act expanding statutory immunity
must be clearly expressed." In - the plaintiffs sued the
B.M.,
State for negligence in placing a six-year old child in a
special education program for educable mentally retarded
children. The State was granted summary judgment based on
immunity under S 2-9-111, MCA. We reversed on the grounds
that the legislature had not enacted legislation to limit the
liability of school boards in the administration of special
education programs. We held that in the absence of a clear
statutory declaration grantinq immunity it is this Court's
duty to permit rather than to deny an action for negligence.
B.M., 649 P.2d at 427.
-
The plain meaning of the actual language used in S
2-9-111, MCA, was not discussed in our decision in - -v.
B.M.
State. We have decided several other immunity cases since our
1982 decision in B.M. In the process, we have arrived at the
current construction of S 2-9-111, MCA, on a case-by-case
basis. - 's rule of strict construction still holds true.
B.M.
However it is now clear, particularly after our decisions in
Bieber and Peterson, that the plain language of the statute
constitutes a clear statutory declaration granting immunity
to the relators in this case.
Earlier in this opinion we held that the District Court
did not abuse its discretion in allowing the plaintiffs to
amend their complaint because of the uncertainty of the law
regarding immunity. We also held that a writ of supervisory
control should iss.ue in this case in order for us to clarify
the immunity question. We recognize that for us to first
hold that the confusion regarding immunity requires
supervisory control and then to hold that the statute clearly
grants immunity to the relators may seem a bit contradictory.
In this regard, we are not asserting in this opinion
that the statute is unequivocally clear at first glance.
Indeed, several interpretations of S 2-9-111, MCA, have been
argued in the line of cases that have come before us since
the statute's adoption. However, it is this line of cases,
particularly our recent decisions in Bieber and Peterson that
has given a specific and reasonable interpretation to the
statute based on the plain meaning of the actual language
used. Moreover, this interpretation of § 2-9-111, MCA, leads
us to but one conclusion: the statute grants immunity to
both the school district and its individual employees in this
case.
The writ is granted and the amendment naming the
relators relates back to the original filing date. However,
as discussed above, 5 2-9-111, MCA, grants immunity to both
the school district and the relators in this case. The
school district already being dismissed on summary judgment,
we direct the District Court to dismiss the relators based on
the immunity granted by § 2-9-111, MCA.
The cause is remanded to the District Court for further
We Concur:
Justices
Justice John C. Sheehy, dissenting:
his Court, having in a line of cases needlessly and
illogically enlarged governmental immunity for negligence,
now marches overzealously to the ultimate nonsense: a
janitor in charge of brooming off snow from the steps outside
of a school gymnasium is engaged as an agent in legislative
action. So say the majority.
It will be small comfort to the plaintiff Mary
Fitzpatrick that the majority are marching against the swell
of history, to which the law must eventually bend. The
extension of governmental immunity to mere government
employees who wrongfully perform or omit to perform purely
mechanical duties has no root in history.
Legal doctrines often flourish long after their
raison d'etre has perished. The doctrine of
sovereign immunity rests on the fictional premise
that the "King can do no wrong." Even though the
plot to assassinate James I in 1605, the execution
of Charles I in 1649, and the Colonists' reaction
to George 111's stamp tax made rather clear the
fictional character of the doctrine's
underpinnings, British subjects found a gracious
means of compelling the King to obey the law rather
than simply repudiating the doctrine itself. They
- his
held - advisors - - agents responsible.
and his
(Emphasis added. )
will v. ~ichigan Dept. of State police (1989), U.S.
, 109 S.Ct. 2304, 2320-2321, 105 L.Ed.2d 45, 68-69
(~ustice John Paul Stevens, dissenting).
The majority in this case have carried governmental
immunity to a far greater reach than was ever extended in the
severest of monarchical history. They have not only excused
the king; they have excused the king's men, his feudal lords
and all their vassals.
I particularly object to the contention of the majority
that their interpretation of $ 2-9-111, MCA, in this and
earlier cases is "clear." Their interpretation is not clear.
It is so unclear that they are brought to the admission that
they are not asserting in this Opinion "that the statute is
unequivocally clear at first glance." Using themselves as
authority, the majority hold that it is now clear "that the
plain language of the statute constitutes a clear statutory
declaration granting immunity to the relators in this case."
(Slip opinion, page 12. ) They said so; ergo, it is. Let us
see for ourselves whether the language is plain or the
declaration is clear.
Subsection (3) of 2-9-111, MCA, provides:
( 3 ) A member, officer, or agent of a legislative
body is immune from suit for damages arising -from
the lawful discharge of an official duty associated
with the introduction or consideration of
legislation or action by the legislative body.
By rules of English grammar as I understand them, a
member, officer or agent of a legislative body is immune if
the discharge of his official duty was "associated - -
with the
introduction - consideration of legislation or action by the
or
legislative body." The majority, by their interpretation,
eliminate several words from the subsection so that they read
it to say that a member, officer or agent of a legislative
body is immune if the official duty is "associated ... with
action by the legislative body." The majority interpretation
violates grammatical and statutory rules-of construction. We
are required not to insert what has been omitted or to omit
what has been inserted, and when there are several provisions
of particulars we are to give each such a construction as
will give effect to all the provisions. Section 1-2-101,
MCA , Moreover, in the construction of a statute, the
intention of the legislature is to be pursued, if possible.
Section 1-2-102, MCA. Statutes in this state are to be
liberally construed with a view to effect their objects and
to promote justice. section 1-2-103, MCA.
The intent of the legislature can be gleaned from the
heading it used in enacting the statute: "Immunity from suit
for legislative - - omissions." That heading is a part
acts and
of the statute.
The meaning of 5 2-9-111(3), MCA, is not plain and clear
as the majority contends. Further militating against their
position, as far as legislative intent is concerned, are the
provisions of S 2-9-102, which state:
Every qovernmental entity is subject to liability
for ~ t s torts and those of its employees acting
within the scope of their employment or duties
whether arisinq out of a sovernmental or
proprietary function except as specifically
provided by the legislature under Art. 11, 5 18, of
The Constitution of the State of Montana.
(Emphasis added.)
The majority, by their interpretation of 5 2-9-111, MCA,
have abrogated the provisions of § 2-9-102, MCA, because now
under the holdings of this Court, through its majority, every
substratum of state government is immune from suit for the
torts of its agents, officers and employees, whether those
acts are legislative or administrative, and whether
governmental or proprietary.
The majority rely on their decision in Bieber v.
Broadwater County (Mont. 1988), 759 P.2d 145. Bieber was a
case decided on briefs, without oral argument, and by less
than a full court. It involved the act of a county
commissioner in discharging an employee. His act was
ratified by the county commission. stretching ~ i e b e r to
cover a janitor who didn't scrape snow from a stairway is
unsupportable.
The majority also rely upon Peterson v. Great Falls
School District No. 1 (Mont. 1989), 773 P.2d 316. Here
again, we have an action by an employee for wrongful
discharge brought against a school district. The discharge
of the employee by an administrative assistant was ratified
by the school board at its next regularly scheduled meeting.
I dare say that no attempt was made by School District No. 10
to ratify the non-cleaning of its sidewalks by its employees.
What is eminently clear from the foregoing is that S
2-9-111, MCA, is not itself clear. The majority have
confounded it by omitting portions of the statute, by
ignoring the legislative intent expressed in the heading of
the statute, by abrogating $ 2-9-102, MCA, which imposes
liability for employee torts, and by not requiring that
governmental immunity be specifically provided as required in
S 2-9-102, MCA. In so holding, this Court, by its own
construction, has extended governmental immunity far beyond
any immunity that ever existed in Montana prior to the 1972
Montana constitution and, now, obviously, in direct reversal
of the intentions of the constitutional framers of 1972 who
unequivocally abolished governmental immunity.
11.
We have noted in the foregoing that S 2-9-102, MCA,
imposes liability on governmental entities for the torts of
its employees. The immunity provisions of S 2-9-111, MCA, do
not speak of actions by employees but rather actions by
agents. The question arises, is it legally correct to
consider a janitorial employee to be an "agent" of the school
district?
The majority is in error in construing $ 2-9-lll(2) ,
MCA, to determine that a janitorial employee is an "agent"
of the school district; and in construing $ 2-9-111 (3), MCA,
to determine that a janitorial employee is the "agent" of a
legislative body, the school district.
The term "agency" has no meaning at all when applied to
a janitorial employment.
The term "agency" means a fiduciary relationship by
which a party confides to another the management of
some business to be transacted in the former's name
or on his account, and by which such other assumes
to do the business and render an account of it. It
has also been defined as the fiduciary relationship
which results from the manifestation of consent by
one person to another that the other shall act on
his behalf and subject to his control, and consent
by the other so to act. Thus, the term "agency,"
- - legal sense, always imports commercial or
in its
contractual dealings between two parties by and
through the medium of another. (~mphasisadded. )
3 Am.Jur.2d 509, Agency, S 1.
An employee rendering purely mechanical services is not
an "agent" of the master, in the true sense of the word.
Thus:
The relationship most closely related to the master
and servant relationship is, of course, that of
principal and agent. Both relate to employment and
express the idea of service, and both agents and
servants are workers for another under expressed or
implied agreement. Indeed, the law of agency is an
outgrowth and expansion of the doctrine of master
and servant, and it is of course true that the
words "agent" and "servant" in a general sense both
apply to persons in the service of another. A
master is a species of principal and a servant a
species of agent. As a result, the words "servant"
and "agent" are often used interchangeably by the
courts, and indeed, an agent employed - - to make
contracts might also, with respect to some of his
duties and activities, be a servant.
On the other hand, the terms "agent" and "servant"
are not wholly synonymous since an agent may be
authorized to make contracts on behalf of the
principal with third persons and to generally
represent him in the business, while a mere servant
has no such authority, but renders purely
mechanical services as directed by his employer.
The essential difference between the two is that an
agent represents his principal in business dealings
and is employed to establish contractual relations
between the principal and third persons, while a
servant is not.
As a general rule, a servant is employed to perform
certain acts in a way that is or may be specified,
and he may not use his discretion as to the means
to accomplish the end for which he is employed.
This being so, the service performable by a servant
for his employer may be inferior in degree to work
done by an agent for his principal. (Emphasis
added. )
53 Arn.Jur.2d 84-85, Master and Servant, 5 3.
The argument that a mere employee is not an agent in the
sense of S 2-9-111, MCA, is buttressed when one examines 5
2-9-305, MCA. his statute provides indemnity for employees
who are sued for actionable conduct in their service of the
government. The indemnity is for full cost of settlements or
judgments, as well as for costs and attorney fees. As
applied to the relators in this case, if this Court properly
held that they were not within the immunity umbrella, they
would be protected completely from pecuniary loss for suits
against them arising out of their employment. The use by the
legislature of the term "agents" in S 2-9-111, MCA, and the
use of "employees" in 5 2-9-305, MCA, shows that the
legislature found a difference in their meanings as applied
to the concept of immunity. I would construe the legislative
intent to be that "employees" in S 2-9-305, MCA, included
both employees and agents; but that "agents" in S 2-9-111,
MCA, did not include merely mechanical employees holding
purely perfunctory jobs not related to the formation or
execution of policy in the field of jurisdiction entrusted to
the governmental unit.
It is a perversion of the theory of principal and agent
to contend that the janitorial employees were "agents" of the
trustees themselves individually. The janitorial employees
were in the service of the district, and not in the service
of the trustees individually. Thus, trustees under 5
20-3-324, MCA, outlining the power and duties of trustees for
each school district, have the power and it is their duty to:
(2) employ and dismiss administrative personnel,
clerks, secretaries, teacher aides, custodians,
maintenance personnel, school bus drivers, food
-esne,
pronl nurses, and any other personnel
considered necessary to carry out the various
services - - district .
of the .. . (~mphasisadded.)
~ a v i n g in mind then that a janitorial employee is not
within the legal sense an "agent" of the school district,
immunity does not accrue to the school district under 5
2-9-111, MCA, which grants immunity only as follows:
(2) A governmental entity is immune from suit for
an act or omission of its legislative body or a
member, officer, or agent thereof. (Emphasis
added. )
Because the janitor is not an agent of the school
district, but rather its mere employee, immunity does not
to the school district in this case.
Now let us consider what is meant by "action by the
legislative body."
Section 2-9-111, MCA, grants immunity to the members of
the school board under the following language:
(3) A member, officer, or agent of a legislative
body is immune from suit for damages arising from
the lawful discharge of an official duty associated
with the introduction or consideration of
legislation or action by the legislative body.
From what we have said above, it is obvious that a
janitorial employee is not an agent of a legislative body,
but rather is an employee of the district, and as such,
immunity does not attach to the members of the district by
reason of acts of the janitorial employees. In my judgment,
we do not have a question of immunity as far as the school
district trustees are concerned, but rather whether they are
simply not subject to liability because the acts of the
janitorial employees were not imputable to the individual
school district trustees, but rather to the district which
employed them. We do not, when private corporate employees
are negligent, impute that negligence personally to the
president of the corporation; only to the entity of the
corporation.
However, since they were employed by the school
district, the theory seized upon by some is that the work of
the janitors is "an official duty" associated with "action by
the legislative body." Section 2-9-111, MCA. That cannot be
under the statutes.
The only way that school trustees can "act" is to act
collectively, and at a regular or properly called special
meeting.
section 20-3-301(2), MCA, provides:
The trustees shall be composed of the number of
trustee positions prescribed for a district by
20-3-341 and 20-3-351. When exercising the power
and performiny the duties of trustees. the members
shali act c ~ l i e c t i v e l ~and only at arregular or a
,
properly called special meeting. (Emphasis added.)
Section 20-3-301, MCA, stating that members can only act
collectively and at their regular meetings rnust be read -in
p a r materia with S 2-9-111, MCA, which says that the
individual members are immune for "action by the legislative
body." The actions of a janitor in maintaining or failing to
maintain school premises have no relation to the actions
taken by the legislative body in its regular or special
meetings and, since the trustees may only act collectively
and not otherwise, S 2-9-111, MCA, cannot be read to extend
immunity on the very wispy basis that a janitor cleaning off
steps to a gym is involved in "action by the legislative
body." That contention is simply ridiculous.
Both of the statutes, S 2-9-111, MCA, and S 20-3-301,
MCA, must also be read - pari materia with S 20-3-332, MCA,
in
which provides as follows:
Personal immunity .and liability of trustees.
- (1)
When acting in thelr official capacity - -a regular
at
- special meeting - - board - a committee
or of the or
thereof, the trustees of each di2trict are
individually immune from exemplary and punitive
damages. (Emphasis added. )
The "action" of the board trustees can only occur at
regular or special meetings and it is only at such meetings
that they have an official capacity. Again this statute is a
further indication that the legislative immunity granted in 5
2-9-111, MCA, to members and agents was never comprehended to
grant immunity to school districts for the non-legislative
wrongful acts or omissions of the janitorial employees.
There is a sardonic element in this case. The real
party in interest shouting "governmental immunity" is
probably an insurer. It sold a policy to the school
district, promising coverage for comprehensive liability.
Because of this Court, the insurer was never at risk for any
wrongful acts of the school district personnel outside of
motor vehicles. Its premium is pure gravy. In more
enlightened former days in Montana, we had statutes which
required insurers of state and sub-state risks to waive the
defense of immunity. (Former 5 40-4401, R.C.M. (1947);
former S 33-23-101, MCA) . In order to provide a better
business climate for insurers, the Montana legislature
repealed this requirement in 1979 (Ch. 425, S 4, Laws of
1979; the repealer was contained in S.B. 380, introduced by
Senators Hafferman, Towe and Turnage).
The line of cases by which this Court has extended
governmental immunity to cover any and all acts of the
governmental entities (except for the state itself) and their
various members, officers, agents and employees, is such a
reversal of history and sound legal thought that it boggles
the imagination. We should have begun, in this case, to pick
up the pieces. There are problems in defining the duties of
school board trustees as they are outlined in the statutes;
and in defining the relation of mere mechanical personnel to
the school boards as legislative bodies. We should
restructure legislative immunity in this state so as not to
comprehend and include merely administrative functions. That
is how I would decide this case.
Justice c(J
~ u s t i c e~ i l l i a mE. Hunt, Sr., dissenting:
I dissent. I concur generally with the foregoing
dissent of justice Sheehy and in particular with what he has
to say about the case of Bieber v. Broadwater County (Mont.
1 9 8 8 ) , 759 P.2d 145. As the author of that case, I can not
believe it has been used as the seminal case to destroy
immunity provided by the Montana Constitution, but if the
effect leads to this conclusion, then I vote to overrule the
case in its entirety. To extend the act of a County
Commissioner performing in his capacity as a
~ommissioner/legislator whose act was ratified by the
legislative body to which he belonged, to a snow-shoveling
janitor's failure to protect the public by maintaining
sidewalks in a safe condition is, as Justice Sheehy too
mildly said, "unsupportable." I say it is ludicrous and
unbelievable.