Maguire v. State

No. 91-313

IN THE SUPREME COURT OF THE STATE OF MONTANA

MARGARET MAGUIRE, individually
and as Guardian of MARY MARGRETTA
GLOVER, an Incapacitated Person and
BABY GLOVER,
Plaintiffs and Respondents,
B)?
THE STATE OF MONTANA, MONTANA
DEPARTMENT OF INSTITUTIONS, THE
MONTANA DEVELOPMENTAL CENTER AND
CARROLL V. SOUTH, Director of
Department of Institutions,
Defendants and Appellants.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Sam E. Haddon argued, Boone, Karlberg & Haddon,
Missoula, Montana
G. Curtis Drake, Keller, Reynolds, Drake, Sternhagen
& Johnson, Helena, Montana

For Respondent:
William P. Joyce argued, Burgess, Joyce & Whelan,
Butte, Montana

submitted : March 10, 1992
Decided: August 12, 1992
Filed:

. .
I Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

The State of Montana appeals a jury verdict in favor of
Margaret Maguire, individually and as guardian of Mary Margretta
Glover and from a judgment of the Second Judicial District Court,
silver Bow County. W affirm i n part and reverse i n part.
e
We address the following issues on appeal:
1. Whether the District Court erred in granting partial
summary judgment and in directing a verdict that the State was
liable for criminal conduct of an employee under Restatement
(Second) of Agency 3 214;
2. Whether the District Court erred in refusing the State's
offer of proof, based on Rule 408, M.R.Evid., that Mrs. Maguire
acknowledged that Ms. Glover was receiving good care at the Montana
Developmental Center and that she should not be moved;
3. Whether the District Court erred in refusing to instruct
on the theories of agency and negligent hiring;
4. Whether the District Court erred in allowing Mrs. Maguire
to maintain an action in tort for emotional distress; and
5. Whether the District Court erred in refusing to reduce the
jury's verdict.
In 1988, Mary Margretta Glover (Glover) an autistic and
severely retarded patient at Montana Developmental Center (MDC),
was assaulted and raped by an MDC employee, Lloyd Dean Drummond.
Ms. Glover, age 43, has resided at what is now MDC since 1979. In
2988, MDC assigned Lloyd Drumrnond the primary responsibility for
caring for Ms. Glover. His duties included bathing and dressing
Ms. Glover.
Margaret Maguire (Maguire), Ms. Glover's mother and legal
guardian, brought Ms. Glover home for weekend visits. During one
of the visits, Ms. Glover laid flat on her back, spread her legs,
and placed her knees up towards her shoulders. During another
visit, Mrs. Maguire noticed Ms. Glover was gaining weight. Mrs.
Maguire telephoned MDC personnel to question them about Ms.
Glover's weight gain. She also inquired as to whether or not Ms.
Glover was having regular menses. She was informed that Ms. Glover
had missed her menses, but that it was probably due to thorazine
treatment. However, MDC staff members also noticed Ms. Glover's
weight gain and commented to the head nurse that they wished to be
the first ones to tell Lloyd Drummond that he was going to be a
father.
In November of 1988, a pregnancy test on Ms. Glover came back
positive. Ms. Glover delivered the baby without incident in April
of 1989. As Ms. Glover's legal guardian, Mrs. Maguire had to make
decisions regarding her daughter's pregnancy. Fear that Ms.
Glover's autism and retardation might be congenital made a decision
to carry the pregnancy to term difficult. Further, Mrs. Maguire
was concerned for her daughter's safety. As a devout Roman
Catholic, making a decision to abort the pregnancy was also very
difficult. Ultimately Mrs. Maguire decided to have the pregnancy
carried to term. However, she faced another difficult decision in
whether to raise the child herself or place the child in an
adoptive home. In view of her advanced age, she finally decided to
place the child with adoptive parents.
In December of 1988, Mrs. Maguire sought medical attention for
stress and depression related to the rape and pregnancy of her
daughter. Her physician, who previously treated Mrs. Maguire for
depression and anxiety related problems, noted her stress had
increased and that she had deteriorated "markedly. She complained
of trouble sleeping, nightmares, contemplation of suicide, and
generally feeling run down. Mrs. Maguire's visits to the doctor
increased, and her condition did not begin to improve until April
of 1989, but she continued to see a psychologist through 1990.
Our standard of review as to the verdict is whether there is
substantial credible evidence in the record to support the jury
verdict. In reviewing conclusions of law, question of law, or
legal components of ultimate facts, or mixed questions of law and
fact, we will decide if the lower court's determination as to law
is correct. The scope of review of discretionary acts of the trial
court is whether the trial court abused its discretion. Our review
will be plenary. Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 803 P.2d 601.
I
Whether the District Court erred in granting partial summary
judgment and directing a verdict holding the State liable for the
criminal conduct of its employee, based on Restatement (Second) of
Agency, 5 214.
The District Court granted partial summary judgment and
directed a verdict in favor of Mrs. Maguire and Ms. Glover on the
issue of liability. The District Court based its decision on
Restatement (Second) of Agency 5 214. Section 214 is an exception
to the general rule of respondeat superior. We have not heretofore
adopted this section. This section provides:
Failure of Principal to Perform Non-delegable Duty.
A master or other principal who is under a duty to
provide protection for or to have care used to protect
others or their property and who confides the performance
or such duty to a servant or other person is subject to
liability to such others for harm caused to them by the
failure of such agent to perform the duty.
We have previously analyzed cases under the respondeat
superior doctrine based on Restatement (Second) of Agency 5 228.
Respondeat superior imposes liability on an employer for the
wrongful acts of an employee which are committed within the scope
of his employment. As we stated in Kornec v. Mike Horse Mining
(1947), 120 Mont. 1, 8, 180 P.2d 252, 256,
The servant or agent must have been acting in the "course
of his employment," in tlfurtherance of his employer's
interest,'' or "for the benefit of his master:' "in the
scope of his employment," etc. But a servant who acts
entirely for his own benefit is generally held to be
outside the scope of his employment and the master is
relieved of liability. (Citation omitted.)
See also Lutz v. United States (9th Cir. 1982), 685 F.2d 1178.
A party may be held vicariously liable for the damages caused
by another on the theory of respondeat superior or may be held
directly liable on the theory of negligent hiring and/or
supervision. Normally, an employer would not be held liable for
tortious acts of its employee performed outside the scope of
employment. Hoover v. University of Chicago Hospitals (Ill. 1977),
366 N.E.2d 925, 929. Thus, under respondeat superior, the
employer's liability is derivative from the negligent acts of the
employee acting within the scope of employment. Boykin v. District
of Columbia (D.C.App. 1984), 484 A.2d 560, 561. It is clear this
rape was outside the scope of Lloyd Drummond's employment.
Other jurisdictions, under theories of vicarious liability,
hold an employer liable for the tortious acts of its employees
acting outside the scope of employment. These cases involve common
carriers and innkeepers. In G.L. v, Kaiser Foundation Hospitals
(1987), 88 0r.App. 528, 746 P.2d 731, 734, the Oregon Court of

Appeals deferred to the legislature in declining to hold hospitals
strictly liable for tortious acts of employees acting outside the
scope of employment (sexual assault). The question of an
employer's vicarious liability for the tortiaus acts of its
employees acting outside the scope of employment is a matter of
first impression in Montana.
Both appellant and respondent cite cases from other
jurisdictions which produce opposite results. MDC relies on Rabon
v. Guardsmark, Inc. (4th Cir. 1978), 571 F.2d 1277. In Rabon, the
Fourth Circuit held that neither South Carolina common law nor
South Carolina statutes justify application of the non-delegable
duty rule of § 214 to the employer of a security guard (rape). The
Fourth Circuit found that South Carolina only recognized the non-
delegable duty exception to the general rule of respondeat superior
in cases involving common carriers. Rabon at 1280.
Mrs. Maguire relies on Stropes v. Heritage House ~hildrens
Ctr. (Ind. 1989), 547 N.E.2d 244, for her analysis that Montana
should adopt the non-delegable duty exception to the respondeat
superior doctrine. Stro~esinvolves a similar fact situation. In
Stropes a severely retarded fourteen-year-old boy was raped by a
nurse's aide employed by Heritage House. The aide's duties
included feeding, bathing, and changing the child. The rape
occurred after the aide entered the boy's room to change his
clothing and bedding. Stropes at 245.
The Indiana Supreme Court, in reviewing Indiana case law,
found two cases which held employers liable for criminal acts of
their employees, because the acts "originated in activities so
closely associated with the employment relationship as to fall
within its scope." Strooes at 247.
The Stroses court also distinguished Rabon. As noted above,
the Fourth Circuit determined that South Carolina's non-delegable
duty doctrine only extended to common carriers. Stropes at 250-
251. However, as Stropes pointed out, Indiana has identified
principles underlying its adoption of the exception, and, in fact,
has extended it to reach enterprises other than common carriers.
Stropes at 252. The Indiana Supreme Court concluded that the
relevant relationships embodied in the common carrier exception,
and the rationales underlying it, were applicable to Heritage.
Stropes at 253-254.
Montana follows the doctrine of respondeat superior as
expounded in Kornec. We have not adopted the common carrier
exception to that doctrine. However, we have accepted the concept
of a non-delegable duty in a contractual relationship between a
general contractor and an independent contractor. Ulmen v.
Schwieger et al. (1932), 92 Mont. 331, 12 P.2d 856. Ulmen involved
a highway contract. We concluded that there was a non-delegable
duty based on the inherently dangerous and hazardous nature of the
project to the public. Ulmen at 347, 12 P.2d at 859. In Ulmen
this duty was extended to third parties.
Later, we held that a general contractor had a non-delegable
duty to the employee of a subcontractor based on a statutory duty
to maintain safety at the worksite. Stepanek v. Kober Const.
(1981), 191 Mont. 430, 625 P.2d 51. Steuanek involved a
construction injury after a fall from a scaffold. In Cash v. Otis
Elevator (1984), 210 Mont. 319, 684 P.2d 1041, this Court adopted
a higher standard of care for the owner of a premises with respect
to operation of an elevator. We determined that an elevator
performs the function of a common carrier and that the owner of the
elevator had a non-delegable duty as to the safety of the elevator
because elevators are inherently dangerous. Cash at 324, 684 P.2d
at 1043.
In summary, we have limited application of the non-delegable
duty exception to the respondeat superior doctrine to instances of
safety where the subject matter is inherently dangerous. We
decline to extend the exception to the facts here. There are a
number of reasons for and against extending the liability of the
employer, such as here, when an intentional tort is committed only
because of or by virtue of the employment situation. The employer
is better able to attempt to avoid such wrongs. The employer has
the ability to minimize them, while the victim has no control over
the situation. Such a burden is incidental to running a business.
However, such a major change to the respondeat superior doctrine is
best left to the legislature.
Massachusetts declined to extend the non-delegable duty
exception to group day care centers because it would constitute a
significant extension of Massachusetts law. Worcester Ins. v.
Fells Acres Day School (1990), 408 Mass. 393, 558 N.E.2d 958, 968.
(Rape and indecent assault.) Likewise creating a major exception
to the respondeat superior doctrine, by extending liability to a
caretaker, would constitute a significant extension of Montana law.
Without support of prior judicial decisions, such an extension of
liability should come from the legislature. See Sandman v. Hagan
(Towa 1968), 154 N.W.2d 113, 118-119. We conclude that the
District Court erred in its determination to apply 5 214 of the
Restatement (Second) of Agency to the facts here. We reverse the
District Court on this issue. Inasmuch as we are reversing on the
first issue, our discussion of the balance of the issues is
advisory for the purpose of a second trial.
II
Whether the District Court erred in refusing the State's offer
of proof, based on Rule 408, M.R.Evid., that Mrs. Maguire
acknowledged Ms. Glover was receiving good care at the Montana
Developmental Center and that she should not be moved.
Rule 408, M.R.Evid., provides:
 Compromise and offers to compromise.
Evidence of (I) furnishing or offering or promising
to furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to
either validity or amount is not admissible to prove
liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does
not require exclusion of any evidence otherwise
discoverable merely because it is presented in the course
of compromise negotiations. This rule also does not
require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or
prosecution.
Based on Rule 408, the District Court excluded testimony from
defendant ' s witness, Jennifer Pryor, that Mrs. Maguire did not want
Ms. Glover moved from MDC. MDC cites the commissioners1 comments
to the Rule that parties should not try to immunize their evidence
from being admissible by presenting it during negotiations. The
third sentence of the Rule allows evidence which is otherwise
discoverable.
MDC sought to introduce testimony that Mrs. Maguire did not
want Ms. Glover moved from MDC because it was close to Butte and
that she thought Ms. Glover was receiving good care at MDC,
Moreover, evidence existed that Mrs. ~aguirerejected an offer of
alternative placement for Ms. Glover during settlement
negotiations. Counsel for MDC admitted that placement outside of
MDC was part of the proposed settlement.
Further, Mrs. Maguire testified on cross-examination that MDC
was the best place she could find for her daughter and that she
wanted to keep her close to Butte. Thus, proposed testimony by MDC
was repetitive. We conclude the evidence does not fall within the
exception offered by MDC in the commissioners' comments. For the
reasons stated above, we affirm the District Court on this issue.
I11
Whether the District Court erred in refusing to instruct on
the theories of agency and negligent hiring.
Because the District Court adopted the non-delegable duty
exception to the respondeat superior doctrine, it refused M D C q s
proposed instructions on negligent hiring and agency. We concluded
above that the District Court erred in adopting the non-delegable
duty exception to Montana's respondeat superior doctrine. Thus, we
reverse the District Court on this issue.
section 53-20-142, MCA, provides in part:
Persons admitted to a residential facility for a
period of habilitation shall enjoy the following rights:
(1) Residents have a right to dignity, privacy, and
humane care ...
MDC has a statutory duty to Ms. Glover not inconsistent with the
theories of negligent hiring, negligent supervision, and agency.
Thus it was error for the District Court to refuse instructions
based on these theories.
IV
Whether the District Court erred in allowing Mrs. Maguire to
maintain an action in tort for emotional distress.
The District Court limited Mrs. Maguirels recovery for
emotional distress to those damages caused by being required to
make the decisions regarding the pregnancy of Ms. Glover. The j u r y
was instructed not to award damages for emotional distress as a
result of Mrs. Maguirels learning of her daughter's rape and
pregnancy. This latter instruction was correct. In the past we
have allowed recovery to a third party for contemporaneous
observance of an accident or event resulting in shock to the
senses. Versland v. Caron Transport (1983), 206 Mont. 313, 671

In Versland we traced the history of case law from a denial of
recovery for damages for emotional trauma if there was no physical
impact to an expansion to the Inzoneof dangernn
rule. The "zone of
dangern*rule allows the plaintiff recovery if he or she were
located within the zone of defendant's negligent conduct and feared
for his or her own safety. We abandoned this rule using the
reasoning of the seminal case of Dillon v. Legg (19681, 68 Cal.2d
728, 69 Cal.Rptr. 72, 441 P.2d 912. In Versland, we adopted
guidelines derived from Dillon, and articulated a three part test
for third party claims for negligent infliction of emotional
distress :

1. The shock must result from a direct emotional
impact upon the plaintiff from the sensory and
contemporaneaus perception of the accident, as contrasted
with learning of the accident from others after its
occurrence.
2. The plaintiff and victim must be closely
related, as contrasted with absence of any relationship
or the presence of only a distant relationship.
3. Either death or serious physical injury of the
victim must have occurred as a result of the defendant's
negl igence.
Versland at 322, 671 P.2d 583.
Part (1) of this test is in line with, and an amplification
of, prong 2 ( a ) of Section 46 of the Restatement of Torts relative
to intentional and reckless conduct. This is sometimes referred to
as the tort of outrage. See Lund v . Caple (19841, 100 Wash.2d 739,
675 P.2d 226. Restatement (Second) of Torts § 46 provides:

(1 One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, f o r such bodily harm.
(2) Where such conduct is directed at a third person,
the actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
(a) to a member of such person's immediate family
who is present at the time, whether or not
such distress results in bodily harm, or
(b) to any other person who is present at the
time, if such distress results in bodily harm.
The case before us fails to meet part one of the Versland
three part t e s t and part 2 of § 46 of the Restatement in that Mrs.

Maguire, the plaintiff herein, was not present at the time of the
conduct. She learned of the conduct from others. The policy
behind t h e presence requirement is to limit the number of persons
who may recover for emotional distress and to guarantee the
genuineness of t h e claim. See Marlene F. v. Psychiatric Med.
Clinic (Cal. 1989), 257 Cal.Rptr. 98, 770 P.2d 278, 285. JJ.

Arguelles and Eagleson concurring,
The theory submitted to the jury was whether or not Mrs.
Maguire may recover for damages for emotional distress for being
r e q u i r e d t o make d e c i s i o n s r e g a r d i n g the pregnancy af her daughter;

those decisions being whether or not the daughter should have an
abortion and if not, to provide for the care or adoption of the
child. No direct relationship e x i s t s between any outrageous act
and Mrs. Maguire. To find an independent cause of action here goes
beyond the rationale and tests of the Dillon and Versland progeny
and goes beyond the physical presence requirement.
We have allowed recovery for emotional distress absent
physical injury in only limited circumstances. In Johnson v.
Supersave Markets, Inc. (l984), 211 Mont. 465, 686 P.2d 209 and
Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 771 P.2d 114, we
allowed recovery for emotional distress damages for false
imprisonment in jail. In both Johnson and Niles the victim was not
a third party.
A caveat to 46 provides: "The Institute expresses no
opinion as to whether there may not be other circumstances under
which the actor may be subject to liability for the intentional or
reckless infliction of emotional di~tress.'~As Justice Arguelles
points out, the caveat speaks to situations which may not mandate
the presence requirement. Marlene F. at 105, 770 P.2d at 285,
quoting § 46 com. 1, p. 79. In Marlene F the California Supreme
Court held a mother of a child could state a claim for negligent
infliction of emotional distress after a psychologist treating both
the mother and child, sexually molested the child. Marlene F at
103, 770 P.2d at 283. The court reasoned that damages are
recoverable when the defendant owes a duty of care to the
plaintiff. The existence of the duty depends upon the
foreseeability that severe emotional distress will result from the
breach of that duty. Marlene F at 101-102, 770 P.2d at 281-282.
Justice Eagleson, in his concurring opinion in Marlene F,
points out that the relationship between the psychotherapist and
patient gives rise to a duty to refrain from conduct that
foreseeably will harm the patient. He also points out that an
earlier decision permitted a husband a cause of action for
emotional distress after a doctor misdiagnosed his wife as having
syphilis. The husband was not present at the diagnosis. Marlene
F
- at 108, 770 P.2d at 288, citing Molien v. Kaiser Foundation
Hospitals (1980), 167 Cal.Rptr. 831, 616 P.2d 813. In Molien the
court reasoned that the doctor assumed a duty to the husband when
he directed the wife to communicate the diagnosis to him, thus it
was foreseeable to the doctor that a misdiagnosis would cause the
husband emotional distress. Molien at 835, 616 P.2d at 817. In
reality, the plaintiffs in Molien and Marlene F. could be
considered Itdirectvictims1* the tortious conduct.
of
Relying on Marlene F., the California Supreme Court
distinguished the bystander-witness cases of the Dillon progeny.
In Christensen v. Superior Court (1991), 2 Cal.Rptr.2d 79, 91, 820
P.2d 181, 193, certain mortuaries and crematoria wrongfully
mishandled the decedents' remains. Despite failing to satisfy the
presence requirement, family members were allowed standing to
recover for negligent infliction of emotional distress.
Christensen at 99, 820 P.2d at 201. The defendants assumed a duty
to the close relatives of the decedents for whose benefit they were
to provide services. Further, the court reasoned that the
defendants "created a special relationship with the close family
members obligating them to perform those services in a dignified
and respectful manner." Christensen at 91, 820 P.2d at 193.
We are faced with the question here whether the facts before

15
us satisfy the causation and the foreseeability requirements when
the presence requirement is not met. In our view, doing so here
would increase the spiral of liability farther out than other
jurisdictions have chosen to go. See H.L.O. by L.E.O. v. Hossle
(Iowa 1986), 381 N.W.2d 641, 644-645; Nancy P. v. D'Amato (Mass.
1988), 401 Mass. 516, 517 N.E.2d 824, 828.
In the case before us, MDC did not assume a duty towards Mrs.
Maguire. The existence of a duty of care depends upon the
foreseeability of the risk and upon a weighing of policy
considerations for and against the imposition of liability. See
Slaughter v. Legal Process and Courier Service (1984), 162
Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189, 196. The facts before us
are not sufficiently similar to the duty the doctor assumed in
Molien by instructing the wife to inform her husband about the
diagnosis. Nor is it analogous to the special relationship created
between the psychotherapist and patient in Marlene F. The fact
situation in Christensen comes the closest to the facts before us.
However, while the morticians and crematoria assumed a duty to the
close relatives (of the decedents) for whose benefit they were
performing funeral and related services, MDC did not assume such a
similar duty to Mrs. Maguire. There was no close connection
between the extreme and outrageous acts and Mrs. Maguire's injury.
She is neither a "direct victim," nor was she present at the time
of conduct, nor a victim under specific special parasitic
circumstances.
We therefore decline to extend liability to allow Mrs. Maguire
to recover for either negligent infliction of severe emotional

16
distress or intentional infliction of severe emotional distress.
We reverse the District Court on this issue.
v
Whether the District Court erred in refusing to treat the
separate recoveries as a single claim of damages under 5 2-9-108,
MCA.
Under 5 2-9-108, MCA, the legislature imposed a $750,000 limit
on claim against the State. Section 2-9-108, MCA (1991)
(temporary), states in part:
(1) Neither the state, a county, municipality,
taxing district, nor any other political subdivision of
the state is liable in tort action for damages suffered
as a result of an act or omission of an officer, agent,
or employee of that entity in excess of $750,000 for each
claim and $1.5 million for each occurrence.
The rape and subsequent pregnancy were the subjects of Mrs.
Maquire's original complaint. During the trial, Drummond admitted
to raping Ms. Glover on two additional occasions.
Under 5 2-9-108, MCA, a party is entitled to $750,000 for each
claim. We agree with the District Court that each rape was a
separate wrongful act. We conclude that the District Court did not
err in refusing to treat the recoveries as based on a single claim.
MDC also contends that the verdict forms were improper. The
jury did not separate its damage award among the separate claims.
The District Court found that MDC raised the limitation of § 2-9-
108, MCA, as a defense in its amended answer and jury demand.
Further, the District Court found that it was MDC's responsibility
to present a verdict form which would allow the jury to apportion
its damage award applying 5 2-9-108, MCA. We agree with the
District Court that the responsibility rested with MDC to present
separate verdict forms; we therefore affirm the District Court on
this issue.
For the reasons stated above, we affirm in part and reverse in
part and remand to the ~istrict Court for proceedings not
inconsistent with this opinion.

We Concur:

' chief Justice A.

Justices
Justice John Conway Harrison specially concurring.
I concur in the result reached by majority in this opinion
holding that the District Court erred in granting partial summary
judgment based on Restatement (Second) of Agency 8 214. As noted
in the opinion, this Court has not previously adapted this section
as law in Montana and, in my opinion, it is unfortunate that the

District Court did in this case.
In concurring with the result of this case, I do not in any
manner approve, condone or support the apparent indifferent hiring
practices employed by the State of Montana in this case. The fact
situation of this case clearly illustrates the unconcerned hiring
practices implemented by the State--it is appalling that it clearly
took little or no interest in the character or integrity of this
defendant who was hired to care for our disabled or disadvantaged.
The State's investigation of potential employees should have
prevented the hiring of such a man, who, during the course of his
employment with the State of Montana, brought discredit not only to
himself and to the institution but also to the other employees of
that institution who are devoted and who truly care for our
unfortunate citizens. The citizens of this State who suffer the
misfortune of having family members in such institutions deserve
both the peace of mind and the assurance that their loved ones are
safe and well cared for.
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
The opinion of the majority is a tragic and misguided decision
which once again demonstrates that, given a choice, the majority
would protect the State rather than its citizens.
This Court has now elevated the trust that people place in
common carriers, such as buses and elevators, to a more important
status than the trust that Montana citizens have a right to place
in the public institutions that were created to protect society's
most vulnerable people.
Greta Glover developed a severe mental disorder at the age of
four years. She has been variously diagnosed as autistic,
schizophrenic, and retarded. As a result of her condition, she is
incapable of communicating with other people.
She has been institutionalized for the past 30 years, and has
been a resident of the Montana Developmental Center (MDC) in
Boulder, Montana since 1972. Her care was entrusted to Montana's
Department of Institutions because her mother, who cared for her
until the age of 12, was no longer able to do so.
MDC exists to house, supervise, care for, and train Montana's
disabled citizens. Its residents are mentally and physically
handicapped to the extent that they cannot care for themselves.
These are truly society's most vulnerable people.
MDC hired Lloyd Dean Drummond to take care of Greta. He was
responsible for her day-to-day care and protection, including all
personal hygiene and bathing. He testified that in the course of
caring for her, he sexually assaulted her by fondling her three to
four times per week, and he raped her on three separate occasions.
Because of her mental condition, Greta was unable to communicate
and report this abuse to any other person. She was totally
dependent on the care provided for her at MDC.
The majority opinion is based upon this Court's previous
decision in Kornecv. MikeHorseMiningCo. (1947), 120 Mont. 1, 180 P.2d

252, where we held that an employer is not vicariously liable for
the torts of his employee when that employee's conduct is outside
the scope of his employment.
The modern rule of respondeatsuperior, and the exception on which

the majority relies, are set forth in Restatement (Second) of
Agency g 219 (1958). That section provides as follows:

(1) A master is subject to liability for the torts
of his servants committed while acting in the scope of
their employment.
(2) A master is not subject to liability for the
torts of his servants acting outside the scope of their
employment, unless:
(a) The master intended the conduct or the
consequences, or
(b) The master was negligent or reckless, or

(c) The conduct violated a nondeleqable dutv of the
master, or
(d) The servant purported to act or to speak on
behalf of the principal and there was reliance upon
apparent authority, or he was aided in accomplishing the
tort by the existence of the agency relation. [Emphasis
added. ]
 Respondeatsuperior is a common law principle. The majority relied

on the common law to establish an exception to respondeatsuperior. See

Komec, 180 P. 2d at 256-57. Furthermore, this Court has previously,

by common law, established duties which are nondelegable. Seecash

v. OtkElevatorCo. (19841, 210 Mont. 319, 684 P.2d 1041.

Why then has the majority suddenly decided that it is
appropriate to come to a screeching halt in the evolution of the
common law under these circumstances which so compellingZy cry out
for its logical extension?
Nondelegable duties are clearly an exception to the principle
relied upon by the majority. Restatement (Second) of Agency 9 214
(1958), provides that the duty assumed by the defendants in this
case was nondelegable. It states as follows:
A master or other principal who is under a duty to
provide protection for or to have care used to protect
others or their property and who confides the performance
of such duty to a servant or other person is subject to
liability to such others for harm caused to them by the
failure of such agent to perform the duty.
section 214 is directly applicable to the facts presented in
this case. The MDC was under a duty to provide for the protection

and care of Greta Glover. It cannot avoid responsibility for
failure to perform that duty by delegating it to Lloyd Dean
Drummond .
The concept of nondelegable duty is not foreign to our common
law. In Cash, we found that the owner of an elevator has a duty to
exercise the highest degree of care in its maintenance and that
that duty cannot be delegated to an independent contractor because
of the potential danger if the elevator is not safely maintained.
We did not defer to the legislature where the legislature had
failed to act. We should not do so in this case.
Greta Glover was every bit as vulnerable, once placed under
the care of the State of Montana, as people are who enter elevators
or entrust their passage to other common carriers.
I agree with the decision of the Indiana Supreme Court in
Stropesv.HeritageHorcseChikfren~sCenter(Ind. 1989), 547 N.E.2d 244. That

case presented facts identical to the facts in this case. The
victim was a 14-year-old boy who, because of severe mental
retardation and insufficient verbal skill, was unable to care for
himself. He was, therefore, placed in a home for children as a
ward of the county welfare department to assure his security and
well-being. While there, he was sexually molested by a nurse's
aide who was responsible for his care.
The victim's guardian filed a complaint for damages against
the home to which he was entrusted. However, the trial court
granted summary judgment on the basis that:
[Tlhe act of committing a sexual assault was,
as a matter of law, outside the scope of
Robert Griffin's employment and, as a result,
plaintiff cannot recover against The Heritage
House, Inc. based upon a theory of respondeat
superior.
 In other words, that case was dismissed by the trial court on
the same basis that this case was reversed by the majority.
The Indiana Supreme Court characterized the issue on appeal

[Wlhether, as a matter of law, Heritage may be subject to
liability for its employee's wrongful acts under the
doctrine of respondeat superior as traditionally applied
or under a theory of liability which has been described
as the "common carriern or "non-delegable duty" exception
to respondeat superior.
Stropes, 547 N.E.Z~ at 247.

After careful consideration, the Indiana Supreme Court
concluded that it was appropriate to extend the "common carrier" or
"nondelegable dutyw exception to respondeatsuperior to the circumstances

in that case. As pointed out, we have already adopted a 8*common
carrier" exception to the principles of respondeat superior. The only

issue before us is whether to extend it to the circumstances in
this case.
In language relevant to the issue before us, the Indiana
Supreme Court concluded:
An examination of the relevant relationship here against
the template of the common carrier exception and the
rationales underlying it reveals that Heritage clearly
assumed a non-delegable duty to be responsible for the
care and safety of David Stropes. When Heritage accepted
David as a result of its facility, it was fully cognizant
of the disabilities and infirmities he suffered which
rendered him unable to care for himself and which, in
fact, undoubtedly formedthe basis oftheir relationship.
Their "contract of passage" contemplated that the entire
responsibility for David's comfort, safety and
maintenance would be on Heritage and that the performance
of these tasks would be delegated to its employees.
 Given the degree of David's lack of autonomy and his
dependence on Heritage for care and the degree of
Heritage's control over David and the circumstances in
which he found himself, we find that Heritage assumed a
non-delegable duty to provide protection and care so as
to fall within the common carrier exception. The
standard of care which Heritage owed to David, therefore,
was that actual care be used by Heritage and its
employees to provide that protection. The trial court
was in error to summarily reject his claim that such a
duty existed.

I would likewise conclude that given the degree of Greta's
dependence on the State of Montana for her care and the degree of
control that is exercised over her, MDC assumed a nondelegable duty
to provide for her protection and care and that it violated that
duty when she was raped and sexually abused while in the State's
custody and care.
Contrary to the concerns expressed by the majority, such a
holding would be totally consistent with the directives that have
been enacted by the legislature. Section 53-20-101(1), MCA, which
sets forth the purpose of Montana's chapter pertaining to the
developmentally disabled, states that:
The purpose of this part is to:
(1) secure for each person who may be
developmentally disabled such treatment and habilitation
as will be suited to the needs of the person and to
assure that such treatment and habilitation are
skillfully and humanely administered with full respect
for the ~erson'sdianitv and personal intearitv ....
[Emphasis added.]
Section 53-20-142, MCA, in that same chapter, provides that:
 Persons admitted to a residential facility for a
period of habilitation shall enjoy the following rights:

(1) Residents have a right to dignity, privacy, and
humane care.

( 8 ) Each resident has a right to a humane physical
environment within the residential facility.

(10) Corporal punishment is not permitted.
Section 53-20-163, MCA, provides in relevant part as follows:
(1) Every residential facility shall prohibit
mistreatment, neglect, or abuse in any form of any
resident.
In their concern for deference to the legislature, the
majority have actually defeated the express intentions of the
legislature. These statutory obligations are meaningless if the
State of Montana and MDC can avoid liability for breaching the
duties these statutes impose by simply contending that the duty was
breached by one of the State's employees. The State has no way of
acting other than through its employees.
The majority Is rationale is that protection of people like
Greta Glover is not our responsibility--it is up to the
legislature.
It is true that where the legislature has preempted the common
law, this Court should defer to that branch of government.
However, it is equally clear that where the legislature has not
acted to regulate the affairs of people, this Court has an
obligation to do so through the common law. This obligation is
made clear by both our previous decisions and legislative statute.
SeeHakerv. SouthwestemRaiIway Co. (1978), 176 Mont. 364, 578 P.2d 724,

and § 1-1-108, MCA.
The majority's expressed concern about acting in an area that
should be reserved for the legislature is indeed a shallow basis
for this result. It has shown no similar reluctance in the past
under much less compelling circumstances.
The common law of this State is replete with examples of this
Court's willingness to act where a vacuum exists in an important
area of public policy that involves the rights of the litigants who
appear before us. This Court adopted the law of strict liability
without waiting for the legislature to do so in Brandenburgerv. Toyota

(1973), 162 Mont. 506, 513 P.2d 268. It allowed damages for loss
of consortium by minors in Pence v. Fox (1991), 248 Mont. 521, 813

P.2d 429. This Court rewrote the law regarding bad faith in
commercial transactions without waiting for the legislature to do
so in Stoty v. City of Bozeman (lggO), 243 Mont. 436, 791 P.2d 767. In

fact, this Court originally adopted the very exception to respondeat

superior that forms the basis of this decision without waiting for the

legislature to do so. Komecv. MikeHorseMiningCo. (1947), 120

Mont. 1, 180 P.2d 252. Why is the majority willing to adopt by
common law part of the rule on respondeatsuperior which is set forth in
Restatement (Second) of Agency !
j 219 (1958), but unwilling to adopt
the rest of that same rule by the same process?
his Court was willing to adopt a rule of nondelegable duty
for owners of elevators, and presumably other common carriers, such
as buses, trains, and ski lifts. Cash v O h Elevator Co. (1984), 210
.

Mont. 319, 684 P.2d 1041. Why is it any significant departure from
what was done in Cash to extend the same protection to an autistic,

retarded woman incapable of protecting herself or communicating
with others when she has been sexually abused by the employees of
the very institution in which she was placed for her protection and
care?
I agree with Justice Benjamin Cardozo, who stated in his
treatise, Law and Literature (1931), I8[t]he common law, unless
bound and riveted by statute, has instruments at hand of many
varieties and shapes for molding of that justice which is the end
of her endeavor.
This Court is willing to use the common law selectively where
it suits the majority's notions of sound public policy. However,
it has abdicated that important responsibility in this case.
The primary reason for which an independent branch of
government, such as the judiciary, exists is to protect the rights
of private individuals from governmental abuse. There can be no
clearer example of governmental abuse than when one of its agents
sexually abuses and rapes a retarded woman who had been placed in
the government's care and entrusted to the government for her

28
protection. I, therefore, dissent from the majority's decision to
reverse the District Court's determination of the defendant's
liability.
I also dissent from that part of the majority opinion which
holds that Margaret Maguire was not a direct victim of Dean
Drummond's tortious conduct, and therefore, cannot recover damages
for the emotional distress she has experienced.
Margaret Maguire is Greta Glover's mother and legal guardian.
She cared for her daughter until Greta was 12 years of age, when
she was no longer able to do so. After her daughter was admitted
to state institutions, Margaret visited her frequently and took her
home on weekends.
On November 16, 1988, she was advised that her daughter was
pregnant. Her daughter was incapable of deciding what to do about
the pregnancy. Therefore, Margarethad to make those decisions for
her. Margaret literally substituted herself for Greta in terms of
all the difficult decisions that are attendant to an unwanted
pregnancy. She was concerned about Greta's health and was
concerned about whether Greta could deliver a healthy baby. Yet,
because of her religious beliefs, she could not choose an abortion.
In the process of making these decisions, her health deteriorated
and she required both psychological and medical treatment.
After the baby was born on April 4, 1989, she had to make the
decision to place the baby for adoption, just as if it was her own
child. Following the decision to have the baby adopted, she was
hospitalized for depression with symptoms of starvation and
thoughts of suicide. Her doctors related these severe health
problems to the decisions she was forced to make about Greta's
pregnancy and the adoption of the baby.
If any person with the intellectual capacity to make her own
decisions was raped and suffered physically and mentally, as
Margaret Maquire did because of the decisions that had to be made
following that rape, there is no question that that person would be
entitled to compensation forthose emotional and physical injuries.
Margaret Maguire was no less a direct victim of Dean Drummond's
conduct than Greta Glover.
In Johnson v. Supersave Markets, Inc. (1984) , 211 Mont . 4 65, 686 P. 2d

209, we held that:

This Court adopts the species of case approach which
requires a factual analysis of each case to determine
whether the alleged "emotional distress" merits
compensation. In determining whether the distress is
compensable absent a showing of physical or mental
injury, we will look to whether tortious conduct results
in a substantial invasion of a legally protected interest
and causes a significant impact upon the person of the
plaintiff.
Johnson, 686 P.2d at 213.

The instruction given to the jury regarding Margaret Maguire's
right to recover damages for her own emotional distress was
completely consistent with our directive in Johnson. The jury was

instructed as follows:
If you find that the State of Montana was
responsible in causing Margaret Maguire emotional
 distress, the plaintiff, Margaret Maguire, may be
entitled to recover damages. You are instructed that
Margaret Maguire had a right to be free from the
emotional distress caused by being obligated to make
decisions regarding the pregnancy of her daughter and
ward, Greta Glover. Before damages for emotional
distress may be awarded, you must find that the
defendant, State of Montana, substantially invaded that
right and that this invasion caused a significant impact
upon the plaintiff, Margaret Maguire, and resulted in
severe emotional distress.
The majority cites to Marlene F v. PsychiatricMed. Clinic (Cal. 1989),
.
770 P.2d 278, and Molienv. KakerFoundationHospitaIs (Cal. 1980), 616 P.2d

813. In both of these cases, plaintiffs were entitled to claim
damages for emotional distress, even though they were not the
direct victim of the negligent conduct which gave rise to their
claims. The basis for recovery in both cases was that they were
owed a duty of care by the tort-feasor. The majority concludes
that the existence of that duty "depends upon the foreseeability
that severe emotional distress will result from the breach of that
duty." Certainly, on that basis, the State of Montana owed a duty
to Margaret Maguire in this case. Not only did she entrust her
daughter to them with the understanding that they would provide for
her care and security, but it was obvious to the employees of MDC
that it was Margaret Maguire who necessarily made every decision
that affected Greta Glover's personal life. How could it not be
foreseeable that if Greta Glover was raped and impregnated, that
Margaret Maguire would be left with all of the decisions made
necessary because of that pregnancy?
 The majority decision is disturbing on several levels. First,
and most importantly, it unnecessarily deprives the plaintiffs, who
have suffered so much from such brutal treatment by the agents of
the State, from the necessary compensation with which they could
begin putting their lives back together. Second, it sets a
terrible precedent which will be applied to bar future victims of
intentional abuse by State employees from reasonable compensation,
no matter how serious and devastating their loss. Finally, this
Court's decision regarding Margaret Maguire's damages, creates the
fiction that Margaret Maguire was not a direct victim of Dean
Drummond's brutal conduct. This decision ignores the reality of
this lady's unique situation and this family's terrible suffering.
For these reasons, I dissent from Parts I, 111, and IV of the
majority decision. I would affirm the judgment of the District
Court.

Justice William E. Hunt, Sr., joins in the foregoing dissent
of Justice Trieweiler.