No. 92-014
IN THE SUPREME COURT OF THE STATE OF MONTANA
MELISSA HEDGES, A minor by and through
PATRICIA HEDGES, her Guardian ad Litem,
Plaintiff and Appellant,
-vs-
SWAN LAKE AND SALMON PRAIRIE SCHOOL DISTRICT
NO. 73, CAROL FIELD, and DOES 1 through 10,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
H. James Oleson; Oleson Law Firm, Kalispell, Montana
For Respondent:
Todd A. Hammer; Warden, Christiansen, Johnson &
Berg, Kalispell, Montana
. ,/
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Melissa Hedges, appeals from the order of the
District Court for the Twentieth Judicial District, Lake County,
granting summary judgment to the defendants. We reverse and
remand.
The issues for our review are:
1. Did the District Court err in holding that the defendants
were immune from suit for negligence under 5 2-9-111, MCA (1991)?
2. Did the District Court err in denying Ms. Hedge's motion
for reconsideration?
This case was previously before this Court on appeal from an
order granting summary judgment on February 28, 1990. Hedges v.
Swan Lake and Salmon Prairie School Dist. No. 73 (1991), 248 Mont.
365, 812 P.2d 334 (Hedses I). As stated in Hedses I, plaintiff,
Melissa Hedges (Ms. Hedges) was a student at the Swan Lake
Elementary School in Lake County, Montana. Defendant, Carol Field
(Ms. Field) , a teacher, was supervising the playground and had
instructed Ms. Hedges to mark where shot puts landed. Ms. Hedges
was marking a previous shot put when she was struck by another shot
put which had been thrown by Ms. Field. Ms. Hedges was injured and
filed a complaint against Ms. Field and the Swan Lake and Salmon
Prairie School District, No. 73 (School District).
Defendants moved for summary judgment on the grounds of
immunity under 5 2-9-111, MCA (1989). The parties also argued the
issue of whether immunity had been waived by the defendants'
purchase of liability insurance which the School District had
2
purchased. The District Court granted defendants1 motion for
summary judgment and held the defendants were immune under 5 2-9-
111, MCA (1989), and that the purchase of liability insurance did
not waive immunity. Ms. Hedges appealed. Hedses I.
This Court held that the case of Crowell v. School Dist. No.
7 (1991), 247 Mont. 38, 805 P.2d 522, was controlling, and thus,
the School District was immune from suit for an act or omission of
its llagentm,
Ms. Field. Quoting Crowell, we stated:
any negligence on the part of the teacher was associated
with action by the School District in that it was the
District which established programs and curriculum,
including the specific course of instruction and which
offered physical education classes as a part of such
instruction. We agree with the conclusion of the
District Court that the claim for damages arose from the
lawful discharge by Mr. Allen of an official duty
associated with actions of the School District and its
legislative body. We hold that Mr. Allen, the physical
education teacher, is immune from suit under 5 2-9-111,
MCA.
Crowell, 805 P.2d at 524. We find no factual or
legal distinction between Crowell and the present case.
(Emphasis in original).
Hedses I, 812 P.2d at 335. Thus, in Hedses I, we held that the
School District and teacher were immune from suit under 5 2-9-111,
MCA (1989). However, based on our holding in Crowell, we also held
that the purchase by the School District of liability insurance
waived its immunity to the extent of the coverage granted by
pertinent insurance policies. In Hedses I we reversed and remanded
to the District Court.
On May 24, 1991, the day after the decision in Hedses I was
issued, the Governor of Montana signed into law Senate Bill 154,
significantly amending 9 2-9-111, MCA. The amended statute was
given a retroactive applicability date to all cases not reduced to
final judgment on or before May 24, 1991.
On remand, following the amendment of the statute, the
defendants again moved for summary judgment. The District Court
considered the amended statute, but again granted summary judgment
for the defendants, this time stating:
In granting Defendants' summary judgment motion,
this Court holds that the law of this case as established
by [Hedcres I] has been modified by the legislative
enactment signed into law May 24, 1991. The Defendants
are immune from the claims stated in Plaintiff's suit
because of Sec. 2-9-111, MCA, and that said immunity has
not been waived by the liability insurance because of the
retroactive amendment to said statute enacted by the
legislature before this cause was reduced to final
judgment .
In so holding, this Court rejects the argument of
Plaintiff that the legislative amendments to Sec. 2-9-
111, MCA changed the immunity provided to Defendants.
This Court concludes that the rationale of the Supreme
Court in applying the facts of this case to the
controlling law as set forth in Crowell .
. . would
result in the same holding of immunity for all of the
Defendants herein regardless of whether Sec. 2-9-111, MCA
is construed either before or after the May 24, 1991
amendments thereto. This court holds that the
lesislative chancres to the first three sections of said
statute did not remove or limit the immunity which
resulted from the ~urchaseof liabilitv insurance. The
Defendants are therefore now entitled to Summarv Judament
as a matter of law on all claims in piaintiffts
Complaint. (Citations omitted). (Emphasis added).
Ms. Hedges appeals.
Did the Dist,rictCourt err in holding that the defendants were
immune from suit for negligence under § 2-9-111, MCA (1991)?
Ms. Hedges maintains that the District Court was wrong in
holding that defendants were immune for negligence under the
amended immunity statute, 5 2-9-111, MCA (1991). She contends that
the immunity that existed under Hedses I no longer exists under the
amended statute, and the defendants are liable for their negligent
acts. She maintains that subsection (3) of 9 2-9-111, MCA, has
been significantly revised and thus, a teacher is no longer immune
for her negligent acts. She maintains that under the old 5 2-9-
111(3), MCA, a "member, staff or ac(entu (emphasis added) of a
legislative body was immune under certain conditions, and that the
newly amended statute limited that immunity to only a "member or
staff", and excluded agents. She points out that under Hedqes I
this Court held that Ms. Field was an agent of the School District
and was thus, immune under the statute as it then existed, as well
as under Crowell. Thus, she maintains that since Ms. Field is an
agent she does not fall under the cloak of immunity granted under
9 2-9-111(3), MCA (1991).
The defendants maintain that the District Court correctly
interpreted 5 2-9-111, MCA (1991). They maintain that a teacher
performing official duties "associated with" the legislative acts
of her school board is immune. Defendants point out that the old
law, 5 2-9-111(3), MCA (1989), stated that the lawful discharge of
one's duty had to be "associated with" the introduction or
consideration of legislation or action by the legislative body.
They further point out that the new law states that the lawful
discharge of an official duty must be "associated withu legislative
acts of the legislative body. 5 2-9-(3, MCA (1991).
Therefore, defendants contend that the legislature's retention of
the words "associated with" indicates the intention to retain the
immunity as it was granted and has been interpreted under 5 2-9-
111(3), MCA (1989). Defendants contend that one's actions need
only be associated with legislative acts.
Finally, defendants acknowledge that Ms. Field was considered
an I1agentluby the parties as well as the courts in Hedcres I.
However, they also contend in this appeal that Ms. Field was
"staff" of the legislative body, and thus, she fits under the
purview of 5 2 - - ( ) MCA (1991).
Section 2-9-111, MCA (1991) provides:
(1) As used in this section:
(a) the term "governmental entityu1 means only the
state, counties, municipalities, school districts, and
any other local government entity or local political
subdivision vested with legislative power by statute;
(b) the term "legislative body" means only the
legislature vested with legislative power by Article V of
The Constitution of the State of Montana and that branch
or portion of any other local governmental entity or
local political subdivision empowered by law to consider
and enact statutes, charters, ordinances, orders, rules,
policies, resolutions, or resolves;
(c) (i) the term lllegislative
actt1means:
(A) actions by a legislative body that result in
creation of law or declaration of public policy;
(B) other actions of the legislature authorized by
Article V of The Constitution of the State of Montana; or
(C) actions by a school board that result in
adoption of school board policies pursuant to 20-3-
323 (1);
(ii) the term legislative act does not include
administrative actions undertaken in the execution of a
law or public policy.
(2) A governmental entity is immune from suit for
a legislative act or omission by its legislative body, or
any member or staff of the legislative body, engaged in
legislative acts.
(3) Any member or staff of a legislative body is
immune from suit for damages arising from the lawful
discharge of an official duty associated with legislative
acts of the legislative body.
(4) The acquisition of insurance coverage,
including self-insurance or group self-insurance, by a
governmental entity does not waive the immunity provided
by this section.
(Emphasis added).
Defendants are incorrect in their contention that the immunity
granted in the old statute was retained by the amended statute.
The legislature stated the purpose of the act as follows:
AN ACT CLARIFYING THAT STATUTORY LEGISLATIVE IMMUNITY
EXTENDS ONLY TO LEGISLATIVE BODIES OF GOVERNMENTAL
ENTITIES AND ONLY TO LEGISLATIVE ACTIONS TAKEN BY THOSE
BODIES; CLARIFYING THAT GOVERNMENTAL ENTITIES ARE NOT
IMMUNE UNDER THE LEGISLATIVE IMMUNITY STATUTE FOR
NONLEGISLATIVE ACTIONS; CLARIFYING THAT THE ACQUISITION
OF INSURANCE DOES NOT WAIVE IMMUNITY; AMENDING SECTION 2-
9-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND
A RETROACTIVE APPLICABILITY DATE. (Emphasis added).
This Court has recently addressed the statutory amendment in
Dagel v. City of Great Falls (Mont. 1991), 819 P.2d 186, 191, 48
St.Rep. 919, 921-922. Dasel was a constructive discharge case in
which the plaintiff alleged that harassment by her supervisor, an
employee of the City of Great Falls, led to her constructive
discharge. The City of Great Falls and the supervisor claimed
immunity under § 2-9-111, MCA (1989). In holding the defendants
were not immune, this Court stated:
Section 2-9-111, MCA (1991), significantly changed
the statute and therefore modifiedthe theories expressed
in the various immunity cases as well as in Crowell with
regard to insurance. First. under the new statute, a
leaislative bodv is not immune from the neqliqent acts of
its em~lovees. 5 2-9-lll(1) (c), MCA (1991). Second, the
purchase of insurance does not waive immunity. 5 2-9-
.
222 ( 4 ) , MCA (1991) (Emphasis added).
Daqel, 819 P.2d at 191.
In this case, the "governmental entity" is the School
District, g 2-9-111(l) (a), MCA (1991), and the "legislative bodyv1
is the school board, 5 2-9-lll(l)(b), MCA (1991). With respect to
school boards, a "legislative actn has been defined as:
actions by a school board that result in adoption of
school board policies pursuant to g 20-3-323(1);
§ l l ( l ) (c) ( )(C), MCA (1991). Section 20-3-323 (I), MCA,
provides :
(1) The trustees of each district shall prescribe
and enforce policies for the government of the district.
In order to provide a comprehensive system of governing
the district, the trustees shall:
(a) adopt the policies required by this title; and
(b) adopt policies to implement or administer the
requirements of the general law, this title, the policies
of the board of public education, and the rules of the
superintendent of public instruction.
In the materials submitted to the District Court on the
summary judgment motion there are no facts which demonstrate a
relationship between the alleged negligence of Ms. Field in
throwing the shot put, and the adoption by the trustees of the
School District of policies as defined in 5 20-3-323(1), MCA. We
conclude there were no actions by the School Board which resulted
in the adoption of School Board policy under the facts of this
case. As a result, there was no legislative act as defined in 5 2-
9 - ( 1 (c)(i)(C), MCA (1991). We conclude that the alleged
negligence of Ms. Field did not arise from the lawful discharge of
an official duty associated with legislative acts as provided in
the amended immunity statute. We further conclude that under the
immunity statute, there is no immunity for the School District or
any member or staff of the School District under the facts of this
case. We hold that the District Court erred in its holding that
the defendants were immune from suit for negligence under 5 2-9-
111, MCA (1991).
Ms. Hedges has also raised an issue as to whether the District
Court erred in denying her motion for reconsideration. In light of
our holding on the first issue, we will not address this question.
Reversed and remanded for further proceedings consistent with
this opinion.
..
c Chief Justice
i
Justices