NO. 92-545
IN THE SUPREME COURT OF THE STATE OF MONTANA
CLARENCE KING and M I S FAY KING,
on their own behalf and as
Personal Representatives of the
Estate of DAVID R. KING,
Plaintiffs and Appellants,
THE STATE OF MONTANA, THE STATE
HOSPITAL, and THE DEPARTMENT OF
INSTITUTIONS,
Defendants and Respondents.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorabie Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Howard C. Greenwood, Hamilton, Montana
For Respondents:
Norman C. Peterson, Agency Legal Services Bureau,
Helena, Montana; WilliamGianoulias, RiskManagement
and Tort Defense Division, Department of
Administration, Helena, Montana
Submitted on Briefs: July 1, 1993
J U S ~ James
~ C ~ C. Nelson delivered the Opinion of the Court.
This is an appeal from an Opinion and Order of the Twenty-
First Judicial District Court granting Defendants' motion to
dismiss the Plaintiffs' complaint for its failure to state a claim
upon which relief may be granted. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in dismissing the Plaintiffsr
negligence claim against the Defendants?
2. Did the District Court err in dismissing the Plaintiffs'
intentional tort and 42 U.S.C. 5 1983 claims against the Defendants
without addressing those claims in its Opinion and Order?
On May 23, 1989, Victor Buddell (Buddell) was involuntarily
committed to the Montana State Hospital for a three-month term and
examination. On July 28, 1989, an evidentiary recommitment hearing
was held before District Judge Ted L. Elizner, At the conclusion of
this hearing, Judge Mizner found that Buddell was a danger to
himself but that the least restrictive environment for Buddell was
a conditional release to the community. On August 24, 1989, Buddell
was released from the Montana State Hospital pursuant to Judge
Mizner's Order. The State of Montana did not appeal that release
order. On September 13, 1989, Buddell murdered David R. King, the
son of the Plaintiffs, Clarence and Lois King (Kings).
The Kings filed an action against the Defendants (collectively
referred to as State) alleging negligence, intentional acts, and
violations of David R. King's civil rights under 42 U.S.C. 5 1983.
The State filed a motion to dismiss under Rule 12(b) ( 6 ) , M.R.Civ.P.
2
District Judge Ed McLean dismissed the Kingsf complaint on
September 9, 1992, holding that the Kings had failed to establish
a prima facie case of negligence because the State had no duty to
appeal Judge Mizner's decision. Without referring to the Kings'
claims based on intentional acts and an alleged violation of 42
U.S.C. !
j 1983, the District Court dismissed those claims as well.
From the dismissal of the Kings' complaint, this appeal follows.
In reviewing a Rule 12 motion to dismiss, we will construe the
complaint in the light most favorable to the plaintiffs and take
the allegations of the complaint as true. Willson v. Taylor,
(1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182. The dismissal
will be affirmed only if this Court finds that the plaintiffs are
not entitled to relief under any set of facts which could be proven
in support of the claim. Proto v. Missoula County (1988), 230
Mont. 351, 352-53, 749 P.2d 1094, 1095-96. When a case is
dismissed pursuant to a pretrial motion and the credibility of
witnesses is not an issue, the scope of review is broad and this
Court may make its own examination of the entire case and make a
determination in accordance with its findings. Shimsky v. Valley
Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310.
The Court will uphold the result reached by the district court if
its decision was correct, regardless of the reasons given by the
district court for its conclusion. Shimsky, 676 P.2d at 1310.
I - NEGLIGENCE CLAIM
The Kings' negligence action fails on two grounds. First, the
State had no duty to appeal the District Court's decision not to
recommit Buddell to the Montana State Hospital. Second, the Kings
could not establish that the acts of the State were the proximate
cause of their son's death.
A. DUTY TO APPEAL
The Kings contend that the State was negligent in not
appealing the District Court's decision to conditionally release
Buddell to the community. In order to sustain a negligence action,
the plaintiff must establish a legal duty, breach of that duty, and
damages caused by that breach. Whitfield v. Therriault Corp.
(1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127. The Kings'
argument necessarily requires that the State owed the Kings a duty
to appeal the District Court's decision. We disagree.
The recommitment proceedings involving Buddell originated
under Title 53, Chapter 21, MCA. The State petitioned for an
extension of the commitment period pursuant to S 53-21-128, MCA,
and the District Court entered an order consistent with the
statutory authority therein. These mental health statutes provide
for appellate review of the district court's order. Section 53-21-
131, MCA, states:
Appellate review of any order of short-term evaluation
and treatment or long-term commitment mav be had by
appeal to the supreme court of Montana in the manner as
other civil cases. ...(emphasis added)
The word "mayn is to be given its ordinary meaning unless there is
a specific reason to treat it otherwise. County of Chouteau v.
City of Fort Benton (1979), 181 Mont. 123, 128, 592 P.2d 504, 507.
The ordinary meaning of "may" is that of permissiveness. If a
statute is permissive, "there is no 'clear mandatory duty' to
perform the function enumerated by the statute." Platz v. Hamilton
(1982), 201 Rant. 184, 189, 653 P.2d 144, 145. In this case, the
determination to appeal the District Court's decision regarding
Buddell's release was discretionary. There was no mandatory duty
on the State to appeal this decision.
In addition, the Kings' contention that the State had a duty
to appeal this decision raises serious policy concerns. For
example, if the State had appealed this decision, there is no
guarantee the appeal would have been successful. To impose a duty
to appeal district court decisions would encourage attorneys to
appeal every unfavorable decision to avoid being second-guessed at
a later date. As the State points out in its brief, "[tlhis Court
would find itself the arbiter not only of whether a judge had made
a correct decision based on the evidence, but also whether the
attorney who did not appeal was or was not reasonably prudent and
should have appealed because it was a close decision." The
exercise of the right to appeal, by its very nature, must remain
discretionary. Therefore, because the State had no duty to appeal
the District Court decision, no action for negligence may lie.
B. PROXIMATE CAUSE
The State also contends that the Kings could not prove the
proximate cause element necessary to establish negligence. We
agree.
To satisfy the third element of a negligence action,
causation, the Kings must prove both cause in fact and proximate
(or legal) cause. In this case, cause in fact is established
through the "but for" test, where the injury would not have
occurred but for the State's negligence. Kitchen Krafters, Inc. v.
5
~astsideBank of Montana j1990), 242 Mont. 155, 167, 789 P.2d 567,
574. Proximate cause is established by applying a foreseeability
test. Kitchen Krafters, 789 P.2d at 575. If the consequences of
an act are not reasonably foreseeable, there is no proximate cause.
Kitchen Krafters, 789 P.2d at 575. In addition, if a plaintiff's
injury is caused by the intervening act of a third-party, the
defendant's actions cannot be viewed as the proximate cause of that
injury. Graham v. Montana State Univ., (1988), 235 Mont. 284, 289-
90, 767 P.2d 301, 304.
In this case, the Kings could not establish proximate cause
against the State, as the Kings' injury was clearly caused by the
acts of Buddell. The Kings have attempted to distinguish our
decisions in VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d
932; Kiger v. State Dep't. of Inst. j1990), 245 Mont. 457, 802 P.2d
1248; and United States Fidelity & Guar. Co. v. Camp (1992), 49 St.
Rep. 372, P.2d . However, these three cases clearly
control in this case.
In VanLuchene, an inmate at the Montana State Prison was
released after serving the entire term of his sentence. After his
release, he killed a young child. VanLuchene, 797 P.2d at 933.
The parents and siblings of the child sued the State, alleging the
State was negligent in releasing the inmate prior to his completing
the sexual offender treatment program and for failing to warn the
public of his release from prison. VanLuchene, 797 P.2d at 934.
The district court dismissed the case, holding that the plaintiffs'
theories of proximate cause were speculative and that the State's
acts were not the proximate cause of the plaintiffs' injuries.
VanLuchene, 797 P.2d at 934. The district court's dismissal was
affirmed by this Court. VanLuchene, 797 P.2d at 936.
In m,a paroled inmate from the Montana State Prison shot
a woman while attempting to steal her car, -, 802 P.2d at
1249. The victim filed an action against the State, alleging the
State was negligent during the parole process of the inmate.
w , P.2d
802 at 1249. The district court dismissed this action
on the basis that the plaintiff could not establish proximate
cause. -, 802 P.2d at 1249. This court affirmed, stating that
the inmate's actions could not have been reasonably foreseen by the
State. Kiqer, 802 P.2d at 1251.
In Camp, a prisoner on work release became intoxicated, passed
out, and started a Eire when his lighted cigarette fell on a couch.
Camp, 49 St.Rep. at 373. The district court entered summary
judgment against the plaintiff, finding that the plaintiff could
not establish proximate cause. Caml>, 49 St-Rep. at 373. This
Court affirmed that dismissal, holding that the prisoner's
intervening acts were not reasonably foreseeable. m, 49 St.
Rep. at 374.
These three cases are analogous to the case at bar. The acts
of Buddell were not reasonably foreseeable and, therefore, the
Kings cannot establish proximate cause against the State.
I1 - INTENTIONAL TORT AND 42 U.S.C. 5 1983 CLAIMS
The Kings contend that the District Court erred in dismissing
the entire complaint, because the District Court's Opinion and
Order only addressed the negligence action. We agree with the
District Court's decision to dismiss the intentional tort and 42
U.S.C. 5 1983 claims.
The Kings did not allege any specific intentional tort action
in their complaint. Rather, the Kings alleged that the State
"intentionally adopted and carried out a considered and deliberate
practice . . . of routinely not appealing the rulings of the
District Court at recommitment hearings." As we previously held,
the State has no mandatory duty or obligation to appeal the ruling
of a district court at a recommitment hearing. Thus, the Kings
have failed to allege any intentional act committed by the State
upon which relief could be granted.
The action based on 42 U.S.C. 5 1983 also must be dismissed.
The Kings filed this action against the State of Montana, the State
Hospital, and the Department of Institutions. These parties are
not "persons" subject to liability under this federal civil rights
statute. Holladay v. Montana (D.C. Mont., 1981), 506 F.Supp. 1317,
1321. See also Will v. Michigan, 491 U.S. 58, 64, 109 S.Ct. 2304,
2308, 105 L.Ed.2d 45, 53. ("[Aj state is not a person within the
meaning of 5 1983.")
In Holladay, the plaintiff was suspended from his job as
superintendent of the Pine Hills School for Boys, a division of the
Montana Department of Institutions. The plaintiff filed an action
against the State of Montana and the Department of Institutions,
among others, alleging violations of 42 U.S.C. 5 1983. Holladay,
506 F.Supp. at 1320. The State of Montana and the Department of
Institutions filed a motion to dismiss the action. Calling the
Department an "alter ego" of the State, the court found that
neither party could be considered a "person" under the federal
civil rights statute and dismissed the action against them.
Xolladay, 506 F.Supp. at 1320-21.
~ollowingthe reasoning in Holladav, we hold that the State of
Montana, the State Hospital, and the Department of Institutions are
not "persons" under 42 U.S.C. 5 1983 and thus the action against
these parties was properly dismissed by the District Court.
nff inned.
July 20, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Howard C. Greenwood
Attorney at Law
P.O. Box 1567
Hamilton, MT 59840
Norman C. Peterson
Agency Lxgal Services Bureau
Justice Bldg., 215 N. Sanders
Helena. MT 59620
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Risk Management and Tort Defense Div.
Dept. of Admin., Rm. 111, Mitchell Bldg.
Helena, MT 59620
E D SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA