No. 92-061
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ALLEN BUHR, Personal Representative of the
Estate of JOSHUA LLOYD, and on behalf of
the heirs, TOM LLOYD, and MICHELE LLOYD,
Plaintiffs and Appellants,
VS .
FLATHEAD COUNTY, a political subdivision of
the State of Montana: WALLACE S. WILDER, M.D.;
KALISPELL REGIONAL HOSPITAL; WESTERN MONTANA
REGIONAL MENTAL HEALTH CENTER, CI 3 m i t i
CLERK OF
STA'EE;
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Edward P. Moriarity (argued); Spence, Moriarity & Schuster,
Jackson, Wyoming
James A. Manley; Manley Law Offices, Polson, Montana
Thomas J. Beers; Connell & Beers, Missoula, Montana
Mary C. Downey; Vuong, Downey & Louie, coronado, California
For Respondents:
Dolphy 0. Pohlman (argued); Corette, Pohlman, Allen,
Black & Carlson, Butte, Montana (for Mental Health Center)
Larry E. Riley (argued); Garlington, Lohn & Robinson,
Missoula, Montana (For Wallace S. Wilder, M.D.)
Todd A. Hammer (argued); Warden, Christiansen, Johnson &
Berg, Kalispell, Montana (for Flathead County)
James E. Vidal (argued); Murray & Kaufman, Kalispell, Montana
(for Kalispell Regional Hospital)
James A. Haynes, Attorney at Law, Hamilton, Montana
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Allen Buhr appeals from judgments in favor of all defendants
and from an order of the Eleventh Judicial District Court, Flathead
County, denying his motion for a new trial. We affirm.
Buhr presents the following issues:
1. Did the District Court properly instruct the jury
regarding negligence per se?
a. Did the District Court err in instructing
the jury on the statutory duties of Flathead
County and Mental Health by quoting statutory
language?
b. Did the District Court err by failing to
instruct on each element of Buhr's negligence
per se claims?
c. Did the District Court fail to instruct
the jury on the full theory of Buhr's
negligence claims by refusing his instruction
quoting § 53-21-146, MCA?
2. Did the District Court err in granting defendants'
motion for a directed verdict on Buhr's civil rights
claims against Flathead County and Sheriff Rhodes?
a. Did the District Court err in applying the
deliberate indifference standard to Buhr's
civil rights claims?
b. Did the District Court err in directing a
verdict on Buhr's civil rights claims against
Flathead County and Rhodes for their denial of
medical treatment under the deliberate
indifference standard?
c. Did the District Court err in directing a
verdict on Buhr's civil rights claims
involving alleged use of excessive force
against Joshua under the deliberate
indifference standard?
d. Did the District Court err in granting
Rhodes immunity from Buhr's civil rights
claims?
3. Was the jury's verdict that Flathead County, Wilder,
and Mental Health were not negligent supported by
substantial evidence and not the result of passion or
prejudice?
a. With regard to Flathead County allegedly
denying Harris access to the soft cell and
Mental Health failing to enter the soft cell
for purposes of evaluating Joshua, was the
jury' s verdict finding neither Flathead County
nor Mental Health negligent supported by
substantial credible evidence?
b. Was the jury's verdict finding Wilder not
negligent supported by substantial credible
evidence?
c. With regard to Buhr's negligence se
claim against Mental Health on the basis of an
alleged violation of § 5 3 - 2 1 - 1 2 9 (2), MCA, was
the jury's finding that Mental Health was not
negligent supported by substantial credible
evidence?
4. Did the District Court err in denying Buhr's motion
for a new trial based on surprise and improper judicial
comments?
a. Did Sheriff Rhodes' trial testimony
concerning Flathead County's policies and
procedures contradict his deposition testimony
to Buhr's detriment?
b. Did the District Court's allegedly
improper and prejudicial remarks provide a
sufficient basis for Buhr's motion for a new
trial?
5. Did Wilder's attorney prejudice the jury by making
improper remarks while questioning witnesses and during
closing argument?
6. Did the cumulative effect of the asserted errors
prejudice Buhr to the extent that he w a s unable to
receive a fair trial?
Joshua Lloyd (Joshua) was the son of Michele Lloyd (~icheie)
and Tom Lloyd. He had undergone two surgical procedures while
living in Utah: the first, at age four, removed a brain tumor and
the second, aC age thirteen, removed scar tissue which had
developed as a result of radiation and chemotherapy treatment. The
second operation damaged Joshua's hypothalamus and resulted in
severe short-term memory loss, elevated temperatures, abnormal
appetite control and liquid intake, and an occasional rage
reaction.
Michele moved to Kalispell, Montana, with Joshua and his
sister Mary in September, 1987. Within a short time thereafter,
Michele took Joshua to the Kalispell Regional Hospital (Kalispell
Regional) emergency room on t h r e e occasions with h i g h fevers. On
the third visit, Joshua met Dr. Wallace S. Wilder (Wilder), a
pediatrician who subsequently became Joshua's primary treating
physician.
On referral from her daughter's school counselor, Michele also
began seeing Sally Cameron-Russell (Russell), a counselor and
therapist with Western Montana Regional Community Mental Health
.
Center (Mental ~ealth) She sought counseling for emotional issues
arising from Joshua1s condition and, on one occasion, to discuss
the possibility of institutionalizing Joshua because of his violent
outbursts.
The frequency of Joshua's violent outbursts was increasing by
January, 1988. Joshua directed his rage at Michele and his sister,
occasionally causing injuries to both of them. Wilder and Michele
discussed a plan using the KalispeLl police to control Joshua's
outbursts. They hoped that, when Joshua became violent, the
appearance of the police would result in improvements in Joshua's
behavior. If not, Michele would progress to having Joshua placed
in the police car, taken to the police station and, if necessary,
placed in juvenile detention.
On January 17, 1988, Joshua had a violent outburst. He broke
a window in his bedroom around 5:00 a.m., and Michele punished him
and put him back to bed. He awoke three hours later and began to
beat down the door of his room with a baseball bat. When he
refused to stop, Michele called the police. Three officers
responded shortly thereafter and took Joshua to the Kalispell
police station.
Juvenile detention personnel stated that Joshua could not be
placed in juvenile detention and recommended consulting with mental
health personnel; Russell, Mental Health's therapist on call, came
to the station at 11:30 a.m. and evaluated Joshua for approximately
one-half hour. Joshua was calm during RusseLlfs initial
evaluation. While Russell discussed placement options with
Michele, however, Joshua again became violent, throwing objects and
threatening the police. At that point, Russell informed Michele
that Joshua could be held for a few days under the Montana Mental
Health Act.
Following calls to the County Attorney, Sheriff Charles Rhodes
(Rhodes), and District Judge Michael Keedy, Joshua was transferred
at approximately 3:00 p.m. to the Flathead County Sheriff's
Department by order of Judge Keedy, and remanded to the custody of
the Flathead County detention center under a mental health hold.
Russell contacted her supervisor, Bill Harris (Harris), and
discussed Joshua's condition and placement options. Harris
concurred with Russell's evaluation that Joshua could not return
home and that placement in the detention center's "soft cell" was
appropriate.
Joshua remained in the soft cell overnight and was monitored
by sheriff's department personnel. Observations were conducted
every fifteen to thirty minutes both in person and via visual and
audio monitor.
Harris went to the detention center at approximately 7 :3 0 a.m.
the next morning to observe Joshua and follow up on the previous
day's evaluation for the mental health hold. Harris observed
Joshua through a window and attempted to talk to him. Be received
only It huhH responses, which he believed indicated Joshua was
sleeping and did not want to be disturbed. AfLer determining that
no medical emergency existed, Harris returned to Mental Health and
discussed Joshua's condition with Russell. They agreed that Joshua
should not remain in the soft cell, but should be transferred to
Kalispell Regional. Russell contacted Wilder, who made
arrangements to have Joshua placed in Kalispell Regional's security
room, a sparsely furnished room with padded walls, and assigned
one-on-one nursing care, on his transfer to the hospital.
Approximately two hours later, Joshua was transferred to
Kalispell Regional and taken to Che security room. He had a major
motor seizure forty-five minutes later and died when resuscitation
efforts failed.
Allen Buhr (Buhr),personal representative of Joshua's estate,
brought a personal injury action on behalf of Joshua's estate and
wrongful death actions on behalf of Michele, Tom, and Mary Lloyd.
The actions alleged negligence against Wilder, Kalispell Regional,
Mental Health, and Flathead County and civil rights claims against
Flathead County and Rhodes. The District Court directed a verdict
on the civil rights claims during trial. Following trial, the jury
returned a special verdict finding each of the defendants not
negligent. The District Court denied Buhr's motion for a new trial
and Buhr appeals. Additional facts are included in our discussion
of the issues.
1. Did the District Court properly instruct the jury
regarding negligence per se?
Jury Instructions 26 through 32, as given, related to Buhr's
claims of negligence per se against Mental Health and Flathead
County for their involvement in Joshua's evaluation, detention, and
restraint. This series of instructions began with a broad
definition of negligence per se. The next instruction quoted the
statutorily-stated purpose of the Montana Mental Health Act; it was
followed by two instructions setting out statutory definitions of
various terms as contained in § 53-21-102, MCA.
The statutory duties of Mental Health and Flathead County were
set forth in Instructions 30 and 31. Instruction 30, quoting § 53-
21-129(1) and (2), MCA, read as follows:
INSTRUCTION NO. 30
The Montana Mental Health Act provides:
(1) When an emergency situation exists, a peace
officer may take any person who appears to be seriously
mentally ill and as a result of serious mental illness to
be a danger to others or to himself into custody only for
sufficient time to contact a professional person for
emergency evaluation. If possible, a professional person
should be called prior to taking the person into custody.
(2) If the professional person agrees that the
person detained appears to be seriously mentally ill and
that an emergency situation exists, then the person may
be detained and treated until the next regular business
day. At that time, the professional person shall release
the detained person or file his findings with the county
attorney who, if he determines probable cause to exist,
shall file the petition provided for under the Act in the
county of the respondent's residence. In either case,
the professional person shall file a report with the
court explaining his actions.
Instruction 31, quoting from § 53-21-120, MCA, read as follows:
INSTRUCTION NO. 31
The Montana Mental Health Act provides:
1. A person detained shall be detained in the least
restrictive environment required to protect the life and
physical safety of the person detained or members of the
public; in this respect, prevention of significant injury
to property may be considered;
2. Whenever possible, a person detained shall be
detained in a mental health facility and in the county of
residence.
3. A person may be detained in a jail or other
correctional facility only if no mental health facility
is available or if the available mental health facilities
are inadequate to protect the person detained and the
public. As soon as a mental health facility becomes
available or the situation has changed sufficiently that
an available mental health facility is adequate for the
protection of the person detained and the public, then
the detained person shall be transferred from the jail or
correctional facility to the mental health facility.
Finally, Instruction 32 set out the privileges of full mental
health certification, including the ability to concur in the
emergency detention of a person believed to be seriously mentally
ill and to authorize restraint and isolation. The instruction was
derived from the language of §§ 20.14.509(b-e) and 20.14.511(c),
ARM.
a. Did the District Court err in instructing the jury on
the statutory duties of Flathead County and Mental Health
by quoting statutory language?
Relying on this Court's decision in Azure v. City of Billings
(1979), 182 Mont. 234, 596 P.2d 460, Buhr contends that: these
instructions were erroneous because they contained irrelevant
language and forced the jury to interpret the statutes and
determine the appropriate standard of care contained therein. His
reliance on Azure is misplaced.
The jury instruction at issue in Azure quoted a statute in its
entirety, informed the jury that: the court had determined that
defendant was negligent as a matter of law, and directed the jury
to determine whether defendant's negligence was the proximate cause
of plaintiff's injuries. Appellant argued that the jury should not
have been instructed via the verbatim statutory language because
doing so allowed the jury to consider again the issue already
determined by the district court; namely, whether defendant was
negligent. Azure, 596 P.2d at 472-73. We clarified in Azure chat
where statutes may require an interpretation, the interpretation
must be supplied by the court, not the jury; we also clarified
counsel's obligation to frame appropriate instructions containing
both the substance and the meaning of the statute. Azure, 596 P.2d
at 473. While we did note that, in the ordinary case, the jury
should not be instructed "in the precise words of the statute," we
saw no reversible error. Azure, 596 P.2d at 473.
Here, several of the court's negligence gg instructions
quoted statutes verbatim. While we agree that instructing the jury
on negligence per se via verbatim statutory quotes may not have
been the preferable method, our review of the record reveals that
the instructions proposed by Buhr as alternatives to those given
also were direct statutory quotes from the Mental Health Act. As
we noted in Azure, counsel for the parties are responsible for
assisting the court to frame instructions which set forth the
substance and meaning of the statutes. Given that Buhr's proposed
instructions also quoted statutory material, we refuse to put the
District Court in error for giving instructions framed in this
manner. On the basis of the record before us, we conclude that the
District Court did not err in instructing on statutory duties by
quoting statutory language.
b. Did the District Court err by failing to instruct on
each element of Buhr's negligence per se claim?
Buhr makes a passing assertion in his brief that the jury
instructions failed to set out each element of his negligence
- claim.
se During oral argument, however, Buhr's counsel conceded
that the given instructions contained all the elements of the
negligence claim. He argued instead that the given
instructions were lengthy and confusing to the jury. The general
rule in Montana is that "[ilf the given instructions, when viewed
in their entirety, state the correct law applicable to the case,
there is no reversible error." Walden v. State (19911, 250 Mont.
132, 137, 818 P.2d 1190, 1193. Except as discussed below, Buhr
does not contend that the instructions failed to state the law
applicable to his case. Therefore, we conclude that the District
10
Court did not err in giving instructions which, although lengthy,
instructed the jury on the correct law applicable to Buhrls
negligence a se claims.
c. Did the District Court fail to instruct the jury on
the full theory of Buhr's negligence claims by refusing
his instruction quoting § 53-21-146, MCA?
Buhr next asserts that the District Court erred by not
instructing the jury on the full theory of his case. Part of
Buhr's theory was that § 53-21-146,MCA, imposed a statutory duty
on defendants Flathead County and Mental Health to keep Joshua free
of physical restraint and isolation and, to that end, to monitor
his physical and psychiatric condition and provide for his physical
needs and comfort. On that basis, Buhr contends that he was
entitled to have the District Court give his proposed instruction
27(C), which quoted 5 53-21-146,MCA. We disagree.
It is true that it is reversible error for a district court to
refuse to instruct the jury on an important part of a party's
theory of the case. Whitehawk v. Clark (1989), 238 Mont. 14, 20,
776 P.2d 484, 487. The existence of a legal duty owed by one party
to another, however, "is a question of law for the court.
Nautilus Ins. v. First National Ins., Inc. (1992), 254 Mont. 296,
299, 837 P.2d 409, 411 (citation omitted) . "When examining whether
certain jury instructions were properly given or refused, we must
consider the jury instructions in their entirety and in connection
with other instructions given and the evidence introduced at
trial." Story v. City of Bozeman (1993), 259 Mont. 207, 222, 856
P.2d 202, 211 (citation omitted). Thus, the question before us is
whether § 53-21-146, MCA, imposed a duty on Flathead County and
Mental Health to keep a person detained under the emergency
provisions of the Mental Health Act free from physical restraint
and isolation.
Section 53-21-146,MCA, provides in pertinent part:
Patients have a right to be free from physical restraint
and isolation. Except for emergency situations in which
it is likely that patients could harm themselves or
others and in which less restrictive means of restraint
are not feasible, patients may be physically restrained
or placed in isolation only on a professional person's
written order which explains the rationale for such
action. . . . Whenever a patient is subject to restraint
or isolation, adequate care shall be taken to monitor his
physical and psychiatric condition and to provide for his
physical needs and comfort.
We previously have determined that the intent of § 53-21-146, MCA,
is to protect patients, specifically defined as "people who are
'committed by the court for treatment for any period of time
.'" See Reiser v. Prunty (1986),224 Mont. 1, 12-13, 727 P.2d 538,
546; citing § 53-21-102(8), MCA (1985). Here, Joshua was not
committed to the detention center for treatment as a patient,
thereby bringing § 53-21-146,MCA, into play. Rather, the evidence
that Joshua was raging out of control and that Michele feared for
her and her daughter's safety demonstrated that Joshua was placed
in the detention center's soft cell pursuant to § 53-21-129, MCA,
the emergency detention statute.
We also reject Buhr's contention that the detention center's
soft cell qualifies as a mental health facility. The definition of
"mental health facility" in § 53-21-102(7), MCA, specifically
excludes correctional institutions or facilities and jails.
Pursuant to that definition, the detention center's facilities are
not a mental health facility to which S 53-21-146, MCA, applies.
The evidence established that Joshua was detained in the soft
cell under the emergency provisions of the Mental Health Act and no
error is asserted in the District Court's instruction to the jury
on the duties owed by Flathead County and Mental Health under those
provisions. We conclude that the legal duties contained in S 5 3 -
21-146, MCA, were not applicable as a matter of law and, therefore,
that the District Court did not err by refusing to instruct the
jury on those duties.
2. Did the District Court err in granting defendantsr
motion for a directed verdict on Buhr's civil rights
claims against Flathead County and Sheriff Rhodes?
Buhr's civil rights claims under 42 U.S.C. § 1983 asserted
that Flathead County and Rhodes denied Joshua a broad range of
constitutional rights. In essence, the civil rights claims alleged
that Flathead County and Rhodes failed to provide Joshua with
appropriate medical care during his detention and that excessive
force was used a g a i n s t him.
At the close of Buhr's case-in-chief, Flathead County and
Rhodes moved for a directed verdict on the civil rights claims.
The District Court granted the motion. It concluded thar. Buhr
established the existence of the detention center's policy for
providing medical care, but failed to offer any evidence that
indifferent" to
either Flathead County or Rhodes w a s lldeliberately
Joshua's medical needs. The court also concluded that no evidence
supported Buhr's excessive force claim under the deliberate
indifference standard.
a. Did the District Court err in applying the deliberate
indifference standard to Buhrrs civil rights claims?
Buhr first argues that the District Court erred in applying
the deliberate indifference standard to his civil rights claims.
Relying on Youngberg v. Romeo (1982) , 457 U.S. 307, 102 S.Ct. 2452,
73 L.Ed.2d 28, he argues that the professional judgment standard is
the correct standard and the standard which the District Court
should have applied to his civil rights claims.
The general rule in Montzana is that this Court will not
consider on appeal a theory which was not raised in the trial
court. Sherrodd v. Morrison-Knudsen (1991), 249 Mont. 282, 285,
815 P.2d 1135, 1137. Our review of the record before us reveals
that, in his brief in the District Court on the civil rights
claims, Buhr affirmatively stated that he had "an obligation to
prove deliberate indifference." Furthermore, Buhr's proposed jury
instructions on the civil rights claims required proof of
deliberate indifference rather than the professional judgment
standard he now advocates. Apparently recognizing these
difficulties with his contention that the District Court applied
the wrong standard, Buhr argues that we should utilize the plain
error doctrine to reverse the District Court's directed verdicts on
his civil rights claims,
The plain error doctrine "allows this Court to review errors
that were not objected to at trial, but result in substantial
injustice to a party by denying that party a fair trial." Geiger
v. Sherrodd (l993), 262 Mont. 505, 508, 866 P.2d 1106, 1108. The
14
doctrine is "used in exceptional cases and should not be relied
upon by counsel." Commission Comments, Rule 103(d), M.R.Evid.
Here, Buhr himself failed to present the Diskrict Court with what
he now contends is the appropriate standard for adjudication of his
civil rights claims. He also conceded during oral argument that
upon discovering his alleged error during the trial court
proceedings, he hinted at the that deliberate
indifference was the wrong standard but failed to propose any
alternative standard to the District Court.
We decline to apply the plain error doctrine under such
circumstances or to address the merits of Buhrls argument, raised
for the first time on appeal, that the professional judgment
standard applies. In doing so, we emphasize that in reviewing the
District Court's application of the deliberate indifference
standard, we express no opinion vis-a-vis whether that standard or
the professional judgment standard properly governs claims of the
nature made in this case.
b. Did the District Court err in directing a verdict on
Buhr's civil rights claims against Flathead County and
Rhodes for their denial of medical treatment under the
deliberate indifference standard?
Buhr also argues that the District Court improperly applied
the deliberate indifference standard. He contends that the
evidence established that Flathead County and Rhodes were
deliberately indifferent to Joshua's constitutional rights in terms
of the medical treatment Joshua received; on that basis, he urges
that the trial court erred in directing a verdict on his civil
rights claims related to that medical treatment.
15
Buhr first addresses the District Court's grant of Flathead
County's motion for a directed verdict on the civil rights claims
regarding Joshua's medical treatment while detained in the soft
cell, He argues that the detention center's "hands-offu policy
toward mental health detainees, abbreviated booking procedures, and
the fact that detention center personnel ' s only medical background
consisted of first-aid training, prevented detention center
personnel from adequately monitoring Joshua's medical needs and
providing him the medical treatment he required.
Relying on the Supreme Court's decision in Younqberq, Buhr
contends in this regard that Flathead County was required to ensure
that decisions regarding Joshua's medical care were made by medical
professionals exercising professional judgment. Under this
standard, liability could be imposed for decisions regarding
medical treatment "when the decision [regarding medical treatment]
. . . is such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment. "
Younsberq, 457 U.S. at 323.
Buhr argues that Flathead County's policies regarding medical
treatment of detainees held under § 53-21-129, MCA, prevented
qualified medical professionals from making determinations
regarding Joshua's medical treatment and exhibited udeliberate
indifferencew to Joshua's medical needs. In large part, this
argument is an attempt to weave the Younsberq "professional
judgment" standard advocated above into the deliberate indifference
standard which is properly before us. We reject such an approach.
Buhr brought his civil rights claims pursuant to 42 U.S.C. S
1983, which states in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State .
. . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . .
Liability cannot be imposed on a local government entity for a
constitutional tort pursuant to 42 U.S.C.§ 1983 unless a plaintiff
establishes:
(1) that he possessed a constitutional right of which he
was deprived; (2) that the municipality had a policy; (3)
that this policy "amounts to deliberate indifferencen to
the plaint iff ' s constitutional right ; and (4) that the
policy is the "moving force behind the constitutional
violation. "
Oviatt By and Through Waugh v. Pearce (9th ~ i r .
l992), 954 F.2d
A district court "may grant a directed verdict only when it
appears as a matter of law that the nonmoving party could not
recover upon any view of the evidence, including the legitimate
inferences to be drawn from the evidence." King v , Zimmerman
(Mont. 2994), 878 P.2d 895, 899, 51 St.Rep. 659, 660-61 (citation
omitted). "A motion for a directed verdict should only be granted
when there is a complete absence of any evidence to warrant
submission [of the case] to the jury and all factual inferences
must be viewed in the light most favorable to the nonmoving party.
Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287,
1289. We review a district court's decision regarding a motion
for a directed verdict to determine if the court abused its
discretion. See Nelson v. Flathead Valley Transit (1992), 251
Mont. 269, 274, 824 P.2d 263, 267.
Buhr was required to offer evidence on each of the four
elements necessary to impose liability pursuant to 42 U.S.C. 5
1983, in order to withstand a motion for a directed verdict. We
focus on the second and third elements.
Under Pearce, the second element of Buhr's § 1983 action
against Flathead County is the existence of a county policy
regarding medical treatment for individuals detained in the
detention center. Buhr introduced evidence regarding the detention
center's medical policies for mental health detainees. His
evidence confirmed that the detention center admitted mental health
detainees such as Joshua under an abbreviated booking procedure
which did not mandate questions related to medications and that
asking questions about medications was within the discretion of
detention center personnel, who dispensed medications only when
necessary for the physical health of the detainee. After a
detainee was admitted, the detention center followed a "hands-off"
policy whereby no one would enter the soft cell. Regarding medical
treatment, Buhr's evidence confirmed that detention center
personnel, who were trained in first-aid, were authorized to
arrange either visits with doctors to provide medical treatment for
detainees or, in instances where they determined a medical problem
was more serious, transportation of the detainee to the hospital.
The record, therefore, is clear that Buhr offered evidence on the
second element.
Buhr's evidence regarding existence of a policy, however, is
insufficient to trigger liability for Flathead County and Rhodes
under 42 U.S.C. § 1983, or to withstand a motion for a directed
verdict. See Pearce, 954 F.2d at 1477. A plaintiff such as Buhr
must also offex evidence on the third element and that evidence, or
legitimate inferences therefrom, must be sufficient to allow him to
recover on the claim that the county's policy exhibited a
deliberate indifference to Joshua's constitutional rights. Pearce,
954 F.2d at 1477. "This occurs when the need for more or different
action 'is so obvious, and the inadequacy [of the current
procedure] so likely to result in the violation of constitutional
rights, that the policymakers . . . can reasonably be said to have
been deliberately indifferent to the need."' Pearce, 954 F.2d at
1477-78; citing City of Canton v. Harris (l989), 489 U.S. 378, 390,
109 S.Ct. 1197, 1205, 103 L.Ed.2d 412, 427.
Citv of Canton involved a claimant, Harris, who was brought to
a police station in an incoherent state and, after being taken
inside, slumped to the floor where the police allowed her to remain
without any medical attention. One hour later, Harris was released
and taken to a hospital via an ambulance provided by her family.
She was diagnosed with severe emotional ailments and hospitalized.
Citv of Canton, 489 U.S. at 381. Harris subsequently brought an
action pursuant to 42 U.S.C. S 1983, claiming the city was liable
for violation of her right to receive necessary medical attention
while in police custody.
Harris claimed that Canton provided police shift commanders
sole discretion, without any special training beyond first-aid, to
determine when to I1summonmedical care for an injured detainee.
Citv of Canton, 489 U.S. at 381-82. Her case went to the jury
under a reckless, intentional or with gross negligence standard and
the jury found in her favor. the Sixth Circuit Court of
Appeals affirmed the imposition of municipal liability under § 1983
where a plaintiff proves that a municipality, acting recklessly,
intentionally or with gross negligence, failed to train its police
force, and where that failure resulted in a deprivation of
constitutional rights that was substantially likely to result.
City of Canton, 489 U.S. at 385.
The United States Supreme Court rejected the Circuit Court's
"overly broad ruleu for imposing a municipal liability under § 1983
and adopted the "deliberate indifferenceH standard. Citv of
Canton, 489 U.S. at 388. It determined that "only where a failure
to train reflects a 'deliberate' or 'conscious1 choice by a
municipality . . . can a city be liable for such a failure under §
1983.'' City of Canton, 489 U.S. at 389. The focus of the inquiry
"must be on the adequacy of the training program in relation to the
tasks the particular officers must perform." City of Canton, 489
U.S. at 390. The Court then stated:
[nleither will it suffice to prove that an injury or
accident could have been avoided if an officer had had
better or more training, sufficient to equip him to avoid
the particular injury-causing conduct. Such a claim
could be made about almost any encounter resulting in
injury, yet not condemn the adeauacv of the proqram to
enable officers to respond ~roperly to the usual and
recurrinq situations with which they must deal.
Citv of Canton, 489 U.S. at 391 (emphasis added).
Following the City of Canton, the Ninth Circuit Court of
Appeals addressed the question of when a policy exhibits deliberate
indifference in Pearce. In Pearce, an arrestee who remained
incarcerated for 114 days before being arraigned, sued the county
and the sheriff alleging violations under § 1983. Pearce, 954 F.2d
at 1472. The arrestee's name was dropped from the booking sheet
through an error by the court clerk who prepared the docket sheet.
Pearce, 954 F.2d at 1473. While the sheriff was aware that inmates
were not arraigned because of mistakes similar to this, the
sheriff s department failed to develop internal procedures to guard
against mistakes and chose to rely on the inmates, their attorneys,
or family members. Peaxce, 954 F.2d at 1473. The evidence
demonstrated, however, that some inmates were unable to communicate
with their lawyers or family members and that the sheriff knew of
nineteen incidents where inmates missed arraignments due to
mistakes by jail and court personnel. Pearce, 954 F.2d at 1 4 7 8 .
The federal district court refused defendant county's and
sheriff's motion for judgment notwithstanding the verdict and
defendants appealed. The Ninth Circuit determined that it was
reasonably certain, given the lack of procedures to relieve the
known problem, that inmates would be erroneously deprived of their
liberty and that the need for different procedures was so obvious
that the sheriff's refusal to institute procedures to guard against
known and repeated mistakes amounted to deliberate indifference.
21
Pearce, 954 F.2d at 1478.
Here, the District Court concluded that Buhr' s evidence
regarding Flathead County's medical policies was insufficient to go
to the jury under the deliberate indifference standard. Buhr' s
evidence established that Joshua was visually monitored every five
to fifteen minutes and physically observed every fifteen to thirty
minutes while he was detained in the soft cell. He further
established that the detention personnel, had they detected a
medical emergency, would not have hesitated to summon medical help
for Joshua.
Unlike the situation in Pearce, Buhr's evidence did not
establish--or tend to establish by inference--any awareness by
Rhodes or detention center personnel that existing medical policies
regarding mental health detainees were causing or likely to cause
denial of adequate medical treatment to such detainees. Indeed,
Harris testified during Buhrts case in chief that the "hands-off1'
policy is the preferred approach in dealing with violently mentally
ill detainees placed in a soft cell. in his view, having people
enter the soft cell might further the detainee's agitation or
combativeness and the preferred treatment is to try not to do so.
Furthermore, there is a complete absence of evidence under the City
of Canton guidelines demonstrating that the detention center's need
for different medical procedures was so obvious, and the procedures
so deficient when compared to the usual medical situation
confronting detention personnel, that Flathead County and Rhodes
were deliberately indifferent to that need.
Buhr's failure to offer evidence which would be sufficient to
allow him to recover under the deliberate indifference standard
defeats his 5 1983 claim regarding inadequate medical treatment.
Thus, the District Court did not abuse its discretion in directing
a verdict on the civil rights claims relating to lack of medical
treatment for Joshua under that standard.
c. Did the District Court err in directing a verdict on
Buhr's civil rights claims involving alleged use of
excessive force against Joshua under the deliberate
indifference standard?
Buhr also asserts error in the District Court's directed
verdict on his civil rights claim against Flathead County based on
an alleged use of excessive force against Joshua by Officer Mike
Cooper (Cooper). This claim was premised on nurses noticing, when
Joshua was admitted to the hospital on January 18, that he had
several areas of bruising and possibly a dislocated shoulder.
Joshua did not display any noticeable bruises when he was brought
to the detention center. Buhr attributed the bruises and possible
shoulder dislocation to the treatment Joshua received from Cooper
when Cooper placed Joshua in the soft cell.
Here, as above, Buhr was required to introduce evidence on
each of the four elements required to establish a local government
entity's liability pursuant to 5 1983, including that the county
had a policy and that the policy amounted to deliberate
indifference. Pearce, 954 F.2d at 1474. Buhr established the
existence of the detention center's policy regarding use of
excessive force. That policy required an officer who employed
excessive force to file an incident report setting forth the
circumstances surrounding the use of force by the conclusion of the
officer's next shift.
Buhr also introduced evidence that the policy did not define
the term "excessive force.I1 Instead, the policy left both the
definition of the term and the determination of whether excessive
force requiring submission of an incident report has been used to
the discretion of detention center personnel. Thus, Buhr presented
sufficient evidence on the existence of a policy to meet the second
element for imposing liability under § 1983.
According to Buhr, it was this policy which led to the alleged
use of excessive force resulting in injury to Joshua. Buhr asserts
that leaving decisions on whether excessive force was used and
whether an incident needed to be reported to the discretion of
detention center personnel l e d to a deprivation of Joshua's right
to be free from such force. The District Court directed a verdict
in favor of Flathead County and Rhodes regarding this claim
determining that, pursuant to the United States Supreme Court's
decision in Oklahoma City v . Tuttle (l985), 471 U . S . 8 0 8 , 105 S.Ct .
2427, 85 L.Ed.2d 791, one alleged instance of excessive force, even
if proved, was insufficient to support a claim under 42 U.S.C. §
1983.
Buhr was required to introduce evidence that the policy
implemented by Flathead County and Rhodes demonstrated deliberate
indifference to Joshua's constitutional rights. Pearce, 754 P.2d
at 1474. Buhr, however, Failed to introduce any evidence on this
element. Buhr's evidence focused on such things as Cooper's
nickname, "Gestapo Mike;" his performance evaluations noting that
he adhered strictly to rules and suggesting that he take a more
diplomatic approach with inmates; and a psychological profile of
Cooper stating that, while he was characteristically gentle and
non-violent, he was aggressive at deeper levels and expressed anger
in indirect ways.
In Tuttle, the Supreme Court stated that where the policy
relied on is not unconstitutional, "considerably more proof than
the single incident will be necessary in every case to establish
both the requisite fault on the part of the municipality, and the
causal connection between the 'policyf and the constitutional
deprivation." Tuttle, 471 U.S. at 824. In this case, there was no
allegation or argument that Flathead County's policy regarding use
of excessive force was, in and of itself, unconstitutional.
Furthermore, while Buhr has cited relevant portions of the trial
record to support his assertions regarding Cooper's disciplinary
style, our review establishes that Buhr failed to produce any
evidence relating to more than the single incident alleged here to
support his claim under 42 U.S.C. 5 1983.
Buhr failed to offer any evidence establishing that Flathead
County and Rhodes were deliberately indifferent to Joshua's
constitutional rights through the detention center's policies with
regard to use of excessive force. We conclude, therefore, that the
District Court did not err by directing a verdict on Buhr's civil
rights claims against Flathead County and Rhodes based on alleged
use of excessive force by Cooper.
d. Did the District Court err in granting Rhodes
immunity from Buhr's civil rights claims?
Buhr also asserts that the District Court erred in granting
Rhodes immunity against Buhr's civil rights claims. Because we
have concluded above that the District Court properly granted
Flathead County's and Rhodes' motion for a directed verdict on the
civil rights claims, we need not address the separate issue of
Rhodes' immunity from those claims.
3. Was the jury's verdict that Flathead County, Wilder,
and Mental Health were not negligent supported by
substantial evidence and not the result of passion or
prejudice?
Buhr raises three issues regarding the jury's verdicts in
favor of the defendants on his negligence claims. He contends
that, regardless of the jury's interpretation of the evidence, the
verdicts were contrary to the evidence and obviously the result of
prejudice or passion. His argument regarding passion or prejudice
which may have influenced the jury's verdict focuses on comments
made by Wilder's counsel; we address those comments below in issue
5.
Our role in reviewing a jury's verdict is limited. Weber v .
State (1992)' 253 Mont. 148, 156, 831 P.2d 1359, 1364. We review
the evidence in a light most favorable to the prevailing party and
determine whether the jury's verdict is supported by substantial
evidence. Weber, 831 P.2d at 1364. This Court will not retry a
s
case because the jury believed one party' s evidence over another1 ;
it is within the jury's province to adopt testimony presented on
behalf of one party to the exclusion of testimony presented by the
other party. Silvis v. Hobbs (1992) , 251 Mont . 407, 412, 824 P.2d
1013, 1016.
a. With regard to Flathead County allegedly denying
Harris access to the soft cell and Mental Health failing
to enter the soft cell for purposes of evaluating Joshua,
was the jury's verdict finding neither Flathead County
nor Mental Health negligent supported by substantial
credible evidence?
Harris arrived at the detention center at 7 : 3 0 a.m. on January
18, to further evaluate Joshua. He looked through the observation
window in the door of the soft cell but did not enter the cell to
conduct a closer evaluation. Harris testified he did not enter the
soft cell because he was given an official order by Deputy Theodore
Stollfuss (Stollfuss) denying him entry into the cell. Harris'
testimony regarding the reason he did not enter the soft cell
differed with Stollfuss' testimony that he informed Harris that
Joshua could be unpredictably violent but had not denied Harris
access to the soft cell.
Buhr contends, that at the time Harris and Stollfuss made
their observations, Joshua was exhibiting symptoms indicative of a
serious medical crisis. He argues that after observing these
symptoms, it was unreasonable for Harris and Stollfuss to conclude
that a medical emergency did not exist. On that basis, he asserts
that Harris should have entered the soft cell to conduct a closer
evaluation and that either Mental Health was negligent for his
failure to do so or Flathead County was negligent in denying him
access to the soft cell.
,
Buhrls expert, Doctor George Schwartz (Schwartz) testified
that Joshua's physical condition, which Harris and Stollfuss
observed the morning of January 18, was the result of events which
began the night before. He testified that, because Joshua did not
receive appropriate amounts of liquid during the night, he
dehydrated and contracted hyperthermia. Schwartz stated that
Joshua was rendered immobile and unable to speak except for
grunting, and that he later experienced metabolic crisis. In
Schwartz's opinion, anyone observing Joshua lying in a pool of
bodily fluids, unable to speak and not moving, would conclude there
was a serious medical emergency.
Stollfuss and Harris provided testimony significantly
different from that of Schwartz as to whether Joshua experienced a
medical emergency that morning. Stollfuss testified that, when
Harris arrived, Joshua appeared to be sleeping and nothing he
observed led him to conclude Joshua was experiencing a medical
emergency. Had Stollfuss detected such an emergency, he testified
that he would not have hesitated to summon medical assistance.
Harris also testified that Joshua's actions were consistent with
someone sleeping, that he did not perceive a medical emergency and
that he would have contacted medical personnel had he concluded a
medical emergency existed. While both Harris and Stollfuss
testified that excrement was present in the soft cell, neither
concurred with Schwartz's description that Joshua was lying in a
pool of bodily fluids.
Stollfuss also provided additional information about Joshua's
condition during that morning. He testified that at 6:00 a.m.,
Joshua was standing in the soft cell and calling out for his
mother. Again, at approximately 9:30 a.m., Joshua was standing in
the soft cell, staring toward the ceiling and calling for his
mother to let him out.
In essence, Buhr firs& suggests that the jury should not have
believed Harrisf and Stollfuss' testimony that Joshua was not
experiencing a medical emergency. As discussed above, it is within
the province of the jury to adopt the testimony of one party to the
exclusion of the other's. The jury apparently adopted Flathead
County's and Mental Health's testimony regarding the absence of a
medical emergency.
Buhr next argues that, regardless of whether Harris or
Stollfuss detected a medical emergency, Harris would have
determined that a medical emergency existed and summoned medical
assistance had he entered the soft cell and conducted a thorough
evaluation of Joshua's condition, Based on Harris1 and Stollfuss'
allegedly conflicting testimony regarding why Harris did not enter
the soft cell, Buhr contends that either Flathead County was
negligent in refusing Harris admission or Mental Health was
negligent as a result of Harris' failure to enter, but the jury's
verdict finding neither negligent is not supported by the evidence.
We disagree.
Stollfuss testified he had arrived at work early that morning
and was briefed about Joshua's condition. He was told that Joshua
"had been pacing most of the night, been awake; that he was
irritable and could be belligerent; and handle the situation
carefully;I1 Stollfuss relayed this information to Harris when
Harris arrived for the evaluation. Stollfuss then advised Harris
that he was concerned about opening the door and upsetting Joshua
again because Joshua had been agitated earlier in the morning.
Stollfuss also testified that Harris remained at the soft cell
for approximately fifteen minutes. He stated that, normally,
mencal health professionals had full access to mental health
detainees and that he did not deny Harris entry into the soft cell.
On cross-examination, Stollfuss admitted it was possible that
Harris misunderstood him to mean that Harris could not enter the
soft cell.
It was within the jury's province to believe StolLfussl
testimony that he did not deny Harris access to the soft cell, We
conclude, therefore, that substantial evidence supports the juryfs
finding that Flathead County was not negligent in denying Harris
access to evaluate Joshua.
Harris' testimony established that he did not go into the
cell. He testified that when he asked if he could enter the cell,
Stollfuss indicated that Joshua was violent and that Stollfuss did
not believe it would be safe to allow anyone to enter; Harris
interpreted Stollfuss' reply as an official denial of his request
for access.
Regarding his ability to evaluate Joshua's physical condition,
Harris testified that he was able to observe Joshua through a
window in the door of the soft cell. Joshua was lying at a forty-
five degree angle to, and approximately three feet away from, the
door; facing away from the window. Harris observed breathing
motions and asked Joshua questions, but received no intelligible
response. He added that he could have obtained access to the soft
cell by requesting additional officers or contacting the Sheriff
had he observed anything leading him to conclude that a medical
emergency existed, but that he observed no such indications of an
emergency. Harris' testimony constitutes substantial credible
evidence supporting the jury's verdict that Mental Health was not
negligent in failing to enter the soft cell for purposes of
evaluating Joshua.
The jury was free to adopt Stollfuss' and Harris' account of
the events which took place the morning of January 18 regarding the
lack of a medical emergency and their respective testimonies
relating to Harris' failure to enter the soft cell. We conclude
that substantial credible evidence supports the jury's verdict.
b. Was the jury's verdict finding Wilder not negligent
supported by substantial credible evidence?
Buhr's claim of professional negligence against Wilder
contained two components: Wilder's recommendation that the
Kalispell police be used to control Joshua's behavior and his
alleged failure--after talking to Russell and agreeing to arrange
Joshua's admission to the hospital--to follow up and ensure that
Joshua was transferred from the detention center to the hospital.
The jury rejected these claims by finding Wilder not negligent.
Buhr argues that, although the testimony relating to the use
of the police and Joshua's transfer conflicts, the jury was
compelled to find Wilder negligent. The standard, however, is
whether, when viewed in a light favorable to Wilder, substantial
evidence supports the jury's verdict. Weber, 831 P.2d at 1364. We
also reiterate that it is within the jury's province to adopt one
party's evidence over that of the other. Silvis, 824 P.2d at 1016.
With regard to the use of the police, Wilder testified that he
believed Joshua's behavior was controllable to some extent. He had
talked to Michele and a home health nurse assisting her about the
possibility of involving the Kalispell police when Joshua's rages
became uncontrollable. Wilder's suggested approach was that, if
the police arrived and Joshua's behavior improved, the behavior-
control process need go no further. If the behavior did not
improve, then the police would progress to placing Joshua in a
squad car, taking him to the jail and, as a last alternative,
placing Joshua in juvenile detention. In Wilder's opinion, this
was the only way, short of institutionalization, to deal with
Joshua's violent behavior.
Dr. Marion Walker, Joshua's former pediatrician in Salt Lake
City, Utah, testified that the process Wilder recommended involving
the police was reasonable and that he would not fault Wilder for
advising that type of action. Walker testified that recommending
this approach did not constitute professional negligence.
Regardingwilder's recommendedbehaviormodification approach,
the jury's finding that Wilder was not negligent was supported by
substantial credible evidence. Although Wilder's testimony and
that introduced on his behalf conflicted with testimony of other
witnesses, it was the jury's decision which evidence to accept.
Buhr's claim that Wilder was negligent for failing to follow
through and ensure that Joshua actually was transferred to the
hospital rests on Buhr' s view that Wilder undertook to do so during
the course of his telephone conversation with Russell. Buhr
alleged that had Wilder made the appropriate arrangements when he
was informed Joshua was in the detention center, Joshua would have
been transferred earlier and his life might have been saved.
Wilder testified that after Michele's phone call at 10 :00 a.m.
on January 17, he did not receive another telephone call regarding
Joshua until approximately 9:30 a.m. the next day, when Russell
informed him that Joshua was in the detention center's soft cell on
a mental health hold. Both Wilder and Russell testified that
Russell asked for permission to have either Mental Health or
Flathead County move Joshua to the hospital and whether Wilder
would admit him. Wilder recalled asking Russell about Joshua's
level of functioning and that Russell's response did not indicate
the existence of any medical emergency. Russell did relay Harris'
observations of Joshua to Wilder, who agreed that Joshua should
come to the hospital and that he would arrange for admission.
The next telephone call Wilder received concerning Joshua came
from the County Attorney's office at approximately 12:OO p.m.,
asking if Joshua could be transferred. Wilder testified that he
had assumed the transfer had already taken place and, therefore,
nodded to his receptionist who conveyed the answer that Joshua
could be transferred. When asked if he had called anyone to advise
that the arrangements for Joshua's admission had been made, Wilder
responded that he had undertaken simply to call the hospital and
make arrangements for Joshua's admission on arrival there. The
record contains substantial evidence supporting the jury's verdict
on this component of Buhrls negligence claim against Wilder.
We reiterate that it is within the jury's province to resolve
conflicting testimony and that our review verdicts
limited to ascertaining whether they are supported by substantial
credible evidence. Weber, 831 P .2d at 1364. Regarding Wilder' s
recommendation that Michele control Joshua's behavior by using the
Kalispell police and his acts relating to Joshua's admission to the
hospital on January 18, we conclude that substantial credible
evidence supports the jury's determination that Wilder was not
negligent.
c , With regard to Buhrls negligence per se claim against
Mental Health on the basis of an alleged violation of §
53-21-129(2), MCA, was the jury's finding that Mental
Health was not negligent supported by substantial
credible evidence?
As a final issue regarding the jury's verdict, Buhr argues
that, with regard to the emergency evaluation of Joshua on January
17, the finding that Mental Health was not negligent was entirely
contrary to the evidence. This argument is based on Mental
Health's acknowledgement that Russell was not a "professional
person'fas defined in § 53-21-102(12)( b ) , MCA. Buhr contends that
Mental Health's procedure of having Russell evaluate Joshua and
then report to Harris violated the requiremenrs of § 53-21-129(2),
MCA, and, as a result, constituted negligence per se by Mental
Health.
The District Court instructed the jury that if it found that
Mental Health violated § 53-21-129, MCA, Mental Health would be
negligent and the jury should then proceed to determine the
causation question. The instruction was in accord with our cases
on statutory violations. See, m,VanLuchene v. State (1990),
244 Mont. 397, 797 P.2d 932. In order to establish negligence
a,a plaintiff must first prove that the defendant neglected or
violated a duty imposed on it by statute. See Gunnels v. Hoyt
(1981), 194 Mont. 265, 271, 633 P.2d 1187, 1192.
Here, Buhr's negligence per se claim against Mental Health was
premised on an alleged violation of 5 53-21-129,MCA. Section 53-
21-129(2), MCA, provides that I' [i] a professional person agrees
f
that the person detained appears to be seriously mentally ill and
that an emergency situation exists, then the person may be detained
and treated until the next regular business day." It is undisputed
that § 53-21-129(2), MCA, applies to Mental Health's evaluation of
Joshua. The issue is whether Mental Health violated that statute
in conducting Joshua's evaluation.
Russell testified that she first evaluated Joshua at
approximately 11 :30 a.m. on January 17, when she arrived at the
Flathead County detention center; she found him calm and able to
communicate. Russell then talked to Michele.
During her conversation with Michele, Russell was called back
to the area in the detention center where Joshua was held. At that
time, Joshua had become very combative, throwing objects around the
waiting area and threatening the police officers with his fists.
When Joshua reached for a telephone book, an officer restrained him
and placed him on the floor. This episode lasted approximately
fifteen minutes.
Russell discussed the placement options with Michele and told
her that Joshua could be placed in the soft cell. Michele
concurred with the placement and the arrangements to have Joshua
detained were made.
Russell then contacted her supervisor, Harris, who is a
professional person under the Mental Health Act and who was
responsible for assisting Russell in the evaluation of any mental
health holds for that weekend. Harris testified that he discussed
Russell's evaluation of Joshua in detail with Russell at
approximately 4:00 p.m. on January 17, and agreed with Russell's
evaluation that Joshua appeared to be seriously mentally ill and
that an emergency situation existed; he concurred in the
determination that placement in the soft cell was appropriate. He
further testified that he and Russell had fully discussed the
requirements of a mental health hold and that any further
observation by himself would have been redundant. He elected not
to make an in-person evaluation of Joshua himself because he
trusted Russell's observations. He undertook to evaluate Joshua
again the next morning.
Dr. Jay Palmatier, then a clinical psychologist for defendant
Mental Health and regional clinical director for the western
Montana region, testified on Mental Health's behalf. He testified
that he was a certified professional person under the Mental Health
Act and had considerable experience in conducting emergency mental
health holds under the Act. Be was aware that Russell was not a
certified professional and Harris was. It was his opinion that the
procedure followed by Russell and Harris in evaluating Joshua was
a reasonable and appropriate means of complying with the duty and
standard of care set forth in the statute. Buhr presented
conflicting evidence to the effect that Mental Health's procedure
violated § 53-21-129, MCA.
It is clear that conflicting evidence was presented on whether
the cooperative evaluation procedure violated the statute. The
issue was submitted to the jury for its determination under an
appropriate instruction to which no objection was made; indeed,
Buhrls proposed instruction on the negligence per se claim against
Mental Health submitted the issue of a statutory violation to the
jury as a factual question. The jury, free to accept or reject
conflicting testimony, determined that Mental Health did not
violate the statute and was not negligent. We conclude that the
jury's finding is supported by substantial credible evidence.
4. Did the District Court err in denying Buhr's motion
for a new trial based on surprise and improper judicial
comments?
Buhr filed an amended motion for a new trial on a variety of
grounds, including unfair surprise with respect to Rhodes'
testimony and improper comments by the court. The District Court
denied the motion by order dated September 24, 1991. We review a
district court's denial of a motion for a new trial for abuse of
discretion. See Brockie v. OM0 Construction (1992) , 255 Mont. 495,
a. Did Sheriff Rhodes' trial testimony concerning
Flathead County's policies and procedures contradict his
deposition testimony to Buhr's detriment?
Buhr submitted interrogatories to Flathead County requesting,
among other things, information about its policies and procedures
pertaining to "Health Intake Screening and Administration of
Medicine" at the time Joshua was detained in the soft cell. In
response, the County referenced a policy manual written after the
events at issue, but containing the policies routinely used by
Sheriff's Department personnel at the time those events occurred.
Rhodes referred to the same manual during his later deposition.
Among other things, Rhodes stated that the manual was the result of
successive drafts.
At trial, Buhr examined Rhodes about the health screening and
medication policies. Rhodes responded by stating that, at the time
Joshua was detained, his department did not have any written
policies. He further responded that the manual used in his
deposition contained current policies and that the earlier
interrogatory answer identifying the manual as containing the
policies in effect when Joshua was detained was not quite accurate.
Buhr moved for admission of the written policies and procedures.
Rhodes' counsel objected on the basis of relevancy and lack of
foundation and the District Court sustained the objection. Buhr
continued his examination of Rhodes.
On appeal, Buhr argues that the change in Rhodes' testimony
relating to medical policies prejudiced his case and entitles him
to a new trial on his claims against Flathead County. We disagree.
Section 25-11-102(3),MCA, provides that a new trial may be
granted on the application of a party aggrieved by "accident or
surprise which ordinary prudence could not have guarded against."
We previously have determined that a party moving for a new trial
under this subsection must show that:
1) the moving party was actually surprised; 2) the facts
causing the surprise had a material bearing on the case;
3) the verdict or decision resulted mainly from these
facts; 4) the surprise did not result from the moving
party's inattention or negligence; 5) the moving party
acted promptly and claimed relief at the earliest
opportunity; 6) the moving party used every means
reasonably available at the time of the surprise to
remedy it; and 7) the result of a new trial without the
surprise would probably be different.
Donovan v. Graff (1988), 231 Mont. 456, 459, 753 P.2d 878, 880.
Each of these criteria must be met before a party is entitled to a
new trial on the basis of surprise. Boyd v. State Medical Oxygen
& Supply, Inc. (1990), 246 Mont. 247, 254, 805 P.2d 1282, 1287
It is apparent from the interrogatory answers and Rhodes'
deposition and trial testimony that the fact which surprised Buhr
was that the detention center's written manual did not contain the
identical medical policies used at the time Joshua was detained.
Buhr offers no argument regarding how this fact had a material
bearing on his case. Indeed, after reviewing Buhr's thorough
questioning of Rhodes about the intake procedures and
administration of medications in the detention center when Joshua
was detained, we cannot conclude that this "surprise" had a
material bearing on Buhr's case, that the verdict in favor of
Flathead County resulted from it, or that the result of a new trial
would have been different.
Our review of the record also reveals that Buhr did not
satisfy the fifth criterion. At the point when the alleged
surprise occurred, Buhr neither objected to Rhodes' testimony nor
claimed that the change in Rhodes' testimony detrimentally impacted
his ability to present his case. It was only after the jury
returned a verdict adverse to Buhr that he claimed surprise based
on the change in Rhodes' testimony. We conclude, therefore, that
Buhr failed to act promptly and claim relief from the surprise at
the earliest opportunity.
Furthermore, we agree with Rhodes that Buhr could have taken
steps to remedy any effect of the alleged surprise, including a
motion for a continuance or a request for a court order making a
transcript of Rhodes' testimony available for Buhr's witnesses.
The record does not establish any effort by Buhr to remedy the
surprise; thus, the sixth criterion was not satisfied.
Buhr clearly did not meet the criteria required for
entitlement to a new trial under § 25-11-102 ( 3 ) , MCA. We conclude,
therefore, that the District Court did not err in denying Buhr's
motion for a new trial based on surprise.
b. Did the District Court's allegedly improper and
prejudicial remarks provide a sufficient basis for Buhr' s
motion for a new trial?
Buhr asserts that the District Court erred by making several
comments on the length of the trial to the jury and, on one
occasion, by questioning Wilder in a manner favorable to Wilder's
defense. The primary assertion of error relates to a comment by
40
the court after counsel for Kalispell Regional thanked the jury for
its attention "during this lost summer of 1991." The judge stated
as follows:
Somebody noted the wasted summer of '91. I hope it
hasn't been entirely wasted for you. I hope you find it
an interesting and challenge [sic] task. As you are
citizens of this state and nation, I think you recognize
the importance of what you're doing, and there's still,
after all, a good part of August left.
Buhr also refers to eight instances over the course of trial where
the judge made comments such as "I'll remind you once again, we'll
reconvene Monday . . . and we'll try and get this case tried" and
"I've been at this way too long, this trial." Regarding the
District Court's questioning of Wilder, the judge simply asked if
Michele had provided information that Joshua was allergic to Valium
and if Wilder knew whether or not Joshua was allergic to Valium.
We have examined the record regarding each of the statements
Buhr asserts to be improper and prejudicial. With the single
exception of the "wasted summer comment," Buhr did not object to
the court's comments or questions. "Failure to object to alleged
error at trial precludes an appellant from raising that issue on
appeal." Barrett v. ASARCO, Inc. (1990), 2 4 5 Mont. 196, 205, 799
P.2d 1078, 1083 (citation omitted). Therefore, we decline to
address Buhr's assertions of error involving these comments and
questions.
Regarding the "wasted summer" comment, Buhr contends that it
implied that the jury had wasted its time with this case and
suggested that the jury was expected to return a defense verdict,
thereby violating his right to a fair trial. We disagree.
41
We previously have cautioned that trial judges must take care
to ensure that they do not abandon their role as impartial judges
in favor of that of advocates. State v. Stafford (1984), 208 Mont.
324, 331, 678 P.2d 644, 648. Here, the District Court's comment
contains no implication that the court was directing a defense
verdict or in any way abandoning its proper role. Indeed, this
comment was a salutary one which merely urged the jury to recognize
the importance of its role and its decision. We conclude,
therefore, that the District Court did not abuse its discretion by
denying Buhr's motion for a new trial on the basis of this comment.
5. Did Wilder's attorney prejudice the jury by making
improper remarks while questioning witnesses and during
closing argument?
Buhr offers numerous examples of allegedly prejudicial
comments by Wilder's counsel. Many of the examples involve
counsel's introducing questions with comments such as "I am sure
after three days of deposition and all this questioning, you are
probably getting tired of lawyers questioning you" and "Doctor, you
can characterize it any way you want, but I want to talk about the
facts." Others involve comments Buhr contends were arguments
directed "to the jury's hometown feelings of loyalty," the jury's
resentment of the length of the trial, and the attorney's use of a
deposition.
Buhr asserts that the cumulative effect of these comments
impaired his right to a fair trial and, as a result, that the
District Court erred in denying his motion for a new trial. Again,
we disagree.
"Improper argument requires reversal only when prejudice has
resulted which prevented a fair trial." Moralli, 839 P.2d at 1292
(citation omitted). "Unless a level of prejudice can be shown that
manifestly precludes a fair trial, then there is no reversible
error." Whiting v. State (1991), 248 Mont. 207, 220-21, 810 P.2d
1177, 1186 (citation omitted).
The trial judge is in the best position to determine the
prejudicial effect of an attorney's conduct. Kuhnke v. Fisher
(1987), 227 Mont. 62, 68, 740 P.2d 625, 628. Here, Buhr advances
a number of comments made by Wilder's counsel over the course of a
six-week trial. Buhr objected to many of the comments and, in some
cases, succeeded in having the question or comment rephrased or
stricken. In other instances, he did not object. Moreover, the
jury was instructed that, regarding "any question to which an
objection was sustained, you must not conjecture as to what the
answer might have been or as to the reason for the objection; nor
must you draw any inference from the question itself." Given this
instruction, t h e length of the trial, and the limited number of
allegedly improper comments made, we conclude that these comments
made by Wilder's attorney did not prejudice the jury or impair
Buhr's right to a fair trial.
6. Did the cumulative effect of the asserted errors
prejudice Buhr to the extent that he was unable to
receive a fair trial?
Buhr contends that the cumulative effect of the errors which
occurred during trial was prevention of a fair trial on the merits
of his claims. Given our resolution of issues 1 through 5, we
43
conclude that this argument is without merit.
A£ firmed .
i
We concur: n
Justices
Justice James C. Nelson dissenting.
I concur with our opinion except as to our discussion of Issue
3c, and as to that issue, I respectfully dissent. I conclude that
the jury's finding that Mental Health was not negligent was
contrary to the law.
Section 53-21-102, MCA (1987), defines a "professional person"
as either a medical doctor or a person who has been certified, as
provided for in § 53-21-106, MCA, by the department of
institutions. Moreover, § 53-21-105, MCA (1987), provides that
"[nlo person may act in a professional capacity as provided for in
[Title 53, Chapter 21, Part 11 unless he is a professional person
as defined in 53-21-102."
Section 53-21-129, MCA (1987),which authorizes, under certain
limited, defined circumstances, the emergency detention of a person
who is seriously mentally ill, is absolutely clear and unambiguous
in its mandate that the required evaluation prior to or at the time
of detention be conducted by a professional person.
In that regard, it is undisputed that Russell was not a
professional person, because she was not certified by the
department of institutions and, yet, she was the one who did the
only evaluation of Joshua that was ever conducted. The
professional person, Harris, did not even see Joshua until the day
following his detention, and, then, contrary to our opinion, Harris
did not evaluate him; he only observed Joshua through the window of
the locked door of the soft cell. Harris' conclusions that Joshua
was seriously mentally ill were based, not on his evaluation, but
45
on Russell's. There is no question that, on the undisputed
evidence presented to the jury, at least §§ 53-21-105, MCA (1987),
and 53-21-129(1) and ( 2 1 , MCA (1987), were violated by Mental
Health's procedure in this case.
Furthermore, no authority is cited for the proposition that,
as in this case, che evaluation required to be accomplished by the
professional person can, instead, be conducted by a non-certified
person who consults by telephone with the professional person.
Mental Health's arguments in favor of that procedure are merely an
after-the-fact justification for irs failure to comply with the
statute, Worse, our sanctioning that procedure sets a very
dangerous precedent, indeed, and encourages mental health care
providers to ignore those legislative mandates designed to insure
that emergency detention is authorized by a person to whom the
State has, by its certification process, entrusted the
responsibility for making such important decisions.
Presumably, a person is not certified because he/she does not
have the knowledge, training, experience or expertise to make the
same decisions and conclusions as a certified person. Presumably,
a certified person is required to make critical judgment calls
because of his/her greater knowledge, training, experience and
expertise. Presumably, if the procedure used in this case for the
emergency evaluation and detention of this seriously mentally ill
juvenile were acceptable, the legislature would have written the
statutes at issue to so provide.
Unfortunately, our decision on this issue stands in stark
contrast to our previous cases which have strictly construed the
requirements of 5 53-21-129, MCA, in favor of the detained person.
See, Matter of Shennum (1984)~210 Mont. 442, 684 P.2d 1073,
(record did not evidence the existence of an emergency justifying
commitment under B 53-21-129) Matter of M.C. (l986), 220 Mont.
;
437, 716 P.2d 203, (under 5 53-21-129, MCA, it is the professional
person, not the police officer who takes the person into custody,
who determines whether the person is seriously mentally ill and
should be placed into emergency detention) ; Matter of E.P. ( 1 9 9 0 ) ,
241 Mont. 316, 787 P.2d 322, (failure to release involuntarily
confined patient on the day after she was committed under 5 53-21-
129, MCA, or to file findings with the county attorney as required
by the statute, deprived the person of due process).
Mental ~ e a l t hclearly violated duties and the standard of
care imposed by the statutes at issue and, in my view, was
negligent as a matter of law. Perhaps if Mental Health had simply
followed the law, this whole tragic set of circumstances would not
have been set in motion.
Accordingly, I respectfully dissent from our decision on Issue
3c.
7
Justice William E. Hunt, Sr., joins in the foregoing dissent.
Justice William E. Hunt, Sr., dissenting.
In addition to concurring in the dissenting opinion of Justice
Nelson, I want to state that I cannot agree with the result reached
by the majority on the remaining issues in this case because it
requires one to conclude that, in this whole tragic event, a
juvenile in the custody of the State can be allowed to die in his
own vomit and no one is responsible. Therefore, I dissent to the
rest of the opinion.