Massee v. Thompson

No. 03-567

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 121

JAMES EDWARD MASSEE, MICHAEL WILLIAM
MASSEE, and RAYMOND MASSEE as Guardian and
Conservator of MARCUS JAMES MASSEE,

Plaintiffs and Appellants,

v.

RICHARD THOMPSON and BROADWATER COUNTY,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater, Cause No. DV 2000-17
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

James G. Hunt, Hunt & Molloy Law Firm, Helena, Montana

For Respondents:

Elizabeth S. Baker, Stuart L. Kellner, Hughes, Kellner, Sullivan & Alke,
Helena, Montana

For Amicus:

Monte Jewell, Smith Jewell, PLLP, Missoula, Montana
(for Silent Witnesses, et al.)

Mikel L. Moore, Christensen Moore Cockrell Cummings & Axelberg,
Kalispell, Montana (for Montana Sheriffs and Peace Officers Association)

Submitted on Briefs: February 24, 2004
Decided: May 5, 2004

Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 James, Michael and Marcus Massee (the Massees or the sons) are the surviving sons

of Vickie Doggett, who was fatally shot by her husband, Ray Doggett, in May 1997. The

Massees brought a wrongful death action against Sheriff Richard Thompson of Broadwater

County (the Sheriff or Thompson) and Broadwater County, as principal. A jury returned a

verdict in favor of the Massees in February 2003, awarding the sons a total of $358,000. On

a Motion for Judgment as a Matter of Law, the First Judicial District Court vacated the jury

verdict on the grounds that the Sheriff had no legal duty to protect Vickie from Ray and

could not be held liable for failure to do so. The Massees appeal. We reverse.

ISSUE

¶2 The only issue before this Court is whether the District Court erred by granting

Thompson’s Motion for Judgment as a Matter of Law.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The following facts, while lengthy, are critical to the jury’s verdict, the District

Court’s Order, and our decision here.

¶4 Vickie Sue Massee (Vickie) and Ray Doggett (Ray) were married in October 1990.

Prior to Vickie’s marriage to Doggett, Vickie had been married to Raymond Massee

(Massee). She had three sons during her marriage to Massee, James, Michael and Marcus.

For most of the times at issue, the three boys lived with Vickie and Ray.

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¶5 Over the course of the Doggetts’ tumultuous marriage, members of the Broadwater

County Sheriff’s Office (BCSO or Sheriff’s Office), and most notably Thompson, became

intimately involved in the lives of Ray and Vickie. BCSO’s first involvement with the

couple occurred approximately one year after Vickie and Ray got married, when the Sheriff’s

Office responded to a domestic violence disturbance at the Doggetts’ home. Vickie and Ray

had each struck and injured the other. They were sentenced to counseling which they

completed.

¶6 From the record, it appears that the marriage had frequent ups and downs, with the

downs generally occurring after Ray and/or Vickie had been drinking. Ray became unable

to work shortly after he and Vickie married and he began suffering from bouts of depression.

With his depression came binge drinking, accusations of infidelity, and threats of suicide or

murder.

¶7 Just before midnight on October 29, 1994, the Broadwater County Undersheriff

responded to a call from Vickie. She was at a Townsend bar and asked that an officer come

get her, collect her sons, and then drive them all to the county line to be picked up by the

children’s grandparents. Vickie indicated that she and Ray were arguing and that she wanted

to be away from Ray. Undersheriff Ludwig responded. On the way to the county line,

Vickie decided she would let the boys go with their grandparents, and she would return

home. Undersheriff Ludwig, after confirming there had been no physical violence in the

earlier argument, convinced Vickie that she and Ray should spend the night apart while each

sobered up. Vickie ultimately conceded.

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¶8 On Ludwig’s return to Townsend, she was then dispatched to Ray’s house. Ray had

called the BCSO threatening suicide if Ludwig did not tell him where Vickie was. When

Ludwig arrived at the Doggetts’ home with a reserve deputy, Ray was sitting at a table with

a loaded .44 magnum pistol. Ludwig assured him that Vickie was safe, and while the reserve

deputy talked with Ray in an effort to calm him, the Undersheriff took Ray’s pistol for

safekeeping. The record is unclear as to when the weapon was returned to Ray.

¶9 On December 10, 1994, the BCSO received another domestic dispute call from the

Doggetts’ home, and two deputies were dispatched. According to the Sheriff’s Office log,

Vickie and Ray were intoxicated and engaged in a serious argument. When the two deputies

arrived, they could hear the argument escalating. Upon entering the home, they discovered

that one of Vickie’s teenage sons was also present. The officers ushered him outside to

safety and then returned inside, at which time Ray threatened them with bodily harm.

Thompson was then called and advised of the situation. The Sheriff immediately telephoned

Ray and began talking to him. At that time, one of the responding officers was called away

to another incident. When the remaining officer got on the telephone to talk to Thompson,

Ray left the room, ostensibly to go to the bathroom, but moments later emerged from the

bedroom with the .44 magnum revolver (the same revolver that had been earlier confiscated).

The deputy reported this to the Sheriff who told the deputy to leave the house immediately.

The deputy obeyed. Shortly thereafter, the BCSO dispatcher called the Doggett home and

Vickie told her that Ray was holding a gun to her head. Within minutes, the officer who had

4
responded to another call returned with a third officer. The three deputies stayed outside and

awaited the Sheriff’s arrival a few minutes later.

¶10 Thompson and a deputy entered the home while the other officers remained outside.

Ray was agitated, drunk and wielding his .44 magnum handgun. After talking to the Sheriff

for a short period of time, Ray put the gun to his own head. The Sheriff and his deputy were

able to wrestle the loaded pistol from him. After several minutes of calming discussion, the

deputies were told they could leave and the Sheriff remained to counsel Ray. Two deputies

left. The third deputy waited in the car parked in a location that allowed him to see inside

the Doggetts’ home where Ray and the Sheriff were talking.

¶11 At trial, there was substantial testimony presented that one of the responding officers,

as recorded in his official report, had seen Ray holding the gun to Vickie’s head. This

deputy also indicated in his report that the Sheriff decided not to arrest Ray but did

confiscate Ray’s gun. The Sheriff testified that he did not know that Ray had held the gun

to Vickie’s head until some later date, and that during the time he was at the Doggett

residence, Ray had not done anything that would warrant arrest. The Sheriff’s report of this

event, however, differs from the Sheriff’s testimony. Thompson’s official report dated

December 11, 1994, states, “While on the way into town, I heard the officers at the scene

talking to dispatch and telling her that Ray was pointing the gun at Vickie.”

¶12 After these events, the marriage appeared to stabilize somewhat. However, on

October 6, 1996, the BCSO’s log reflects three calls between 4:00 a.m. and 4:30 a.m. from

Ray Doggett during which he sounded depressed and requested that the Sheriff come visit

5
him because he needed a friend. Then, again, in the early morning hours of December 18,

1996, Ray called for a deputy. When two deputies arrived, they found Ray alone and drunk.

He was complaining, as he had before, that Vickie was being unfaithful. The officers then

received an unrelated call, and Ray told them he would be all right and that they could leave.

¶13 About ten days later, Ray asked that the BCSO send a particular deputy to his home.

When the deputy arrived, Ray was drunk and claiming that Vickie wanted him dead. Vickie

told the officer that Ray was always threatening to kill himself and she was considering

leaving the marriage because of the overwhelming stress. Vickie’s son Marcus was also

present, and informed the deputy that Ray had a revolver in the back of his pants. The

deputy warned Ray that if Ray touched his gun, he would shoot him. The deputy stayed and

talked with Ray until he was calm. Vickie and Marcus left the house during this time, upon

suggestion of the deputy.

¶14 Within a few minutes of the deputy’s departure, Ray called the BCSO to tell them he

was going to the local bar. Meanwhile, Vickie and Marcus had arrived at the home of Roger

Reiman, a friend of Vickie’s sons. James and Michael were also present. She told them she

wanted to spend the night in Helena, but was afraid to return to the house for the overnight

items she would need. James and Roger went to get the items for her. When they arrived

at the house and walked inside, Ray, who had returned from the bar and whose back was to

the door, turned, pulled his gun and pointed it at them. He lowered it after about 5 seconds.

James, who was quite frightened by the experience, retrieved his own .38 pistol while getting

his mother’s toiletry items, and hid it under his jacket in case he needed to protect himself

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while leaving the house. While James was out of the room, Ray pulled his gun on Roger and

suggested that they go outside. Just then, however, the BCSO called and Ray answered the

phone. While Ray was on the phone with the Sheriff’s Office, James and Roger left.

¶15 James and Roger immediately went to the BCSO to report what had occurred, but did

not sign a formal complaint. Vickie and her sons left Roger’s house, and spent the night with

friends in Helena. James gave his gun to Roger before leaving because Roger was afraid Ray

would come looking for him when he realized Vickie was not coming home that night.

¶16 Later that night, Roger called the BCSO to report that Ray had called and threatened

to kill him and to hunt down Vickie, James and Michael and kill them for taking Marcus

away. Shortly thereafter, Roger went to the Sheriff’s Office and signed a Voluntary

Statement regarding these threats. He did not sign a Complaint because, he later testified,

he was afraid that Ray might hurt him. The deputy who took Roger’s statement called and

informed the Sheriff. Thompson said he would look into it the following day, but according

to his own testimony, he failed to do so. Vickie, her sons, and Roger were never questioned

about this incident and no investigation appears to have occurred. The BCSO’s log indicates

that when Vickie returned from Helena the following day, she made arrangements for the

boys to temporarily stay with their grandparents in White Sulphur Springs.

¶17 During the ensuing four months, Ray and Vickie did not seek the services of the

BCSO. However, at about 2:00 a.m. on April 20, 1997, then eight-year old Marcus called

the BCSO reporting that Ray and Vickie were having an argument and that he and his

fourteen-year old brother, Michael, were in their bedroom with their .22 rifle on the bed for

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protection. According to the Sheriff’s Office log, the dispatcher instructed the boys to put

the gun away. The Sheriff and a deputy then went to the Doggetts’ residence. According to

the deputy’s report, he immediately went to the bedroom with the boys and found the

unloaded rifle put away in the closet. He reported that the boys said that the rifle was

unloaded at all times during this event.

¶18 The boys told the officers that Ray’s gun was in his bedroom. The deputy found

Ray’s gun on his bedside table, unloaded it and left the bullets on Ray’s dresser. The deputy

did not confiscate Ray’s pistol but left it at the residence. Vickie, Michael and Marcus left

the residence, followed shortly thereafter by the police officers. Vickie and the boys once

again stayed with a friend in Helena.

¶19 At trial, Michael testified to a more detailed and slightly different version of the

events of that evening. He stated that Ray and Vickie had returned home that night and were

arguing. Michael saw Ray holding his .44 magnum pistol, waving it and pointing it at Vickie

while arguing. He returned to his bedroom where Marcus was waiting, loaded his .22 rifle,

and after listening to the escalating argument for about fifteen minutes, had Marcus call the

BCSO. He stated at trial that during the course of the argument, Vickie, scared and crying,

had come into their bedroom and shut the door. Ray opened the door and Michael saw that

he was still carrying his .44 magnum pistol. However, according to Michael’s testimony and

the testimony of the officers involved, no one subsequently investigated the incident;

therefore, they did not learn from Michael or Vickie that Ray had threatened Vickie with a

loaded pistol that night.

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¶20 On May 5, 1997, Ray stopped by the BCSO at 2:00 a.m., in an extremely depressed

state. He later called the Sheriff’s Office at 3:00 a.m. and again at 3:15 a.m. also quite

depressed, triggering serious concerns that he was suicidal. The Sheriff’s fears were realized

when, less than three weeks later, on May 24, the BCSO responded to the Doggetts’ home

and discovered that Ray had shot and killed Vickie with his .44 magnum pistol, and then

fatally turned the gun on himself.

¶21 Vickie’s sons sued Sheriff Thompson for negligently failing to take appropriate action

to prevent Ray from killing their mother. Between February 24 and February 27, 2003, a

jury heard substantial evidence pertaining to the above events and the alleged negligence of

the Sheriff. The jury concluded that Sheriff Thompson was negligent as defined by the jury

instructions, and that his negligence was the cause of Vickie’s death. The jury awarded a

total of $358,000 to Vickie’s sons.

¶22 On a Motion for Judgment as a Matter of Law filed by Thompson, the First Judicial

District Court vacated the jury verdict. In its Decision and Order, the court analyzed each

of the three domestic abuse statutes underlying the Massees’ claims. These statutes are set

forth verbatim below. The court concluded that the “weapon seizure” statute found at § 46-

6-603, MCA (1995), did not impose upon the Sheriff the legal duty to seize Ray’s weapon

following the December 1996 and April 1997 episodes. The court further concluded that the

provisions of the “arrest” statute, found at § 46-6-311, MCA (1993 and 1995), were

discretionary rather than mandatory, and therefore did not impose upon the Sheriff the legal

duty to arrest Ray for his assaults on Vickie.

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¶23 The District Court also determined that no special relationship existed between Vickie

and Ray so as to trigger a duty on the Sheriff’s part to protect Vickie from Ray. It reasoned

that the Sheriff had made no specific promises to protect Vickie from Ray, but rather, had

merely responded to calls for assistance. Finally, the court concluded that, while the

“notice” provisions of § 46-6-602, MCA (1995), imposed a duty on the Sheriff to provide

information to Vickie about the availability of legal rights and services to her as a victim of

domestic abuse, the statute did “not create a specific duty . . . to protect [her] or guarantee

her safety. Moreover, there was no evidence at trial connecting the failure of Thompson to

provide such notice with Vickie’s death.”

¶24 On the basis of the foregoing findings, the District Court concluded that the Sheriff

had no “legal duty to protect Vickie Doggett from Ray, and therefore, cannot be held liable

to [the Massees] on the causes of action contained in the complaint.” The Massees appeal.

STANDARD OF REVIEW

¶25 A judgment as a matter of law entered pursuant to Rule 50(b), M.R.Civ.P., may be

granted only where it appears as a matter of law that a party could not prevail upon any view

of the evidence including the legitimate inferences to be drawn therefrom. Somont Oil Co.,

Inc., v. A & G Drilling, 2002 MT 141, ¶ 38, 310 Mont. 221, ¶ 38, 49 P.3d 598, ¶ 38 (citing

Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229).

¶26 Moreover, “[t]he courts will exercise the greatest self-restraint in interfering with the

constitutionally mandated processes of jury decision. Unless there is a complete absence of

any credible evidence in support of the verdict, a [judgment as a matter of law] motion is not

10
properly granted.” Ryan, 279 Mont. at 510, 928 P.2d at 229-230. “Our review of a jury

verdict is very narrow in scope. Substantial evidence need only be evidence which from any

point of view could have been accepted by the jury as credible.” Moralli v. Lake County

(1992), 255 Mont. 23, 27, 839 P.2d 1287, 1290 (citation omitted). We have also stated that

“[s]ubstantial evidence is defined as that evidence that a reasonable mind might accept as

adequate to support a conclusion. Although it may be based upon weak and conflicting

evidence, in order to rise to the level of substantial evidence it must be greater than trifling

or frivolous.” Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 164, 789 P.2d 567,

572 (overruled on other grounds in Busta v. Columbus Hosp.Corp., (1996), 276 Mont. 342,

916 P.2d 122)(citation omitted).

¶27 The existence of a legal duty is a matter of law to be determined by the court. LaTray

v. City of Havre, 2000 MT 119, ¶ 18, 299 Mont. 449, ¶ 18, 999 P.2d 1010, ¶ 18. This

Court’s standard of review of a question of law is whether the legal conclusions of the trial

court are correct. MacKay v. State, 2003 MT 274, ¶ 14, 317 Mont. 467, ¶ 14, 79 P.3d 236,

¶ 14. Although jury verdicts are treated with deference, the Court also gives deference to a

trial court’s post-verdict ruling which is contrary to the jury’s decision. Chambers v. City

of Helena, 2002 MT 142, ¶ 44, 310 Mont. 241, ¶ 44, 49 P.3d 587, ¶ 44.

¶28 Lastly, in evaluating a motion for judgment as a matter of law, “the court must view

all of the evidence in a light most favorable to the non-moving party.” DeMars v. Carlstrom

(1997), 285 Mont. 334, 336, 948 P.2d 246, 248 (citation omitted).

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 DISCUSSION

¶29 We first address a dispute between the parties concerning the scope of the Massees’

appeal. Thompson and Broadwater County argue that, because the Massees did not

specifically appeal from the District Court’s refusal to instruct the jury that violations of the

“arrest” and “seizure” statutes were negligence per se, they cannot now argue that evidence

that these statutes were violated supported the jury’s verdict.

¶30 Negligence per se, or negligence as a matter of law, provides that the violation of a

statute renders one negligent under the law. Black’s Law Dictionary, Seventh Edition. To

establish negligence per se, a plaintiff must prove that 1) the defendant violated the particular

statute; 2) the statute was enacted to protect a specific class of persons; 3) the plaintiff is a

member of that class; 4) the plaintiff’s injury is of the sort the statute was enacted to prevent;

and 5) the statute was intended to regulate members of defendant’s class. Estate of Schwabe

v. Custer’s Inn, 2000 MT 325, ¶ 23, 303 Mont. 15, ¶ 23, 15 P.3d 903, ¶ 23. Common law

negligence, on the other hand, is the failure to use the degree of care that an ordinarily

prudent person would have used under the same circumstance. The four elements of a

common law negligence claim are duty, a breach of that duty, causation and damages. Each

of these elements must exist for a negligence claim to proceed. See, e.g., Henricksen v.

State, 2004 MT 20, ¶ 20, 319 Mont. 307, ¶ 20, 84 P.3d 38, ¶ 20.

12
¶31 During the trial, the jury was presented with evidence that the Sheriff failed to comply

with the following domestic abuse statutes1–§§ 46-6-602, -603, and -311, MCA (set forth

verbatim in ¶¶ 34-37 below). After all the evidence was presented and prior to jury

deliberation, the court instructed the jury on the applicable law. The court informed the jury

that 1) “negligence is the failure to use reasonable care”; 2) “negligence may consist of

action or inaction”; 3) “a sheriff or deputy is negligent if he fails to act as an ordinarily

prudent sheriff or deputy would act under the circumstances”; and 4) “an act or an omission

may be negligent if the actor realizes or should realize that it involves an unreasonable risk

of harm to another through the conduct of a third person which is intended to cause harm,

even though such conduct is criminal” [sic].

¶32 The jury was also instructed that it could find the Sheriff negligent per se if it

concluded that he failed to provide Vickie with notice of her rights under § 46-6-602, MCA

(1995). The court refused to instruct the jury, however, that it could also find the Sheriff

negligent per se for failing to arrest Ray under § 46-6-311, MCA (1993 and 1995), or for

failing to seize Ray’s weapon under § 46-6-603, MCA (1995). The court concluded that

these “arrest” and “seizure” statutes gave the Sheriff the discretion to arrest Ray or seize his

weapon; therefore, the court concluded, the statutes did not impose mandatory legal duties

1
The Massees also argued that the Sheriff failed to comply with § 46-6-601, MCA (1993
and 1995). We will not discuss this statute or its application to this case because no evidence was
presented that violation of this statute caused Vickie’s death.

13
on the Sheriff.2 While the Massees objected at trial to the court’s refusal to present these

negligence per se jury instructions regarding arrest and weapon seizure, they did not

specifically appeal the District Court’s Decision on these grounds.

¶33 We conclude that the Sheriff’s argument that the failure to appeal from the court’s

refusal to give negligence per se instructions should limit the scope of Massees’ appeal, is

without merit. The jury received the full panoply of instructions on common law

negligence. Though the District Court refused to instruct that violation of the “weapon

seizure” or “arrest” statutes was negligence per se, the Massees were still permitted to--and

did--argue that violation of these statutes by the Sheriff was evidence of negligence. We

have held that, even if a violation of a statute does not constitute negligence per se, such

violation may nonetheless be considered as evidence of negligence. Nehring v. LaCounte

(1985), 219 Mont. 462, 468, 712 P.2d 1329, 1333. Because the Massees have appealed from

the District Court’s entry of judgment as a matter of law, they have preserved their right to

argue that the jury had before it sufficient evidence of negligence--including evidence that

the subject statutes were violated by the Sheriff--to support the jury’s verdict.

¶34 As stated above in ¶ 31, the relevant domestic abuse statutes in this case are §§ 46-6-

602, -603, and -311, MCA. Section 46-6-602, MCA (1993) is the “notice” statute for victims

of domestic assault that was in effect during the 1994 incidents between Vickie and Ray.

It provides:

2
However, the court later acknowledged that the “weapon seizure” statute did impose
mandatory duties.

14
 Whenever a peace officer arrests a person for domestic abuse, as defined in
45-5-206, if the victim is present, the officer shall advise the victim of the
availability of a shelter or other services in the community and give the victim
immediate notice of any legal rights and remedies available. The notice must
include furnishing the victim with a copy of the following statement:

“IF YOU ARE THE VICTIM OF DOMESTIC ABUSE, the county attorney’s
office can file criminal charges against your abuser. You have the right to go
to court and file a petition requesting any of the following orders for relief:
(1) an order restraining your abuser from abusing you;
(2) an order directing your abuser to leave your household;
(3) an order preventing your abuser from transferring any property except in
the usual course of business;
(4) an order awarding you or the other parent custody of or visitation with a
minor child or children;
(5) an order restraining your abuser from molesting or interfering with minor
children in your custody or a family member or partner, as defined in 45-5-
206; or
(6) an order directing the part not granted custody to pay support of minor
children or to pay support of the other party if there is a legal obligation to do
so”.

¶35 In 1995, prior to Vickie’s death, § 46-6-602, MCA, was revised and strengthened.

It read:

Whenever a peace officer arrests a person for partner or family member
assault, as defined in 45-5-206, or responds to a call in which partner or family
member assault is suspected, the officer, outside the presence of the offender,
shall advise the victim of the availability of a shelter or other services in the
community and give the victim immediate notice of any legal rights and
remedies available. The notice must include furnishing the victim with a copy
of the following statement:

“The city or county attorney’s office can file criminal charges against an
offender if the offender committed the offense of partner or family member
assault.

In addition to the criminal charges filed by the state of Montana, you are
entitled to the following civil remedies:

15
You may go to court and file a petition requesting any of the following orders
for relief:
(1) an order of protection that prohibits the offender from threatening to hurt
you or hurting you;
(2) an order of protection that directs the offender to leave your home and
prohibits the offender from having any contact with you;
(3) an order of protection that prevents the offender from transferring any
property except in the usual course of business;
(4) an order of protection that prohibits the offender from being within 1,500
feet or other appropriate distance of you, any named family member, and your
worksite or other specified place;
(5) an order of protection that gives you possession of necessary personal
property;
(6) an order of protection that prohibits the offender from possessing or using
the firearm used in the assault.

If you file a petition in district court, the district court may order all of the
above and may award custody of your minor children to you or to the other
parent. The district court may order visitation of your children between the
parents. The district court may order the offender to pay support payments to
you if the offender has a legal obligation to pay you support payments.

The forms that you need to obtain an order of protection are at
_______________. You may call ____________ at ____________ for
additional information about an order of protection.

You may file a petition in district court at _____________.

You may be eligible for restitution payments from the offender (the offender
would repay you for costs that you have had to pay as a result of the assault)
or for crime victims compensation payments (a fund administered by the state
of Montana for innocent victims of crime). You may call ____________ at
_____________ for additional information about restitution or crime victims
compensation.

The following agencies may be able to give you additional information or
emergency help. (List telephone numbers and addresses of agencies other than
shelters with secret locations and a brief summary of services that are
available.)”

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¶36 In 1995, § 46-6-603, MCA,--the “weapon seizure” statute--was enacted. This statute

dictates the circumstances under which law enforcement must seize a weapon used or

threatened to be used in a partner or family member assault.

(1) A peace officer who responds to a call relating to partner or family member
assault shall seize the weapon used or threatened to be used in the alleged
assault.

(2) The responding officer may, as appropriate:
(a) take reasonable action necessary to provide for the safety of a victim and
any other member of the household;
(b) transport or arrange for the transportation of the victim and any other
member of the household to a safe location; and
(c) assist a victim and any other member of the household to remove necessary
personal items.

(3) A weapon seized under this section may not be returned to the offender
until acquittal or until the return is ordered by the court.

This statute and the 1995 version of § 46-6-602 apply to the 1996 and 1997 domestic

incidents between Ray and Vickie.

¶37 The legislature determined in 1991 that the preferred response in certain domestic

abuse situations was to arrest the alleged abuser. Section 46-6-311, MCA (1993),--the

“arrest” statute--codified this legislative decision.

(1) A peace officer may arrest a person when a warrant has not been issued if
the officer has probable cause to believe that the person is committing an
offense or that the person has committed an offense and existing circumstances
require immediate arrest.

(2) The summoning of a peace officer to a place of residence by a family
member or partner constitutes an exigent circumstance for making an arrest.
Arrest is the preferred response in domestic abuse cases involving injury to the
victim, use or threatened use of a weapon, violation of a restraining order, or
other imminent danger to the victim.

17
¶38 In 1995, the legislature made some minor revisions to the statute that do not impact

the outcome of this case.

¶39 In summary, based on these statutes, 1) at all times between 1994 and 1997, while

discretionary, the statutorily-preferred response in domestic abuse situations was to arrest

the alleged abuser; 2) in 1994, the Sheriff was required to give Vickie notice of her victim’s

rights only if he arrested Ray; 3) after 1995, the Sheriff was required to give Vickie notice

of her victim’s rights whenever he responded to a domestic dispute call generated by Vickie,

Ray or the boys; and 4) in 1996 and 1997, the Sheriff was required to seize any weapon used

or threatened to be used in a domestic assault, and could only return the weapon upon

acquittal or by Court order.

¶40 Our first charge in this case is to determine whether the court’s conclusions of law

were correct. MacKay, ¶ 14. Our second charge is to determine whether the jury was

presented with any credible evidence that, when viewed in a light most favorable to Vickie’s

sons, would support its verdict that the Sheriff was negligent and that his negligence caused

Vickie’s death. Ryan, 279 Mont. at 510, 928 P.2d at 229-30 and DeMars v. Carlstrom

(1997), 285 Mont. at 336, 948 P.2d at 248.

¶41 A negligence cause of action entails four elements--duty, a breach of that duty,

causation and damages. Henricksen, ¶ 20. When considering negligence claims against a

public entity or person, such as Sheriff Thompson, it is necessary to consider the “public

duty doctrine.” The public duty doctrine provides that a governmental entity cannot be held

18
liable for an individual plaintiff’s injury resulting from a governmental officer’s breach of

a duty owed to the general public rather than to the individual plaintiff. Black’s Law

Dictionary, Seventh Edition. In other words, “a duty owed to all is a duty owed to none.”

Nelson v. Driscoll (1999), 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21. An exception to the

public duty doctrine’s immunity provision arises when a “special relationship” between the

victim and officer has been created. Nelson, ¶ 22.

¶42 As we explained in Nelson, a special relationship gives rise to a special duty, and can

be established under any one of the following circumstances: 1) by a statute intended to

protect a specific class of persons of which the plaintiff is a member from a particular type

of harm; 2) when a government agent undertakes specific action to protect a person or

property; 3) by governmental actions that reasonably induce detrimental reliance by a

member of the public; and 4) under certain circumstances, when the agency has actual

custody of the plaintiff or of a third person who causes harm to the plaintiff. Nelson, ¶ 22.

We now turn to the question of whether such a special duty existed here.

¶43 The Massees maintain that the Sheriff had a special duty to Vickie by virtue of a

special relationship that arose under the first circumstance listed in Nelson. They contend

that the domestic abuse statutes were written specifically to protect domestic violence

victims, a class of which Vickie was a member. Indeed, these statutes were enacted to

prevent domestic abuse from escalating to a point of serious injury or death--Vickie’s exact

fate. Significantly, Thompson agreed that Vickie was a member of the protected class of

domestic violence victims. Moreover, during the trial, the District Court expressly

19
concluded, “that Vickie falls within that statutorily protected class of victims of domestic

violence, that . . . title 46, chapter six, part six, domestic violence provisions. She is clearly

a member of that class. And so [Sheriff Thompson] would have a duty to her under that.”

Therefore, there was no question at trial--from either the parties or the court--that the Sheriff

had a special duty to Vickie as a member of the protected class of domestic abuse victims.

¶44 Because it was undisputed at trial that Thompson had a special relationship with

Vickie by virtue of her being within a statutorily-protected class, an exception to the public

duty doctrine exists. Therefore, it is unnecessary for us to address the Massees’ request on

appeal that we abrogate the public duty doctrine. Moreover, because it was undisputed that

a special relationship was created between the Sheriff and Vickie under the domestic abuse

statutes, we need not determine whether a special relationship was also created under the

second circumstance listed in Nelson, as argued by the Massees.

¶45 With the undisputed existence of a duty running from the Sheriff to Vickie by virtue

of her status as a domestic abuse victim, we must now determine whether credible evidence

was presented to the jury to support its finding that the Sheriff breached that duty.

¶46 We first address the Massees’ claim that, at all times relevant to the case before us,

the Sheriff had a statutory duty to provide Vickie with a notice of her rights under § 46-6-

602, MCA. Such notice, as indicated above, informs victims of their rights to have an abuser

arrested, to obtain orders of protection, and to remove an abuser from the home. It also

provides a victim with information about community organizations and agencies specifically

designed and created to offer assistance to domestic abuse victims.

20
¶47 The Sheriff testified that under the 1993 version of § 46-6-602, MCA, he was

required to give Vickie notice only if he arrested Ray, and that because he did not arrest Ray,

failure to give notice was not a violation. This testimony, however, was undermined by the

Sheriff’s further testimony (described in greater detail in ¶ 49 below) that during the

December 1994 incident, he had substantial grounds to arrest Ray and, inexplicably, chose

not to do so. He admitted that the preferred response under the law would have been arrest,

at which time his obligation to give Vickie her notice rights would have become mandatory.

The Sheriff also agreed that the 1995 version of the statute made it mandatory that he give

notice whenever responding to a domestic abuse call, or a call which he suspected was a

domestic abuse call. Moreover, the Sheriff repeatedly testified that despite having the notice

forms available to him and having given them to numerous other Broadwater County abuse

victims, he did not give Vickie notice of her victim’s rights at any time between 1994 and

1997. There was, therefore, substantial evidence from which the jury could conclude that,

by failing to comply with the 1995 mandatory notice statute, the Sheriff was negligent, and

arguably, negligent per se.

¶48 We now examine the Massees’ argument that the Sheriff breached his duty to arrest

Ray and to seize Ray’s .44 magnum handgun on more than one occasion, and that such

breach of duty caused Vickie’s death. We note that the jury was correctly instructed that the

Sheriff’s negligence was a cause of Vickie’s death if “it was a substantial factor in bringing

it about.”

21
¶49 Throughout the trial, the Massees presented substantial evidence describing Ray

wielding his pistol and making threats to kill himself and others. Specifically, in December

1994, a deputy of the BCSO stated in his report that he observed Ray holding a pistol to

Vickie’s head. The Sheriff’s report indicated that he heard, while en route to the Doggetts’

home, that Ray was holding a gun on Vickie. One of the deputies who responded to the call

testified that Ray threatened him with bodily harm if the deputy did not leave Ray’s house.

The Sheriff and various deputies testified that when the Sheriff arrived at the Doggetts’

house, within minutes, the Sheriff had to wrestle the loaded gun away from Ray to keep Ray

from shooting himself. The Sheriff also testified that he had substantial grounds to arrest

Ray for holding a gun to Vickie’s head and threatening a police officer and could likely have

gotten a conviction. He further testified that it was, in part, his decision to not arrest Ray but

he could not explain why that decision had been made. The Sheriff confiscated Ray’s gun

for a short period of time after this incident, but returned it later.

¶50 Again, the Massees testified that in December 1996, Ray had pulled a gun on Vickie’s

son, James, and his friend, Roger. James and Roger reported this incident to the BCSO.

Later that evening, Ray called and threatened to kill Roger, as well as Vickie, James and

Michael. Roger signed a written statement describing the threats. No investigation was

undertaken, Ray was not arrested, nor was his gun seized. The law at that time mandated

that a gun used or threatened to be used in a domestic event be confiscated. Contrary to the

District Court’s categorization of this event as a “threatened suicide” that did not require

confiscation of Ray’s gun under § 46-6-603, MCA, the Sheriff testified that Ray’s pointing

22
of the gun at James constituted family member assault and did require that Ray’s gun be

seized.

¶51 Lastly, evidence was presented that in April 1997, Vickie’s two younger sons,

Michael and Marcus, called the BCSO reporting that Ray and Vickie were having a terrible

argument. Marcus made the call while Michael went to get his .22 rifle for protection.

Michael had seen Ray point a gun at Vickie before he retreated to his bedroom to stay with

Marcus. Marcus did not report Ray’s gun to the dispatcher when he called because he had

stayed in his room and was unaware that Ray had it. When the officers arrived, they found

Ray’s loaded handgun in his bedroom. Testimony was presented that an officer unloaded

the gun, returned the pistol to the bedside table, and left the bullets on the dresser. No

officer who responded to the call ever investigated this incident or asked the boys or Vickie

if Ray had used his gun that night. Had they asked the boys what happened, the deputies

and/or the Sheriff would have had a mandatory obligation to arrest Ray, confiscate his gun,

and give Vickie her notice of victim’s rights. However, they did not ask and did not follow

up with any further investigation.

¶52 Over the course of the trial, several deputies testified that they believed Ray should

have been arrested and taken into custody for his own protection or the protection of others,

and that his handgun should have been seized and kept in accordance with the statute.

Additionally, Dr. Mark Mozer, a clinical psychologist with more than thirty years

experience, testified about his extensive work in assessing and evaluating persons with

mental illnesses and behavioral problems. He stated that he had evaluated hundreds of cases

23
involving battered spouses. He reviewed many of the Sheriff’s logs and reports pertaining

to emergency calls from the Doggetts’ household or response calls to the Doggetts’ home.

He also listened to a summary of 9-1-1 calls from Vickie, Ray, and the boys, and he studied

the Sheriff’s deposition.

¶53 Dr. Mozer testified at length that Ray should have been arrested or taken into custody.

He outlined the benefits that could have been derived by getting Ray into the judicial system,

including alcohol treatment and a work program, which may have eased Ray’s depression.

Moreover, this would have forced him to recognize that his behavior had consequences and

“would have decreased the likelihood of further aggression and would have likely averted

[this] tragic event.”

¶54 Dr. Mozer also stated that mandatory seizure of a weapon used or threatened to be

used in a domestic assault situation is an “excellent idea,” because it removes a deadly

weapon from a volatile situation and is an actual punishment for “bad behavior.” He pointed

out that after the Sheriff confiscated Ray’s gun in December 1994 and refused to return it for

a couple of months, the Doggetts did not request BCSO intervention for two years. He

posited that removal of the gun could have, in part, cause this deceleration of calls to the

Sheriff’s Office.

¶55 Additionally, Dr. Mozer repeatedly emphasized the importance of having an objective

third party inserted into a domestic violence or abuse situation. He explained that victims

of recurring and ongoing violence tend to reach a state of “pervasive denial.” He opined that

providing the statutorily-required victim’s notice increased the likelihood that the victim

24
would get a third party involved. Such third party involvement, he stated, would help

identify the various problems, both with the individuals involved and with their relationship,

that could trigger violence. It would keep the victim from “forgetting” about the abuse the

next morning, after the almost-inevitable apology is rendered. He maintained that third party

agencies help a victim recognize and appreciate the seriousness of the situation and help

them address it.

¶56 Dr. Mozer further opined that Vickie did not appreciate the dangerousness of her

situation and that had she been told of resources available to her as an abuse victim, and

utilized those resources, a treatment plan for the problems may have been developed and kept

on track.

¶57 In addition, and importantly to our analysis, the Sheriff himself testified that the

purpose of notifying victims of their rights is to help them understand the dangerousness of

their situation. He agreed that domestic abuse victims rarely recognize this danger but,

nonetheless, look to law enforcement for protection. Thus, the District Court’s conclusion

in its Decision and Order as a matter of law that “There was no evidence at trial connecting

the failure of Thompson to provide such notice with Vickie’s death” (see ¶ 23) was patently

wrong.

¶58 The Sheriff offered no expert or lay testimony to refute Dr. Mozer’s testimony that

this tragic event “would have likely [been] averted” had the Sheriff taken any or all of the

above actions. In addition, both defense witnesses-- the Undersheriff and one of the deputies

25
who had responded to calls to the Doggetts’ home--agreed with the Massees’ claims that Ray

should have been arrested and his weapon seized.

¶59 With the foregoing evidence in mind, we now turn to the District Court’s conclusion

that, because the “arrest” duty was discretionary, not mandatory, the Sheriff could not be

held liable for failing to arrest. We also consider the court’s conclusion that, because the

mandatory weapon seizure statute applied only to the December 1996 and April 1997 events,

and those events did not give rise to a mandatory duty to seize the weapon, that statute was

not violated. In that these legal conclusions formed the basis for the court’s determination

that no duty was owed to Vickie, we must examine them for correctness. MacKay, ¶ 14.

¶60 Throughout this Opinion, we have set forth significant testimony--from the Massee

sons and other witnesses, and, most importantly, from the Sheriff and his deputies--that the

Sheriff negligently failed to give notice to Vickie of her statutory rights, that he failed to

confiscate Ray’s gun, and that he failed to arrest Ray when he should have. There was also

undisputed testimony from the Massees’ experts that these failures were a substantial factor

in bringing about Vickie’s death. This being so, it was error for the District Court to

conclude as a matter of law that, 1) violation of the mandatory notice statute could not

support a verdict of negligence; 2) the mandatory “weapon seizure” statute did not apply to

the December 1996 family member and domestic assault incident; and 3) because the

“arrest” statute imposed no mandatory duties on the Sheriff, its violation could not support

a verdict of negligence against the Sheriff. As we discussed above, a jury may base a finding

26
of negligence upon evidence of violation of a statute, even if violation of the statute is not

necessarily negligence per se. Nehring, 219 Mont. at 468, 712 P.2d at 1333.

¶61 There is nothing in the record that indicates upon which theory of negligence the

jury’s verdict was based. The special verdict completed by the jury simply asked whether

the Sheriff was negligent as defined by the instructions, and, if so, whether his negligence

was a cause of the Massees’ injuries or damages. The jury responded “yes” to both

questions. The jury could well have premised its verdict, in whole or in part, upon its

conclusion that the Sheriff negligently violated one, two, or all three of the domestic abuse

statutes. Such a conclusion would be permitted under the law, regardless of whether

negligence per se instructions were or were not given.

¶62 We conclude that the Massees presented sufficient evidence to the jury for it to

conclude under the common law negligence jury instructions that the Sheriff “failed to use

reasonable care” and failed to act “as an ordinarily prudent sheriff or deputy would act under

the circumstances.” Contrary to the District Court’s finding, they also presented sufficient

evidence for the jury to determine that the Sheriff was negligent per se for failing to give the

required notices, and that such failure was a substantial factor in bringing about Vickie’s

death. Moreover, as to causation, it is the fact finder’s responsibility to determine the

credibility of a witness and to attribute the amount of weight appropriate to a witnesses’

testimony. See Sandman v. Farmers Ins. Exchange, 1998 MT 286, ¶ 40, 291 Mont. 456,

¶ 40, 969 P.2d 277, ¶ 40. This Court will not substitute its judgment for that of the fact

finder. See State v. Felando (1991), 248 Mont. 144, 148, 810 P.2d 289, 291. The jurors

27
were polled on the question of causation, and nine members determined that the Sheriff’s

negligence satisfied the causation element of the negligence claim.

¶63 Lastly, we address the concern that a ruling for the Massees would “signify an erosion

of law enforcement’s discretion” and render such discretion “illusory.” Amicus Montana

Sheriffs and Peace Officers Association argues that Thompson acted within his lawful

discretion in this case and that this Court should not “second-guess law enforcement officers

when they are acting within their lawful discretion.” We are not engaging in any such

endeavor. We reiterate that while the “arrest” statute bestows discretion, the Sheriff’s duties

under both §§ 46-6-602 and -603, MCA, were not discretionary but mandatory. As noted

above, we simply conclude that, on these facts and under the law as given to the jury, the

jury had before it sufficient credible evidence to conclude that the Sheriff’s negligence or

negligent per se conduct led to Vickie’s death. This being so, the entry of judgment to the

contrary was not properly granted. Ryan, 279 Mont. at 510, 928 P.2d at 229-30.

CONCLUSION

¶64 Based on the foregoing, we conclude sufficient credible evidence was presented to

the jury to support its verdict. We further conclude that the District Court’s legal

conclusions underlying its entry of judgment as a matter of law were incorrect. Therefore,

we reverse the District Court’s Decision and Order granting Sheriff Thompson’s and

Broadwater County’s Motion for Judgment as a Matter of Law, and reinstate the jury verdict

and subsequent judgment dated March 20, 2003, in favor of the Massees.

28
 /S/ PATRICIA O. COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM REGNIER

29
Justice James C. Nelson specially concurs and dissents.

¶65 I concur in the analysis and in the result of our Opinion with one exception. I

disagree with our application of the judicially-created public duty doctrine. Accordingly,

I respectfully dissent from that portion of our Opinion.

¶66 This case directly raises the question of whether the abolition of sovereign immunity

under Article II, Section 18 of the Montana Constitution precludes application of the

judicially-created public duty doctrine. We have declined to address this argument in favor

of simply applying the public duty doctrine. I would hold that this doctrine is a variant of

sovereign immunity, is violative of Montana's Constitution and, therefore, has no application

in Montana law.

DISCUSSION

¶67 As background for this separate Opinion, I will briefly trace the origins of sovereign

immunity and the public duty doctrine and the roles that each theory has played to shield

governments from liability for wrong-doing. Sovereign immunity prevents government

liability by holding a governmental entity immune from suit even when its officers breach

a duty. On the other hand, the public duty doctrine prevents government liability by

declaring that no duty exists. Both doctrines preclude a court from awarding just

compensation to the injured victim for injury perpetrated by the negligent governmental

tortfeasor. Both doctrines frustrate the clear will of the people of Montana expressed in

Article II, Section 18 of our Constitution.

A. Sovereign Immunity

30
¶68 Sovereign immunity, which is synonymous with governmental tort immunity,

proclaims that the government is not liable for the negligent acts of its officers and

employees. Barry L. Hjort, The Passing of Sovereign Immunity in Montana: The King is

Dead!, 34 Mont. L. Rev. 283, 283 (1973). With its origins in the divine right of kings as

construed by the common law of England, the doctrine held that the King could not be sued

in the King’s Court because the Court’s authority was subordinant to the King. Therefore,

sovereign immunity functioned as a jurisdictional bar and persons unjustly injured by an

action of the crown might properly seek monetary redress in the Court of the Exchequer.

Hjort, at 284. The English courts extended tort immunity to local units of government on

the grounds that “it is better that an individual should sustain an injury than that the public

should suffer an inconvenience.” Russell v. The Men of Devon (K.B. 1788), 100 Eng. Rep.

359 (holding the men of the unincorporated county of Devon immune from suit by a wagon

owner who was injured crossing a poorly maintained county bridge).

¶69 Imported to the United States during the Nineteenth Century, the doctrine of

sovereign immunity sustained intense criticism by courts and legal scholars as “an

anachronism without rational basis in a democratic society” and as an abrogation of

traditional tort principles, which provide remedies for victims of negligent or wrongful

conduct. W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 125 (4th ed.

1971). Nevertheless, sovereign immunity remained a vital legal construct in most states,

shielding public coffers and government actors from liability through the late Twentieth

Century.

31
¶70 Montana courts embraced sovereign immunity during the territorial period. Langford

v. King (1868), 1 Mont. 33, 38 (holding that citizens may not sue the territorial government

in the absence of the government’s consent); Fisk v. Cuthbert (1877), 2 Mont. 593. The

Montana Constitution of 1889 neither authorized nor prohibited sovereign immunity and

courts struggled through the Twentieth Century to apply the doctrine with consistency and

reason. Hjort, at 289-93 (discussing selective application of immunity based upon judicial

distinctions between government’s proprietary and discretionary functions and judicial

recognition of a waiver of immunity to the extent of government’s liability insurance

coverage).

¶71 The Delegates to the 1972 Montana Constitutional Convention unequivocally rejected

governmental tort immunity concluding that "the doctrine no longer has a rational

justification in law." Report of the Bill of Rights Committee, 1972 Montana Constitutional

Convention, Vol. II, at 637. As reported by the Bill of Rights Committee:

[T]he doctrine of sovereign immunity bars tort suits against the state for
negligent acts by its officials and employees. The committee finds this
reasoning repugnant to the fundamental premise of the [sic] American justice:
all parties should receive fair and just redress whether the injuring party is a
private citizen or a governmental agency. The committee believes that just as
the government administers a system of justice between private parties it
should administer the system when the government itself is alleged to have
committed an injustice. The committee notes that private firms are liable for
the negligence of their employees and points out this fact to indicate the
inconsistency of the state's position in the system of tort law. It is the belief
of the committee that this proposed provision rectifies this inconsistency.

Report of the Bill of Rights Committee, 1972 Montana Constitutional Convention, Vol. II,

at 637-38.

32
¶72 Delegate Marshall Murray stated in the deliberations on the proposed section:

This is the doctrine [of sovereign immunity]--all of us know it--the vernacular
that the king can do no wrong. It is an old and archaic doctrine. . . . We feel
that the doctrine of sovereign immunity, which we are attempting to do away
with by this particular provision, really means that the king can do whatever
he wants but he doesn't have to pay for it; and we'd like to do away with that
doctrine.

Verbatim Transcripts of the Montana Constitutional Convention, p. 1760 (March 8, 1972).

¶73 Delegate Wade Dahood, chairman of the Bill of Rights Committee, further explained:

What our committee is really concerned about is making sure that an
antiquated doctrine that had no place within American jurisprudence in the
first instance is removed from the face of justice in the State of Montana. . . .
We have an opportunity now, as long as in Montana no one else will accept
it, to make sure that we have full redress and full justice for all of our
citizens. . . . We submit it’s an inalienable right to have remedy when
someone injures you through negligence and through a wrongdoing, regardless
of whether he has the status of a governmental servant or not. . . .

Verbatim Transcripts of the Montana Constitutional Convention, pp. 1763-64 (March 8,

1972).

¶74 Placed within the Declaration of Rights, Article II, Section 18 of the Montana

Constitution states:

State subject to suit. The state, counties, cities, towns, and all other
local governmental entities shall have no immunity from suit for injury to a
person or property, except as may be specifically provided by law by a 2/3
vote of each house of the legislature. 3

¶75 Upon the heels of voter approval of the 1972 Montana Constitution, the 1973

Legislature enacted the Tort Claims Act and the Comprehensive State Insurance Plan,

3
The provision allowing the Legislature to provide for governmental tort
immunity by a two-thirds majority was approved by referendum vote in 1974.

33
codified at §§ 2-9-101 to 318, MCA, which attach “liability to the State in the same manner

and to the same extent that liability attaches to a private person.”4 State ex rel. Byorth v.

District Court (1977), 175 Mont. 63, 67, 572 P.2d 201, 203. Section 2-9-102, MCA,

provides:

Governmental entities liable for torts except as specifically
provided by legislature. Every governmental entity is subject to liability for
its torts and those of its employees acting within the scope of their
employment or duties whether arising out of a governmental or proprietary
function except as specifically provided by the legislature under Article II,
section 18, of The Constitution of the State of Montana.

Read together, Article II, Section 18 of the Montana Constitution, and § 2-9-102, MCA,

establish the general rule that the State and local governmental entities have no tort immunity

unless the Legislature explicitly confers immunity by a two-thirds vote of both houses.

Whiting v. State (1991), 248 Mont. 207, 222, 810 P.2d 1177, 1186.

¶76 Within four years of enacting the Torts Claims Act, the 1977 Montana Legislature

reinstated limited governmental tort immunity by excepting from liability certain

discretionary acts of public officials and placing caps on damage awards. See Title 2,

Chapter 9, Part 1, Montana Code Annotated (1977). Section 2-9-111(2), MCA (1977), as

amended, granted immunity to a governmental entity for “an act or omission of its legislative

4
This Court also held, however, that certain common law personal immunities,
separate and distinct, were not affected by Article II, Section 18. See State ex rel. Dept.
of Justice v. District Court (1976), 172 Mont. 88, 560 P.2d 1328 (the doctrine of
prosecutorial immunity is not affected by Article II, Section 18); Koppen v. Board of
Medical Examiners (1988), 233 Mont. 214, 759 P.2d 173 (the doctrine of quasi-judicial
immunity is not affected by Article II, Section 18). Judicial and legislative immunity also
exist by statute. Sections 2-9-111 and 112, MCA.

34
body or a member, officer or agent thereof.” The statute further elaborated that, “the term

‘legislative body’ includes the legislature . . . and any local governmental entity given

legislative powers by statute, including school boards.” Section 2-9-111(1)(b), MCA (1977).

Although governmental entities generally remained liable for the torts of employees under

§ 2-9-102, MCA (1977), judicial interpretation of the legislative immunities granted pursuant

to § 2-9-111, MCA (1977), as amended, yielded a roiling series of decisions by this Court

during the next fourteen years that affirmed broad governmental tort immunity. See, e.g.,

W.D. Constr. v. Board of County Comm’rs (1985), 218 Mont. 348, 707 P.2d 1111 (county

enjoys immunity from negligence suit for commission’s failure to administer subdivision

statutes and regulations); Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d

145 (county enjoys immunity from wrongful discharge suit as a result of commission’s

ratification of janitor’s firing by county employee); Peterson v. Great Falls Sch. Dist. No. 1

(1989), 237 Mont. 376, 773 P.2d 316 (school board enjoys immunity from wrongful

discharge suit as a result of board ratification of janitor’s firing by administrative assistant);

State ex rel. Eccleston v. District Court (1989), 240 Mont. 44, 783 P.2d 363 (school board

enjoys immunity from negligence suit because board’s refusal to hire additional janitors

accounted for janitor’s failure to clear ice from school steps). See also John A. Kutzman,

The King’s Resurrection: Sovereign Immunity Returns to Montana, 51 Mont. L. Rev. 529,

542 (1990) (postulating that judicial use of agency analysis reinstated blanket sovereign

immunity for government’s administrative acts).

¶77 The 1991 Legislature addressed the widening scope of governmental tort immunity

35
by amending § 2-9-111, MCA, to limit the terms under which entities enjoyed statutory

immunity. See Chap. 821, L. 1991. The amendments restricted legislative immunity by

clarifying that “the term legislative act does not include administrative actions undertaken

in the execution of a law or public policy.” Section 2-9-111(1)(c)(ii), MCA (1991)

(emphasis added). The amended statute also provides that the purchase of liability insurance

does not waive immunity. Section 2-9-111(4), MCA (1991). Regarding environmental

torts, the statute specifically denies governmental tort immunity for “any act or omission that

results in or contributes to personal injury or property damage caused by contamination or

other alteration of the physical, chemical, or biological properties of surface water or ground

water, for which a cause of action exists in statutory or common law or at equity.” Section

2-9-111(5)(b), MCA (1991).

¶78 A body of case law since the 1991 amendment affirms that a governmental entity is

subject to suit for injury to a person or property resulting from an administrative action of

a government employee acting within the scope of employment. See, e.g., Koch v. Billings

Sch. Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181 (physical education teacher’s

instruction to student to squat press 360 pounds not a legislative act; school board has no

immunity for teacher’s negligence); Hedges v. Sch. Dist. No. 73 (1992), 253 Mont. 188, 832

P.2d 775 (school district has no immunity from suit for teacher’s negligent injury of a

student with shot put); Knight v. Missoula (1992), 252 Mont. 232, 827 P.2d 1270 (street

repair is an administrative function; city has no immunity from suit for negligent

maintenance); Dagel v. Great Falls (1991), 250 Mont. 224, 819 P.2d 186 (supervisor’s

36
harassment of city employee not a legislative act; city has no immunity from suit for

nuisance); Sanders v. Scratch Gravel Landfill Dist. (1991), 249 Mont. 232, 814 P.2d 1005

(public landfill district has no immunity from suit for damages caused by a contaminated

water supply); Quirin v. Weinberg (1992), 252 Mont. 386, 830 P.2d 537 (property assessor’s

misrepresentation of building location is administrative act; State enjoys no immunity from

action in negligence). See also James E. Conwell, Limitations on Legislative Immunity: A

New Era for Montana’s Sovereign Immunity Doctrine, 54 Mont. L. Rev. 127 (1993).

B. Public Duty Doctrine

¶79 The public duty doctrine is a judicially-created precept succinctly expressed by this

Court in a logical absurdity: “[A] duty owed to all is a duty owed to none.” Nelson v.

Driscoll, 1999 MT 193, ¶ 21, 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21 (citation omitted).

¶80 The genesis of the public duty doctrine in the United States may be traced to South

v. Maryland (1856), 59 U.S. 396, 18 How. 396, 15 L.Ed 433. In South, the plaintiff alleged

that he was kidnapped, held for four days and released only when he paid ransom money to

his kidnappers. Asserting that the local sheriff knew that he had been unlawfully detained

yet did nothing to obtain his release, South sued the sheriff for nonfeasance. The circuit

court awarded South a substantial judgment. The United States Supreme Court reversed and

declared that a sheriff’s duty to keep the peace was “a public duty, for neglect of which he

is amenable to the public, and punishable by indictment only.” South, 59 U.S. at 403.

¶81 While logic would suggest that a duty to the public is a duty to everyone, rather than

a duty to no one, the common law public duty doctrine provides that for one to recover in

37
tort for the failure of a governmental officer to act properly, it must be shown that the duty

breached was owed to the injured person individually and not merely to the general public.

A popular Nineteenth Century treatise explained the rule as follows:

[I]f the duty which the official authority imposes upon an officer is a duty to
the public, a failure to perform it, or an inadequate or erroneous performance,
must be a public, not an individual injury, and must be redressed, if at all, in
some form of public prosecution. On the other hand, if the duty is a duty to
the individual, then a neglect to perform it, or to perform it properly, is an
individual wrong, and may support an individual action for damages.

T. Cooley, A Treatise on the Law of Torts 379 (1879).

¶82 The public duty doctrine gained acceptance in the courts of most states, including

Montana, where the precept often was applied to cases involving allegations of negligent

police protection.

¶83 Generally, those who advocate for the doctrine argue that it protects government

entities from a flood of lawsuits that could potentially cripple the public coffers and that it

protects those entities which provide much needed but high risk services, where potential

liability or the fear of potential liability would eliminate those services. See Frank Swindell,

Municipal Liability for Negligent Inspections in Sinning v. Clark--A "Hollow" Victory for

the Public Duty Doctrine, 18 Campbell Law Review 241, 249-51 (Spring 1996).

¶84 On the other hand, the doctrine has been criticized because it allows government

entities to use the shield of sovereign immunity when the legislature no longer mandates

such immunity; when application of the doctrine requires plaintiffs injured by a negligent

official suffer solely because of the governmental status of the tortfeasor; when application

38
of the doctrine promotes incompetence by providing no meaningful incentive for the

government entity to provide services of optimal quality; and because, even when the

doctrine is eliminated, plaintiffs must still prove duty, breach of duty, causation and

damages--a substantial burden in any negligence suit. Moreover, given the wide availability

of liability insurance, government entities may limit exposure of the public treasury while

still compensating injured individuals. Swindell, at 249-51

¶85 In Montana, citing South v. Maryland for the proposition that no liability attaches in

common law for a sheriff’s breach of duty, this Court rejected the claims of Butte

landowners that the county was liable for the sheriff’s failure to protect their property during

a riot. Annala v. McLeod (1949), 122 Mont. 498, 504, 206 P.2d 811, 814-15.

Acknowledging that the sheriff had both a statutory and common law duty to conserve the

peace, this Court observed that the duty was to the public and no statute fixed civil liability.

Therefore, common law controlled the case and assigned no liability for breach of a public

duty. The Court concluded that neither the sheriff nor the local government were liable for

the homeowners’ damages. Annala, 122 Mont. at 504, 206 P.2d at 814.

¶86 Without naming the public duty doctrine, this Court noted in Phillips v. Billings

(1988), 233 Mont. 249, 253, 758 P.2d 772,775, that “[t]he majority rule states that [a police

officer’s] general duty to protect does not give rise to liability for a particular individual’s

injury absent a greater duty imposed by a special relationship.” Then, in Nelson, we further

explained how a special relationship gives rise to a special duty, which attaches liability in

common law for the negligent acts of government actors. A special relationship may be

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created: (1) by a statute intended to protect a specific class of persons from a particular type

of harm and the plaintiff is a member of that class; (2) when a government agent undertakes

specific action to protect a person or property; (3) by governmental actions that reasonably

induce detrimental reliance by a member of the public; and (4) under certain circumstances,

when the agency has actual custody of the plaintiff or of a third person who causes harm to

the plaintiff. Nelson, ¶ 22 (citing Day v. State (Utah 1999), 980 P.2d 1171, 1175).

¶87 In Nelson, a police officer stopped a couple under suspicion of driving while

intoxicated. The officer did not arrest the driver, but directed her to park the car and offered

the couple a ride home. The couple declined the offer and began walking along the roadway,

where the woman was struck by a drunk driver and died. Her husband sued the officer and

the county for negligence. Examining the circumstances in which a police officer enters a

special relationship with an individual, the Court recounted that an officer has a special duty

to protect a person who is in the officer’s custody or control; to protect third parties from

harm by a person in police custody; and to protect persons for whom the officer has

voluntarily provided service. Nelson, ¶¶ 25-38. Although the decedent was not in police

custody at the time of the accident, the Court concluded that a special relationship existed

because the officer assumed a duty to protect the woman from a foreseeable risk of harm

when he restricted her driving privilege. Nelson, ¶ 39. Since a question remained whether

the officer failed to exercise reasonable care when he allowed the woman to walk home,

summary judgment was inappropriate. Nelson, ¶ 40.

¶88 The analysis of the duty owed by governmental entities under the public duty doctrine

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has come under increasing scrutiny in recent years, especially as courts have applied the

doctrine to shield governments from liability when sovereign immunity is unavailable as a

bar against tort actions. Deborah L. Markowitz, Municipal Liability for Negligent Inspection

and Failure to Enforce Safety Codes, 15 Hamline J. Pub. L. & Pol’y 181, 187 (Spring 1994).

A significant number of states where strong statutory provisions or judicial decisions

abrogate governmental tort immunity now reject the public duty doctrine altogether. Adams

v. State (Alaska 1976), 555 P.2d 235; Ryan v. State (Ariz. 1982), 656 P.2d 597; Leake v.

Cain (Colo. 1986), 720 P.2d 152; Commercial Carrier Corp. v. Indian River County (Fla.

1979) 371 So.2d 1010; Fowler v. Roberts (La. 1989), 556 So.2d 1; Jean W. v.

Commonwealth (Mass. 1993) 610 N.E.2d 305; Maple v. Omaha (Neb. 1986), 384 N.W.2d

254; Doucette v. Town of Bristol (N.H. 1993), 635 A.2d 1387; Schear v. Board of County

Comm’rs (N.M. 1984), 687 P.2d 728; Wallace v. Ohio DOC (Ohio 2002), 773 N.E.2d 1018;

Brennen v. Eugene (Or. 1979), 591 P.2d 719; Coffey v. Milwaukee (Wis. 1979), 247 N.W.2d

132; DeWald v. State (Wyo. 1986), 719 P.2d 643.

¶89 Article II, Section 18 of the Montana Constitution, abolishes sovereign immunity in

Montana by ensuring that every person has the fundamental right to sue a Montana

governmental entity for injury to person or property. This constitutional provision also

provides that governmental entities may be immunized from suit by statute enacted upon a

two-thirds vote of both houses of the Legislature. Since the precepts of the public duty

doctrine have never been codified, the common law public duty doctrine, as applied by the

Court in the case at bar, exists only by dint of judicial decree in Montana. Because the

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public duty doctrine works to create governmental tort immunity in the absence of an explicit

legislative grant of immunity and infringes upon the fundamental constitutional right of

persons to sue a Montana governmental entity for injury to person or property, I would hold

that the public duty doctrine has no place in Montana jurisprudence.

¶90 As for Justice Regnier's special concurrence, I do not disagree that the Montana

Sheriffs’ and Peace Officers’ Association has raised legitimate concerns and arguments. The

point is, however, that, under the Constitution, it is the Legislature's job to deal with those

concerns; it is not this Court's.

¶91 Indeed, the rebuttal to our approach is best articulated by former Chief Justice Jean

A. Turnage in Galt v. State Dept. of Fish, Wildlife (1987), 225 Mont. 142, 731 P.2d 912.

Chief Justice Turnage cautioned against resolving cases on the basis of judicially-created

theories by ignoring the Constitution. Specifically, Chief Justice Turnage stated:

This Court should not resort to creating or finding legal theories when a result
can be reached from express constitutional language.

Galt, 225 Mont. at 149, 731 at 916 (Turnage, C.J., concurring).

¶92 Here, the express language of Montana's Constitution resolves the legal question at

issue in this case. We err in relying on a judicially-created legal theory to the exclusion of

the Constitution.

CONCLUSION

¶93 I would hold that the unequivocal intent of the Delegates to the 1972 Constitutional

Convention, embodied in Article II, Section 18 of the Montana Constitution, was to abolish

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sovereign immunity and to expose governmental entities to suit for injury to a person and

property in exactly the same way that private persons and private non-human entities are

exposed. Within a year of the ratification of the Constitution, Montana voters approved a

legislative referendum that conferred upon the Legislature the power to enact by a two-thirds

majority in both houses specific statutory exceptions that limit the exposure of governmental

entities to suit. I conclude that the common law public duty doctrine, which provides that

government actors owe no duty to the general public in the absence of a special relationship

between a governmental entity and a specific individual, works to reinstate governmental tort

immunity by judicial decree and frustrates the will of the people as expressed in Article II,

Section 18 of our Constitution.

¶94 Indeed, if something akin to the public duty doctrine is to continue as part of Montana

law as an exception to Article II, Section 18, of our Constitution, then the Constitution itself

unambiguously provides for the method and clearly delineates the proper branch of

government to accomplish that task. It is the Legislature's prerogative, not the Judiciary's.

¶95 I would hold that the constitutional abrogation of governmental tort immunity under

Article II, Section 18 of the Montana Constitution precludes judicial application of the public

duty doctrine, and I would reinstate the jury's verdict in this cause without reference to that

doctrine.

¶96 I respectfully dissent from our failure to so hold.

/S/ JAMES C. NELSON

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Justice Jim Reginer specially concurs.

¶97 I agree with the Court’s Opinion and write separately to respond to the special

concurrence and dissent of Justice Nelson.

¶98 I agree with most of Justice Nelson’s analysis and conclusion that it is difficult to

sustain the Public Duty Doctrine in light of Article II, Section 18, of the Montana

Constitution which abolished sovereign immunity in this state. I would not, however, in the

case sub judice abolish the Public Duty Doctrine which has heretofore been judicially

recognized in Montana.

¶99 The Massees have clearly asked us to abolish the doctrine, albeit in rather conclusory

fashion in roughly one page of their opening brief with little argument as to the facts of this

case. The Montana Sheriffs and Peace Officers Association filed an amicus brief wherein

the Association presents a seemingly legitimate argument that we must preserve the Public

Duty Doctrine, at least to the extent that law enforcement discretion in effecting arrests and

addressing claims of domestic abuse is preserved. The Association urges that Montana

statutes grant the discretion to arrest but do not mandate arrest.

¶100 In my judgment, the Association’s concern should be thoroughly examined and

reviewed before this Court seriously considers abolishing the Public Duty Doctrine as it

applies to discretionary arrests of law enforcement. The Massees’ reply brief does not

address in complete fashion the concerns expressed by the Association. Since the

abolishment of the Public Duty Doctrine is not critical to the outcome of this case, I would

leave this discussion to another day.

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 /S/ JIM REGNIER

Justice Patricia O. Cotter joins in the foregoing special concurrence.

/S/ PATRICIA O. COTTER

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