No. 04-640
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 62
ROBBIE PRINDEL,
Plaintiff and Appellant,
v.
RAVALLI COUNTY,
Defendant and Respondent.
APPEAL FROM: The District Court of the Twenty-First Judicial District,
In and For the County Ravalli, Cause No. DV 2001-50,
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Rex Palmer, Attorneys, Inc., Missoula, Montana
For Respondent:
Dee Ann G. Cooney and Norman H. Grosfield, Utick & Grosfield,
Helena, Montana
Submitted on Briefs: January 11, 2006
Decided: April 4, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Robbie Prindel (Prindel), who was stabbed by Richard Russell (Russell) on
December 30, 1998, sued Ravalli County, alleging that the county was negligent when,
on December 28, 1998, it failed to admit Russell to the Ravalli County Jail pursuant to a
district court order. Both parties moved for summary judgment, and the District Court
granted summary judgment in favor of Ravalli County, concluding that as a matter of law
the County did not have a duty to prevent Russell from harming Prindel. The District
Court declined to order release of various documents to Prindel and held that Prindel is
not entitled to discovery of other documents. Prindel now appeals, and we reverse.
¶2 Prindel raises the following issues on appeal:
¶3 (1) whether the District Court erred when it held that Ravalli County owed no duty
of care to Prindel;
¶4 (2) whether the District Court erred when it declined to order release of records
pertaining to Russell compiled or possessed by the Missoula Pre-Release Center; and
¶5 (3) whether the District Court erred when it failed to compel production of the
Ravalli County Attorney’s files concerning Russell.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On the evening of December 29, 1998, a group of revelers gathered at a private
residence1 in Hamilton, Montana, to celebrate the year’s crepuscular remnants. Russell
and Prindel both attended the soiree. The partygoers imbibed spirits well into the night.
1
The residence where this party took place is located within ten blocks of the
Ravalli County Jail.
2
The party, not to be contained within a single day, spilled over into the early morning of
December 30, 1998, whereupon violence tragically pierced the revelry. Russell stabbed
Prindel in the heart with a six-inch knife, inflicting life-threatening injury and
permanently impairing Prindel.
¶7 In connection with this stabbing, Russell was convicted of attempted deliberate
homicide and sentenced to life in prison with an additional ten years for the use of a
deadly weapon. Subsequently, Prindel filed a complaint against Ravalli County alleging
that the county jail’s failure to incarcerate Russell on December 28, 1998, despite a
district court order that Russell begin serving a sentence on that date, amounted to
negligence that proximately caused Prindel’s injury.
¶8 During a hearing on December 23, 1998, Russell, who had previously received
three suspended sentences and had been released subject to certain conditions, admitted
to violating those conditions. Specifically, Russell admitted to consuming alcohol and
engaging in disorderly conduct. The District Court for the Twenty-First Judicial District
in Ravalli County revoked Russell’s suspended sentences and ordered him to serve ten
days in the Ravalli County Jail (the Jail). In a gesture of generosity befitting the spirit of
the season and acceding to Russell’s wish to spend Christmas unconfined, the District
Court ordered him to report to the Jail “no later than 8:00 a.m. on [Monday,] December
28, 1998.” When Russell showed up at the Jail, however, the jailers turned him away.
¶9 Russell reported to the Jail at 10:00 a.m. on December 28, 1998, to begin serving
his sentence. He spoke with Heather Anderson (Anderson), who was on duty at the Jail,
3
by telephone from the Jail lobby. Anderson could not find a written order of commitment
from the court mandating the Jail to admit Russell. She informed Russell that he could
not be booked until the Jail had the requisite paperwork and instructed him to return on
January 2, 1999. Anderson did not place a call to the Ravalli County Clerk of Court
(Clerk) to inquire whether there was an order mandating Russell’s commitment. Nor
does the evidence indicate that she requested that Russell go to the Clerk’s office (located
in the same building as the jail), procure the court’s written order and return. Before
informing Russell that he should return several days later, Anderson apparently spoke
with Jason McCawley (McCawley), another staff member of the Jail, about a prior
incident when Russell had attempted, unsuccessfully, to gain unauthorized entry to the
Jail in order to harm an inmate. According to Anderson’s deposition testimony, her
knowledge of this previous incident played “[a] small part” in her decision to turn Russell
away. According to McCawley, he was familiar with Russell, having seen Russell make
threatening gestures to another inmate during one of his prior stints in the Jail.
¶10 Russell called the Jail again at 3:00 p.m. on December 28, 1998, seeking
admission to serve his sentence. He was reminded that he should return to the Jail on
January 2, 1999, to serve his sentence.
¶11 Anderson and McCawley both testified that it was not uncommon for a person to
report to the Jail without the requisite paperwork and that, time permitting, the Jail would
call the Clerk to confirm that the court had ordered such persons incarcerated. Moreover,
Anderson testified that the Clerk could fax the order of commitment to the Jail within
4
twenty or thirty minutes. McCawley testified that he called the Clerk after turning
Russell away and that he could have called the Clerk before deciding not to admit
Russell. David Anderson, the third person on duty at the Jail on December 28, testified
that he would have sent a purported prisoner who was lacking commitment papers to “go
get” the court order. He also indicated that he “probably would . . . contact” the Clerk to
verify that the court had ordered incarceration. Finally, both McCawley and Anderson
testified that the Clerk’s office called the Jail at some undetermined time on the afternoon
of December 28, 1998, to confirm that the District Court had ordered Russell to serve
time in the Jail.
¶12 No stranger to institutional living, Russell had an extensive criminal history. In
1981, Russell was sentenced to ten years in prison in connection with four felonies: two
counts of theft; attempted escape; and bail jumping. In 1987, Russell pled guilty to
burglary. By the mid-nineties, Russell had allegedly delved into the world of violent
crime. He was arrested in 1995 and charged with felony aggravated assault and again
arrested in 1996 and charged with domestic abuse.
¶13 In December 1997, Russell’s proclivity for criminal behavior resurfaced,
eventually culminating in his being sentenced to serve ten days in the Jail in December
1998. He was arrested and charged with two counts of felony assault, stemming from an
incident when he allegedly fired a pistol into the air in a residential neighborhood while
threatening to kill his neighbor and her barking dogs. Russell, who was allegedly
intoxicated at the time, claimed that he had only fired a “cap gun,” not a lethal pistol.
5
Russell eventually pled guilty to two counts of misdemeanor assault in connection with
this incident and was sentenced to concurrent sentences of 180 days in prison, with 150
days suspended. In November 1998, the State filed a petition for revocation of Russell’s
suspended sentence. The hearing of December 23, 1998, whence the District Court
ordered Russell to serve ten days commencing on December 28, 1998, addressed this
petition.
¶14 As alluded to above, Prindel filed suit against Ravalli County asserting a claim of
negligence. Both parties moved for summary judgment. The County asserted that
Prindel failed to establish that it had a duty to incarcerate Russell or prevent him from
harming Prindel. The County also denied that its failure to imprison Russell caused
Prindel’s injuries. The County additionally asserted the defense of judicial immunity.
Prindel retorted that the County waived the affirmative defenses of superseding
intervening cause, public duty doctrine, and judicial immunity by its failure to plead
them.
¶15 The District Court denied Prindel’s motion for summary judgment and granted
summary judgment in favor of Ravalli County. In its order, the District Court stated that
a “duty to protect another from harm” may arise where there is a “special relationship
[that] is ‘custodial by nature,’ thus requiring the defendant to exercise reasonable control
over his or her charge so as to prevent foreseeable harm to others.” The court also
acknowledged that in analyzing foreseeability in the duty context, the determinative
question is whether the injured party was a foreseeable plaintiff. The court stressed that
6
Russell was sentenced to prison in December 1998 because he had violated conditions of
his suspended sentence for misdemeanor convictions. The court then detailed the process
that generally occurs after it convicts a person on misdemeanor charges. The court order
emphasizes that, consistent with local district court rules, the Clerk has two business days
to file the minute entry with the jail ordering a person’s incarceration. Here, the Clerk
had until the end of December 28, 1998, to file the minute entry. The court suggests that
“[d]ue to the absence of any documentation of Russell’s sentence, due to the holiday in
the midst of the two business days in which the minute entry was required to be prepared,
due to the fact that the staff was shorthanded that Monday following the three-day
weekend, and due to an unusually hectic day, Russell’s date to begin his sentence was
rescheduled by the jail staff” and that this rescheduling was an “understandable result of
[these] circumstances . . . .”
¶16 The District Court determined that during the early morning hours of December
30, 1998, the County (by and through the Jail staff) did not have a special custodial
relationship to Russell that would give rise to a duty to prevent him from inflicting harm
on third persons, for the simple reason that the Jail had not physically taken Russell into
custody. “The jail staff properly did not believe they had authority to admit Russell to
the jail, so they made alternative arrangements . . . .” Judge Langton concluded that “[i]t
is not reasonably foreseeable that the failure of the jail staff to take a person (Russell)
who voluntarily presented himself at jail to serve a ten-day misdemeanor probation
violation sentence for non-violent activity is likely to cause an unreasonable risk of harm
7
to Prindel (a person Russell barely knew).” Judge Langton observed that “[t]here was
nothing on the morning of December 28 to indicate that Russell would go out into the
world and exhibit violent behavior.” Consequently, he determined that “Prindel has
failed to show that the County had a legal duty to protect him from Russell [so] Prindel’s
negligence claim against the County must fail.”
¶17 During discovery, Prindel obtained a copy of the presentence investigation report
that was prepared after Russell was convicted of attempted deliberate homicide. Prindel
claims that this report states that Russell was “booted out of the Missoula Pre-Release
Center.” Prindel subsequently filed a motion requesting that the court order the release of
all information compiled or possessed at any time by the Missoula Pre-Release Center.
Prindel argued that this information may be relevant or lead to the discovery of relevant
evidence concerning what the County knew or should have known about Russell on
December 28, 1998. The County objected that the information held by another county at
some indeterminate prior time is not relevant to the issue of what the County knew or
should have known about Russell, nor will it lead to relevant information. The court
denied Prindel’s motion, reasoning that “this information was not within the purview of
the jail staff (and most likely not in the purview of the County) . . . and therefore could
not have a bearing on the foreseeability of Russell’s act of violence against Prindel.”
Prindel argues that the District Court abused its discretion when it denied his request for
access to these files.
8
¶18 In addition, Prindel filed two motions requesting that the District Court order the
Ravalli County Attorney’s Office to provide Prindel with its files containing information
concerning Russell. Pursuant to § 44-5-303, MCA, the first motion sought disclosure by
the County Attorney’s Office of criminal justice information concerning Russell
contained in its files, but excluding attorney work product and other privileged
information. The County did not object to this motion. On December 24, 2003, the
District Court ordered the Ravalli County Attorney to produce a “copy of any and all
criminal justice information compiled on Richard Leroy Russell prior to December 28,
1998 [excluding attorney work product and other privileged information.]” The parties
then filed a joint motion, indicating that “the initial Order was unduly limited and
Plaintiff will need additional information concerning Richard Russell to properly prepare
his case.” Accordingly, on February 18, 2004, the District Court found “to the extent
applicable, pursuant to § 44-5-303, MCA, . . . the demands of individual privacy do not
clearly exceed the merits of public disclosure” (emphasis added) and ordered the Ravalli
County Attorney to produce “[a]ll files and records concerning Richard Russell” within
twenty days.2 On March 31, 2004 (more than forty days later), having received a portion
of the requested records, along with a letter from the County Attorney refusing to fully
comply with the court orders, Prindel moved the District Court to compel compliance
with the court’s previous orders. Prindel argued that any work product privilege claimed
by the County Attorney is undermined by the fact that the criminal case is closed and the
2
This order also ordered other law enforcement agencies to release various
criminal justice information.
9
documents requested are relevant to a pending civil case. The County argued that the
joint motion covered only criminal justice information, as defined by § 44-5-103(8),
MCA, but did not cover the County Attorney’s notes reflecting his thoughts about the
investigation and Russell’s case. Prindel notes that the County Attorney, a named
witness for the defense, though twice ordered to produce these documents, never
appealed this order, nor sought a protective order, nor followed any other statutorily
delineated procedure to protect against discovery of these documents. Instead, on June
21, 2004, the County filed notice that the County Attorney’s office submitted its files for
in camera review. After reviewing the County Attorney’s files, including “letters, notes,
phone messages, memos, etc.,” the District Court determined that “[t]he only evidence
that raised a flag was a paragraph in a letter” that the County Attorney wrote to an officer
of the Crime Victim Compensation Program in 1999. In that letter, the County Attorney
wrote, “[Richard Russell] has a long criminal history of violence. . . . I prosecuted
[Russell] for 2 counts of felony assault last year, where he threatened neighboring women
with a gun, firing it off a dozen times, yelling threats all the while. A threat with a knife
was involved in that case.” In declining to order these files released to Prindel, the
District Court reasoned that this letter “is colored by hindsight,” and so presumably
would not be relevant to the County’s knowledge of Russell prior to the stabbing. Prindel
contends that the County’s failure to produce these documents pursuant to the court order
violated Rule 37(d), M.R.Civ.P.
10
STANDARDS OF REVIEW
¶19 We review a district court’s grant of summary judgment de novo, applying Rule
56, M.R.Civ.P. Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, ¶ 16, 295
Mont. 416, ¶ 16, 986 P.2d 1081, ¶ 16. Summary judgment should be granted only when
there is an absence of genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party seeking summary
judgment bears the burden of initially establishing the complete absence of a genuine
issue of material fact. LaTray v. City of Havre, 2000 MT 119, ¶ 14, 299 Mont. 449, ¶ 14,
999 P.2d 1010, ¶ 14. Only after the moving party has satisfied this requirement does the
burden shift to the non-moving party to “show by more than mere denial, speculation, or
conclusory statements, that a genuine issue of material fact exists.” LaTray, ¶ 14. In
evaluating a motion for summary judgment, “the evidence must be viewed in the light
most favorable to the non-moving party, and all reasonable inferences will be drawn
therefrom in favor of the party opposing summary judgment.” Lopez, ¶ 16.
¶20 “Ordinarily, questions of negligence are poorly suited to adjudication by summary
judgment and are better left for jury determination at trial.” LaTray, ¶ 15. Nevertheless,
the existence of a legal duty is a matter of law properly determined by the court. Nautilus
Ins. v. First National Ins. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411.
¶21 We review a district court’s order denying discovery to determine whether the
district court abused its discretion. Marriage of Caras (1994), 263 Mont. 377, 384, 868
P.2d 615, 619. “A court abuses its discretion if it acts arbitrarily without employment of
11
conscientious judgment or exceed[s] the bounds of reason resulting in substantial
injustice.” McDermott v. Carie, 2005 MT 293, ¶ 10, 329 Mont. 295, ¶ 10, 124 P.3d 168,
¶ 10 (quotations and citation omitted, alteration in original).
DISCUSSION
Issue 1: Whether the District Court erred when it held that Ravalli County owed no
duty of care to Prindel.
¶22 Prindel argues that the District Court erroneously determined that the County had
no duty to protect him from Russell and thus erred in granting summary judgment in
favor of the County. Prindel contends that the County had a statutorily imposed duty to
incarcerate Russell and it failed to take reasonable measures to confirm that he had been
committed to the Jail by competent authority. Prindel avers that the County’s failure to
confine Russell, as required by statute, constitutes evidence of negligence as well as
negligence per se and he notes that the District Court failed to even address these
statutory arguments. Prindel maintains that the County had custody of Russell from the
moment that he reported to the Jail to begin serving his sentence and that he—a person in
the immediate vicinity of the Jail—was a foreseeable plaintiff; therefore, the County
owed Prindel a duty of reasonable care under Lopez. Under the circumstances, Prindel
suggests, the standard of reasonable care obliged the Jail to inquire into the veracity of
Russell’s claim that he had been ordered by the Court to serve time in prison. Prindel
asserts that the District Court erroneously overlooked the fact that our prior holdings do
not require that the government have actual custody of a person before a duty arises, but
12
merely the authority or ability to control the person who causes injury. Prindel stresses
that if this Court requires the County to have physical custody of a person before it owes
a duty to protect the public from that person, then the County could not be held liable
even if it had possessed a court’s commitment order when it turned Russell away. In
addition, Prindel suggests that the District Court relied on a number of improper factual
determinations to support its conclusion that the County had no duty to protect him from
Russell. Prindel urges that policy considerations support the imposition of a duty of care
on the County because the County’s conduct is morally culpable and the imposition of a
duty would prevent future harm to the public while placing only a minimal burden on the
County. Finally, Prindel contends that the County has failed to properly present to this
Court its argument that the public duty doctrine precludes the imposition of a duty and
argues that even if the County has presented this issue, the public duty doctrine should be
considered an affirmative defense that the County waived by failing to plead.
¶23 The County contends that the District Court properly determined that the County
did not owe a duty of reasonable care toward Prindel. The County suggests that the
District Court properly determined that statutes cited by Prindel—which do not specify a
class of protected persons, but are general in nature—did not give rise to a duty in the
absence of commitment papers from the court. The County maintains that it never took
custody of Russell because without the commitment papers, it had no legal power to
incarcerate him. Though exceedingly vague as to the specific theory it relies upon, the
County’s argument rests on either the latent implication that the public duty doctrine
13
shields it from liability because Russell was not in actual custody, or our observation that
“‘a person is not liable for the actions of another and is under no duty to protect another
from harm in the absence of a special relationship of custody or control.’” Lopez, ¶ 24
(quoting Krieg v. Massey (1989), 239 Mont. 469, 472, 781 P.2d 277, 279) (emphasis in
Lopez). In addition to denying the existence of a custodial relationship with Russell, the
County insists that the foreseeability required to give rise to a duty was lacking because
the Jail staff had no basis for anticipating Russell’s violent outburst. The staff did not
have access to Russell’s extensive criminal record and he appeared to serve “mittimus”
time, indicating that he had committed a misdemeanor and was not considered
particularly dangerous by the court.
¶24 Finally, the County, without actually setting forth any substantive argument in its
brief and instead referring this Court to its brief in support of summary judgment before
the District Court, argues that judicial immunity shields it from liability and that it is
entitled to summary judgment on grounds of causation and comparative negligence. We
do not condone this practice of incorporating arguments by reference and thus will not
consider the question of judicial immunity or whether the County is entitled to summary
judgment on the basis of comparative negligence. After determining that the County did
not owe Prindel a legal duty, the District Court indicated that “there is no need to address
the causation issue.” Our ruling herein will require the District Court to address the
causation issue on remand. In this case, the factual underpinnings required to establish
foreseeability in the respective contexts of duty and causation are inextricably
14
intertwined. Therefore, we briefly discuss the issue of foreseeability in the context of
causation.
A. Additional Arguments Not Addressed:
¶25 It is difficult to ascertain from the County’s brief on appeal whether the County
intends to argue that the County owed no duty to Prindel because of the effect of the
public duty doctrine, see, e.g., Nelson v. Driscoll, 1999 MT 193, ¶¶ 21-22, 295 Mont.
363, ¶¶ 21-22, 983 P.2d 972, ¶¶ 21-22, or because of the general rule that “in the absence
of a special relationship of custody or control,” “there is no duty to protect others against
harm from third persons,” Lopez, ¶ 24 (citations and quotations omitted) (emphasis in
Lopez). Although the County argued on the basis of the public duty doctrine in its brief
in support of its motion for summary judgment at the District Court level, it does not cite
any authority concerning the public duty doctrine in its brief on appeal.3 Nor does it
explicitly raise the public duty doctrine as a defense. Therefore, we will not address the
public duty doctrine. See Rules 23(a)(4), 23(b), M.R.App.P. (“[t]he argument shall
contain the contentions of the [respondent] with respect to the issues presented, and the
reasons therefor, with citations to the authorities . . . relied on”). Because we decline to
address the applicability of the public duty doctrine, we need not resolve the question,
raised by Prindel, of whether the public duty doctrine is an affirmative defense. Since the
3
The County cites to LaTray but only in order to argue that the District Court
understood its nature and meaning. Although LaTray makes passing reference to the
public duty doctrine, ¶ 19, the District Court never mentioned the doctrine in discussing
LaTray, and we do not consider a mere citation to LaTray sufficient to properly present
the issue to this Court.
15
County does cite to Lopez and LaTray, both of which discuss a “special relationship of
custody,” we presume that the County’s argument concerning the absence of a common
law duty is premised on the principle that we articulated in Lopez.
¶26 An obvious similarity exists between the principle articulated and applied in Lopez
and LaTray and the public duty doctrine, which recognizes that a court may impose a
duty on a government agency which has “actual custody of the plaintiff or of a third
person who causes harm to the plaintiff.” Nelson, ¶ 22. In the future, when the issue has
been properly briefed, it may be appropriate for this Court to weave these parallel strands
of authority together. For now, however, they remain but theoretically bound by the
common thread of a custodial relationship as a prerequisite to the imposition of a duty.
¶27 We also decline to address Prindel’s argument that the County’s violation of § 7-
32-2205, MCA (requiring a jail to admit persons committed by competent authority),
constitutes negligence per se. In order 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.
Schwabe v. Custer’s Inn Associates, 2000 MT 325, ¶ 23, 303 Mont. 15, ¶ 23, 15 P.3d
903, ¶ 23. Here, Prindel’s complaint clearly alleges that the County owed a duty to
Prindel, that it breached that duty, that its breach caused Prindel to suffer an injury, and
that Prindel has sustained compensable damages. Thus, Prindel has alleged the elements
16
of common law negligence. See, e.g., Henricksen v. State, 2004 MT 20, ¶ 20, 319 Mont.
307, ¶ 20, 84 P.3d 38, ¶ 20. Prindel’s complaint does not, however, allege any of the
elements of an action for negligence per se. Consequently, he has not preserved this
argument for appeal.
¶28 We will, however, consider Prindel’s argument that the County’s violation of the
statute is evidence of negligence. Logically, this would mean that the statute provides
evidence of the existence of a duty and that violation of that statute is evidence of a
breach of that duty. Thus, here, we need only consider whether the statute indicates that
the County owed a duty of reasonable care to Prindel.
B. Statutory Duty:
¶29 Under Montana law, it is well established that a duty may arise from a statutorily
imposed obligation. See, e.g., Gibby v. Noranda Minerals Corp. (1995), 273 Mont. 420,
427-28, 905 P.2d 126, 130-31 (holding that an employer owed a duty of care to its
employee under a statute); Jackson v. State, 1998 MT 46, ¶¶ 62, 74, 287 Mont. 473,
¶¶ 62, 74, 956 P.2d 35, ¶¶ 62, 74 (noting that “[i]t is axiomatic that applicable statutes
may create a duty in a negligence action,” and concluding that the statute at issue imposes
a duty); Rookhuizen v. Blain’s Mobile Home, Inc. (1989), 236 Mont. 7, 10, 767 P.2d
1331, 1333 (noting that a duty may be established by statute); Massee v. Thompson, 2004
MT 121, ¶¶ 33, 43-45, 321 Mont. 210, ¶¶ 33, 43-45, 90 P.3d 394, ¶¶ 33, 43-45 (noting
that a statute can give rise to a special duty for purposes of common law negligence and
observing that “even if a violation of a statute does not constitute negligence per se, such
17
violation may nonetheless be considered as evidence of negligence”). Prindel asserts that
the County owed him a duty of care on the basis of § 7-32-2205, MCA, which mandates
that “[t]he detention center administrator shall receive all persons committed to the
detention center by competent authority and provide them with necessary food, clothing,
and bedding.” (Emphasis added.) Moreover, “a prisoner convicted must be actually
confined in the detention center until he is legally discharged.” Section 7-32-2208,
MCA. The statutes thus mandate that a detention center receive and confine a prisoner
who is convicted by competent authority until he or she is discharged by equally
competent authority. The determinative question then becomes, what constitutes
“competent authority”?
¶30 The parties agree that if the Jail had possessed a written copy of the District
Court’s order of December 23, 1998, this would have qualified as “competent authority”
committing Russell to the detention center. Essentially, the County suggests that if the
Jail did not possess the actual written order, then Russell had not been committed to the
Jail by competent authority. This argument is without merit. The authority of the
District Court’s order does not hinge on the Jail’s actual possession of physical
documentation of that order. “[T]he oral pronouncement of a criminal sentence is the
legally effective sentence.” State v. Wiedrich, 2005 MT 127, ¶ 11, 327 Mont. 214, ¶ 11,
112 P.3d 1054, ¶ 11 (citing State v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9
(holding that when there is a conflict between an orally pronounced sentence and its
written manifestation, the oral pronouncement controls)). In other words, the oral
18
pronouncement of a criminal sentence provides the competent authority by which to
incarcerate a defendant.
¶31 Although the Jail had not received notice of the court order via official channels
(i.e., from the Clerk), we attribute this communication breakdown to either the office of
the Clerk (which apparently failed to transmit documentation of the commitment order to
the Jail by the time that Russell was due to report to the Jail), or to the Jail (which may
have misplaced or neglected to retrieve the commitment order from the Jail’s mail box in
the Clerk’s office). In either case, the failure of transmittal was due to the conduct of an
agent of Ravalli County.
¶32 Due to the County’s internal communication breakdown, the Jail’s staff was
unaware of the court order committing Russell. Nevertheless, when Russell appeared and
reported to Anderson that he had been ordered by the court to begin serving a sentence,
the Jail had constructive notice of the District Court’s commitment order. A copy of the
minute entry documenting the order could easily have been obtained by the Jail if its staff
had expended even minimal effort to verify that the court had ordered Russell imprisoned
at that time. As suggested by David Anderson, the Jail staff could have called the Clerk’s
office or they could have requested that Russell go to the Clerk’s office, located in the
same building, to retrieve a copy of his commitment papers. Instead, the Jail staff
unilaterally rescheduled Russell’s sentence. The Jail’s ignorance of the court’s order of
commitment does not diminish the order’s status as “competent authority” to commit
19
Russell. Nor does the dilatory transmittal of the written order to the Jail by the Clerk.4
To rule otherwise would give unilateral power to the Jail staff or to the Clerk to override
court orders by mere inaction. The courts’ authority is not so tenuous. The court order of
December 23, 1998, provided competent authority for the Jail to admit Russell. The Jail
staff and the Clerk lacked legal authority to unilaterally discharge Russell. The Jail staff
likewise lacked legal authority to decline to take custody of Russell when ordered to do
so by the court. Consequently, the statutory provisions quoted above evidence the
existence of the Jail’s duty to take Russell into custody for the protection of the
surrounding public.
¶33 In its order granting summary judgment in favor of the County, the District Court
emphasizes that pursuant to Rule 2(H) of the Montana Twenty-First Judicial District
Court Rules (1993), the Clerk of Court had until the close of business on December 28,
1998, to transmit the minute entry documenting the court’s commitment order to the Jail.
By its explicit terms, however, this rule governs only service of minute entries on counsel
and merely establishes that such service must occur “within two business days of the date
any case is heard.” Rule 2(H), Montana Twenty-First Judicial District Court Rules
(1993). Unlike counsel who are in attendance at the hearing and do not need immediate
written confirmation of the court order, the Jail staff does not normally have notice of the
court’s commitment order until actual receipt of the minute entry. It is reasonable to
4
Indeed, the Clerk who ought to have prepared the minute entry documenting the
court’s order of commitment correctly observed that she “do[es not] have authority to
modify a court order.”
20
expect counsel (who attended the hearing documented in the minute entry) to wait a
couple of days before counsel is served with a minute entry. It would, however, produce
an absurd result if we interpreted this rule to mean that the Clerk may provide the Jail
with a minute entry documenting a court’s commitment order after a sentence is actually
scheduled to commence, effectively nullifying the court-ordered commencement date.
We construe, interpret and apply the law so as to avoid absurd results. Marriage of
Syverson (1997), 281 Mont. 1, 19, 931 P.2d 691, 702. Accordingly, we reject the District
Court’s suggestion that the local rule governing service of minute entries on attorneys
somehow excuses the County’s dilatory transmittal of the written order of commitment to
the Jail. Regardless, it does not affect the general rule that the oral pronouncement of a
sentence provides legal authority by which to incarcerate a defendant.
C. Common Law Duty:
¶34 In Lopez, we held that a prerelease center owes a “custodial duty” to prevent
inmates with whom it had a “special relationship of custody” from harming certain
members of the general public. ¶¶ 18-26; see also Restatement (Second) Torts, § 302B,
cmt. e and situation F (1965) (noting that a reasonable man can assume a “special
responsibility” towards another such that he “is required to anticipate and guard against
the intentional, or even criminal, misconduct of others.” For example, such a duty arises
when one “has taken charge or assumed control of a person whom he knows to be
peculiarly likely to inflict intentional harm upon others”). In the absence of
foreseeability, there is no duty; thus, the prerelease center owed a duty only to
21
foreseeable plaintiffs. Lopez, ¶¶ 26-28; LaTray ¶ 24. This duty extends to all “members
of the general public who would be placed within the foreseeable zone of risk created by
the negligent supervision of a [defendant’s custodial charge].” Lopez, ¶ 26. Thus, to
determine whether the County owed Prindel a duty to protect him from harm by Russell
we must first consider whether a “special relationship of custody” existed between
Russell and the County. If so, we must then ascertain whether Prindel qualifies as a
foreseeable plaintiff.
i. Custodial Relationship:
¶35 The District Court reasoned that because the Jail never actually took physical
custody of Russell, no special relationship ever formed that would give rise to a duty to
protect Prindel from Russell’s subsequent violent outburst. The court’s rationale,
however, ignores the definition of custody that this Court has repeatedly adopted when
considering whether a custodial relationship exists that gives rise to a duty. The
legislature has not defined “custody” in the context of a prisoner, so we have adopted the
following definition of custody: “[d]etention; charge; control; possession. The term . . .
may mean actual imprisonment . . . or mere power, legal or physical, of imprisoning or
taking manual possession.” Starkenburg v. State (1997), 282 Mont. 1, 16, 934 P.2d 1018,
1027 (quoting Black’s Law Dictionary, 460 (1968)) (emphasis added); see also Nelson,
¶ 28 (defining custody as “immediate charge and control . . . actual imprisonment or
physical detention or mere power, legal or physical, of imprisoning or taking manual
possession” (emphasis added) (quotations and citation omitted)). This definition is
22
consistent with our determination that a “special relationship of custody”—giving rise to
a legal duty of care—existed between an inmate and the prerelease facility from which he
absconded and that this relationship and consequent duty persisted for several days after
the facility lost actual, physical custody of him. Lopez, ¶¶ 13, 31.
¶36 We have already determined that the court’s order of commitment of December
23, 1998, constituted competent authority under § 7-32-2205, MCA. Accordingly, on
December 28, 1998, the Jail had legal authority to imprison Russell notwithstanding the
staff’s ignorance of that authority. Therefore, for purposes of establishing a special
relationship, the Jail took custody and assumed control of Russell on December 28, 1998.
Despite relinquishing physical control over him, the County retained custody of Russell
through the early morning hours of December 30, 1998, when Russell harmed Prindel.
Consequently, the County cannot avoid liability for Prindel’s injuries by invoking the
principle that “there generally is no duty to protect others against harm from third
persons.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 385
(5th ed. 1984). Because the County entered into a custodial relationship with Russell, it
owed a special duty to certain citizens to protect them from a foreseeable risk of harm at
the hands of Russell.
¶37 In determining whether a defendant owes a duty of care to a plaintiff, we also
weigh the “policy considerations for and against the imposition of liability.” Jackson,
¶ 38 (quoting Singleton v. L.P. Anderson Supply Co., Inc. (1997), 284 Mont. 40, 44, 943
P.2d 968, 971). These policy considerations include:
23
(1) the moral blame attached to a defendant’s conduct; (2) the prevention of
future harm; (3) the extent of the burden placed on the defendant; (4) the
consequences to the public of imposing such a duty; and (5) the availability
and cost of insurance for the risk involved.
Jackson, ¶ 39. Here, the balance of these factors support the imposition of a duty of care
on the County. Certainly it is morally culpable to release a purportedly convicted person
on an unwitting public without bothering to verify whether he had in fact been convicted,
nor ascertaining what offense he had committed. The imposition of a duty will prevent
future harm of this sort because it will encourage jail staff to ensure that persons actually
committed to prison by legal authority are not set loose simply because verification of the
sentence proves momentarily inconvenient. The burden to confirm the validity of
commitment orders is minimal. As members of the Jail staff testified, it could be
accomplished by a mere telephone call to the Clerk and perhaps a follow-up fax. Finally,
the imposition of a duty benefits the public because potentially dangerous and volatile
persons who have been adjudged guilty of violating the laws of the state, court orders and
conditions of suspended or deferred sentences will less frequently remain free to
perpetrate harm. Moreover, the public suffers no significant detriment if a person who
reports to a jail to serve time—but who has not actually been committed to prison by a
court—must remain at the jail while the staff confirms the absence of an order of
commitment.
ii. Foreseeability:
¶38 Having confirmed that a special custodial relationship existed between the County
and Russell, which imposed a duty upon the County to protect certain third persons from
24
Russell and that policy considerations support the imposition of a duty of care on the
County, we must now consider whether Russell posed a foreseeable risk and whether
Prindel qualifies as a foreseeable plaintiff. In other words, was it foreseeable that Russell
posed a risk, and was Prindel within the “foreseeable zone of risk” created by the Jail’s
failure to incarcerate and properly supervise Russell?
¶39 We have long held that foreseeability is of primary importance in establishing the
existence of a duty. See, e.g., Mang v. Eliasson (1969), 153 Mont. 431, 437, 458 P.2d
777, 781. Thus, “[i]f a reasonably prudent defendant can foresee neither any danger of
direct injury nor any risk from an intervening cause he is simply not negligent.” Busta v.
Columbus Hospital Corp. (1996), 276 Mont. 342, 362, 916 P.2d 122, 134 (quoting Mang,
153 Mont. at 437, 458 P.2d at 781). The particular accident that ensues, however, need
not be foreseen. Ekwortzel v. Parker (1971), 156 Mont. 477, 483, 482 P.2d 559, 562-63.
In Lopez, we held that the Great Falls Pre-Release Center owed a duty of reasonable care
to protect community members from being harmed by an inmate in its custody,
notwithstanding the fact that he had been incarcerated for non-violent property offenses.
Lopez, ¶¶ 5, 31. That holding reflects our implicit conclusion that a reasonably prudent
defendant should foresee the risk inherent in inadequately supervising or controlling an
inmate—since the inmate, when allowed to roam free may intentionally injure a member
of the public in their person or property. While a reasonably prudent defendant may not
foresee that such an unfettered prisoner would travel from Montana to Mongolia, for
instance, and wreak havoc on unsuspecting foreigners, it is not beyond the bounds of
25
reason to anticipate that he or she might cause trouble within the immediate vicinity of
the facility where he or she ought to be confined. Thus, we explained that the prerelease
center charged with legal custody of the prisoner:
owed a duty of reasonable care to all those persons present within the area
to which [that prisoner] could reasonably and foreseeably have access
during his period of freedom. That class of persons clearly encompasses
Lopez, who resided relatively near to the Center in Great Falls. . . . [T]he
Center clearly owed nearby residents, like Lopez, a legal duty of care . . . .
Lopez, ¶ 31 (emphasis added).
¶40 Here, we conclude that the County, by and through the Jail, could have foreseen
that Russell, if left free to roam, would somehow harm Prindel or others. The court had
revoked Russell’s suspended sentence and ordered that Russell serve time in prison
because Russell admitted to engaging in disorderly conduct while intoxicated. During
the week preceding the dawn of a New Year, anybody with a modicum of common sense
and rudimentary knowledge of Russell’s substance abuse history should have expected,
let alone foreseen the possibility, that he would consume intoxicants. Moreover, based
on his recent criminal conduct—engaging in disorderly conduct and assaulting his
neighbor, allegedly with a gun—one could reasonably anticipate that he might become
disorderly, confrontational, and perhaps even aggressively violent while intoxicated.
While the record does not indicate that the Jail staff knew anything of Russell’s recent
criminal conduct, it does reflect that McCawley and Anderson were familiar with Russell
and both knew that Russell had previously threatened a fellow inmate. McCawley, who
witnessed Russell’s threats toward another prisoner first-hand, had actually seen Russell
26
display emotional volatility and aggression while previously imprisoned. The County
contends that the Jail staff did not know anything of Russell’s criminal past—his several
felony convictions, some for violent crimes—at the time when they turned him away and
thus could not have anticipated his, arguably unprecedented, violent outburst. This
overlooks their avowed knowledge of his threats to a fellow inmate. Furthermore, if the
Jail staff lacked knowledge of Russell’s proclivity for violence, this was a natural
consequence of their complete failure to make any inquiries concerning Russell’s claim
that he had been ordered by the court to serve time in the Jail. McCawley’s testimony
reveals that the Jail staff had online access to Russell’s criminal history.
¶41 The Jail staff had access to information that would inform them that Russell posed
a potential risk to the community if left unsupervised and given unrestricted access to
intoxicants. Yet, nobody bothered to look at this information before turning Russell
away, just as nobody bothered to check whether the court had in fact ordered Russell
committed to their custody on the morning of December 28, 1998. We do not condone
such willful ignorance and will not encourage it. A defendant who has information
readily available to him or her that would inform him or her of the foreseeable risk of a
particular course of conduct, but chooses to act impulsively, without first making an
informed calculation of risk, is not a “reasonably prudent defendant.” Accordingly, one
who makes decisions while blinded by a veil of self-imposed ignorance may not later
invoke the unforeseeability of an otherwise reasonably ascertainable risk to defeat the
existence of a duty. Nor may she avail herself of the benefit of information that she
27
chose to ignore when pursuing that risky course of conduct. Thus, the County may not
utilize Russell’s actual criminal history to downplay his propensity for violence and argue
that his later crime was not foreseeable. As far as the Jail staff knew (or cared), he could
have been a convicted sex offender serving time for violating a term of a suspended
sentence that ordered him to steer clear of schools. As Anderson testified, “[w]e had no
idea what kind of criminal he was.” Absent some effort to ascertain the scope of the risk
posed by Russell, the Jail staff should have assumed that he posed the same risk that any
unknown convicted criminal might pose. One of the primary purposes behind
incarcerating criminal offenders is to “protect the public [and] reduce crime.” Section
46-18-101(2)(b), MCA. It is foreseeable that if a convicted criminal is not incarcerated
as ordered and is left to his own devices, he will commit additional crimes and injure
members of the community in the process.
¶42 Finally, we note that Russell stabbed Prindel at a private residence within ten
blocks of the Jail. Prindel resided within Ravalli County. Although the record does not
reveal exactly where Prindel resided, his presence in such proximity to the Jail brings him
well within the foreseeable zone of danger created by the Jail staff’s unilateral decision to
unleash Russell on the general public and renders him a foreseeable plaintiff.
Consequently, the County owed a duty to Prindel to exercise reasonable care to protect
him against harm at the hands of Russell.
¶43 The District Court erroneously granted summary judgment in favor of the County
on the basis that it owed no duty of care to Prindel. We reverse.
28
D. Foreseeability in the Context of Causation
¶44 The County has not properly presented to this Court the issue of whether it is
entitled to summary judgment on the issue of causation. Nevertheless, because the
County moved the District Court for summary judgment on this basis, it is appropriate
that we comment briefly on the issue for the benefit of the District Court and for the sake
of judicial economy. “Although foreseeability is generally properly confined to the duty
element of negligence under Montana law, where a dispute presents the issue of an
intervening act of a third party, as here, we address foreseeability in the proximate cause
context as well.” Lopez, ¶ 32. In the proximate cause context, we consider whether the
unforeseeability of an intervening cause (i.e., Russell’s intentional criminal act of
stabbing Prindel) severs the chain of causation. Samson v. State, 2003 MT 133, ¶ 25, 316
Mont. 90, ¶ 25, 69 P.3d 1154, ¶ 25. In order to establish proximate causation, however,
“the specific injury to a plaintiff need not have been foreseen.” Samson, ¶ 26 (quoting
Lacock v. 4B’s Restaurants, Inc. (1996), 277 Mont. 17, 22, 919 P.2d 373, 375-76),
overruling, in part, Lopez, ¶ 32, and LaTray, ¶ 28 (to the extent that those decisions
suggested that the specific injury suffered by the plaintiff must be foreseeable).
¶45 “The causal issue of intervening criminal or noncriminal acts normally involves
questions of fact which are more properly left to the finder of fact for resolution.” Lopez,
¶ 34 (quotations and citation omitted). “Thus, it is only when reasonable minds could
reach but one conclusion that the question of foreseeability may be determined as a
29
matter of law for purposes of summary judgment.” Lopez, ¶ 35 (quotations and citation
omitted).
¶46 In light of our foregoing analysis of the foreseeability of risk posed by Russell, we
conclude that reasonable minds could differ as to whether Russell’s intentional act of
stabbing Prindel was so unforeseeable as to sever the chain of causation. Consequently,
this issue of causation should not be decided on summary judgment, but should be
resolved by the trier of fact.
Issue 2: Whether the District Court erred when it declined to order release of records
pertaining to Russell compiled or possessed by the Missoula Pre-Release Center.
¶47 Prindel argues that the District Court abused its discretion when it denied his
motion requesting that the court order the Missoula Pre-Release Center (Center) to
produce the records it possessed regarding Russell. Prindel notes that during the course
of discovery, he became aware that Russell had been kicked out of the Center and posits
that the Center’s records may be relevant to the question of foreseeability in the context
of causation or may at least lead to evidence relevant to this issue. The County responds
that district courts enjoy broad discretion in determining whether evidence is relevant and
admissible and Prindel has made no showing that the records could have been considered
by the Jail staff or influenced their decision to not admit Russell to the Jail. Thus, the
County concludes, the court correctly denied Prindel access to the records held by the
Center.
¶48 Rule 26(b)(1), M.R.Civ.P., provides that:
30
[p]arties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action . . .
including the existence, description, nature, custody, condition and location
of any books, documents, or other tangible things . . . . It is not ground for
objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery
of admissible evidence.
The scope of discovery extends to documents possessed by non-parties “as provided in
Rule 45.” Rule 34(c), M.R.Civ.P. Rule 45(a)(3), M.R.Civ.P., in turn, mandates that
“[t]he clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it,
who shall complete it before service.” Thus, generally, Prindel could have compelled a
non-party such as the Center to produce relevant documents simply by subpoenaing those
documents through normal discovery procedures, but the District Court could not have
compelled a non-party to produce documents pursuant to Rule 37, M.R.Civ.P.
¶49 The records collected and preserved by the Center, however, constitute criminal
justice information. Section 44-5-103(8)(a), MCA. Morever, these records qualify as
confidential criminal justice information. See § 44-5-103(3)(e), MCA (defining as
confidential criminal justice information any criminal justice information “not clearly
defined as public criminal justice information”). Consequently, Prindel could not gain
access to the files compiled by the Center absent authorization from the District Court
“upon a written finding that the demands of individual privacy do not clearly exceed the
merits of public disclosure.” Section 44-5-303(1), MCA.
¶50 It is difficult to discern the legal basis for Prindel’s motion from his brief on
appeal. Nevertheless, his motion, titled “Motion for Order Directing Release of Criminal
31
Justice Information,” seeks the release of such information. Consequently, we conclude
that Prindel has, pursuant to § 44-5-303, MCA, requested that the court authorize the
Center to release confidential criminal justice information contained in its files.
¶51 The District Court denied Prindel’s motion because “this information was not
within the purview of the jail staff (and most likely not in the purview of the County)
prior to Russell’s Pre-Sentence Investigation Report, and therefore could not have had a
bearing on the foreseeability of Russell’s act of violence against Prindel.” The court
essentially decided, without the court or either party ever seeing the information
contained in the Center’s files, that this information was not relevant.
¶52 “Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Rule 401, M.R.Evid. While all relevant
evidence is admissible, non-relevant evidence is not admissible. Rule 402, M.R.Evid.
Thus, had the District Court been ruling on a motion seeking to admit the Center’s files
as evidence, a proper determination that the files lacked relevance would have provided a
valid basis for exclusion. Prindel’s motion, however, was not a motion seeking a ruling
on admissibility, but a motion requesting that the court order release of confidential
criminal justice information under the Criminal Justice Information Act. The Criminal
Justice Information Act sets forth the criteria that a district court should employ when
considering a motion for release of criminal justice information. See § 44-5-303(1),
MCA (“dissemination of confidential criminal justice information is restricted to . . .
32
those authorized to receive it by a district court upon a written finding that the demands
of individual privacy do not clearly exceed the merits of public disclosure”). Rather than
engaging in the statutorily mandated balancing of competing concerns, the District Court
impermissibly conjectured that the information contained in those files was unknown to
the County before Russell stabbed Prindel. The District Court assumed too much
regarding the County’s ignorance of the Center’s files. Information in the Center’s files
may indicate that Prindel came there from Ravalli County, or was sent to a Ravalli
County facility after being kicked out of the Center. This would have a bearing on what
the County knew or should have known about Russell. The District Court effectively
ruled on a non-existent motion in limine to exclude the contents of documents that were
not in possession of the court or either of the parties. By ignoring the statutory criteria
and denying access to the Center’s records on the conjectural basis that such records are
not relevant, the District Court abused its discretion.
¶53 We now turn to whether the “demands of individual privacy” “clearly exceed the
merits of public disclosure.” Section 44-5-303(1), MCA. Pursuant to § 44-3-303(3),
MCA, Prindel would be responsible for maintaining the confidentiality of any criminal
justice information that he might receive. Thus, unless that information is admitted at
trial, it will never become truly “public” information. To be admitted at trial, such
information must be relevant to an issue in the case. Rule 402, M.R.Evid. The record
does not reflect that Russell has asserted his privacy rights by opposing the disclosure of
these records. Moreover, any such assertions of privacy would be undermined by the fact
33
that Russell is currently serving a life sentence at the Montana State Prison for deliberate
attempted homicide and that his victim seeks the records in order to obtain legal redress.
Any diminution of Russell’s standing in the community caused by revelation of his
conduct at the Center will be forever overshadowed by the fact that he once attempted to
kill Prindel. In light of the foregoing analysis, we conclude that the demands of
individual privacy do not clearly outweigh the merits of disclosing to Prindel the Center’s
records pertaining to Russell.
¶54 Though ostensibly ruling on Prindel’s motion seeking the release of criminal
justice information compiled and possessed by the Center, the District Court justified
denying Prindel access to this information because the information is not relevant. The
District Court effectively ruled that this evidence is not admissible under Rule 402,
M.R.Evid. Relevance is not required for the release of criminal justice information.
Moreover, information need not be relevant in order to be discoverable, but need only be
reasonably calculated to lead to the discovery of relevant information. As demonstrated
above, the Center’s files are reasonably calculated to lead to the discovery of relevant
information. Therefore, we reverse the District Court’s denial of Prindel’s motion.
Issue 3: Whether the District Court erred when it failed to compel production of the
Ravalli County Attorney’s files concerning Russell.
¶55 According to Prindel, in response to the District Court’s order requiring the
County Attorney to produce “[a]ll files and records concerning Richard Russell,” the
County Attorney produced some records but specifically declined to produce “work
34
product, notes, correspondence and things of that nature” unless specifically ordered to
do so by the District Court. In the District Court, the County argued simply that Prindel
had requested only criminal justice information from the County Attorney and that work
product and notes do not constitute criminal justice information under § 44-5-103(8),
MCA. The District Court later completed an in camera review of the files and records
that had not been produced—presumably to ascertain which of them contained work
product and other privileged information—and expressed concern over only one of these
documents: a letter written by the County Attorney after Russell stabbed Prindel. The
court found that this letter “is colored by hindsight,” and denied Prindel’s motion to
compel production of additional files possessed by the County Attorney.
¶56 Prindel argues that the District Court erred when it declined to issue an order
compelling production of all of the Ravalli County Attorney’s files concerning Russell,
despite having issued two previous orders to produce such files. Prindel notes that the
court’s second order related to more than just criminal justice information and ordered
the County Attorney to produce all of his files concerning Russell. The County argues
that Prindel sought the County Attorney’s files through an order to release criminal
justice information under § 44-5-303, MCA, rather than by way of a request for
discovery. The County maintains that the District Court properly exercised its discretion
when it determined, after an in camera review, that the requested files, with the exception
of one letter, were not relevant. As to that letter, the County contends that the District
Court properly determined that it was colored by hindsight, and therefore not relevant.
35
¶57 The County’s contention—that Prindel sought access to the County Attorney’s
files only through an order to release criminal justice information under § 44-5-303,
MCA, and not via a discovery request—lacks merit. After Prindel initially requested
access to the criminal justice information regarding Russell contained in the County
Attorney’s files, specifically “excluding attorney work product and any other information
otherwise privileged,” the parties jointly filed a second motion, indicating that Prindel
would need “additional information . . . to properly prepare his case.” The court then
ordered the County Attorney to release “[a]ll files and records concerning Richard
Russell.” The court order, in stating that “to the extent applicable,” the requirements for
disclosure under § 44-5-303, MCA, have been met, contemplates production of more
than just the criminal justice information contained in the County Attorney’s files. Even
if the request had been limited to criminal justice information, this would not necessarily
exclude letters, notes and memos prepared by the County Attorney. See § 44-5-103(8),
MCA (defining “criminal justice information” as “information relating to criminal justice
collected, processed, or preserved by a criminal justice agency” but excluding the
administrative records of a criminal justice agency). The sole letter “flagged” by the
court communicates the County Attorney’s understanding of Russell’s assault against his
neighbors. Thus, it qualifies as information collected and processed by a criminal justice
agency. Without viewing the remaining files—which, as a result of the District Court’s
ruling, are not included in the record on appeal—we cannot say whether or not they
constitute criminal justice information.
36
¶58 To the extent that Prindel’s request covered criminal justice information, the
District Court should have weighed the demands of individual privacy against the merits
of public disclosure. See § 44-5-303(1), MCA. As with the records compiled by the
Center, the District Court should have ordered release of the County Attorney’s files,
excepting those individual files that failed to satisfy the statutory criteria. The District
Court abused its discretion when it declined to order release of the County Attorney’s
files containing criminal justice information.
¶59 To the extent that Prindel’s request covered more than criminal justice
information, it is governed by the rules of discovery. A party may obtain discovery of
information that is relevant or that appears “reasonably calculated to lead to the
discovery” of relevant information. Rule 26(b)(1), M.R.Civ.P. Rule 34, M.R.Civ.P.,
provides that a party may serve on another party a request to produce designated
documents. A party’s failure to “serve a written response to a request for inspection
submitted under Rule 34, after proper service of the request” “may not be excused on the
ground that the discovery sought is objectionable unless the party failing to act has
applied for a protective order as provided by Rule 26(c).” Rule 37(d), M.R.Civ.P.
¶60 Prindel properly served a request for inspection of “[a]ll files and records
concerning Richard Russell,” under Rule 34, M.R.Civ.P. The County did not apply for a
protective order pursuant to Rule 26(c), M.R.Civ.P. The County also did not serve a
written response to Prindel’s request. Its failure to do so, therefore, may not be excused
on the grounds that the discovery sought by Prindel is objectionable.
37
¶61 Without question, the opinion of the prosecutor, a county employee, that Russell
had used a handgun and knife when he assaulted his neighbors in 1997 is relevant to what
the County knew or should have known about Russell in December 1998. Consequently,
this information is relevant to the issue of causation. Moreover, the County Attorney is
listed as a defense witness, so his recorded impression and recollections of the initial
criminal case against Russell are doubly relevant, as these may provide means of
impeaching him as a witness. Without scrutinizing them, we cannot say whether the
other notes, correspondences and work product concerning Russell appear reasonably
calculated to lead to the discovery of relevant information and the District Court never
made such a determination. Instead, the District Court’s order reflects an implicit
conclusion that because the County Attorney’s letter “is colored by hindsight,” it lacks
the requisite relevance to be discoverable. The District Court abused its discretion when
it determined, ex parte and despite the absence of a filed motion requesting such a
determination, that the County Attorney’s files are not sufficiently relevant to be admitted
into evidence. Such error is compounded by the fact that the parties had already
stipulated to production of those files.
¶62 Finally, the fact that the withheld documents may contain the County Attorney’s
work product, should not preclude discovery of these documents. Rule 26(b)(3) provides
that a party may obtain discovery of documents prepared for trial “by or for another party
or by or for that other party’s representative . . . only upon a showing that the party
seeking discovery has substantial need of the materials in the preparation of the party’s
38
case and that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” Rule 26(b)(3), M.R.Civ.P. Nevertheless,
“[a] party may obtain without the required showing a [written and signed or otherwise
adopted] statement concerning the action or its subject matter previously made by that
party.” Rule 26(b)(3), M.R.Civ.P. In applying these limits on the scope of discovery—
which are identical to the limits contained in the Federal Rules—many federal courts
“have found the work-product privilege unavailable when a prosecutor in a prior criminal
investigation later objects to discovery by a litigant in a related and subsequent civil
lawsuit.” Ostrowski v. Holem, 2002 WL 31956039 (N.D.Ill. 2002), *4, and cases cited
therein. A person who is neither a party to the litigation in which discovery is sought nor
a representative of a party to that litigation may not claim work product immunity. In Re
California Public Utilities Comm’n (9th Cir. 1989), 892 F.2d 778, 781; Doubleday v. Ruh
(E.D.Cal. 1993), 149 F.R.D. 601, 605-06 (noting that the People of California, rather
than a particular county, is the plaintiff in a criminal prosecution; therefore, the work
product of the district attorney may be discovered in a subsequent action against a
county). A basic purpose behind the work product privilege is the concern with
interfering with an ongoing criminal investigation. In re Dept. of Investigation of City of
New York (2d Cir. 1988), 856 F.2d 481, 484. When the underlying criminal case has
been closed, however, this concern disappears. Ostrowski, *4.
¶63 Here, Russell has been convicted of attempted deliberate homicide. He has
appealed, and his conviction has been affirmed by this Court. State v. Russell, 2001 MT
39
278, 307 Mont. 322, 37 P.3d 678. Thus, the criminal case against Russell has been
closed by the County Attorney and we assume, absent evidence to the contrary, that any
preceding prosecutions against Russell have likewise been closed. Moreover, the State of
Montana was the plaintiff in the prosecutions of Russell, for the stabbing and for the
assault against his neighbors, though these cases were handled by the Ravalli County
Attorney on behalf of its client, the State. Accordingly, Prindel should have access to the
County Attorney’s files regarding Russell, including the County Attorney’s work
product. On remand, the District Court should protect against disclosure of opinion work
product prepared in anticipation of the present litigation with Prindel. See Palmer v.
Farmers Insurance (1993), 261 Mont. 91, 117, 861 P.2d 895, 911, (distinguishing
between ordinary and opinion work product and allowing disclosure of opinion work
product only if the “mental impression is directly at issue in the case and the need for the
material is compelling”); see also Rule 26(b)(3), M.R.Civ.P. (“the court shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party concerning the litigation [in which
discovery is sought]”).
¶64 In evaluating Prindel’s request for access to the County Attorney’s files regarding
Russell, the District Court failed to apply any of the relevant rules or statutory criteria. It
did not ascertain whether the demands of individual privacy clearly exceed the merits of
public disclosure of criminal justice information contained in the withheld files. It did
not conclude that the information contained in the withheld files was not reasonably
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calculated to lead to discoverable information. Finally, it did not determine that Rule
26(b)(3), M.R.Civ.P., precludes discovery of any work product contained in the withheld
files. Instead, it made an ad hoc, ex parte assessment of the relevance of the contents of
the files themselves and decided that they were not relevant, and so would not be
admissible. The District Court thereby abused its discretion by wrongly employing the
admissibility standard in lieu of criminal justice information, discovery, or work product
standards. We reverse.
CONCLUSION
¶65 As a matter of law, on December 30, 1998, the County owed a duty of care to
Prindel to protect him from harm at the hands of Russell, with whom it had entered into a
custodial relationship. The District Court improperly determined that no such duty
existed. Although Russell’s act of stabbing Prindel was an intervening cause, it was not
so unforeseeable that it breaks the chain of proximate causation as a matter of law. The
issue of causation should be submitted to a jury for determination.
¶66 The District Court abused its discretion when it refused to order the release of the
files concerning Russell compiled and possessed by the Missoula Pre-Release Center.
The District Court likewise abused its discretion when it denied Prindel’s request that it
order the County Attorney to produce all files concerning Russell.
¶67 We reverse and remand for further proceedings consistent with this Court’s
opinion.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE
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