Prosser v. Kennedy Enterprises, Inc.

March 12 2008

DA 06-0073

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 87

ELEANOR M. PROSSER, RICHARD H. WHITE
and LORRAINE CROTTY,

Plaintiffs and Appellants,

v.

KENNEDY ENTERPRISES, INC., d/b/a KENNEDY'S
TAVERN & CASINO, VICKI KENNEDY and
THE CITY OF HAMILTON,

Defendants and Appellees.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV-03-74
Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Howard C. Greenwood, Attorney at Law, Hamilton, Montana

For Appellee City of Hamilton:

William L. Crowley and Cynthia K. Thiel, Boone, Karlberg, P.C., Missoula,
Montana

Submitted on Briefs: September 12. 2007

Decided: March 12, 2008

Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Eleanor M. Prosser (Prosser), Richard H. White (White), and Lorraine Crotty (Crotty)

(collectively Neighbors) appeal from the order of the Twenty-First Judicial District, Ravalli

County, granting summary judgment to the City of Hamilton (City).

¶2 We review the following issues on appeal:

¶3 Do Hamilton City Ordinances § 17.116.010 and § 17.116.050 impose a “special

duty” on the City to protect residents in the vicinity of a proposed building modification?

¶4 Does a condition that the City places on a building modification permit impose a

“special duty” on the City when it is deciding whether to enforce that condition?

FACTUAL AND PROCEDURAL HISTORY

¶5 Vicki Kennedy, on behalf of Kennedy Enterprises, Inc. (collectively Kennedy)

purchased property in Hamilton at 1013 South First Street on March 1, 2000. The property

originally had been constructed as a Kentucky Fried Chicken restaurant and was zoned for

commercial uses. The property bordered residentially zoned property to the west, unzoned

property to the south and east, and commercially zoned property to the north. The Neighbors

all resided, at some time during this litigation, on the residentially zoned property

immediately to the west of Kennedy’s property.

¶6 Kennedy submitted Precise Plan of Design No. 2015 (the Plan) in April 2000 to the

City. Kennedy proposed to modify the property for the commercial uses of a casino and

lounge. The Hamilton City Zoning Board of Adjustment (Board) held a hearing regarding

the Plan on April 25, 2000. White and Crotty attended. White raised concerns regarding the

Plan, including car headlights shining into his windows. The Board considered White’s

comments, as well as other public comments, incorporated some of the comments into the
2
Plan, and then adopted the Plan through Office of Community Development Resolution 20-

14 (the Resolution). The Board included in the Resolution a condition stating that “[t]he

developer shall comply with all federal, state and local laws,” (the Condition). The City

subsequently issued Kennedy a temporary certificate of occupancy for the casino on January

1, 2001, followed by a permanent certificate of occupancy on April 30, 2002.

¶7 Neighbors allege that Kennedy’s casino became an unbearable nuisance immediately

after it opened for business. Neighbors complained of loud music, loud patrons, revving car

engines, fights, loud garbage dumping, and drug use, occurring on the Kennedy property at

all hours of the night. Neighbors contend that these disturbances unreasonably interfered

with the use and enjoyment of their property. Neighbors claim that they complained about

Kennedy’s casino to various City officials, including the City Council, the Police Chief, and

the Mayor. Neighbors allege, however, that they received no satisfactory resolution to their

complaints.

¶8 Neighbors filed this lawsuit against the City and Kennedy in district court on March 6,

2003. Neighbors brought tort claims for compensatory damages against the City, alleging,

among other things, that the Board had violated City ordinances when it approved the Plan,

that various City officials had failed to take legal action against Kennedy, and that various

City officials had failed to abate a nuisance at Kennedy’s casino. Neighbors also sought

compensatory and punitive damages against Kennedy for intentionally or recklessly

maintaining a nuisance, and asked the court to enjoin Kennedy from creating or continuing

the nuisance.

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¶9 The City filed a motion for summary judgment on May 30, 2003, with regard to all of

Neighbors’ claims against the City. The District Court held a hearing on August 13, 2003,

and granted summary judgment on September 27, 2005, in favor of the City on all claims.

The City filed an unopposed motion asking the court to certify the summary judgment order

as final pursuant to M. R. Civ. P. 54(b). The District Court granted the motion and entered

final judgment on October 27, 2005. The Neighbors timely appealed.

STANDARD OF REVIEW

¶10 We review de novo a district court’s decision to grant summary judgment, using the

same criteria applied by the district court under M. R. Civ. P. 56. GRB Farm v. Christman

Ranch, Inc., 2005 MT 59, ¶ 7, 326 Mont. 236, ¶ 7, 108 P.3d 507, ¶ 7. Summary judgment is

appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” M. R. Civ. P.

56(c). We draw all reasonable inferences in favor of the party opposing summary judgment.

Watkins Trust v. Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16, 92 P.3d 620, ¶ 16.

DISCUSSION

¶11 We address on appeal only those claims raised by Neighbors. Neighbors’ separate

action against Kennedy for compensatory and punitive damages, as well as injunctive relief,

remains pending in District Court. Nothing in our analysis here affects the validity of

Neighbors’ claims against Kennedy. Neighbors finally will be allowed to pursue these

claims once we have resolved their appeal against the City.

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¶12 Neighbors argue on appeal that the City breached two “special duties.” Neighbors

first claim that the City, acting through the Board, breached a “special duty” to protect the

Neighbors when it passed the Plan in violation of Hamilton City Ordinances. Neighbors also

claim that the City, acting through various City officials, breached a “special duty” owed to

Neighbors when it refused to abate the alleged nuisance. The District Court determined

pursuant to the public duty doctrine that neither the City, nor its officials, owed any “special

duty” to Neighbors when passing the Plan or when deciding whether to take actions to abate

the alleged nuisance. Neighbors admit the validity of the public duty doctrine, but argue that

they fall within the “special relationship” exception to that doctrine. The Neighbors assert

no other basis for imposing a duty on the City on appeal other than through the “special

relationship” exception to the public duty doctrine.

¶13 The Dissent labels the Court’s characterization of Neighbors’ position on appeal as

“patently untrue.” Second Dissent, ¶ 70. In truth, however, a review of the Neighbors’

briefs reveals that they raise four issues for review. In truth, nowhere in any of the four

issues raised do the Neighbors challenge the validity of the public duty doctrine. Neighbors

instead assert repeatedly that the District Court erred in not agreeing with their claims that a

“special relationship” existed between the City and Neighbors. The Court normally confines

its review to the issues actually presented on appeal. Regardless of what Neighbors may

have argued in the District Court, we must confine our review to the issues actually raised by

Neighbors on appeal. See e.g. In re P.D.L., 2004 MT 346, ¶ 14, 324 Mont. 327, ¶ 14, 102

P.3d 1225, ¶ 14. The Dissent nevertheless launches into an entirely gratuitous analysis of the

public duty doctrine with respect to sovereign immunity. Second Dissent, ¶¶ 72-75.
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Neighbors abandoned this argument on appeal and we need not address it. See e.g. Skinner

v. Allstate Ins. Co., 2005 MT 323, ¶ 9, 329 Mont. 511, ¶ 9, 127 P.3d 359, ¶ 9.

¶14 In a similar vein, the Dissent, entirely on its own accord, attempts to convert

Neighbors’ tort claims against the City into an action for inverse condemnation. Second

Dissent, ¶¶ 76-97. We normally decline to engage in this type of back-seat lawyering and

decline to do so now. See e.g. Elliot v. Montana Dept. of Revenue, 2006 MT 267, ¶ 15, 334

Mont. 195, ¶ 15, 146 P.3d 741, ¶ 15. The Dissent insists that Neighbors alleged and pursued

an inverse condemnation action. The Dissent contends in part that the City’s approval of the

Plan caused the Neighbors’ property to depreciate in value. Second Dissent, ¶¶ 92-97.

¶15 The Dissent’s argument founders on several factors. First, appellant Prosser

purchased her property in December of 2001, more than a year after the City had adopted the

Resolution on April 25, 2000. “[I]t is a general rule of the law of eminent domain that any

award goes to the owner at the time of the taking, and that the right to compensation is not

passed to a subsequent purchaser.” Palazzolo v. Rhode Island, 533 U.S. 606, 628, 121 S. Ct.

2448, 2463 (2001). This Court specifically has stated that a party cannot complain regarding

alleged diminution in value caused by a government action when she purchased the property

after the government action. Knight v. City of Billings, 197 Mont. 165, 176, 642 P.2d 141,

147 (1982); see also Johns v. Black Hills Power, Inc., 722 N.W.2d 554, 558 (S.D. 2006)

(applying subsequent purchaser doctrine).

¶16 The second defect arises from the fact that appellants White and Crotty do not own

their residence. They rent. Neighbors’ complaint alleges damage to the value of their

property or their real property, but it fails to specify whether White and Crotty are
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leaseholders in the property or merely tenants at will. White’s and Crotty’s landlord is not a

party to this action. As a general rule, a court will award a single amount for each property

taken by the government pursuant to an inverse condemnation and a lessee is barred as a

matter of law from bringing an inverse condemnation action against the condemning

authority for a separate valuation of and award for his leasehold interest. A lessee's remedy

lies in instituting an action against the lessor. Direct Mail Services, Inc. v. Best, 729 F.2d

672, 676 (10th Cir. 1984).

¶17 Moreover, a split of authority exits regarding whether a tenant at will can recover

damages in an inverse condemnation action. See Nichols on Eminent Domain vol. 2,

§ 5.02[6][i] (3d ed., Matthew Bender 2003) (“Tenants holding occupancy under conditions

less secure than a lease or month to month tenancy generally have no interest to recover

compensation for the taking of property.”); 29A C.J.S. Eminent Domain § 151 (2007)

("[T]he fact that the lease can be terminated on short notice must be considered in

determining the value of the tenant’s interest.”); 26 Am. Jur. 2d Eminent Domain § 232

(2001) ("[A] mere tenant at will . . . is generally not entitled to compensation for the taking

of his or her interest . . .”). These factors further militate against the need to pursue

unnecessarily the inverse condemnation analysis undertaken by the Dissent.

¶18 The public duty doctrine provides that where a municipality owes a duty to the

general public, that duty is not owed to any particular individual. Nelson v. Driscoll, 1999

MT 193, ¶ 21, 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21. The public duty doctrine derives

from the practical conclusion that a municipality would be mired hopelessly in civil lawsuits

if it were held responsible for every infraction of the law. Nelson, ¶ 21. The public duty
7
doctrine prevents individual members of the public from using tort liability to constrain

unduly a municipality’s discretion to use its limited resources to promote the general welfare.

Nelson, ¶ 21.

¶19 We have recognized, however, an exception to the public duty doctrine. A person

may be able to establish that the municipality owes that person a “special duty” that arises

out of a “special relationship” between the person and the municipality. Nelson, ¶ 22. A

person demonstrates a “special relationship” by establishing that (1) a particular statute was

intended to protect a specific class of persons, of which plaintiff is a member, from a

particular type of harm; (2) a government agent undertook specific action to protect the

plaintiff or the plaintiff’s property; (3) the plaintiff was reasonably induced to rely on

government action; or (4) under certain circumstances, a third party in custody of the

government caused harm to the plaintiff. Nelson, ¶ 22. We have held that where the facts

are undisputed the question of whether a “special relationship” exists is a question of law.

Nelson, ¶ 19.

ISSUE ONE

¶20 Do Hamilton City Ordinances § 17.116.010 and § 17.116.050 impose a “special

duty” on the City to protect residents in the vicinity of a proposed building modification?

¶21 Neighbors argue first that Hamilton City Ordinances § 17.116.010 and § 17.116.050

imposed a “special duty” on the City when it approved the Plan:

Section 17.116.010 Intent. Precise plan of design is established to provide
for orderly development of property to insure compatibility to the surrounding
existing and planned land uses.
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 Section 17.116.050 Rejection or Approval. If the proposed precise plan of
design would substantially depreciate property values in the vicinity or would
unreasonably interfere with the use or enjoyment of property in the vicinity by
the occupants thereof for lawful purposes or endanger the public peace, health,
safety or general welfare, such plan shall be rejected or shall be so modified or
conditioned before adoption as to remove the objections.

Neighbors assert that the City had a “special relationship” with Neighbors pursuant to the

first exception to the public duty doctrine because they fall within the specific class of

persons whom these ordinances are intended to protect from a particular type of harm.

¶22 We must determine whether the legislative body that passed these ordinances intended

them to benefit the general public, or, on the other hand, to protect a specific class of persons

from a particular type of harm. Nelson, ¶ 22. We interpret an ordinance by looking first to

its plain language. Small v. Board of Trustees, 2001 MT 181, ¶ 21, 306 Mont. 199, ¶ 21, 31

P.3d 358, ¶ 21. We will not determine legislative intent based upon the wording of any

particular section or sentence, however, but only from a consideration of the statute as a

whole. In re Marriage of McMichael, 2006 MT 237, ¶ 14, 333 Mont. 517, ¶ 14, 143 P.3d

439, ¶ 14. We interpret an ordinance to give effect to its purpose and to avoid absurd results.

In re McMichael, ¶ 14.

¶23 The ordinances at issue in this case are part of Title 17 of the City of Hamilton

Municipal Code of 1999 (Title 17). Title 17 is entitled “Zoning Ordinance of the City of

Hamilton.” Hamilton Mun. Code at § 17.04.010. Title 17 seeks to “regulate and promote

the orderly and harmonious development of the city and its environs . . . .” Hamilton Mun.

Code at § 17.04.020. Title 17 states that the “regulations and restrictions established in this

Title 17 have been made in accordance with a comprehensive master plan . . . .” Hamilton
9
Mun. Code at § 17.04.030. This master plan serves to (1) “Lessen congestion in the streets;”

(2) “Secure safety from fire, panic and other dangers;” (3) “Promote health and general

welfare;” (4) “Provide adequate light and air;” (5) “Prevent overcrowding of land;” (6)

“Avoid undue concentration of population;” and (7) “Facilitate adequate provisions for

transportation, water, sewage, schools, parks and public requirements.” Hamilton Mun.

Code at § 17.04.030 (emphasis added). These provisions indicate that the City intended Title

17 to benefit the general public, rather than a circumscribed class of persons.

¶24 The Dissent implies some sort of sinister motive in noting the fact that the Court

obtained the complete version of Title 17 of the Hamilton Municipal Code “from the City of

Hamilton in the course of writing the Opinion in this case.” Second Dissent, ¶ 62, fn.1. The

Dissent presumably also would be troubled by the prospect of the Court obtaining a complete

version of a statute contained in the Montana Code Annotated in the course of writing an

opinion. We are at a loss to understand the Dissent’s apparent concern with the Court

obtaining a complete version of the legislative enactment that the parties seek it to interpret

when the parties have failed to provide a complete version. Parties rarely, if ever, provide

the Court with a complete version of a title to the Montana Code Annotated when they seek

to have the Court interpret a section of that title. In fact, this situation occurs with such

frequency that the Court provides complete sets of the entire Montana Code Annotated to

each Justice on this Court.

¶25 Neighbors ignore the express purpose of Title 17 and focus instead on the mandatory

language in § 17.116.050. They argue that the language in § 17.116.050 protects a specific

class of persons from a particular type of harm. Neighbors point out that the language in §
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17.116.050 identifies “occupants” of nearby property as the class of persons to be protected.

Neighbors also point out that the ordinance identifies the “use or enjoyment” of the property

as the harm from which to protect the occupants. Hamilton Mun. Code at § 17.116.050.

¶26 Section 17.116.050’s requirement that the Board consider individual interests in

particular land use decisions does not change the fact that Title 17’s express purpose is to

promote the general welfare. Section 17.116.050 provides for the procedure by which the

City reviews proposed development plans in order to “provide for orderly development of

property to insure compatibility to the surrounding existing and planned land uses.”

Hamilton Mun. Code at § 17.116.010. We construe § 17.116.050 as one of the procedures

by which the City provides for “orderly development” of property to promote the general

welfare, not as an expression of the City’s intent to protect anyone who lives in the vicinity

of a permitted development from depreciation in property values or an “unreasonable

interference with the use and enjoyment of their property.”

¶27 Moreover, Neighbors’ interpretation of the Precise Plan of Design ordinances would

impose an overwhelming burden on the City with potentially adverse consequences. Almost

any proposed land development could lead to depreciation in property values or an

“unreasonable interference” with a neighbor’s use or enjoyment of property. The City would

be forced either to deny all but the most benign development plans or face innumerable

lawsuits. We do not think that the legislative body that passed these Precise Plan of Design

ordinances intended them to place such an undue constraint on the City’s discretion to

promote the general welfare. In re McMichael, ¶ 14. We conclude, as a matter of law, that

Hamilton City Ordinances § 17.116.010 and § 17.116.050 do not create a “special
11
relationship” between the City and the Neighbors. Thus, the City, pursuant to the public

duty doctrine, had no “special duty” to protect the Neighbors from any harm that might result

from the City’s adoption of the Plan.

¶28 The Dissents argue that the City intended Title 17 to benefit individual landowners

rather than the general public in light of the fact that § 17.116.050 protects “a specific class

of persons from a particular type of harm.” First Dissent, ¶ 53; Second Dissent, ¶ 63. We

determine the intent of a statute, however, by reading the statute as a whole. In re

McMichael, ¶ 14. We will not defeat the express purpose of Hamilton’s zoning regulation--

to promote the general welfare--by focusing on a single procedure within Title 17.

¶29 The Dissent implies that we often defeat governmental immunity by looking to a

specific provision within a larger statute. The Dissent cites State v. District Court, 246

Mont. 225, 805 P.2d 1272 (1990), and Newville v. State, Dept. of Family Services, 267 Mont.

237, 883 P.2d 793 (1994), for the proposition that procedures within a statute should be

construed as “a promise by a governmental entity to a class of persons ensuring something.”

First Dissent, ¶ 52. These cases address quasi-judicial immunity, however, not the public

duty doctrine.

¶30 We do not face here the question of whether the Board has quasi-judicial immunity

over decisions made pursuant to § 17.116.050. Here we face the question of whether the

City intended Title 17--as a whole--to benefit the public welfare, or, on the other hand, a

circumscribed class of persons. The express language in Title 17 indicates that the City

intended it to benefit the public as a whole, rather than a circumscribed class of persons.

Hamilton Mun. Code at §§ 17.04.020, 17.04.030. The Dissent’s forced march through this
12
Court’s public duty doctrine precedent fails to identify any support for its proposition that the

City of Hamilton intended Title 17 to benefit individual landowners to the detriment of the

general welfare. Both Dissents fail to provide any support for burdening a City’s land use

decision-making process with innumerable lawsuits.

¶31 Other jurisdictions have refused to find that land use regulations create a “special

relationship” between property landowners and the government. See e.g. Wolfe v. Bennett

PS & E, Inc., 974 P.2d 355, 359 (Wash. App. Div. II 1999) (stating that “[g]overnments

enact building codes, zoning ordinances, and other land use regulations to protect the health

and welfare of the general public,” and citing Taylor v. Stevens County, 759 P.2d 447, 450

(Wash. 1988) (holding that “the duty to issue building permits and conduct inspections is to

protect the health and safety of the general public.”)); Derwort v. Polk County, 501 S.E.2d

379, 381 (N.C. App. 1998) (holding that the “plain language of the statute and our case law

thus indicate that subdivision control is a duty owed to the general public, not a specific

individual.”); Myers v. Moore Engineering, Inc., 42 F.3d 452, 455 (8th Cir. 1994) (noting

that under Minnesota and South Dakota state law “‘[b]uilding codes, the issuance of building

permits, and building inspections are . . . designed to protect the public and are not meant to

be an insurance policy by which the municipality guarantees that each building is built in

compliance with the building codes and zoning codes.’” (citations omitted)).

ISSUE TWO

¶32 Does a condition that the City places on a building modification permit impose a

“special duty” on the City when it is deciding whether to enforce that condition?

13
¶33 Neighbors allege next that they had a “special relationship” with the City pursuant to

the second exception to the public duty doctrine in light of the fact that the City undertook

“specific action” to protect the Neighbors and their property. Neighbors point out that the

Board added the Condition in the Resolution that Kennedy “shall comply with all federal,

state and local laws.” Neighbors argue that when the City added this condition, “the City

took specific action for the protection of [Neighbors], which established a ‘special

relationship’ between the City and [Neighbors] . . . .” Neighbors also argue on appeal that

“[t]he City Administrator, the City Attorney and the Chief of Police all took specific action

on behalf of the [Neighbors] by contacting [Kennedy] on behalf of the [Neighbors] to request

that [Kennedy] control the loud music.”

¶34 Neighbors failed to argue in the District Court, however, that they had a “special

relationship” with the City based on the fact that the City undertook a “specific action” to

protect the Neighbors or their property. Neighbors also failed to characterize the Condition

as a “specific action” that the City undertook to protect the Neighbors or their property.

Neighbors mentioned the Condition only when arguing that “the City refused to enforce” the

Condition.

¶35 Neighbors similarly failed to allege to the District Court that the City Administrator,

the City Attorney, or the Chief of Police undertook “specific action” pursuant to the second

exception to the public duty doctrine. We are not surprised that the City and the District

Court also failed to address the “specific action” exception as the Neighbors premised their

complaint and briefs on summary judgment on the fact that the City had failed to take action,

not on the fact that the City had taken “specific action” to protect the Neighbors or their
14
property. We will not consider arguments on appeal that the District Court did not have an

opportunity to consider below. Cassady v. Yellowstone County Sheriff, 2006 MT 217, ¶ 23,

333 Mont. 371, ¶ 23, 143 P.3d 148, ¶ 23.

¶36 Neighbors allege next, pursuant to the third exception to the public duty doctrine, that

they were “reasonably induced to rely upon the City to enforce the [C]ondition and to require

[Kennedy] to obey all applicable laws which were reasonably necessary to protect the

[Neighbors’] interests and property.” To establish a “special relationship” under the third

exception to the public duty doctrine, the Neighbors must show (1) that there has been direct

contact between the public official and the plaintiff; (2) that the official has provided express

assurances in response to the plaintiff’s specific inquiry; and (3) that the plaintiff justifiably

relied on the representations of the official. E.g. Moore v. Wayman, 934 P.2d 707, 711-12

(Wash. App. Div. II 1997); see also Castellani v. Delaware State Police, 751 A.2d 934, 938

(Del. Super. 1999); see generally 57 Am. Jur. 2d Municipal, County, School and State Tort

Liability § 86 (2001). We have held that “reliance occurs when one is ‘rightfully led to a

course of conduct or action on the faith that the act or duty will be properly performed.’”

Orr v. State, 2004 MT 354, ¶ 46, 324 Mont. 391, ¶ 46, 106 P.3d 100, ¶ 46 (citing Nelson v.

Driscoll, 1999 MT 193, ¶ 36, 295 Mont. 33, ¶ 36, 983 P.2d 972, ¶ 36).

¶37 Neighbors argue that they “relied upon the City to their detriment, because the City

refused to enforce the Condition or to enforce the applicable laws.” Neighbors’ alleged state

of mind, standing alone, proves insufficient to establish “justifiable reliance.” Neighbors

must point us to evidence showing that the Neighbors undertook some action, or refrained

from some action, in reliance on the City’s alleged promises to enforce the Condition.
15
¶38 We held in Orr, for example, that a group of mine employees had met the “justifiable

reliance” exception to the public duty doctrine. Orr, ¶ 46. The employees had been

concerned that ambient dust in the mine might contain asbestos. Orr, ¶¶ 4, 46. The

employees contended that they had concluded, however, that the dust did not pose any health

risks based on the fact that the State had “regularly inspected the [m]ine, but had never

reported any danger to the [m]iners.” Orr, ¶ 46. We held that the State had a “special

relationship” with the employees under the third exception to the public duty doctrine

because the State’s inspections had “rightfully led” the employees to believe that it was safe

for the miners to continue working in the mine. Orr, ¶¶ 46-47.

¶39 Neighbors, unlike the employees in Orr, do not allege that the City “rightfully led”

the Neighbors to start, stop, or continue taking any particular course of action. Neighbors

instead focus on the City’s course of conduct not to enforce the Condition. Neighbors fail to

recognize that though the City’s subsequent failure to abide by its alleged promise to enforce

the Condition in the Resolution may be relevant to the question of whether the City breached

a “special duty,” it has no relevance to the question of whether the City had a “special duty”

in the first place. Orr, ¶ 46.

¶40 Moreover, Neighbors have contradicted their own claims that the City assured them of

action by admitting in discovery that “[n]ot once did we ever receive assurance or even a

response, from the City, that our complaints and our suffering were priorities, or even

problems they intended to solve some day.” Neighbors respond that this discovery answer

referred only to the City Council.

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¶41 Neighbors argue in the alternative that various City officials, other than the City

Council, did give them specific assurances. For example, Neighbors allege that the City

Attorney wrote a letter to Kennedy on December 12, 2001, that warned Kennedy to

“immediately reduce and regulate the loudness of the music and other noise emanating from

your business.” Neighbors point to two legal memoranda that the City Attorney forwarded

to the City Administrator that “address[ed] some of the issues that have been raised

regarding nuisance complaints by some of the area residents.” Neighbors also cite to a

handwritten note that the Mayor wrote to the Neighbors where the Mayor stated that he had

reviewed a video of the disturbances at Kennedy’s casino, and that the Mayor would notify

the Neighbors if he needed to meet with them. Neighbors finally point to several entries in

the Neighbors’ “diary” of the events in this case where they indicate they had meetings with

various City officials. Neighbors fail to point to any language in these documents, however,

where a City official expressly promised the Neighbors that that official would enforce any

particular law or condition.

¶42 We determine that the City has established that no genuine issue of material fact

exists with respect to whether the City and the Neighbors had a “special relationship”

pursuant to the public duty doctrine. We conclude as a matter of law that the City owed no

“special duty” to the Neighbors, thus, we decline to address the Neighbors’ remaining claims

on breach, causation, and damages.

¶43 We do not doubt or minimize the disruption to the lives of the Neighbors allegedly

caused by Kennedy’s operation of the casino. The videotapes contained in the record

demonstrate repeated and continuous disruptions in the form of loud music, revving car
17
engines, fights, and arguments into the wee hours of the morning. We hold only that the

Neighbors must seek redress for these claimed injuries against Kennedy, whose operation of

the casino has caused these alleged harms. Affirmed.

/S/ BRIAN MORRIS

We Concur:

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

Justice W. William Leaphart dissenting.

¶44 I dissent.

¶45 I conclude that based on the special relationship exception, the public duty doctrine

does not apply and the City owed a duty to Neighbors. At the time of the incidents giving

rise to this lawsuit, Prosser, White, and Crotty were indeed very close neighbors to the

Kennedy property. Prosser’s residence sat about thirty inches from the Kennedy property,

and only fifteen feet from the casino itself. Crotty and White’s residence sat fifteen feet from

the Kennedy property, and about thirty feet from the casino. A wooden fence separated the

Neighbors’ properties from the Kennedy property. The Kennedy property was zoned as

commercial property, as was the property to the north, which was used as a bank. The

properties to the south and east of the Kennedy property were unzoned; however, at the time

18
Kennedy submitted the Precise Plan of Development, the unzoned properties were used as

residential properties. Neighbors’ properties were zoned as residential property. When

Kennedy submitted Precise Plan of Development No. 2015 to the City of Hamilton, zoning

board staff mailed notices to all property owners and commercial tenants within 300 feet of

the Kennedy property. The notice of proposed use was also published in the local paper and

posted at the city hall.

¶46 The majority dismisses the case under the public duty doctrine, but fails to discuss

public duty doctrine cases. As stated above, a recognized exception to public duty doctrine

immunity arises when a special relationship exists or is created between the victim and the

governmental officer. Massee v. Thompson, 2004 MT 121, ¶¶ 41-42, 321 Mont. 210, ¶¶ 41-

42, 90 P.3d 394, ¶¶ 41-42. “[A] special relationship gives rise to a special duty” in any one

of four circumstances, the first of which is “by a statute intended to protect a specific class of

persons from a particular type of harm.” Massee, ¶ 42. In determining whether a special

relationship is established pursuant to statute, this Court looks to the relevant statute. See

Orr v. State, 2004 MT 354, ¶ 47, 324 Mont. 391, ¶ 47, 106 P.3d 100, ¶ 47; Massee, ¶¶ 34-39;

Eklund v. Trost, 2006 MT 333, ¶ 36, 335 Mont. 112, ¶ 36, 151 P.3d 870, ¶ 36.

¶47 In Orr, we determined that a special relationship was created between the State and

vermiculite miners by statutes which were “designed to protect men and women working in

the various industries in Montana from occupational disease.” Orr, ¶ 44. Although the

statutes did not specifically reference miners, miners were members of that specific class of

persons. Orr, ¶ 44. Thus, the State had a special duty to protect the health and safety of

miners from known dangers in their workplace. Orr, ¶ 47. This Court concluded that,
19
because a special relationship existed between the State and the miners, the State was “not

shielded by the application of the Public Duty Doctrine.” Orr, ¶ 47.

¶48 In Massee, the statutes at issue provided that law enforcement officers were to provide

domestic violence victims with a notice of the availability of shelters and any legal rights and

remedies such victims may have. Massee, ¶ 34. These statutes were enacted to prevent

serious injury or death as a result of domestic violence. Massee, ¶ 43. The victim in Massee

died as a result of domestic violence. Massee, ¶ 43. Thus, the officer had a special duty to

the deceased victim as a member of that protected class, and the public duty doctrine did not

apply. Massee, ¶¶ 43-44.

¶49 Recently we determined that a statute requiring drivers of police vehicles to proceed

with due regard for the safety of all persons created a special class of protected persons. In

Eklund, a youth escaped from a detention center, stole a vehicle, and led law enforcement on

a high speed chase. Eklund, ¶¶ 10-15. The chase continued into town where the youth lost

control of his vehicle and struck Eklund. Eklund, ¶ 17. The statute mandated that officers,

while driving in an emergency or high speed situation, still had a “duty to drive with due

regard for the safety of all persons.” Eklund, ¶ 36 (quoting § 61-8-107, MCA (2003)). We

held that the statute created a special class of persons encompassing those who, by use of

streets and highways, are potential victims of high speed chases. Eklund, ¶ 39. Law

enforcement owed a duty to drive with due regard to this class of persons, and thus, the

public duty doctrine did not apply. Eklund, ¶ 39.

¶50 Like the statutes giving rise to a duty to mine workers in Orr, the domestic violence

victims in Massee, and people using the streets in Eklund, the ordinances in this case create a
20
duty to a special class of persons. The ordinances at issue in this case, those providing that a

precise plan of design must be submitted to the zoning board, are for the purpose of

“insur[ing] compatibility to the surrounding existing and planned uses.” Hamilton Mun.

Code (Mont.) § 17.116.010 (2003) (emphasis added). In cases where a proposed use would

not be compatible to the surrounding existing uses, the ordinances instruct the zoning board

as follows:

If the proposed plan of design would substantially depreciate property
values in the vicinity or would unreasonably interfere with the use or
enjoyment of property in the vicinity by the occupants thereof for lawful
purposes . . . such plan shall be rejected or shall be so modified or
conditioned before adoption as to remove the objections.

Hamilton Mun. Code at § 17.116.050 (emphasis added). These ordinances are clearly

intended to protect occupants in the vicinity of the property that is the subject of the

proposed plan of design from incompatible uses. Neighbors were occupants in the

vicinity of the Kennedy property. The zoning board recognized this class of persons

existed when it specifically mailed notice to every property owner and commercial tenant

within 300 feet of the Kennedy property, in contrast to the posted and published notices

provided to the general public. In enacting these ordinances, the City recognized that

incompatible uses in the same vicinity could depreciate property values and interfere with

the occupants’ use and enjoyment of their property. Thus, the City had a duty to protect

Neighbors from such harm.

¶51 The ordinance then mandates that when plans are submitted that could result in the

harm anticipated, the City must modify or reject the plan. Hamilton Mun. Code at

§ 17.116.050. Here, existing land use on three sides of the Kennedy property was
21
residential. To the north, the land was commercial, but was currently used as a bank. A

lounge is not like a bank that closes its doors in the early evening. It stays open into the

early morning hours. Lounges often play music to entertain their patrons. Patrons consume

alcohol in a lounge. Alcohol impairs judgment and is known to lead to fighting and other

rowdy and loud behavior, which directly impacts the surrounding area. Given the high

potential for incompatibility, the City owed a duty to Neighbors to modify or condition the

plan to correct such conflicts or reject it entirely. The City contends that it fulfilled its duty

by conditioning the plan, requiring the casino to limit all activities to the interior of the

building. By imposing this condition, the zoning board foresaw the problems that inebriated,

unruly patrons could cause in a residential area. However, this condition was clearly not

enough to ameliorate the concern.

¶52 The majority interprets the ordinance to be a mere “procedure” for property

development rather than an expression of the City’s intent to protect residents who live in the

vicinity. I submit that the procedure is designed to ensure compatibility to the surrounding

area. Hamilton Mun. Code at § 17.116.010. Procedures created by statute are often, in

essence, a promise by a governmental entity to a class of persons ensuring something. In

State v. District Court, 246 Mont. 225, 232, 805 P.2d 1272, 1277 (1990), we held that

statutes required the Workers’ Compensation Division to undertake a review process before

granting an employer self-insured status. This process is designed to protect a specific class

of persons (employees of such businesses) from a particular type of harm—that is, injury

while working for an employer without the financial resources necessary to provide benefits.

In Newville v. State, Dept. of Family Services, 267 Mont. 237, 269, 883 P.2d 793, 812
22
(1994), we held that the Department of Family Services is required to license and train foster

care providers and to investigate adoptive homes. This licensing process is designed to

protect a specific class of persons (foster and adoptive children) from a particular type of

harm—placement in an unsafe home. See § 41-3-101, MCA. Although State v. District

Court and Newville do not discuss the public duty doctrine, they provide examples where the

government, without question, owed a duty to a specific class of persons.

¶53 Like the above statutory schemes, the ordinance in question is designed to protect a

specific class of persons, those in the vicinity, from a particular type of harm—that is,

property devaluation and/or interference with enjoyment of use from incompatible uses.

¶54 The cases the majority references for the purpose of demonstrating that other

jurisdictions refuse to find that land use regulations create a special relationship between

landowners and the government are distinguishable based on the statutes at issue. In Wolfe,

the statute at issue was a regulation within the building code that provided that an application

would expire if not acted upon within a certain number of days. Wolfe v. Bennett PS & E,

Inc., 974 P.2d 355, 359 (Wash. App. 1999). It did not purport to protect a certain class of

persons, nor did it specify any particular type of harm it was meant to prevent.

¶55 In Taylor, the statute at issue stated that building permits would not be issued to “any

applicant or person who fails to provide sufficient evidence of compliance with all laws and

regulations relating to the use of land and the construction or improvements of structures

thereon.” Taylor v. Stevens County, 759 P.2d 447, 449 (Wash. 1988). The statute does not

specify a particular type of harm it is meant to prevent, or any specific class of persons it is

meant to benefit. The plaintiffs in Taylor argued that the purpose of the code provisions was
23
to “promote the health, safety and welfare of the occupants or users of buildings and

structures and the general public.” Taylor, 759 P.2d at 450 (italics in original). The court in

Taylor recognized the statute’s broad purpose of protecting the public, and distinguished it

from a more specific statute with the particular purpose of identifying “conditions and

circumstances [which] are dangerous and a menace to the health, safety, morals or welfare of

the occupants of such buildings and of the public . . . .” Taylor, 759 P.2d at 450 (italics in

original) (citing Halvorson v. Dahl, 574 P.2d 1190, 1192-93 n.1 (Wash. 1978)). In the

Halvorson case where the more specific statute was at issue, the court determined there was

a clear intent to protect occupants of substandard housing despite the “traditional rule that a

local government is under no duty, ascertainable in tort, to ensure compliance with its

building code.” Taylor, 759 P.2d at 450 (citing Halvorson, 574 P.2d at 1192). The statute

was “enacted for the benefit of a specifically identified group of persons as well as, and in

addition to, the general public.” Halvorson, 574 P.2d at 1193.

¶56 Finally, in Derwort v. Polk County, 501 S.E.2d 379, 381 (N.C. App. 1998), the

subdivision planning statutes at issue referred only to the general welfare, to citizens, and to

the public. The statutes did not contain language expressing an intent to protect a specific

class from a specific type of harm. Similarly in Myers v. Moore Engineering, Inc., 42 F.3d

452, 456 (8th Cir. 1994), the plaintiffs argued the city negligently issued a building permit,

and that the public duty doctrine should not apply because a special relationship existed. The

Myers plaintiffs, however, failed to point to any particular statute or code provision that

would establish a special relationship. Myers, 42 F.3d at 456.

24
¶57 These cases can be further distinguished because, other than in Halvorson, 574 P.2d at

1192-93, the courts applied a different test to determine whether a special relationship

existed. Rather than recognizing that statutes can give rise to a special relationship if they

are designed to protect a special class of persons from a particular type of harm, the State of

Washington stated that a special relationship is created when:

(1) there is direct contact or privity between the public official and the injured
plaintiff which sets the latter apart from the general public, and (2) there are
express assurances given by a public official, which (3) gives rise to justifiable
reliance on the part of the plaintiff.

Taylor, 759 P.2d at 451 (citations omitted); Wolfe, 974 P.2d at 359 (citations omitted). North

Carolina’s and North Dakota’s test for determining whether a special relationship is created

is similar to Washington’s and does not address the question of whether a special

relationship is created by a specific statute. Derwort, 501 S.E.2d at 382 (citations omitted);

Myers, 42 F.3d at 456-57.

¶58 Like in Halvorson, the City of Hamilton, by including such specific language in the

ordinances, expressed a clear intent to protect occupants in the vicinity of a proposed plan of

development from a particular type of harm when the proposed plan is not compatible with

the surrounding uses. This Court recognizes, where other jurisdictions have not, that statutes

can create special relationships.

¶59 In the present case, given the specificity of the ordinance and the resulting special

relationship between the City and those occupying the property in the vicinity of the

proposed use, the public duty doctrine does not apply. I conclude that the City owed a duty

of care to Neighbors and would reverse on that basis.

25
 /S/ W. WILLIAM LEAPHART

Justice Patricia Cotter joins the dissenting opinion of Justice Leaphart.

/S/ PATRICIA COTTER

Justice James C. Nelson, dissenting.

¶60 I join Justice Leaphart’s dissent. I write separately to address three additional facets

of this case.

I

¶61 First, the fallacy of the Court’s resolution of Issue One is apparent from its application

of selected Hamilton City Ordinances to the exclusion of others. As Justice Leaphart ably

demonstrates, §§ 17.116.010 and 17.116.050 are clearly intended to protect a specific class

of persons—occupants in the vicinity of a proposed precise plan of design—from a particular

type of harm—substantial property devaluation and/or unreasonable interference with the use

or enjoyment of their properties. That the City intended to protect the Neighbors and their

properties is evident not only from the plain language of these ordinances, but also from the

fact that the zoning board mailed notices to all property owners and commercial tenants

within 300 feet of the Kennedy property. On the facts presented here and the unambiguous

language of §§ 17.116.010 and 17.116.050, the special relationship exception to the public

duty doctrine clearly applies.

¶62 To avoid what is plain on the face of §§ 17.116.010 and 17.116.050, however, the

Court goes outside the record in this case, citing §§ 17.04.020 and 17.04.030 for the
26
proposition that the general purpose of Title 17 of the Hamilton City Code is “to promote the

general welfare.”1 Opinion, ¶¶ 23, 26. The Court goes so far as to criticize the Neighbors

for focusing on the mandatory language of § 17.116.050. Opinion, ¶ 25. Yet, nothing in our

caselaw—and the Court cites no Montana authority to support its approach—requires us to

look at the general purpose of a collection of statutes to the exclusion of the specific purpose

of the particular statute(s) at issue. In Massee v. Thompson, 2004 MT 121, 321 Mont. 210,

90 P.3d 394, for instance, the statutes at issue were §§ 46-6-311, -602, and -603, MCA.

Rather than analyzing the purpose of Title 46 (which governs criminal procedure), we

analyzed the purpose of these three particular statutes. See Massee, ¶¶ 34-39, 43. Likewise,

in Eklund v. Trost, 2006 MT 333, 335 Mont. 112, 151 P.3d 870, we analyzed the purpose of

1
Neither the Neighbors nor the City cites § 17.04.020 or § 17.04.030. Indeed, neither
of these ordinances is part of the record before this Court. Rather, the Court obtained copies
of these provisions from the City of Hamilton in the course of writing the Opinion in this
case. I do not suggest that the Court had “some sort of sinister motive” in doing so. See
Opinion, ¶ 24. I am simply pointing out that rather than interpret the actual ordinances that
the parties have asked us to interpret, the Court instead has obtained copies of ordinances
that the parties did not ask us to interpret and then interpreted those. The Court justifies
these actions on the ground that “[p]arties rarely, if ever, provide the Court with a complete
version of a title to the Montana Code Annotated when they seek to have the Court interpret
a section of that title.” Opinion, ¶ 24. But that is precisely my point: The parties here
sought to have this Court interpret two sections of Title 17; thus, there was no need for them
to provide or for us to obtain a complete version of Title 17. The Court never explains why,
under these circumstances, it was necessary to obtain a complete version of Title 17. Nor
does the Court explain why, when the parties here sought to have this Court interpret
§§ 17.116.010 and 17.116.050, the Court instead decided to interpret §§ 17.04.020 and
17.04.030. As for the Court’s suggestion that it is appropriate to “obtain[] a complete
version of the legislative enactment that the parties seek it to interpret when the parties have
failed to provide a complete version,” Opinion, ¶ 24, I do not dispute this point. But again,
the parties here have provided “a complete version” of the legislative enactments that they
seek us to interpret—namely, §§ 17.116.010 and 17.116.050. They have not asked us to
interpret the entirety of Title 17; thus, there was no need for them to provide it or for the
Court to obtain it.
27
the particular statute at issue, namely, § 61-8-107, MCA. See Eklund, ¶¶ 35-39. We did not

resort to the general purpose of Title 61 (which governs motor vehicles).

¶63 In the case at hand, by contrast, the Court ignores the express purpose of

§§ 17.116.010 and 17.116.050, resorting instead to the general purpose of Title 17. Yet,

while a statutory scheme may serve a general purpose of promoting the general welfare, this

does not mean that particular statutes contained within that scheme are not intended to

protect a specific class of persons from a particular type of harm. The Court’s contrary

approach is pure sophistry. Under the Court’s reasoning, the public duty doctrine should

have applied in both Massee and Eklund, since Titles 46 and 61, MCA, could reasonably be

characterized as “promoting the general welfare.” Indeed, the rather sweeping purpose of

“promoting the general welfare” could apply to just about every title in the Code. Moreover,

there is no reason to believe that laws which protect specific classes of persons from

particular types of harm do not ultimately promote the general welfare.

¶64 Again, there is no authority supporting the Court’s fixation on the general purpose of

Title 17 to the exclusion of the specific purpose of §§ 17.116.010 and 17.116.050. The

Court states that “[w]e interpret an ordinance by looking first to its plain language.”

Opinion, ¶ 22. Yet, the Court completely ignores the plain language of §§ 17.116.010 and

17.116.050, preferring instead to focus on select language in §§ 17.04.020 and 17.04.030.

The Court states that “[w]e interpret an ordinance to give effect to its purpose and to avoid

absurd results.” Opinion, ¶ 22. Yet, the Court completely ignores the express purpose of

§§ 17.116.010 and 17.116.050, which is to protect occupants in the vicinity of a proposed

precise plan of design from substantial property devaluation and/or unreasonable interference
28
with the use or enjoyment of their properties. Moreover, in so doing, the Court reaches the

absurd result that these two ordinances do not protect anyone. See Nelson v. Driscoll, 1999

MT 193, ¶ 21, 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21 (“[A] duty owed to all is a duty owed

to none.” (internal quotation marks omitted)).

¶65 The Court also states that “[w]e will not determine legislative intent based upon the

wording of any particular section or sentence, however, but only from a consideration of the

statute as a whole.” Opinion, ¶ 22 (emphasis added). Yet, again, the Court does not

consider §§ 17.116.010 and 17.116.050 as a whole, or even at all. Rather, the Court purports

to consider Title 17 as a whole and then selects two particular ordinances—§§ 17.04.020 and

17.04.030—as controlling over all the others.

¶66 Moreover, the Court ignores the well-established rule of construction that specific

provisions prevail over general provisions. See Oster v. Valley County, 2006 MT 180, ¶ 17,

333 Mont. 76, ¶ 17, 140 P.3d 1079, ¶ 17 (“[M]ore specific statutes prevail over general

provisions of law.”); Taylor v. Dept. of Fish, Wildlife & Parks, 205 Mont. 85, 91, 666 P.2d

1228, 1231 (1983) (“We recognize the rule of statutory construction which provides that

special statutes will prevail over general statutes.”); see also § 1-2-102, MCA (“[A]

particular intent . . . control[s] a general one that is inconsistent with it.”). Here,

§ 17.116.010 states that the intent of the precise plan of design is “to provide for orderly

development of property to insure compatibility to the surrounding existing . . . uses”

(emphasis added). The specific language of § 17.116.050, states that a proposed precise plan

of design “shall” be rejected, modified, or conditioned if such plan “would substantially

depreciate property values in the vicinity or would unreasonably interfere with the use or
29
enjoyment of property in the vicinity by the occupants thereof for lawful purposes”

(emphases added). The word “shall” is defined as “mandatory.” Hamilton City Ordinance

§ 17.04.040(B)(3). The import of these provisions—to protect occupants in the vicinity of a

proposed precise plan of design from substantial property devaluation and/or unreasonable

interference with the use or enjoyment of their properties—prevails over any general intent

to promote the general welfare. Oster, ¶ 17; Taylor, 205 Mont. at 91, 666 P.2d at 1231.

¶67 Furthermore, it is not necessarily true that the specific intent of protecting occupants

in the vicinity of a proposed precise plan of design is inconsistent with the general intent of

promoting the general welfare. The Court opines that these two goals cannot exist in

harmony, i.e., that a benefit to individual landowners would be “to the detriment of the

general welfare.” Opinion, ¶ 30. The Court conjectures that “potentially adverse

consequences” to the City, such as “innumerable lawsuits,” would result under the

Neighbors’ interpretation of the ordinances. Opinion, ¶ 27. However, there is nothing in the

record to support the parade of horribles feared by the Court. Nor has the Court cited any

legal authority for the proposition that the general welfare must suffer whenever a

municipality owes a duty to protect occupants in the vicinity of a proposed plan of

development from substantial property devaluation and/or unreasonable interference with the

use or enjoyment of their properties. Indeed, it is equally—if not more—plausible that such

a duty would benefit the general welfare, not be to its detriment.

¶68 In sum, the Court substitutes what i t would have intended when enacting

§§ 17.116.010 and 17.116.050 in place of the actual intent expressed by these ordinances.

As support for its view, the Court erroneously elevates the broadly-stated, general purpose of
30
“promoting the general welfare” over §§ 17.116.010 and 17.116.050’s specific purpose of

protecting occupants in the vicinity of a proposed precise plan of design from substantial

property devaluation and/or unreasonable interference with the use or enjoyment of their

properties. In so doing, the Court effectively renders the first special-relationship exception

to the public duty doctrine (see Nelson, ¶ 22) a nullity.

¶69 For the reasons set forth above and in Justice Leaphart’s dissent, I conclude that the

special relationship exception to the public duty doctrine applies here and that the City owed

the Neighbors a duty of care—though this will be small consolation to the Neighbors, who

have been condemned by the City and its officials to endure the apparently unregulated

hellish conditions created by Kennedy’s Tavern & Casino.2

II

¶70 Wholly aside from the special relationship exception, the public duty doctrine does

not apply here for a second reason. The Court asserts that the Neighbors “admit the validity

of the public duty doctrine.” Opinion, ¶ 12. This is patently untrue. Nowhere in their briefs

do the Neighbors “admit” the validity of the public duty doctrine.

2
As alleged by the Neighbors, those conditions include the following: the Casino’s
remaining open past 2:00 a.m.; excessively loud music late at night; excessive noise when
dumping bottles and refuse in the early morning hours between 4:30 and 6:00 a.m.; creation
of a possible fire hazard to the Neighbors’ homes by stacking cardboard boxes next to the
wooden fence separating the Neighbors’ properties from the Casino property; patrons yelling
and talking loudly and using vulgar and profane language in the Casino’s parking lot late at
night; quarreling and fighting in the parking lot; use of drugs and consumption of alcoholic
beverages and food outside the Casino; revving and excessive idling of vehicle engines in the
parking lot; and patrons urinating in the Neighbors’ yards.
31
¶71 As a matter of fact, in the course of this litigation, the Neighbors challenged the

doctrine’s constitutionality. At the hearing on the City’s motion for summary judgment, the

Neighbors argued as follows:

Now, with respect to this well-repeated doctrine of the Public Duty
Doctrine, in the State of Montana we have a constitutional provision which
says that cities will be liable for suit for injury to person or property, except as
may be specifically provided by law by a two-thirds vote of each house of the
legislature. In other words, the liability of public entities, the state, county,
cities and towns, and others, are governed by statute. Now, we have those
statutes. The statutes are set forth in Title 7, which covers specifically local
government, and it treats the subject of immunity in section MCA Section 7-1-
4125, which merely repeats the constitutional provision in the record. In
wording it says, “As provided in Article II, Section 18, of the Montana
Constitution, a municipality has no immunity from suit for injury to a person
or property, except as may be specifically provided by law by a two-thirds
vote of each house of the legislature.”
There have been enacted by law certain limitations on liability.
Specifically, in Section 2-9-102, it set a -- said, “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” again, as provided by statute.
....
Now, the City argues that the common law doctrine of Public Duty
Doctrine applies. If it were to apply, it must be enacted by statute. There is no
statute, and I beg of them to show me a statute which says that the common
law doctrine of Public Duty Doctrine shall apply to municipalities in the State
of Montana. No such statute exists. And that doctrine is a common law
doctrine. It cannot apply. MCA 1-1-108 says, “In this state there is no
common law in any case where the law is declared by statute.”
As to liability of municipalities in this state, it is declared by statute.
And specifically, the whole Title 7 sets forth the responsibilities and liabilities
of municipalities. We therefore believe that this Court must rule, as a matter
of law, that the Public Duty Doctrine does not apply to municipalities in the
State of Montana.

¶72 The Neighbors’ argument has merit, and it calls into doubt the premise underlying the

whole of the Court’s analysis, namely, that the public duty doctrine survived the enactment

of Article II, Section 18 of the 1972 Montana Constitution. That provision states: “The
32
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.” Mont. Const. art. II, § 18. Thus,

governmental immunity from tort exists in this State only as provided by statutes enacted

pursuant to a two-thirds vote of both houses. See Whiting v. State, 248 Mont. 207, 221-22,

810 P.2d 1177, 1186 (1991). Moreover, any common law doctrine of governmental tort

immunity is no longer available. Mont. Const. art. II, § 18; § 1-1-108, MCA (“In this state

there is no common law in any case where the law is declared by statute.”).

¶73 As to the public duty doctrine vis-à-vis governmental immunity from tort, the District

Court observed in its Opinion & Order as follows:

“The public duty rule is not technically grounded in government immunity,
though it achieves much the same results. Unlike immunity, which protects a
municipality from liability for breach of an otherwise enforceable duty to the
plaintiff, the public duty rule asks whether there was [any] enforceable duty to
the plaintiff in the first place.” [Quoting Eugene McQuillin, The Law of
Municipal Corporations vol. 18, § 53.04.25, at 197-98 (3d ed., West 2003).]

Indeed, at bottom, both governmental tort immunity and the public duty doctrine preclude a

plaintiff from obtaining just compensation for injuries perpetrated by a negligent

governmental actor. Yet, the public duty doctrine has not been codified in this State by a

two-thirds vote of both houses of the Legislature. Rather, the doctrine is a nineteenth-

century holdover from the common law—a judicially-created shield insulating governmental

entities from liability for negligence and misfeasance. See generally Massee, ¶¶ 79-85

(Nelson, J., specially concurring and dissenting). Thus, by effectively providing

governmental immunity from tort in the absence of an explicit legislative grant of such

33
immunity, the doctrine serves as an end-around the fundamental right of individuals to sue

local governmental entities for injury to person or property—a right that is supposed to be

subject to only one exception: laws enacted by a two-thirds vote of both houses of the

Legislature.

¶74 The delegates to the 1972 Constitutional Convention unequivocally rejected

governmental tort immunity. As reported by the Bill of Rights Committee, the notion of

barring tort suits against the State for negligent acts by its officials and employees is

“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.” Montana Constitutional Convention, Comments on the Bill of Rights Committee

Proposal, February 22, 1972, p. 637. During the deliberations on the proposed language of

Article II, Section 18, Delegate Wade J. Dahood, Chairman of the Bill of Rights Committee,

explained:

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.
So that way, we reduce public dissatisfaction with the administration of justice
and make sure that every citizen of Montana has the full right to which he’s
entitled. 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.

Montana Constitutional Convention, Verbatim Transcript, March 8, 1972, p. 1764.

¶75 The public duty doctrine frustrates the will of the people as expressed in Article II,

Section 18, and this Court errs in perpetuating the doctrine’s existence 36 years after the

adoption of the Constitution. It is long past time that we consign this antiquated doctrine to

the dustbin of history, where it belongs.
34
 III

¶76 Lastly, the Neighbors’ allegations and arguments raise the question of whether the

City’s acts and omissions with respect to the Neighbors’ properties amount to inverse

condemnation—a claim that the City cannot avoid by invoking the public duty doctrine.3

¶77 The Fifth Amendment to the United States Constitution states that “private property

[shall not] be taken for public use, without just compensation.” This guarantee “was

designed to bar Government from forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United

States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569 (1960). Thus, for example, it is well-settled

that the application of a general zoning law to particular property effects a taking if the law

denies the owner all productive or economically beneficial use of the property or excessively

interferes with the owner’s distinct investment-backed expectations. See Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886 (1992); Penn Cent. Transp. Co. v.

City of New York, 438 U.S. 104, 98 S. Ct. 2646 (1978). No precise formula determines when

property has been taken (in the constitutional sense); the question necessarily requires a

weighing of the private and public interests at issue. See Agins v. City of Tiburon, 447 U.S.

3
The Court asserts that I am engaging in “back-seat lawyering” and attempting to
“convert” the Neighbors’ tort claims against the City into an action for inverse
condemnation. Opinion, ¶ 14. Even if I were so inclined to “convert” the Neighbors’ tort
claims—which I am not—there would be no need to do so. As reflected in their pleadings
and arguments in the District Court and on appeal, which I set out in ¶¶ 91-93 below, the
Neighbors plainly have raised claims that the City’s acts and omissions with respect to the
Neighbors’ properties amount to inverse condemnation. The Court tacitly concedes this
point by proceeding to address the Neighbors’ standing to bring these claims in ¶¶ 15-17 of
the Opinion.
35
255, 260-61, 100 S. Ct. 2138, 2141 (1980), overruled in part on other grounds, Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 540-45, 125 S. Ct. 2074, 2082-85 (2005).

¶78 In addition, Article II, Section 29 of the Montana Constitution states, in pertinent part:

“Private property shall not be taken or damaged for public use without just compensation to

the full extent of the loss having been first made to or paid into court for the owner.” By its

plain language, this provision affords Montanans a protection that is independent of the Fifth

Amendment. If the City, by its acts or omissions, has “taken or damaged” the Neighbors’

private property as contemplated by Article II, Section 29, then as a matter of fundamental

constitutional right, the City must pay just compensation to the full extent of the Neighbors’

loss.

¶79 “Takings cases do not always arise out of situations where the government has

formally condemned property. Instead, some regulatory or other activities may effect a

taking, necessitating that owners bring inverse condemnation proceedings against the

government.” Julius L. Sackman, Nichols on Eminent Domain vol. 2A, § 6.03[1], at 6-182

(3d ed., Matthew Bender 2006). “Inverse condemnation” is “a generic description applicable

to all actions in which a property owner, in the absence of a formal condemnation

proceeding, seeks to recover from a governmental entity for the appropriation of his property

interest.” Nichols on Eminent Domain § 6.03[2], at 6-182.1; see also United States v.

Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127, 1130 (1980) (“The phrase ‘inverse

condemnation’ appears to be one that was coined simply as a shorthand description of the

manner in which a landowner recovers just compensation for a taking of his property when

condemnation proceedings have not been instituted.”). “Such a suit is ‘inverse’ because it is
36
brought by the affected owner, not by the condemnor. The owner’s right to bring such a suit

derives from the self-executing character of the constitutional provision with respect to

condemnation.” Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 5 n. 6, 104 S. Ct.

2187, 2191 n. 6 (1984) (citation and some internal quotation marks omitted).

¶80 State and federal courts favor inverse condemnation as a way for property owners to

protect their interests, and state courts recognize a host of actions that constitute valid inverse

condemnation actions. See Nichols on Eminent Domain § 6.03[2], at 6-184 to 6-186; see

also Eugene McQuillin, The Law of Municipal Corporations vol. 11A, § 32.132.40, at 290-

98 (3d ed., West 2000), at 20-22 (Supp. 2007) (discussing a variety of grounds for inverse

condemnation actions). Knight v. City of Billings, 197 Mont. 165, 642 P.2d 141 (1982)

(“Knight-Billings”) and Knight v. City of Missoula, 252 Mont. 232, 827 P.2d 1270 (1992)

(“Knight-Missoula”) provide pertinent illustrations.

¶81 In Knight-Billings, the plaintiffs were individual homeowners who owned residences

on the west side of 24th Street West in Billings, Montana. They had purchased their

properties in the years between 1954 and 1976. In 1975, a large shopping center (Rimrock

Mall) was opened on 24th Street West south of the plaintiffs’ properties. By the time of the

litigation, there were also two large discount stores, a supermarket, a hardware store, a mini-

mall, two convenience stores, and several office buildings along 24th Street West, and

another supermarket was under construction near the plaintiffs’ properties. In addition, the

street provided access to an interstate highway from the city proper. See Knight-Billings,

197 Mont. at 166-67, 642 P.2d at 141-42.

37
¶82 Until 1972, 24th Street West was a two lane roadway with on-street parking. In 1972,

the City of Billings widened 24th Street West to provide four lanes of traffic. In 1976, the

city further widened 24th Street West by condemning real property exclusively on the east

side of the street. No real property was taken from the west side of the street, where the

plaintiffs had their properties. In 1978, the street was widened by the addition of a fifth lane

situated in the middle of the other four lanes, to provide for left-hand turns from 24th Street

West. Traffic counts on 24th Street West indicated an average daily vehicular traffic flow of

6,330 vehicles in April 1966; 9,684 vehicles in August 1970; 17,040 vehicles in July 1975;

and 18,018 vehicles in 1979. See Knight-Billings, 197 Mont. at 167-68, 642 P.2d at 142.

¶83 Meanwhile, in 1972, the City of Billings adopted a zoning ordinance, pursuant to

which the plaintiffs’ properties were zoned as single-family dwellings. In 1978, the

plaintiffs petitioned the Billings City Council for a zoning change that would permit their

properties to be reclassified as residential professional; however, the proposed zoning change

was denied, and in consequence, the plaintiffs’ properties remained zoned for residential

purposes only. Also in 1978, the city created a lighting maintenance district to provide

lighting for 24th Street West. The lights used were of a higher intensity than normally found

on a residential street. Although several of the plaintiffs protested the proposal for the

lighting district, their protest was denied. See Knight-Billings, 197 Mont. at 167-68, 642

P.2d at 142-43.

¶84 After the failure of their petition for a zoning change, the plaintiffs filed an action

against the City of Billings charging inverse condemnation of their properties. The evidence

at trial revealed the following changes to 24th Street West and the plaintiffs’ properties:
38
 Formerly [24th Street West] was relatively quiet, and had but two traffic lanes.
The front yards of the residences were suitable for family or social gatherings.
Residents or their guests could park their cars on the street. There was no
difficulty getting in and out of driveways. Sidewalks were safe from passing
traffic. Noise and pollutant levels were low and not distracting or harmful.
There was no undue refuse. Family pets were safe. There was no noticeable
vibration from passing traffic and the area was quiet at night.
After the 1976-78 condemnation project on 24th Street West was
completed, conditions changed. There is now no free access into driveways,
but instead long waits in the fifth lane for passing traffic. Free access to and
from the driveways is nearly impossible. There have been traffic accidents in
front of the residential properties, and sometimes upon their properties.
Children and pets are not safe in the front yards and pedestrian traffic along
the sidewalks a few feet from passing vehicular traffic is dangerous. Average
traffic flows at 22 miles per hour past their houses. Rocks and rubbish from
passing traffic are thrown upon their lawns and into their houses. The
sidewalks are constantly filthy, especially in winter. The noise from the
passing traffic is so loud that front doors must be closed for conversation to be
heard inside. Traffic noise is loud and aggravating at night. The houses
cannot be ventilated from the east side because of dust and exhaust fumes.
The houses and contents are constantly subject to vibrations. One of the
residents testified that she had to tape her windows to avoid the bright light
from the high intensity sodium vapor lighting that was installed.

Knight-Billings, 197 Mont. at 168-69, 642 P.2d at 143.

¶85 The district court found that by reason of the changed conditions on 24th Street West,

the plaintiffs’ properties were “ ‘no longer desirable for residential use’ ” and could not “ ‘be

put to the highest and best use without a change in zoning restrictions and regulations.’ ”

However, the court also found that “the conditions on 24th Street West were not caused by

the City but by persons using business establishments situated on 24th Street West” and that

“the actions of the City of Billings were within the proper exercise of the City’s police

power.” See Knight-Billings, 197 Mont. at 170, 642 P.2d at 143.

¶86 On appeal, we addressed the city’s contention that its actions were merely in response

to the burgeoning development of commercial and other enterprises along 24th Street West,
39
i.e., that the city had not created the business growth but merely adapted to it. We held that

recovery for inverse condemnation is not precluded just because the governmental authority

is validly exercising its police powers. To the contrary, recovery may be allowed under

theories of easement or nuisance imposed on the plaintiffs’ properties. See Knight-Billings,

197 Mont. at 170-71, 642 P.2d at 144.

¶87 We also rejected the notion that an actual physical invasion of the plaintiffs’

properties by the city had to occur. We concluded that the result of the city’s actions had

been “to impose a servitude, a limitation upon the use and marketability of plaintiffs’

properties as residential.” We noted that what remained “is that plaintiffs’ properties,

through the actions of the City, have become unsuitable for residential use, and the plaintiffs’

right to use their properties [for residential purposes] is limited to a degree of constitutional

magnitude.” See Knight-Billings, 197 Mont. at 172-73, 174-75, 642 P.2d at 144-45, 146.

¶88 Finally, we observed that in the 1976-78 widening of 24th Street West, the city had

compensated the homeowners on the east side of the street but not the homeowners on the

west side of the street. Thus, the plaintiffs had been “consciously singled out or selected to

bear a burden which [the city] also consciously elected not to impose on others, even others

otherwise similarly situated.” Knight-Billings, 197 Mont. at 173-74, 642 P.2d at 145

(citation and internal quotation marks omitted). We held that on these facts, the city had

“interfered with the private property interests of the plaintiff so as to constitute a ‘taking’ by

inverse condemnation.” Knight-Billings, 197 Mont. at 174, 642 P.2d at 145-46.

¶89 In Knight-Missoula, the plaintiffs alleged that their property had been damaged by

noise, dust, fumes, runoff, and increased traffic from a nearby dirt road and the City of
40
Missoula’s refusal to close or maintain the road. Knight-Missoula, 252 Mont. at 240, 827

P.2d at 1275. We reversed the trial court’s grant of summary judgment in favor of the city,

ruling that the plaintiffs’ inverse condemnation claim was viable. Knight-Missoula, 252

Mont. at 243, 827 P.2d at 1277. We held that the plaintiffs had raised genuine issues of

material fact regarding diminution in the value of their property by reason of the existence

and use of the road and the City of Missoula’s refusal to close or maintain it.4 Knight-

Missoula, 252 Mont. at 240, 243, 827 P.2d at 1275, 1277.

¶90 Other courts have likewise recognized that inverse condemnation occurs when a

continuing nuisance ripens into a constitutional taking. See e.g. City of Jacksonville v.

Schumann, 167 So.2d 95, 102 (Fla.App. 1964); see also Carlos A. Ball, The Curious

Intersection of Nuisance and Takings Law, 86 B.U. L. Rev. 819 (2006) (exploring the issue

of when a nuisance ripens into a constitutional taking and arguing, for purposes of

nuisance/takings cases, in favor of the “peculiar and substantial” standard articulated in

Richards v. Washington Terminal Co., 233 U.S. 546, 557, 34 S. Ct. 654, 658 (1914)).

¶91 Here, the Neighbors alleged in their complaint that the manner in which Kennedy’s

Tavern & Casino is operated constitutes a continuing nuisance. The Neighbors also alleged

that despite numerous complaints, 911 calls, and requests for relief to City officials, and

4
Notably, we also held that the plaintiffs’ nuisance claim survived summary
judgment, given the City of Missoula’s perpetuation of a “continuing nuisance” by not
closing, paving, or otherwise maintaining the road. See Knight-Missoula, 252 Mont. at 244-
47, 827 P.2d at 1277-79. In so doing, we observed that “ ‘a city is liable for damages with
respect to maintaining a nuisance in the same manner as a private person,’ ” Knight-
Missoula, 252 Mont. at 246, 827 P.2d at 1279 (quoting Walton v. City of Bozeman, 179
Mont. 351, 356, 588 P.2d 518, 522 (1978)), and that “[sovereign immunity] does not extend

41
despite attending and voicing complaints at many City Council meetings, the City and its

various officials failed and refused to take appropriate action to abate the nuisances caused

by the manner in which the Casino is operated. Plaintiff Prosser contended that as a result,

the value of her property has been diminished. (Plaintiffs White and Crotty rent their

property.)

¶92 Likewise, in her answers to the City’s First Interrogatories, Prosser stated that the

value of her property has been depreciated due to the City’s ongoing failure and refusal to

enforce the condition, placed on Kennedy’s Precise Plan of Design (“PPD”), that the Casino

“shall comply with all federal, state and local laws.” She provides, under oath, specific

examples to this effect, and she requests $80,000 in damages “for loss of sale and inability to

sell my home.”

¶93 In the Neighbors’ brief in opposition to the City’s motion for summary judgment,

Prosser argued diminution in value of her property by reason of the City’s failure and refusal

to enforce the PPD condition and abate the nuisances created by the Casino. Again on

appeal, the Neighbors assert that Prosser suffered depreciation of property value. They argue

as follows:

Because of the noise and interference with the use and enjoyment of her
property due to the nuisances caused by the Casino by being in such close
proximity to her property, Occupant Prosser placed her property on the market
and tried to sell it but was unable to find a buyer. She and the realtor involved
attributed the failure to sell or find a buyer to the existence of the Casino
immediately next to her home. [Citations to her affidavit and her answers to
the City’s interrogatories.]
By approval of the operation of the Casino by these Defendants in a

to a suit for the abatement of a nuisance,” Knight-Missoula, 252 Mont. at 246, 827 P.2d at
1279.
42
 primarily residential area without assuring compatibility with the surrounding
uses which are primarily as residential single family residences, the City
promoted and facilitated the Casino’s ability to create private and public
nuisances in the vicinity by noise and other activities of the Casino and its
patrons in such close proximity to Occupants’ residences late at night and over
an extended period of time causing depreciation of property values in the
vicinity and causing unreasonable interference with the use and enjoyment of
the property of Occupants.

¶94 The City has never denied that such depreciation could occur. Indeed, recognition of

this eventuality is set forth plainly in the language of § 17.116.050, which states: “If the

proposed precise plan of design would substantially depreciate property values in the

vicinity . . . , such plan shall be rejected or shall be so modified or conditioned before

adoption as to remove the objections” (emphasis added). Notwithstanding, as argued by the

Neighbors, the City has promoted and facilitated the creation and continuation of a nuisance

by Kennedy’s Tavern & Casino, which in turn has resulted in depreciation of property values

in the vicinity, Prosser’s abutting property in particular.

¶95 As noted above, private property may only be taken or damaged for “public use.”

U.S. Const. amend. V; Mont. Const. art. II, § 29. In Kelo v. City of New London, 545 U.S.

469, 125 S. Ct. 2655 (2005), the Supreme Court reaffirmed a broad definition of “public use”

under the Fifth Amendment—specifically, “public purpose,” as opposed to “use by the

public.” See Kelo, 545 U.S. at 478-83, 125 S. Ct. at 2662-64. The Supreme Court held that

the City of New London’s economic development plan met this broad definition, since the

plan (which coordinated a variety of commercial, residential, and recreational uses of land)

was designed to promote economic development and provide appreciable benefits to the

community, including new jobs and increased tax revenue. See Kelo, 545 U.S. at 483-84,

43
125 S. Ct. at 2664-65. See also Julius L. Sackman, Nichols on Eminent Domain vol. 2A,

§ 7.02[2], at 7-28, § 7.02[3], at 7-32, § 7.02[7], at 7-40 (3d ed., Matthew Bender 2006)

(noting that the broad meaning of “public use”—e.g., revitalizing the local economy by

creating temporary and permanent jobs, or generating a significant increase in tax revenue—

has prevailed over the narrow conception of “public use”—i.e., actual use of the acquired

property by the public).

¶96 Likewise, in Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656 (1939),

this Court considered whether the legislation at issue served a “public purpose,” quoting with

approval the following definition:

“A public purpose * * * has for its objective the promotion of the general
welfare of all the inhabitants or residents within a given political division, as,
for example, a state, the sovereignty and sovereign powers of which are
exercised to promote the public health, safety, morals, general welfare,
security, prosperity, contentment, and equality before the law of all the
citizens of the state.”

Rutherford, 107 Mont. at 517, 86 P.2d at 658 (asterisks in original) (quoting Green v.

Frazier, 176 N.W. 11, 17 (N.D. 1920)). In addition, we observed in City of Missoula v.

Mountain Water Co., 228 Mont. 404, 743 P.2d 590 (1987), that § 70-30-102, MCA, provides

a “broad interpretation” of “public use.” See Mountain Water, 228 Mont. at 412, 743 P.2d at

595. Indeed, § 70-30-102, MCA, enumerates a wide range of public uses. See generally

§ 70-30-102(1)-(45), MCA.5

5
Notably, the Legislature recently amended § 70-30-102(12), MCA, to prohibit the
taking of private property for urban renewal “if the purpose of the project is to increase
government tax revenue.” See Laws of Montana, 2007, ch. 512, § 2.
44
¶97 I make no attempt here to determine whether the depreciation of property values in

the vicinity of Kennedy’s Tavern & Casino, which the Neighbors allege has been promoted

and facilitated by the City, serves a public purpose. I am satisfied that the Neighbors’

allegations in this regard and the evidence presented thus far are sufficient to survive

summary judgment. The Neighbors have established that genuine issues of material fact

remain as to whether the City has taken or damaged Prosser’s property for public use—

perhaps “to promote the general welfare,” as the Court endlessly asserts, or to promote

economic development, as Kelo authorizes—by failing and refusing to take appropriate

action to abate the nuisances caused by the manner in which the Casino is operated. To the

extent that the City has taken or damaged Prosser’s property, she is entitled to just

compensation to the full extent of her loss under Article II, Section 29 of the Montana

Constitution.

¶98 The Court launches into its own “entirely gratuitous analysis” of these issues in ¶¶ 15-

17 of the Opinion. In ¶¶ 16-17, the Court addresses whether Plaintiffs White and Crotty,

given that they rent their property, are entitled to compensation under an inverse

condemnation theory. It does not appear from the record, however, that White and Crotty

are seeking recovery for a taking or damaging. In ¶ 15, the Court apparently reaches the

merits of Prosser’s inverse condemnation claim, asserting that she cannot recover damages

because she purchased her property “after the government action,” which the Court assumes

was the approval of Kennedy’s PPD in April 2000. However, Prosser has alleged that the

depreciation in the value of her property is the result of a series of events—including, the

City’s failure and refusal to enforce the condition, placed on the PPD, that the Casino “shall
45
comply with all federal, state and local laws” and the City’s corresponding promotion and

facilitation of the ongoing nuisance created by the Casino. Cf. Blasdel v. Montana Power

Co., 196 Mont. 417, 425, 640 P.2d 889, 894 (1982) (“ ‘Property is taken in the constitutional

sense when inroads are made upon an owner’s use of it to an extent that, as between private

parties, a servitude has been acquired either by agreement or in course of time.’ ” (quoting

United States v. Dickinson, 331 U.S. 745, 748, 67 S. Ct. 1382, 1385 (1947))); Hart v. City of

Detroit, 331 N.W.2d 438, 445 (Mich. 1982) (“It is common for [an inverse condemnation

action] to involve a continuous wrong by the condemnor rather than a single act.”). The

record is replete with allegations that the City’s acts and omissions have occurred during the

course of Prosser’s ownership of her property. Moreover, there exists a factual issue as to

whether Prosser’s property value has depreciated during her period of ownership as a result

of the City’s conduct. I submit that it is inappropriate for this Court to decide, as a matter of

law, that any and all depreciation in Prosser’s property value occurred prior to the

governmental actions at issue.6

6
For these reasons, the Court’s statements of the law in ¶ 15 are inapt. The Court
asserts that “ ‘it is a general rule of the law of eminent domain that any award goes to the
owner at the time of the taking, and that the right to compensation is not passed to a
subsequent purchaser.’ ” Opinion, ¶ 15 (alteration omitted) (quoting Palazzolo v. Rhode
Island, 533 U.S. 606, 628, 121 S. Ct. 2448, 2463 (2001)). This abbreviated quotation of
Palazzolo, however, fails to reflect the fact that the Supreme Court was referring to a
particular type of taking not at issue here. Specifically, the Supreme Court was referring to
“a direct condemnation action, or when a State has physically invaded the property without
filing suit,” i.e., situations in which “the fact and extent of the taking are known.” Palazzolo,
533 U.S. at 628, 121 S. Ct. at 2463. Such is not the case here, where the fact and extent of
the alleged taking or damaging were not known until Kennedy failed to comply with the
PPD condition and the City failed or refused to take effective action to enforce the condition.
Notably, the Supreme Court went on to state in Palazzolo that “[a] challenge to the
application of a land-use regulation, by contrast, does not mature until ripeness requirements
46
¶99 Lastly, the Court misstates my position. I do not contend that the City’s approval of

Kennedy’s PPD “caused” the Neighbors’ property to depreciate in value. Opinion, ¶ 14.

Rather, I simply observe that Prosser has so alleged. Obviously, this is a factual matter

properly resolved at trial. In my view, she should be permitted to litigate the merits of her

inverse condemnation claim—including whether the City’s actions amount to a taking or

damaging for public use, whether the City’s actions “caused” Prosser’s property to

depreciate in value, and whether such depreciation occurred during her ownership of the

property. The Court errs in denying her this opportunity.

IV

¶100 The Court errs in concluding that the special relationship exception to the public duty

doctrine does not apply on the facts of this case, and I join Justice Leaphart’s Dissent as to

this issue. Furthermore, the Court errs in perpetuating the public duty doctrine in the face of

Article II, Section 18. Finally, the Neighbors have established that genuine issues of

material fact remain as to whether the City has taken or damaged Prosser’s property for

public use for which it owes her just compensation to the full extent of her loss, as required

by Article II, Section 29.

¶101 I would reverse and remand this case for further proceedings on the Neighbors’ tort

claims and Prosser’s inverse condemnation claim. I dissent from our failure to do so.

have been satisfied . . . . It would be illogical, and unfair, to bar a regulatory takings claim
because of the post-enactment transfer of ownership where the steps necessary to make the
claim ripe were not taken, or could not have been taken, by a previous owner.” Palazzolo,
533 U.S. at 628, 121 S. Ct. at 2463.
47
/S/ JAMES C. NELSON

48