Trankel v. State, Dept. of Military Affairs

No. 96-026

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

JAMES B. TRANKEL.

Plaintiff and Appellant,

v.

STATE OF MONTANA, DEPARTMENT OF
MILITARY AFFAIRS, MONTANA ARMY
NATIONAL GUARD,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Erik B. Thueson and James T. Towe (argued);
Thueson & Lamb; Helena, Montana

For Respondents:

Hon. Joseph P. Mazurek; Attorney General; James M. Scheier and
Thomas G. Bowe (argued); Assistant Attorneys General;
Agency Legal Services; Helena, Montana

William Gianoulias; Risk Management and Tort Division;
State of Montana; Helena, Montana

LTC Mike T. McCabe; Staff Judge Advocate;
Helena, Montana (for Montana National Guard)

Submitted: October 22, 1996
Decided: April 30, 1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, JamesB. Trankel, commencedthis action in the District Court for the

First Judicial District in Lewis and Clark County to recover damagesfor personal injuries

sustained while working on property owned and controlled by the defendant, State of

Montana, through its Department of Military Affairs. The Statemoved to dismiss Trankel’s

complaint pursuant to Rule 12(b)(6), M.R.Civ.P. After considering the arguments of the

parties, the District Court concluded that Trankel’s claim was barred by the U.S. Supreme

Court’s decision in Feres v. United States (1950), 340 U.S. 135, and our prior decision in

Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. The District

Court granted the State’smotion to dismiss. Trankel appealsfrom the District Court’s order

granting the State’smotion. We reverse the judgment of the District Court.

Trankel raises the following issueson appeal:

1. Can a person who is allegedly injured by the negligence of the State of

Montana, acting through its Department of Military Affairs, while in the course of his

employment with the United StatesArmy, suethe State of Montana to recover damagesfor

those injuries?

2. Did the District Court err when it concluded that the plaintiffs allegations of

statutory violations failed to state a claim?

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 STANDARD OF REVIEW

The District Court dismissedTrankel’sclaim pursuant to Rule 12(b)(6), M.R.Civ.P.,

basedon the court’s conclusionthat it failed to state a claim for which relief could be granted.

A complaint should not be dismissedfor failure to state a claim unless
it appearsbeyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. Lockwood v. W.R. Grace & Co.
(1995), 272 Mont. 202, 207, 900 P.2d 314, 317.

A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the
effect of admitting all well-pleadedallegationsin the complaint.
In consideringthe motion, the complaint is construedin the light
most favorable to the plaintiff, and all allegations of fact
contained therein are taken as true.

Lockwood, [272 Mont. at 207,] 900 P.2d at 3 17 (quoting Boreen v. Christensen
(1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a
complaint fails to state a claim upon which relief can be granted is a
conclusion of law. We review a district court’s conclusions of law to
determine whether the court’s interpretation of the law is correct. Lockwood,
[272 Mont. at 207,] 900 P.2d at 3 17.

Common CauseofMontana v. Argenbright (1996), 276 Mont. 382,386,917 P.2d 425,427.

FACTUAL BACKGROUND

The following facts were allegedin the plaintiffs complaint. For the reasonsset forth

above, we assumethat they are true for the purpose of reviewing the plaintiffs appeal.

The Army National Guard of the Stateof Montana operatesunder the supervisionand

direction of the Department of Military Affairs for the State of Montana which is established

pursuant to Titles 2 and 10 of the Montana Code Annotated.

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 JamesB. Trankel enlistedin the Montana Army National Guard on March 28, 1991.

However, in 1992,after assumingfull-time employmentin the Guard, he was called to active

duty in the United States Army pursuant to Title 10 of the United StatesCode.

In early 1992, the Guard begana program known as SouthwestAsia Vehicle Rebuild

Program (SWAREB), the function of which was to repair and rebuild vehicles that had been

damagedin the Gulf War and then distribute them for use to National Guard units, including

Montana’s unit. That program was basedout of facilities at Fort Harrison in Montana. In

October 1992, while still in full-time service to the United States Army, Trankel was

assigned to that section of the SWAREB program responsible for body repair and

undercoating of vehicles. He performed his duties in a building located at Fort Harrison and

designatedas the paint and body shop.

During the course of his duties, Trankel was required to work with and around toxic

and hazardous materials and stand in a pit below the ground surface while spraying these

materials on the undersidesof vehicles. However, the facilities were not properly vented and

he was not provided with adequateequipment, including respirators and proper clothing.

Trankel became drenched with toxic chemicals and inhaled dangerous levels of toxic

substancesbecausethe State failed to implement and enforce safe operating procedures.

As a result of his exposureto toxic materials, Trankel has been treated for bronchitis

and sinusitis, and has suffered permanentphysical injuries, including injury to his brain and

internal organs. He contendedthat his injuries were a result of the State’snegligent failure

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to implement safe operatingproceduresfor the SWARBB activities that were performed on

its premises.

Trankel also contended, in Counts II, III, and IV of his complaint, that the State

violated the Occupational Health Act of Montana found at $5 50-70-l 01 to -118, MCA; the

Montana Safety Act found at $5 50-71-101 to -334, MCA; and the Employee and

Community Hazardous Chemical Information Act found at §$ 50-78-101 to -402, MCA.

The State moved to dismiss Trankel’s complaint pursuant to Rule 12(b)(6),

M.R.Civ.P., basedon its contention that his claim was barred as a matter of law by the U.S.

Supreme Court’s decision in Feres v. United Stutex (1950), 340 U.S. 135, and our prior

decisionin Evans v. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160. It was

and is the State’s position that the Feves doctrine bars claims which arise from activities

“incident to military service” regardlessof the substantivelaw upon which the claim is based,

the status of the plaintiff at the time he is injured, or the statusof the party against whom the

claim is made. In addition, it is the defendant’scontention that the acts upon which Counts

II, III, and IV were baseddo not provide private causesof action, but can be enforced only

by means of the administrative remedies provided for in those Acts.

The District Court agreedwith the State. It held that becauseTrankel’s injuries were

incident to his service in the National Guard, it is immaterial whether he was serving in a

state or federal status at the time of his injuries, and therefore, that his claims were barred by

the prior decisionsin Feres andEvans. It also concludedthat the Acts relied on in Counts II,

III, and IV do not create private causesof action for recovery of damages,but instead must

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be enforced by the various agencies to whom responsibility is given within the Acts.

Trankel’s complaint was, therefore, dismissedwith prejudice and judgment was entered for

the State of Montana.

ISSUE 1

Can a person who is allegedly injured by the negligence of the State of Montana,

acting through its Department of Military Affairs, while in the course of his employment

with the United StatesArmy, suethe Stateof Montana to recover damagesfor those injuries?

Essentialto an understandingof Trankel’semployment statusat the time of his injury

is an understanding of the statutory framework pursuant to which members of the United

StatesArmy Reserve forces are required to serve.

The “Army National Guard” refers to the organized militia of the several states.

32 U.S.C. 3 lOl(4) (1994). The “Army National Guard of the United States” is a reserve

component of the United StatesArmy. However, its members are required to be members

ofthe “Army National Guard.” 32 U.S.C. 5 lOl(5) (1994).

The President of the United Statesmay call into “Federal service” members of the

Army National Guard of any state when he deemsit necessaryand it is appropriate, based

on circumstancesprovided by law. 10 U.S.C. 5 12406 (1994).

However, when a member of the “Army National Guard” is ordered to active federal

duty, he or she is relieved from duty in the National Guard of his or her state, from the

effective date of the order to active duty in the federal military. 32 U.S.C. § 325 (1994).

Members of the “Army National Guard of the United States” who have been ordered to

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active duty become reserves of the Army, 10 U.S.C. 5 12403 (1994), and are, thereafter,

subject to the laws and regulations governing the United StatesArmy. 10 U.S.C. 5 12405

(1994).

The practical effect of this statutory framework was explained by the U.S. Supreme

Court in Perpich v. Department of Defense (1990), 496 U.S. 334. There, the Court stated

that:

Thus, under the “dual enlistment” provisions of the statute that have been in
effect since 1933, a member of the Guard who is ordered to active duty in the
federal service is thereby relieved of his or her statusin the StateGuard for the
entire period of federal service.

The unchallenged validity of the dual enlistment system means that
members of the National Guard of Minnesota who are ordered into federal
service with the National Guard of the United States lose their status as
members of the state militia during their period of active duty. If that duty is
a training mission, the training is performed by the Army in which the trainee
is serving, not by the militia from which the member has been temporarily
disassociated. “Each member of the Army National Guard of the United States
or the Air National Guard of the United Stateswho is ordered to active duty
is relieved from duty in the National Guard of his State or Territory, or of
Puerto Rico or the District Columbia, as the casemay be, from the effective
date of his order to active duty until he is relieved from that duty.” 32 U.S.C.
3 325(a).

[T]he state affiliation is suspendedin favor of an entirely federal
affiliation during the period of active duty.

Perpich, 496 U.S. at 346-49.
 We acknowledged the decision in Perpich and the distinction between federal and

state status of National Guard membersin Grove v. Montana Amy National Guard (1994),

264 Mont. 498,501-02,872 P.2d 791,793, and Evans v. Montana National Guard (1986),

223 Mont. 482,483-84,726 P.2d 1160, 1161.

Therefore, based on the facts assumedto be true in this case, Trankel, at the times

relevant to his claim, had no formal affiliation with the Army National Guard for the State

of Montana. He was employed by and acting entirely within the scope of his duties for the

United StatesArmy. It is, therefore, in that statusthat we must review the authorities relied

upon by the parties and the District Court.

The Statecontendsthat membersof the federalmilitary cannotbring suit againstother

soldiers or military organizationsfor service-relatedinjuries, based on Feres, 340 U.S. 135.

It contends that this rule applies regardless of the identity of the tort-feasor, pursuant to

United Statesv. Johnson (1987), 48 1 U.S. 68 1; that it applieseven though the claim may be

basedon state law, pursuant to Stauber v, Cline (9th Cir. 1988), 837 F.2d 395, cert. denied

(1988), 488 U.S. 817; and that we have held that the Fel-esdoctrine bars claims against the

National Guard for injuries incident to military service in Evans, 223 Mont. 482, 726 P.2d

1160. The District Court agreed.

Trankel, on the other hand, contendsthat Feres andJohnson are not applicableto this

case because they are based on claims made pursuant to the Federal Tort Claims Act at

28 U.S.C. $3 1346(b), 2671 - 80 (1994); St aubey is not applicable becauseit was not based

on and did not include an analysis of Montana law; and Evans was wrongly decided and

8
should be reversed. Trankel further contends that sovereign immunity was abolished in

Montana in 1972 pursuantto Article II, Section 16, of the Montana Constitution, and that the

Legislature hasnot seentit to extend immunity under these circumstances. Trankel further

contends that § 10-l-104, MCA, which makes federal laws and regulations applicable to

Guard members, provides an exceptionwhere thoselaws or regulationsare inconsistentwith

Montana’s Constitution.

For purposes of oral argument, and consideration on appealby this Court, this case

was combined with Dorothy J Lake, et al. v. State of Montana, Supreme Court Cause

No. 96-095, which involves the same issue and the same defendant acting in the same

capacity. The plaintiff in that case also contends that to bar a claim against the State for

injuries sustainedduring the courseof employment by a person who was not, at the time of

injury, employed by the State, would violate Article II, Section 16, of the Montana

Constitution.

We first considerthe applicability of the federal authorities relied on by the State. All

other federal authorities are affirming of Feres. In Feres, the plaintiffs decedent was on

active duty in the military service of the United Stateswhen he died from injuries causedby

fire in his barracks. The plaintiff alleged, pursuant to the Federal Tort Claims Act found at

28 U.S.C. $5 2671 to 2680, that the Army had negligently quarteredFeresin barracks which

it knew or should have known were unsafe. The U.S. SupremeCourt framed the issuein

Fevesas follows: “The only issue of law raised is whether the Tort Claims Act extends its

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remedy to one sustaining‘incident to the service’ what under other circumstances would be

an actionable wrong.” Feres, 340 U.S. at 138

The Court in Feres referred to its task as one of “statutory construction” and

ultimately concludedthat sincethe Federal Tort Claims Act extended liability to the United

Statesin the same manner that a private individual would be liable, and since there was no

historical basisfor imposing liability on a private individual for injuries to a member of the

military, there could be no liability pursuant to the Tort Claims Act for injuries incident to

military service. Feres, 340 U.S. at 141-42. In arriving at its conclusion, that Court took into

considerationenactmentsof Congresswhich provided no-fault systems of compensationfor

members of the military who are injured or killed during the course of their service. The

Court concluded:

If Congress had contemplated that this Tort Act would be held to apply in
cases of this kind, it is difficult to see why it should have omitted any
provision to adjust these two types of remedy to each other. The absenceof
any such adjustment is persuasive that there was no awarenessthat the Act
might be interpreted to permit recovery for injuries incident to military service.

Feres, 340 U.S. at 144.

We find the Feres decision inapplicable to the facts of this case for several reasons:

(1) Trankel is not suing the United States for his injuries; (2) Trankel’s claim is not brought

pursuant to the Federal Tort Claims Act; (3) the type of action brought by Trankel against

the National Guard is the kind traditionally recognizedby the common law in the Stateof

Montana; and (4) although this casedoes not involve state workers’ compensationbenefits,

the Montana Legislature has specifically recognizedthat third-party claims may be made by

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those who receive statutory benefits for injuries sustained during the course of their

employment, and has enacted laws to adjust the two types of remedy to each other. See

35 39-71-412 and -414, MCA.

The State contends that the Feres doctrine applies to all claims made for injuries

which are incidental to military service because the U.S. Supreme Court extended the

doctrine to claims for subx’ogation nonmilitary personnel in StencelAero Engineering
by

Corp. v. United States(1977), 43 1U.S. 666; to claims by military personnelwho are off-duty

at the time oftheir injury in United Statesv. Shearer (1985) 473 U.S. 52; and to claims by

military servicemen against nonmilitary federal employees in United States v. Johnson

(1987), 48 1 U.S. 68 1. However, regardlessof the variation in the circumstancespresented

by each of the cited cases,each casewas brought pursuant to the Federal Tort Claims Act

and is part of the federal caselaw interpreting the scopeof remediesprovided for by that Act.

None of the cited casesis relevant to this Court’s interpretation of the remedies provided for

by state statutory and caselaw, and guaranteedby our state Constitution.

Neither is the State’sreliance on Chappell v. Wallace (1983), 462 U.S. 296, and

United Statesv. Stanley (1987), 483 U.S. 669, persuasive. Although the Feres doctrine was

appliedby the SupremeCourt in thosecasesto claims which were not basedon the Federal

Tort Claims Act, they did involve claims by members of the United States military who

allegedthat their superiorshad violated their constitutional rights and42 U.S.C. 55 1985 and

1983, respectively. It is the fnnction of the U.S. SupremeCourt to define and limit the scope

of rights afforded pursuant to those constitutional causesof action. However, those decisions

11
have little bearing on the scopeof rights afforded under state law and guaranteedby our state

Constitution.

The Statealso relies on the Ninth Circuit in Stauber v. Cline (9th Cir. 1988) 837 F.2d

395, cert. denied (1988), 488 U.S. 817. In that case, the plaintiff was employed by the

federal government as a mechanic-technician, but like the plaintiff in this case, was also

required to be a member of the National Guard as a condition of his employment pursuant

to 32 U.S.C. $5 709(b), 709(e)(l) and (2) (1994). The individual defendants were members

of the Army National Guard of Alaska who were superior in rank to the plaintiff. The

defendantswere suedfor intentional infliction of emotional distress and libel. Stuuber, 837

F.2d at 396.

Stauber filed his action in state court. but it was removed to federal district court

where it was tried before ajury which returned an award of damagesin his favor. Following

that verdict, pursuantto post-trial motions, the district court concluded that all of the parties

were National Guardsmen under the direct command of the same U.S. Army lieutenant

colonel; that plaintiffs work was incident to military service; and therefore, that his claim

was barred by the Feres doctrine. Stuuber, 837 F.2d at 397. The Ninth Circuit affirmed,

relying primarily on those federal decisions previously discussed which were based on

federal statutory or common law. There is no mention in the Stauber case whether state or

federal substantive law applied, and if the former, what was the substantive law in Alaska

upon which the claim was based. Neither is there any analysisin the Stauber caseregarding

the applicability of the aforementioned federal authorities to a situation in which a party’s

12
claim is made against a non-federal party and basedon state law. Therefore, we conclude

that Stauber is not persuasive regarding Trankel’s rights which are asserted pursuant to

Montana law and the Montana Constitution.

Finally, the State contends, and the District Court agreed, that Trankel’s claim is

barred as a matter of law pursuant to our prior decisionin Evans v. Montana National Guard

(1986), 223 Mont. 482,726 P.2d 1160. In Evans, the plaintiff was a member of the Montana

Army National Guard who was injured while in State service while attempting to move a

Coke machine from one part of a building to another. He suedthe Guard for negligence,and

his claim was dismissedby summaryjudgment. Evans, 223 Mont. at 483, 726 P.2d at 1161.

We affirmed the District Court. However, our decision was basedon our conclusion that

5 2-9-102, MCA, of the State Tort Claims Act, did not authorize suits against the National

Guard. Evans, 223 Mont. at 484, 726 P.2d at 1161. We held that that section authorized

suits against “governmental entities” which were defined at $2-9-101(3), MCA, as “the state

and political subdivisions as herein defined,” and that the National Guard was not included

in the definition ofpolitical subdivisionsfound at 5 2-9-101(5), MCA. Evans, 223 Mont. at

484, 726 P.2d at 1161. We did not addresswhy the National Guard or the Department of

Military Affairs for the State of Montana, which was also named as a defendant, were not

subject to liability pursuant to that part of 9 2-9-101(3), MCA, which defines “governmental

entity” to include “the state.”

The state is defined at § 2-9-101(7), MCA, as follows: “‘State’ means the state of

Montana or any office, department, agency,authority, or other instrumentality thereof.”

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 “Agency” is defined at 5 2-15-102(2), MCA, to include any “department” or

“instrumentality of the executivebranch of stategovernment,” and § 2-15-104(l)(b), MCA,

lists the Department of Military Affairs as one of the constitutionally establisheddepartments

or entities of the executive branch of government. Therefore, it is beyond question that the

National Guard and Department of Military Affairs are governmental entities within the

meaning of 5 2-9-101(3), MCA, and our conclusionto the contrary in Evans was erroneous.

Therefore, to that extent, our decision in Evans is overruled.

The State also cites Evans for the proposition that “[tlraditionally, the federal

government and state governments have not been held liable in tort for injuries that rise ‘in

the course of activity incident to service.“’ Evans, 223 Mont. at 485, 726 P.2d at 1161.

However, that languagefrom Evans is not precedentfor the facts which gave rise to this case

for several reasons. First, it was dicta following the actual basisfor our decision which was

that the National Guard was not covered by our State Tort Claims Act. Second, it was

applied to the facts of that casewhich involved a member of the National Guard on active

state duty suing his employer, in effect, for injuries he sustained during the course of his

employment. Third, the constitutional basis on which we decidethis casewas neither raised

in that case nor would it be applicable to the facts of that case. For these reasons, we

conclude that Evans does not resolve the issue raised by this appeal.

Trankel cites decisions from the State of Washington in Emsley v. Army National

Guard (Wash. 1986), 722 P.2d 1299, and Kirtley v. State (Wash. Ct. App. 1987), 748 P.2d

1128, in support of his right to maintain his causeof action in this case. While those cases

14
do appearon point, it is not necessary we rely on authority from anotherjurisdiction for
that

our decision.

Trankel’s claim is brought in state court pursuant to the State Tort Claims Act and

names the State of Montana as a defendant. The question with which we are presented is

whether based on state law we would apply the Feves doctrine to Trankel’s claim simply

becausehis injury was incident to military service,or whether we are precluded from doing

so basedon state law, and specifically, our state Constitution. We conclude that Article II,

Section 16, of the Montana Constitution, precludes application of the Fevesdoctrine to the

factors in this case. Article II, Section 16, provides as follows:

Courts of justice shall be open to every person, and speedy remedy
afforded for every injury of person,property, or character. No person shall be
deprived of this full legal redressfor iniurv incurred in employment for which
another uerson mav be liable exceot asto fellow emuloveesand his immediate
emplover who hired him if suchimmediate emulover urovides coverageunder
the Workmen’s Comuensation Laws of this state. Right andjustice shall be
administered without sale, denial, or delay.

(Emphasis added.)

It is clear from the minutes of the Constitutional Convention that the secondsentence

of Section 16 was in responseto our decisionin Ashcruft v. Montana Power Co. (1971), 156

Mont. 368,480 P.2d 812. In that case,the plaintiff was injured while working on behalf of

his employer on property owned by the Montana Power Company. He sued the power

company basedon his allegation that its negligence causedhis injury. Ashcmft, 156 Mont.

at 369,480 P.2d 812-13. On appeal,this Court held that pursuant to 5 92-438, RCM (1947),

the power company could not be sued becauseit had required the plaintiffs employer to

15
carry workers’ compensation coverage. Ashcraft, 156 Mont. at 371,480 P.2d at 813. The

second sentence of Article II, Section 16, was a responseto that decision based on the

delegates’ intent that employeesnot be barred from third-party suits for injuries sustained

during the course of their employment. The following minutes from the Constitutional

Convention illustrate that point.

In his report to the Convention as a whole, DelegateMurray, representing the Bill of

Rights Committee which drafted Section 16, gave the following explanation for the second

sentenceof that section:

Under Montana law, as announcedin the recent decision of Ash&aft VEYSUS
Montana Power Company, the employee has no redressagainst third parties
for injuries causedby them if his immediate employer is covered under the
Workmen’s Compensation law. The committee feels that this violates the
spirit of the guaranteeof a speedyremedy for all injuries of person, property
or character. It is this specific denial, and this one only, that the committee
intends to alter with the following additional wording: “No person shall be
deprived of his full legal redressfor injury incurred in employment for which
another person may be liable except as to fellow employeesand his immediate
employer who hired him if such immediate employer provides coverageunder
the Workmen’s Compensation laws of this state.” In other words, the
committee wants to insure that the Workmen’s Compensationlaws of the state
will be used for their original purpose--to provide compensation to injured
workmen--rather than to deprive an injured worker of redressagainstnegligent
third parties, beyond his employer and fellow employees, because his
immediate employer is covered by Workmen’s Compensation. . To permit
no remedy against third parties in caseswhere they employer is covered by
Workmen’s Compensationis to encouragepersonswith rundown premises to
contract out work without improving the quality of the premises. The
committee urges that this is an abuseof the Workmen’s Compensationlaw and
constitutes a misapplication of that law to protect personswho are negligent.
The committee commendsthis provision to the Convention with the belief that
it is an important, if technical, aspect of the administration ofjustice. Those
are the remarks which are contained in the booklet. Let me amplify them by
saying basically this: we feel that the right to third-uartv action is a right which

16
 we should establishin our Constitution. It is a right which working men and
women who are unfortunate enoughto be iniured have had for nearlv 80 years
in this state. We feel that it was wrongly taken awav from theseaeoule bv the
Suweme Court decision which was mentioned. We feel that we aerhaus are
legislating in asking that this be written into our Constitution. but we of the
committee reallv believe that we are acting in a iudicial manner in asking that
it be written in the Constitution for we feel that this Convention. oerhaus.is the
court of last resort for iniured working men and women in Montana with
resuect to the third-uartv lawsuit. and we recommend that the section be
adouted.

Montana Constitutional Convention, Vol. V at 1754, March 8, 1972 (emphasis added).

The second sentenceof Section 16 was extensively debated. Delegate Habedank

moved that it be deleted. That motion was defeated by a vote of 76-14 (Montana

Constitutional Convention, Vol. V at 1759, March 8, 1972), and Section 16 was ultimately

approved by a vote of 76-21 (Montana Constitutional Convention, Vol. VII at 2644,

March 18, 1972).

It is clear from theseConvention Minutes that while the United StatesSupremeCourt

used statutory benefits as a basis for denying a service member’s claims for damagesbased

on negligence, our constitutional delegatesfelt that the opposite result was appropriate.

We have consideredthe impact of Article II, Section 16, on numerous occasionsand,

without exception, have held that it precludes limitations on claims by injured employees

againstpersonsother than the employee’semployer or fellow employee. SeeFruncetich v.

State Camp. Mut. Ins. Fund (1992), 252 Mont 2 15,827 P.2d 1279; Meech v. Hillhaven West,

Inc. (1989), 238 Mont. 21,776 P.2d 488; Webbv. Montana Masonry Constr. Co. (1988), 233

17
 Mont. 198,761 P.2d 343; andHayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 609

P.2d 257.

In Webb, 233 Mont. at 204, 761 P.2d at 346, we stated that:

The secondsentenceof Section 16 speaksloudly and clearly for itself.
If there could be any questionabout what the members intended the sentence
to mean, the question can be answered by reference to the transcript of the
convention. DelegateMarshall Murray, a Kalispell attorney, moved, on behalf
of a unanimous Bill of Rights Committee, for the adoption of Section 16,
which amendedthe 1889Constitution by adding the workmen’s compensation
provision of the secondsentence.

We then referred to the samecomments by Murray, which are previously cited in this

opinion, Webb, 233 Mont. at 204-05, 761 P.2d at 346-47, and then concluded that:

[TJheAshcraj?holding was expresslyand specifically overruled by the people
of the state with their approval of Article II, Section 16, of the 1972
Constitution, in which they directed that immunity would be restricted to an
“immediate employer who hired” the workmen and who had provided
coverage.

Webb,233 Mont. at 207,761 P.2d at 349.

In Meech, we noted that:

The narrow purposethe delegatesascribedto the changein the remedy
guaranteeis further reflected in the Proposed 1972 Constitution for the State
of Montana, Official Text with Explanation, circulated to the voters prior to
the vote on adopting the 1972 Constitution. According to the explanation in
the voters’ information pamphlet, the amendment

“Adds to 1889 constitution by specifically granting to a
person injured in employment the right to sue a third party
causing the injury, except his employer or fellow employee
when his employer provides coverage under workmens [sic]
compensation laws.”

Meech, 238 Mont. at 40, 776 P.2d at 500 (alteration in original).

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 Finally, in Fmncetich we held that limitations on an injured employee’sright to be

fully compensatedfor his injuries in a claim against a third party by allowing subrogation

prior to full recovery was precludedby Article II, Section 16. Francetich, 252 Mont. at 224,

827 P.2d at 1285. In languagerelevant to the issuebefore us, we stated that:

Section 39-71-414(6)(a), MCA, restricts an injured worker’s right to
obtain a full legal redress againstthird-party tortfeasors. The secondsentence
of Article II, Section 16, states this cannot be done. The record of the debate
at the Convention is clear that this was the delegates’intent in amending the
provision. The secondsentenceis mandatory. prohibitive. and self-executing
and it urohibits deorivine an emulovee of his full legal redress. recoverable
under general tort law. against third aarties. Finally, as noted above, we
recognized and explained this very idea in Meech.

Fvancetich, 252 Mont at 224, 827 P.2d at 1285 (emphasis added).

We reaffirm that pursuant to the second sentence in Article II, Section 16, of the

Montana Constitution, any statute or court decisionwhich deprivesan employee of his right

to full legal redress, as defined by the general tort law of this state against third parties, is

absolutely prohibited. That sentenceis mandatory and self-executing, and leaves no room

for erosion basedon what federal courts or the courts of other states would do pursuant to

federal laws or the laws of other states.

For thesereasons,we concludethat becauseJamesB. Trankel was not employed by

the Army National Guard of the State of Montana or the Department of Military Affairs for

the State of Montana at the time complained of, his claim against the State of Montana,

pursuant to the State Tort Claims Act found at §§ 2-9-101 to -805, MCA, is neither barred

19
by the Feres doctrine, nor our prior decision in Evans. The District Court erred when it

concluded otherwise. That part of the District Court’s judgment is reversed.

ISSUE 2

Did the District Court err when it concludedthat the plaintiffs allegationsof statutory

violations failed to state a claim?

The District Court held that Counts II, III, and IV of the plaintiffs complaint, based

on the Occupational Health Act, @ 50-70-101 to -118, MCA; the Montana Safety Act found

at 3s 50-71-101 to -334, MCA; and the Employee and Community Hazardous Chemical

Information Act found at $4 50-78-101 to -402, MCA, respectively, do not provide separate

statutory baseson which to recover damagesfor personalinjury. The District Court held that

theseacts define various duties of employers which may be relevant in a negligence action,

but that since Trankel’snegligenceaction was barred pursuantto Feres and Evans, Counts II,

III, and IV were also barred.

We review a district court’s conclusions of law to determine whether the court’s

interpretation of the law is correct. Common CauseofMontana v. Argenbright (1996), 276

Mont. 382, 386, 917 P.2d 425,427.

Trankel contends that we have previously held that the Safety Act provides an

independentbasis for a causeof action to recover damagesin Cain v. Stevenson(1985), 2 18

Mont. 101,706 P.2d 128, andShannon v. HowardS. Wright Construction Co. (1979), 181

Mont. 269, 593 P.2d 438, and that there is no basis for holding otherwise regarding the other

two acts which have the samepurpose and provide similar protections.

20
 The State contends that enforcement of the several acts in question is delegatedto

various state agencies and that when interpreting similar statutory provisions, the U.S.

SupremeCourt has held that federal statutesdid not authorize private causesof action. See

Middlesex County SewerageAuth. v. National SeaClammevsAssk (1981) 453 U.S. 1. The

State concedes,however, that the statutes may establisha duty for the purpose of proving

negligence per se.

In Shannon, the plaintiff was employed by a subcontractor who had subcontracted

with the general contractor and defendant, Howard S. Wright Construction Co., to perform

plumbing and mechanicalwork at the Big Sky Resort. Shannon, 181 Mont. at 27 1, 593 P.2d

at 439. Plaintiff was injured when he fell from a ladder while trying to gain accessto the

second level of a condominium that was under construction. He sued both Wright

Construction and Big Sky Resort. During the jury trial, the district court instructed the jury

pursuant to 5 50-71-201, MCA (the Montana Safety Act), that an employer, including the

prime contractor, has a duty to provide employeeswith a safe place to work. Shannon, 181

Mont. at 281,593 P.2d at 445. On appeal,the defendantscontendedthat neither of them was

an “employer,” as definedby the Safety Act. We held that the “safe place to work” provision

of the Safety Act did establish a duty from the prime contractor to employees of

subcontractors. Shannon, 181 Mont. at 283, 593 P.2d at 445-46. However, we did not

distinguish between the duty which forms the basis for a claim of negligence and a duty

which gives rise to an independent statutory causeof action.

21
 In Cutn, the plaintiff subcontractedto do electrical work for the defendant during the

construction of an apartment building. The defendantwas the owner of the building and the

general contractor. The plaintiff fell and injured himself while trying to exit the building

without the benefit of steps or a ladder and sued the defendant based on allegations of

negligence. Cain, 218 Mont. at 102-03,706 P.2d at 129. From ajury verdict in favor of the

plaintiff, the defendant appealedthe district court’s conclusion that the safe place to work

statuteimposed a duty running from the defendantto the plaintiff. The defendantarguedthat

pursuant to the Shannon decision, the statutes only applied in situations where the claim is

presentedby an employee of a subcontractorandthe generalcontractor had control over the

workplace. He contended that it did not apply in this situation where the plaintiff was,

himself, the subcontractor. Cain, 218 Mont. at 103,706 P.2d at 130. We held that the duty

establishedby 5 50-71-201, MCA, did apply to the subcontractorin that casewhile working

for the general contractor. Cain, 218 Mont. at 104-05, 706 P.2d at 131. However, once

again, we did not discusswhether the duty created simply served as a basis for a claim of

negligence, or gave rise to a separatestatutory causeof action.

More recently, in Stratemeyevv. Lincoln County (1996), 276 Mont. 67, 79-80, 915

P.2d 175, 182,we held that the Montana Safety Act establishes duty to provide a workplace
a

which is safe from mental injury, as well as physical injury. It is not clear from the reported

opinion whether Stratemeyer alleged failure to comply with 5 50-7 l-20 1, MCA, as a basis

for his negligence claim, or whether he alleged a separate statutory cause of action.

However, we stated that:

22
 Stratemeyercontendsthat his claim is basedon Lincoln County’s failure
to train, supervise,treat and debrief him following the incident. According to
Stratemeyer, the traumatic nature and consequencesof responding to the
suicide were foreseeable, and post-traumatic stress disorder is a common
injury for law enforcement personnel, emergency medical technicians and
disaster and emergency services personnel.

Stratemeyer, 276 Mont. at 79,915 P.2d at 182. A reasonableinference from the facts which

are reported in the Stratemeyer decisionis that the duty allegedin that caseformed the basis

for Stratemeyer’sclaim of negligence.

We concludethat there is no prior authority for the position that statutory acts, such

as those in question, create independent causesof action aside from their relationship to

proof of negligence, and also conclude, based on our prior decision in Pollard v. Todd

(1966) 148Mont. 171,418 P.2d 869, that statutory acts,like those included in Counts II, III,

and IV of the plaintiffs complaint, establish duties, the violation of which is negligence

per se.

In Pollard, the plaintiff fell from a make-shift scaffolding constructed to the

specifications of his employer, the defendant. Pollard, 148 Mont. at 175,418 P.2d at 871.

The defendants were exempt from coverage of the Workers’ Compensation Act, and the

plaintiff did not make a claim pursuant to that Act. We held that because of the duties

imposed by the “Scaffolding Act,” which was then found at Title 69, Chapter 14, RCM

(1947), but is now found at Title 50, Chapter 77, MCA, the Legislature intended an absolute

statutory duty upon owners of real estateto protect workmen and others from extraordinary

hazardsassociatedwith scaffolds, and therefore, that plaintiff was entitled to an instruction

23
that breach of the statutorily-createdduty was negligenceper se. Pollard, 148 Mont. at 180,

418 P.2d at 873. The acts, which plaintiff allegesin Counts, II, III, and IV of his complaint

were violated by the State, provide similar duties which were enactedfor similar purposes.

We therefore concludethat the violation of those statutes is also negligenceper se, and that

in the appropriate situation the jury should be so instructed. However, we also conclude, as

did the District Court, that the Acts in question do not give rise to causes of action

independentfrom a claim of negligence.

For these reasons, we affirm the District Court’s conclusion that the Occupational

Health Act, the Montana SafetyAct, and the Employee andCommunity HazardousChemical

Information Act did not give rise to independentcausesof action. However, we reverse the

District Court’s conclusion that claims of negligence,based on violations of these Acts, are

barred by the Feres doctrine, or our decision in Evans, and we furthermore reverse the

District Court’s conclusion that the solemeansof enforcementof the duties imposed by these

Acts are the administrative remediesprovided therein.

The judgment ofthe District Court is reversedand this caseis remandedto the District

Court for further proceedings consistent with this opinion.

24
We Concur:

25
 April 30, 1997

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Erik B. Thueson
Thueson & Lamb
Box 535
Helena MT 59624-0535

William Gianoulias
Risk Mgmt. & Tort Div.
Box 200124
Helena MT 59620-0124

Hon. Joseph P. Mazurek, Attorney General
James M. Scheier & Thomas G. Bowe,
Assistant Attorneys General
215 N. Sanders
Helena MT 59620-1401

LTC Mike T. McCabe
Staff Judge Advocate
Box 202101
Helena MT 59620-2101

(Attorney for N.G.)

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY: OB:
Deputy