VanLuchene v. State

No. 89-588

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

TERRY VANLUCHENE, JANE VANLUCHENE,
PAULA OSTROM, KATHERINE VANLUCHENE,
and DEREK VANLUCHENE, as individuals;
TERRY VANLUCHENE and JANE VANLUCHENE
as Personal Representatives of the
Estate of Ryan VanLuchene, Deceased,
Plaintiffs and Appellants,
-vs-
STATE OF MONTANA,
Defendant and Respondent.

APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable R.D. McPhillips, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Kenneth R. Olson, Great Falls, Montana
For Respondent:
Maxon R. Davis, Paul R. Haffeman, Cure, Borer &
Davis, Great Falls, Montana
Amicus Attorneys:
W. William Leaphart, Leaphart Law Firm, Helena,
Montana (Bartruff)

Submitted on Briefs: May 24, 1990
~ecided: September 4, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.

This appeal arises from the summary disposition of appellants'
claims in the District Court of the Ninth Judicial District,
Pondera County. We affirm.
On June 11, 1984, Robert Hornback pled guilty to felony sexual
assault following his attack on a young boy in Libby. Hornback was
sentenced to five years in Montana State Prison with a dangerous
offender designation. Hornback served his full sentence reduced
only by a statutory allowance for good time (5 53-30-105, MCA) and
by 132 days for time served prior to conviction. Hornback was
released when his sentence expired on May 22, 1987. On August 31,
1987, Hornback sexually assaulted and killed eight-year-old Ryan
VanLuchene in Libby. Hornback pled guilty to assaulting and
killing Ryan and was sentenced to 200 years in the Montana State
Prison.
Appellants are Ryan's parents, sisters and brother.
Appellants initially filed a tort claim before the Department of
Administration. Following denial of that claim, appellants brought
this action in District Court. Respondent moved for dismissal
pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court
considered matters not contained within the pleadings in rendering
its judgment and for that reason converted respondent's motion to
dismiss to a motion for summary judgment pursuant to Rule 56,
M.R.Civ.P.
The District Court found that appellants' theories of
proximate cause were too speculative and that respondent's acts
2
were not the proximate cause of appellants1 injuries. The lower
court further found that respondent has no duty to insure the
rehabilitation of prisoners and cannot reasonably detain prisoners
beyond the expiration of their sentences. The District Court
concluded that respondent had no duty to warn of Hornback's
release.
The first issue raised by appellants is whether the District
Court erred in granting summary judgment in favor of respondent.
Summary judgment is properly rendered when there are no genuine
issues of material fact. Bohnsack v. Hi-Noon Petroleum, Inc.
(Mont. 1990), 793 P.2d 815, 817, 47 St.Rep. 1125, 1127. Summary
judgment is proper in this case because there are no significant
factual disputes.
We restate the remaining issues raised by appellants as:
1. Do alleged violations of certain statutory provisions by
respondent amount to negligence per se?
2. Does respondent have a duty, the breach of which is
recoverable in tort, to avoid the release of prisoners known to it
to be suffering from psychological problems which make the
prisoners a danger to society?
3. Does respondent have a duty to effectively warn society
of the danger represented by recently released prisoners who are
presently dangerous and/or to take whatever other steps are
reasonably necessary under the circumstances to protect society?
Specifically, appellants argue the acts enumerated below
constituted negligence by respondent:
 1. Hornback did not receive therapy through the sexual
offender treatment program despite the specific finding of the
sentencing court that he needed help. Appellants claim Hornback
was asked to leave the group by the other members and did so with
the consent of prison authorities.
2. Prison authorities allegedly ignored repeated sexual
assaults committed against Hornback that had the effect of
exacerbating his pre-existing psychological problems.
3. Hornback was not disciplined for consensual homosexual
contact which discipline could have resulted in reduction or
elimination of his good time allowance.
4. Although allegedly aware of Hornback's threats to murder
a young blond child in the Libby area, prison officials made no
effort to detain Hornback past the expiration of his sentence.
5. Prison authorities failed to issue a warning concurrent
with Hornback's release.

Appellants assert the following impose a duty upon the State,
the breach of which is actionable in tort:
No barbarous punishments may be prescribed for an inmate
of the state prison, nor shall an inmate, as punishment,
be deprived of his normal provision of food while being
compelled to work the usual number of hours per day.
Section 53-30-104, MCA.
The correctional policy of the state of Montana is
to protect society by preventing crime through punishment
and rehabilitation of the convicted. The legislature
finds that an individual is responsible for and must be
held accountable for his actions. Corrections laws and
programs must be implemented to impress upon each
individual his responsibility for obeying the law. To
 achieve this end, it is the policy of the state to assure
that prosecution of criminal offenses occurs whenever
probable cause exists and that punishment of the
convicted is certain, timely, and consistent.
Furthermore, it is the state's policy that persons
convicted of a crime shall be dealt with in accordance
with their individual characteristics, circumstances,
needs, and potentialities.
Section 46-18-101(2), MCA.
Dangerous offenders who habitually violate the law
and victimize the public shall be removed from society
and correctively treated in custody for long terms as
needed. Other offenders shall be dealt with by
probation, suspended sentence, or fine whenever such
disposition appears practicable and not detrimental to
the needs of public safety and the welfare of the
individual. Whenever possible, sentences for offenders
shall include restitution to the victim, payment of costs
as provided in 46-18-232, and payment of costs of court-
appointed counsel as provided in 46-8-113.
Section 46-18-101 (3) (b), MCA.
The department shall utilize at maximum efficiency
the resources of state government in a coordinated effort
to:
(1) restore the physically or mentally disabled;
(2) rehabilitate the violators of law;

(6) coordinate and apply the principles of modern
institutional administration to the institutions of the
state.
Section 53-1-201, MCA.
The institution at Deer Lodge is the state prison
and as its primary function provides facilities for the
custody, treatment, training, and rehabilitation of adult
criminal offenders.
Section 53-30-101, MCA.
The essence of appellants1 argument is that respondent's
violation of the above statutes constitutes negligence. A
statutory infraction may amount to negligence per se. Thayer v.
Hicks (Mont. 1990), 793 P.2d 784, 792, 47 St.Rep. 1082, 1091.
The violation of statutes is negligence as a matter of
law when the purpose of the statute is to protect a class
of persons, the plaintiff is a member of that class, and
the defendant is a person against whom a duty is imposed.
(Citations omitted.) The purpose of the statute also
must be to protect against the kind of injury received
by the plaintiff.
Nehring v. LaCounte (1986), 219 Mont. 462, 468, 712 P.2d 1329,
1333. To prevail in a negligence per se case, the plaintiff must
prove :
1. The defendant violated the particular statute.
2. The statute was enacted to protect a specific class of
persons.
3. Plaintiff is a member of that class.
4. Plaintiff's injury is of the sort the statute was enacted
to prevent.
5. The statute was intended to regulate members of
defendant's class. See, Nehring v. LaCounte, supra.
In the instant case, appellants fail to establish that
respondent violated any of the enumerated provisions. Appellants
state no facts from which we can conclude Hornback was subjected
to barbarous punishment. Hornback was allegedly the victim of
repeated sexual assaults while incarcerated at Montana State
Prison. Appellants' contention that these assaultswere part of
Hornback's punishment lacks merit. The argument advanced by
appellant would require a finding that these assaults were part of
the punishment imposed upon Hornback by respondent. This we
decline to do.
Appellants further contend respondent has a duty to
rehabilitate prisoners. We disagree. The above-cited statutes
clearly provide for use of multitudinous State resources in an
effort to rehabilitate prisoners. The State is not a guarantor of
its rehabilitation facilities and we will not impose such on
obligation upon it.

Appellants assert respondent has a duty to avoid the release
of prisoners whose mental illnesses render them dangerous to
society. Section 46-18-801, MCA, states that:

(1) Conviction of any offense shall not deprive the
offender of any civil or constitutional rights except as
they shall be specifically enumerated by the sentencing
judge as necessary conditions of the sentence directed
toward the objectives of rehabilitation and the
protection of society.
(2) No person shall suffer any civil or
constitutional disability not specifically included by
the sentencing judge in his order of sentence.
(3) When a person has been deprived of any of his
civil or constitution.al rights by reason of conviction
for an offense and his sentence has expired or he has
been pardoned, he shall be restored to all civil rights
and full citizenship, the same as if such conviction had
not occurred.
Clearly, once Hornback's sentence had expired, respondent had
no choice but to release him from Montana State Prison. To have
refused his release would have violated Hornback's constitutional
rights. Appellants assert respondent should have disciplined
Hornback for alleged homosexual activity and could have initiated
civil commitment proceedings against Hornback to delay his release
into society. .Neither argument persuades us that respondent has
any duty to detain a prisoner once his sentence has expired.

Appellants contend respondent should have issued a warning
regarding Hornbackts release from Montana State Prison. We note
with approval the holding of the California Supreme Court in
Thompson v. County of Alameda (Cal. 1980), 614 P.2d 728. In that
case, a juvenile offender who had repeatedly threatened to kill a
young child was released to his mother's custody by the defendant.
Defendant issued no warning regarding the offender's release.
Within 24 hours of his release, the youth murdered the young son
of his mother's neighbors. Thompson, 614 P.2d at 730. Plaintiff
parents sued alleging defendant had a duty to warn of the
offender's release in light of his threats, citing Tarasoff v.
Regents of University of California (Cal. 1976), 551 P. 2d 334. The
Thompson court foresaw:
[Slignificant practical obstacles in the imposition of
a duty in the form that plaintiffs seek, concluding that
it would be unwieldy and of little practical value. As
previously indicated a large number of persons are
released and supervised on probation and parole each year
in this state. Notification to the public at large of
the release of each offender who has a history of
violence and who has made a generalized threat at some
time during incarceration or while under supervision
would, in our view, produce a cacophony of warnings that
by reason of their sheer volume would add little to the
effective protection of the public.
Thompson, 614 P.2d at 735.
The merit of issuing a warning to the general public in the
instant case is equally questionable. Appellants do not set forth
how their actions would have differed had respondent made a general
public warning. The legislature, after considering this issue in
its last regular session, enacted the Sexual Offender Registration
Act, codified at § 46-23-501, et seq., MCA.
A sexual offender who is released from the custody of the
department of institutions or the department of family
services must be informed in writing prior to release of
his duty to register under 46-18-254, 46-18-255, and this
part by the official in charge of the place of
confinement. The official shall obtain the address where
the person expects to reside upon his release and report
the address to the department of institutions. The
department shall inform the appropriate law enforcement
agency having local jurisdiction where the person expects
to reside.
Section 46-23-503, MCA.
The legislature recognized the futility of issuing a public
warning regarding the release of every potentially violent
offender. It is truly unfortunate and tragic that Ryan VanLuchene
died by the reprehensible, violent, senseless acts of an ex-
convict. Recovering monetary damages in tort for the death of Ryan
by holding the State responsible is not the law. The law and
Montana s criminal justice system have, however, seen to it that
Robert Hornback will pay something -- his life will be spent behind
bars.
We hold that the respondent had no duty to warn the public
under the facts of this case.
Affirmed.

Justice
W e concur:

Chief J u s t i c e