Robert Bassett v. Paul Lamantia

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT D. BASSETT, No. 15-35045
Plaintiff-Appellant,
D.C. No.
v. 1:13-cv-00091-SEH

PAUL LAMANTIA; CITY OF
BILLINGS, ORDER
Defendants-Appellees.

Filed May 24, 2017

Before: Alex Kozinski and William A. Fletcher, Circuit
Judges, and Frederic Block,* Senior District Judge.

*
The Honorable Frederic Block, United States Senior District Judge
for the Eastern District of New York, sitting by designation.
2 BASSETT V. LAMANTIA

SUMMARY**

Montana Law

On appeal from the district court’s summary judgment in
an action in which plaintiff alleged he was injured by a City
of Billings police officer, the panel certified the following
question to the Montana Supreme Court:

Whether, under Montana law, the public duty
doctrine shields a law enforcement officer
from liability for negligence where the officer
is the direct and sole cause of the harm
suffered by the plaintiff?

ORDER

Pursuant to Rule 15 of the Montana Rules of Appellate
Procedure, we certify to the Montana Supreme Court the
question of law set forth in Part II of this order. The answer
to this question may be determinative of a case pending
before this court, and there is no controlling precedent in the
decisions of the Montana Supreme Court.

I. The Parties

Plaintiff-appellant Robert D. Bassett, will be the appellant
before the Montana Supreme Court. Defendants-appellees
Paul Lamantia and City of Billings will be the respondents.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 BASSETT V. LAMANTIA 3

The names and addresses of counsel for the parties are as
follows:

R. Russell Plath, Russ Plath Law, LLC, 2601 Minnesota
Avenue P.O. Box 1337, Billings, Montana 59103, for
appellant.

Brendon J. Rohan, Poore, Roth & Robinson, P.C.,
1341 Harrison Avenue, Butte, Montana 59701, for respondent
Paul Lamantia.

Harlan B. Krogh and Eric Edward Nord, Crist, Krogh,
Butler & Nord, LLC, 2708 1st Avenue North, Suite 300,
Billings, Montana 59101, for respondent City of Billings.

II. Question of Law

The question of law to be answered is:

Whether, under Montana law, the public duty
doctrine shields a law enforcement officer
from liability for negligence where the officer
is the direct and sole cause of the harm
suffered by the plaintiff?

The Montana Supreme Court may rephrase the question
as it deems necessary.

III. Background

Around 12:30 a.m., Officer Paul Lamantia and his partner
were dispatched to respond to a call about a neighborhood
disturbance. Upon arriving at the scene, Lamantia observed
a male suspect running into a driveway. The suspect jumped
4 BASSETT V. LAMANTIA

over a retaining wall and entered the backyard of the adjacent
property, which was owned by Bassett. Lamantia identified
himself as a police officer and ordered the suspect to stop.
When the suspect continued running, Lamantia followed on
foot and jumped over the retaining wall between the two
properties. In the process, Lamantia dropped his flashlight.

Meanwhile, Bassett had come out of his house to
investigate the commotion. While searching for his
flashlight, Lamantia heard footsteps behind him and turned
around to see Bassett approaching. Thinking that Bassett
might be a threat to his safety, Lamantia tackled Bassett to
the ground. As soon as he realized that Bassett wasn’t a
threat, Lamantia released him.

Bassett then indicated to Lamantia the direction in which
the suspect had run and Lamantia continued his pursuit.
Later that morning, Lamantia returned to Bassett’s residence
to check on him. Bassett declined an ambulance or medical
help at that time, but a few hours later called the police
department to report that he sustained an injury from his
encounter with Lamantia. Bassett was then diagnosed with
a torn rotator cuff.

Almost a year later, Bassett sued Lamantia and the City
of Billings under 42 U.S.C. § 1983 and also alleged a state
law claim of negligence against Lamantia for failing to
exercise reasonable care in performing his duties. The
original complaint was filed in state court, but defendants
removed the case to federal court. The district court entered
summary judgment in favor of the defendants on both claims.
As to the negligence claim, the district court found that the
public duty doctrine shielded the defendants from liability:
 BASSETT V. LAMANTIA 5

I do not find that there was a special
relationship existing between the plaintiff and
the city. And I find, and rule, that the public
duty doctrine does apply, and that the
application of that public duty doctrine shields
both defendants from any claims based upon
negligence.

Bassett is appealing the dismissal of his negligence claim.

IV. Discussion

Under Montana law, “[t]he public duty doctrine provides
that a governmental entity cannot be held liable for an
individual plaintiff’s injury resulting from a governmental
officer’s breach of a duty owed to the general public rather
than to the individual plaintiff.” Gatlin-Johnson v. City of
Miles City, 367 Mont. 414, 418 (2012) (internal quotation
marks and citation omitted). The Montana Supreme Court
has explained that the public duty doctrine doesn’t “always
appl[y] whenever a public entity or person is a defendant in
a negligence case.” Id. at 419. Bassett urges us to recognize
an exception to the public duty doctrine where a law
enforcement officer is the sole cause of a plaintiff’s injury.

Montana courts have been silent on this matter. The cases
that have addressed the public duty doctrine in the law
enforcement context involved situations where a law
enforcement agent failed to protect the plaintiff from harm
caused by a third party. See, e.g., Gonzales v. City of
Bozeman, 352 Mont. 145, 150–51 (2009) (holding that the
public duty doctrine applied where a third party who was later
arrested by law enforcement injured the plaintiff); Nelson v.
Driscoll, 295 Mont. 363, 368, 370–71 (1999) (analyzing the
6 BASSETT V. LAMANTIA

public duty doctrine where the plaintiff was killed by a drunk
driver).

The Montana Supreme Court’s most recent attempt at
clarifying the public duty doctrine in Kent v. City of
Columbia Falls, 379 Mont. 190 (2015), doesn’t answer the
question presented in this appeal. In Kent, the plaintiff died
as a result of a skateboarding injury. Id. at 191. His wife
sued the City of Columbia Falls as well as other entities
responsible for the construction of the paved path upon which
the deceased had skated. Id. The Montana Supreme Court
considered whether the public duty doctrine shielded the City
from liability for negligence, and concluded that it did not.
Id. at 191, 206. Kent explained that, in determining whether
the public duty doctrine applies, courts “should first
determine whether a governmental defendant has a specific
duty to a plaintiff arising from ‘generally applicable
principles of law’ that would support a tort claim.” Id. at 201.
“If a private person would be liable to the plaintiff for the acts
that were committed by the government, then the
governmental entity would similarly be liable,” and the public
duty doctrine would not apply. Id.

The dissent criticized the majority in Kent for
“suggest[ing] a new exception to the public duty doctrine
where the government engages in affirmative acts that give
rise to the dangerous circumstances causing a plaintiff’s
injury.” Id. at 214 (Baker, J., dissenting). While the Kent
majority might have “suggest[ed]” such an exception, it never
expressly adopted it.

Other courts have been clearer. The Maryland Court of
Appeals “recognize[d] [that] the public duty doctrine does not
apply if law enforcement is not engaged in protecting the
 BASSETT V. LAMANTIA 7

public from an injurious force caused by a member of the
public, but rather is itself the alleged injurious force.” Jones
v. State, 425 Md. 1, 25 (2012). And the North Carolina Court
of Appeals found “no case in which the public duty doctrine
has operated to shield a defendant from acts directly causing
injury or death.” Moses v. Young, 149 N.C. App. 613, 616
(2002). District courts, including those in the District of
Montana, have also held that “the [public duty] doctrine does
not apply when a law enforcement officer is the sole alleged
cause of the plaintiff’s injury.” Ratcliff v. City of Red Lodge,
Dep’t of Police, No. CV 12-79-BLG-DWM-JCL, 2014 WL
526695, at *6 (D. Mont. Feb. 7, 2014), rev’d on other
grounds by 650 F. App’x 484 (9th Cir. 2016) (unpublished);
see also Liser v. Smith, 254 F. Supp. 2d 89, 102 (D.D.C.
2003) (holding that the public duty doctrine “is wholly
inapposite . . . where the alleged harm was brought about
directly by the officers themselves, and where there is no
allegation of a failure to protect” (citation omitted)).

V. Conclusion

It appears to us that there is no controlling precedent of
the Montana Supreme Court with regard to the issue of
Montana law raised by this case. We thus request the
Montana Supreme Court accept and decide the certified
question. Mont. R. App. P. 15(3).

The clerk of this court shall forward a copy of this order,
under official seal, to the Montana Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court.
8 BASSETT V. LAMANTIA

VI. Stay of Proceedings and Withdrawal of
Submission

In light of our decision to certify the issue set forth above,
the submission of this appeal is withdrawn, and all further
proceedings in this case before our court are stayed pending
final action by the Supreme Court of Montana, save for any
petition for rehearing regarding this order. The Clerk is
directed to administratively close this docket, pending further
order. The parties shall notify the Clerk of this court within
fourteen days of the Supreme Court of Montana’s acceptance
or rejection of certification, and again, if certification is
accepted, within fourteen days of the Supreme Court of
Montana’s issuance of a decision.

QUESTION CERTIFIED; PROCEEDINGS
STAYED.

Respectfully submitted, Alex Kozinski and William A.
Fletcher, Circuit Judges, and Frederic Block, United States
Senior District Judge for the Eastern District of New York,
sitting by designation.