No. 14519
IN THE SUPREME COURT OF THE STATE OF MONTANA
REGINA. PRETTY ON TOP, as surviving
spouse, and DOROTHY MARCHINGTON,
Administratrix of the Estate of MELVIN
PRETTY ON TOP, Deceased,
Plaintiffs and Appellants,
CITY OF HARDIN, MONTANA and ROBERT HAMILTON,
chief of police of the City of Hardin, Montana
Defendants and Respondents.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellants:
Lynaugh, Fitzgerald, Schoppert, Skaggs, and Essman,
Billings, Montana
Thomas J. Lynaugh argued, Billings, Montana
For Respondents:
Keefer and Roybal, Billings, Montana
J. Dwaine Roybal argued, Billings, Montana
Submitted: February 13, 1979
Decided: APE 1' 1979
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Filed: : .fig
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Mr. J u s t i c e John C . Sheehy d e l i v e r e d t h e Opinion o f
t h e Court.
O t h e a f t e r n o o n of September 1 8 , 1973, Hardin
n
C i t y p a t r o l m a n Harvey Kern o b s e r v e d t h r e e men s i t t i n g
i n a t r u c k behind t h e Big Horn Bar i n Hardin, Montana.
They were p a s s i n g a b o t t l e from one p e r s o n t o a n o t h e r .
Patrolman Kern watched t h e men f o r a p p r o x i m a t e l y f i f t e e n
m i n u t e s b e f o r e one of t h e men g o t o u t of t h e t r u c k and
l e f t t h e scene. The patrolman t h e n approached t h e v e h i c l e
and informed t h e o c c u p a n t s of t h e c i t y o r d i n a n c e which
p r o h i b i t e d p u b l i c p o s s e s s i o n of an open b o t t l e c o n t a i n i n g
an a l c o h o l i c beverage. A f t e r i n f o r m i n g t h e men of t h e i r
r i g h t s , p a t r o l m a n Kern a r r e s t e d them and t o o k them t o
t h e Hardin C i t y J a i l where t h e y w e r e s e a r c h e d and i n c a r -
cerated.
One of t h e men was Melvin P r e t t y On Top, a N a t i v e
American. H e had been a r r e s t e d numerous t i m e s i n t h e p a s t
f o r alcohol-use offenses. O t h i s o c c a s i o n it a p p e a r e d t o
n
t h e p a t r o l m a n t h a t P r e t t y O Top had been d r i n k i n g , b u t
n
t h a t he w a s i n c o n t r o l of h i s body. He d i d n o t s t a g g e r
and he was c o h e r e n t .
O t h e morning a f t e r h i s a r r e s t , P r e t t y On Top
n
pleaded g u i l t y t o t h e open-bottle charge. The P o l i c e C o u r t
imposed a $100 f i n e . Because P r e t t y On Top was u n a b l e t o
pay t h e f i n e , he was r e t u r n e d t o t h e j a i l t o s e r v e t i m e
a t a r a t e o f $10 p e r day.
The Hardin C i t y J a i l i s used a l m o s t e n t i r e l y f o r
detoxification. Of t h e 300 p e r s o n s i n c a r c e r a t e d i n t h e
j a i l f o r a t w e l v e month p e r i o d immediately p r e c e d i n g
September 1973, 98 p e r c e n t were j a i l e d on a l c o h o l - u s e
offenses. Of these offenders,95 percent of those jailed
were Native Americans. The jail is inspected, but not
searched, numerous times each day by the police chief
and the officers on duty. Visiting hours are from 8:00
a.m. until 4:00 p.m. Visitors are permitted to go back
to the cell and talk to prisoners through the bars. Before
doing so, the visitor is asked to remove his coat and
leave behind packages, but a search of the visitor is not
made. Overall, the security maintained by the authorities
depends on the jail population. Since the jail is used
primarily for detoxification, minimum security is usually
maintained.
On September 22, at 6:03 p.m., four days after his
arrest, Melvin Pretty On Top committed suicide by stabbing
himself in the throat, neck and chest with a wooden paring
knife. None of the authorities knew how Pretty On Top
obtained the knife or how long he possessed it prior to
his death. However, one of the trusties (a prisoner who
receives $5.00 credit each day for doing janitorial work
in the cell and reporting anything unusual to the officer
on duty) knew that Pretty On Top had the knife in his
possession, but failed to inform anyone.
Pretty On Top's wife, Regina, had asked to see her
husband approximately one hour before his death, but her
request was denied because visiting hours had ended. This
was the only record of anyone attempting to visit Pretty
On Top.
Hardin City Police Chief Robert Hamilton observed
Pretty On Top each day before his death during inspections.
His general demeanor, attitude and activities were normal.
Pretty On Top did not have a history of mental disease or
emotional disturbances, nor had he attempted suicide
previously.
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On January 2, 1974, Regina Pretty On Top and the
administratrix of Pretty On Top's estate (plaintiffs)
filed a complaint in District Court, Big Horn County,
alleging that Pretty On Top's death was caused by the
negligence of defendants City of Hardin and Police Chief
Robert Hamilton in failing to exercise due care in the
maintenance and supervision of the jail facility.
On October 28, 1975, defendants moved for summary
judgment, stating:
"The City of Hardin and Robert Hamilton
submit that the undisputed facts do
not support any theory of liability and
therefore they are entitled to judgment
as a matter of law. Three independent
and equally supportable reasons are here
presented in support of notion for
summary judgment.
"1. The defendants breached no duty owed
to the deceased.
"2. The suicide of Melvin Pretty On Top
was not foreseeable by any defendant.
" 3 . The suicide of Melvin Pretty On Top
was his own volitional act and as such
was a sufficient superceding and inter-
vening act to cut off responsibility for
any negligence of the defendant."
An order granting defendants' motion for sumary
judgment was entered by the District Court on September 20,
1978, and this appeal followed.
The ultimate issue to be decided in this case is
whether the surriiary judgment is proper.
A party against whom a claim is asserted may, at
any time, move for suxnary judgment in his favor. Rule
56(b), M0nt.R.Civ.P. The judgnent sought shall be rendered
forthwith if the pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with any
affidavits, shcw 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. Rule 56(c), M0nt.R.Civ.P.
The party moving for summary judgment has the
burden of establishing the absence of any genuine issue
of material fact and the party opposing the motion must
come forward with evidence supporting the existence of
a genuine fact issue. Hollinger v. McMichael (1978),
Mon t . , 580 P.2d 927, 35 St.Rep. 856.
In the case before us, the District Court considered
the pleadings, depositions, answers to interrogatories,
and the parties' briefs before granting defendants' motion
for summary judgment. For purposes of testing the
propriety of the summary judgment, defendants do not
dispute the material facts found in the court's file.
Those material facts are set forth above.
Actionable negligence arises only from a breach of
legal duty, and tc sustain an action for damages resulting
from negligence, the complaint must allege the duty, its
breach, the damages, and that the breach of duty was the
proximate cause of the injury. Ritchie v. Northern Pac.
Ry. Cc. (1954), 128 Mont. 218, 272 P.2d 728. Related to
these basic rules of negligence law is the rule that a
defendant who could not reasonably foresee any danger of
direct injury resulting from his conduct or any risk from
an intervening force is not negligent. Mang v. Eliasson
(1969), 153 Mont. 431, 458 P.2d 777.
A jailer owes a duty to the prisoner to keep him safe
and to protect him from unnecessary harm. Reasonable and
ordinary care must be exercised for the life and health of
the prisoner. Porter v. County of Cook (1976), 42 Ill.
App.3d 287, 355 N.E.2d 561; see also: 79 A.L.R.3d 1210;
60 Arn.Jur.2d, Penal and Correctional Institutions, S17,
p. 821. As stated in Kendrick v. Adamson (1935), 51 Ga.App
402, 180 S.E. 647, "A sheriff owes to a prisoner placed in
his custody a duty to keep the prisoner safely and free
from harm, to render him medical aid when necessary, and
to treat him humanely and refrain from oppressing him."
However, ". . . a jailer is not liable to a prisoner
in his keeping for injuries resulting from the prisoner's
own intentional conduct [citation omitted.] Absent some
possible special circumstances a jailer is under no duty to
prevent the latter from taking his own life." Lucas v.
City of Long Beach (1976), 60 Cal.App.3d 341, 131 Cal.Rptr.
470.
"Special circumstances" form the basis of virtually
every decision involving a jailer's liability for a prisoner's
acts of self-destruction.
In Porter v. County of Cook, supra, the plaintiff had
been incarcerated in the Cook County House of Correction
for threatening to harm his wife. He was physically examined
by a county-employed psychiatrist who recommended "that
he be admitted to a hospital immediately as an emergency
for the protection from physical harm of himself or others."
The plaintiff was then placed in an isolated cell where he
began hearing voices that threatened him. He yelled for
the guards to come to his aid and for medication. None
came. The voices kept getting worse and worse. In an
attempt to drive the voices away, the plaintiff set his
mattress on fire. Soon his hair caught on fire and he
started screaming. A guard from two tiers above his cell
rescued him, but not before he had suffered severe burns
on his face and hands. The Appellate Court of Illinois
upheld the trial court's factual determination that the
county, which was obligated to provide reasonable care for
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its prisoners, did not do so when its employees failed to
strip the defendant, take away his personal effects, and
protect him from harming himself.
In the above-discussed case the defendant knew or
should have known that the prisoner was suicidal, thereby
satisfying the requirement that "special circumstances"
exist before liability will attach. But liability is not
limited to cases involving prisoners with suicidal histories.
For example, numerous courts have held the jailer respon-
sible for the prisoner's actions when the prisoner injures
himself because he is in a state of helpless intoxication.
Decisions stating that a greater duty is owed when a person
is so intoxicated as tc be incapacitated for physical or
mental effort are: Thomas v. Williams (1962), 105 Ga.App.
321, 124 S.E.2d 409; Barlow v. City of New Orleans (1970),
257 La. 91, 241 So.2d 501; and Shuff v. Zurich-American Ins.
Co. (1965 La.App. ) , 173 So.2d 392.
Finally, a case arising in the neighboring state
of North Dakota provides a clear insight into the problem.
In Falkenstein v. City of Bismarck (N.D. 1978), 268 N.W.
2d 787, the decedent was placed in a cell known as "the
hole" following an incident in which he "foulmouthed" a
police officer. The next morning the decedent was found
dead, hanging from the cell door bars. The North Dakota
Supreme Court, noting the Lucas case, held that substantial
evidence existed in the record to support a conclusion
that the decedent's suicide was the result of a morbid
state of mind proximately caused by his incarceration in
"the hole" for an extended period of time.
The North Dakota Supreme Court noted that, "[Iln
most situations a death by suicide is not an actionable
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event because, even though there may have been tortious
conduct preceding the suicide, the suicide is ordinarily
considered as an intentional act and not the result of
the tort. This relieves the original actor of liability."
Therefore, a plaintiff does not have a cause against a
jailer for negligently causing the suicide of a prisoner
unless "special circumstances" are offered which elevate
the jailer's duty of care and tend to prove that the
jailer's acts or omissions constituted the proximate cause
of the suicide, rather than the prisoner's own intentional
conduct. The jailer is not an insurer of the safety of
its prisoners. However, once the jailer knows or should
know of the suicidal tendencies of a prisoner, a duty arises
to provide reasonable care necessary to prevent the prisoner
from committing suicide. The rule applies whether the
prisoner is mentally anguished, helplessly intoxicated,
or temporarily insane because of conditions forced upon
him by the jailer.
Melvin Pretty On Top committed suicide four days
after being incarcerated in the Hardin City Jail. He
did not have a history of mental disease or emotional
disturbances, nor had he attempted suicide previously.
His conduct and general demeanor while in jail was normal.
There is no evidence in the District Court file that Pretty
On Top was suffering from delerium tremens.
Plaintiffs contend the defendants were negligent in
the supervision and maintenance of the jail facility, thereby
permitting the paring knife to be accessible to Pretty On
Top. A similar attempt to impose liability was made in
Maricopa County v. Cowart (1970), 106 Ariz. 69, 471 P.2d
265, an action to recover for the suicide of a boy confined
in a reformatory. Responding to the allegation that the
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physical plant was negligently constructed, the Supreme
Court of Arizona said:
". . . [Ulnder the general theory of
negligence, in order to show liability,
the plaintiff must prove a causal connection
between the alleged breach of duty and
the resulting injury. Here again, the
proof is nil that any breach of the detention
home's duty to provide a reasonably safe
building, if in fact such a breach was shown,
was the proximate cause of the resulting
suicide of the deceased. There was absolutely
no testimony that the structure produced
or contributed to a morbid state of mind of
the deceased precipitating his suicide."
Under plaintiffs' theory, it would be necessary to
prove that the jail's security policy caused Pretty On
Top to commit suicide. Plaintiffs' contention that the
security policy made it possible for Pretty On Top to take
his own life is insufficient. Defendants were required to
exercise reasonable and ordinary care for Pretty On Top's
life and health. There was nothing before the District
Court that tended to prove that the proximate cause of the
suicide was anything but the intentional act of Melvin
Pretty On Top. Without a showing of "special circumstances"
which would elevate the defendants' duty of care and thereby
create the possibility that defendants' acts were the
proximate cause of the death, the District Court was required
to follow the general rule that suicide is an intentional
act and grant defendants' motion for sumary judgment.
Affirmed .
Justice v
We Concur:
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Justices
Justice Daniel J. Shea will file a dissent.
No. 14519
REGINA PRETTY ON TOP, Administratrix
of Estate of Melvin Pretty on Top,
CITY OF HARDIN, and the Chief of
Police.
Dissent of Justice Daniel J. Sfiea.
Mr. Justice Daniel J. Shea dissenting:
I would reverse the summary judgment and send the
case back for trial. There are genuine factual issues
involved which must be tried by a jury. This case, con-
trary to the conclusion of the majority, is controlled
by the "special circumstances" which created a higher duty
of care than merely that of an ordinary jailer. The City
was openly and avowedly running its jail as a de facto
detoxification center, and that is the focal point from
which we must measure duty, foreseeability, and efficient
intervening cause.
The nature of the duty owed to the deceased depends,
of course, on the nature of his incarceration. Here the
purported legal reason why the city judge ordered the deceased
to jail is because he had violated the open container law
and could not pay the fine imposed. Consequently, he was
ordered to work off the $100 fine in jail, with credit
allowed at a rate of $10 per day. The actual reason, however,
for the deceased's incarceration was that he was a chronic
abuser of alcohol and in the wisdom of the City, he needed
detoxification. As the majority has recognized, the deceased
was no stranger to the City jail, having been there many,
many times before for primary alcohol-related offenses.
The majority expressed the true nature of the City jail in
the following manner:
"The Hardin - -Jail is used almost entirely
City - -
for detoxification. Of the 300 persons in-
carcerated in the jail for a twelve month
period immediately preceding September 1973,
-
9 8 percent were jiiied on alcohol-use offenses.
Of these offenders, 95 -percent of those jailed
were Native Americans. .. " (Emphasis added. )
Based on these disclosures, I do not understand why the
majority refuses to attach special significance to these
facts in analyzing the duty which the City owed to the
deceased.
By imposing the $100 fine which the deceased was
unable to pay, and then requiring the deceased to pay
off the fine at the rate of $10 per day for each day spent
in jail, the City starts off with a strike against it.
The record before this Court indicates that the deceased
was ordered to spend time in jail solely because he did
not have the $100 with which to pay the fine. Almost two
years before this incident, the United States Supreme Court
squarely condemned this practice as a violation of equal
protection of the law. Tate v. Short (1971), 401 U.S. 395,
91 S.Ct. 668, 28 L.Ed.2d 130. Therefore, from the very
moment he was sentenced, the deceased was being held illegally.
It appears however, that the actual reason for placing
the deceased in jail was that the City in its wisdom,
determined that he needed detoxification due to his chronic
abuse of alcohol. As the majority has noted, for at least
a year immediately preceding the deceased's suicide, the
City was using the jail almost exclusively as a detoxification
center. This is a far cry from the normal uses to which a
City jail is put, and it is for this reason that the normal
duty owed by the jailer to the inmates of the jail does
not apply. When the City changed the general nature of the
use of the jail, it also changed the nature of its duties
owed to the occupants of the jail.
The deceased was in essence being treated (however
ineptly) as one of many persons with a chronic alcohol
abuse problem. It is therefore of no consequence that the
City did not know of the deceased's particular propensities
to attempt suicide. The City is charged with the general
knowledge that chronic alcohol abusers do not act like
ordinary prisoners, particularly when they are involuntarily
committed. The process of detoxification is a painful
physical and mental process. One going through this
process may develop extreme psychosis, delirium tremens,
and is certainly more likely to attempt suicide than the
prisoner without this problem. The City is charged with
this knowledge because it openly and avowedly ran the
jail as a detoxification center. It was not therefore
required that the City have specific knowledge that the
deceased was a potential candidate for suicide.
Given this general duty imposed upon the City, it is
a foreseeable event that a prisoner held as a chronic abuser
of alcohol may attempt suicide. It was the duty of the
City to take appropriate preventative steps, not simply to
prevent the deceased from attempting or committing suicide,
but to prevent all occupants from attempting or committing
suicide. Absent these preventative measures, the City could
not prevent an inmate from either harming another or harming
himself. The facts here indicate the City did absolutely
nothing to prevent the occupants from harming others or from
harming themselves. The City took no steps to determine if
weapons or other dangerous instruments were coming into the
jail. This is hardly the way to run a detoxification
center.
The majority opinion recited the essential facts con-
cerning the lack of jail inspection. Anyone could have
slipped a weapon to the occupants of the jail. It is not
at all unreasonable to conclude that a weapon finding its
way into a jail is either for the purpose of effectuating
an escape, harming another, or harming oneself. That a
chronic alcoholic may attempt suicide while involuntarily
jailed, is a clearly foreseeable event.
I do not think the status of the trustie who knew
the deceased had the knife can be ignored. This knowledge,
under the facts of this case, is also chargeable to the
City. The trustie knew the deceased had the knife but
failed to notify anyone of this potentially dangerous
situation. The trustie received a $5.00 credit each day
for performing the duties of janitorial work and reporting
anything unusual to the officer on duty. If it is not
unusual for a jail inmate to have an unauthorized knife,
I do not know what is. The trustie, working for the City,
became the de facto agent of the City, and his knowledge
was properly chargeable to the City. The trustie should
have foreseen that the deceased planned to either harm
someone else or himself. The aid of the trustie having
been enlisted and having granted him special privileges in
exchange for this aid, the City cannot now disavow that he
was its agent. I stress, however, that even if the trustie
did not know the deceased had possession of the knife, an
attempted suicide by one undergoing involuntary detoxification,
was a forseeable event.
We next get to the question of whether the deceased
was responsible for his own act of suicide, thereby exonerating
the City. If we accept the proposition that the City owed
deceased a duty under the "special circumstances" rule and
further accept that the deceased's suicide was foreseeable
while confined in a detoxification center, then it would be
ludicrous to hold that the City was exonerated simply because
the deceased's intentional act intervened. At the very
least, it is a question of fact as to whether the deceased
was in sufficient control of his mind and faculties such
as to absolve the City of any responsibility for his ultimate
suicide.
For t h e f o r e g o i n g r e a s o n s , I would r e v e r s e t h e
D i s t r i c t Court and h o l d t h a t summary judgment was i m p r o p e r l y
granted.