No. 92-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JEANNINE NEWVILLE and DAMON GANNETT,
Co-Guardians ad litem for R.M., a minor,
Plaintiffs, Appellants and
L& ->li,il&
STATE OF MONTANA, DEPARTMENT OF FAMILY CLERK
STATE
SU;>A:?~E c O U ~
OF MONTANA
SERVICES, an agency of the state of
Montana,
Defendant, Respondent and Cross-Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Monte D. Beck, John J. Richardson, Beck Law Offices,
Bozeman, Montana; Larry A. Anderson, Howard F.
Strause, Great Falls, Montana
For Respondent:
R.H. Bellingham, T. Thomas Singer, Moulton,
Bellingham, Longo and Mather, Billings, Montana
For Amci:
Robert J. Phillips, John E. Bohyer, Phillips &
Williams, Missoula, Montana; Randy J. Cox, Boone,
Karlberg & Haddon, Missoula, Montana (Montana
Defense Trial Lawyers Association)
L. Randall Bishop, Jarussi & Bishop, Billings,
Montana; Donald W. Molloy, Billings, Montana; David
R. Paoli, Missoula, Montana (Montana Trial Lawyers
Association)
Heard: Oct. 14, 1993
Submitted: March 16, 1994
Decided: A u g u s t 29, 1994
Filed: ,"' -\, .3
i '
i!.
. ..p .> I? $
.. .. . .,': w,'Lm. ,&.d
. . :., - .
'%
7
:I
" .-Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal by the plaintiffs from a jury verdict
arising out of the Eighteenth Judicial District Court, Gallatin
County, in favor of plaintiffs' ward, R.M., in a negligence action
concerning severe injuries inflicted upon R.M. by her foster father
while in his care pending an adoption. The jury attributed
negligence under 5 27-1-703, MCA, Montana's comparative negligence
statute, to the State of Montana Department of Family Services
(30%), the foster mother (35%) and a professional counselor who had
treated the foster mother and father over a period of years (35%).
The foster father was not listed on the special verdict form
because the District Court found his conduct was intentional and
not negligent. Amici curiae Montana Defense Trial Lawyers and
Montana Trial Lawyers Association also presented the Court with
arguments concerning constitutional issues. We affirm in part,
reverse in part and remand for a new trial.
Plaintiffs now seek a new trial solely against the State of
Montana Department of Family Services (the Department), presenting
the Court with numerous issues, as does the Department in its
Cross-Appeal, which we have restated as follows:
I. Do the plaintiffs have standing to assert the rights
of unrepresented third persons included on the verdict
form?
11. Is Montana's comparative negligence statute, 5 27-1-
703(4), MCA, unconstitutional as amended by the 1987
legislature?
111. Did the District Court err in allowing the jury to
allocate a percentage of negligence to Edna Goodwin, who
settled with the plaintiffs prior to trial, when no
evidence had been introduced to establish the standard of
care for a professional counselor?
IV. Did the District Court err in admitting evidence
concerning R.M.'s biological parents?
V. Did the District Court err in instructing the jury?
VI. Is the Department immune from tort liability for its
failure to protect R.M.?
VII. Who is to be included on the special verdict form if
there is a subsequent trial in this action?
The plaintiffs in this case are co-guardians ad litem for
R.M., an American Indian child born to a 16-year-old mother.
R.M.'s natural mother left R.M. in the custody of her grandmother
prior to the age of seven months and could not be located when R.M.
was subsequently removed from her grandmother's home by the police
at the age of seven months. Because R.M.'s mother could not
initially be found and her father was unavailable, the court
appointed a guardian ad litem for her and placed her in the
temporary custody of the Department.
In addition to R.M.'s birth mother being under age, she and
the birth father had problems with intellectual functioning and
with drug and alcohol abuse. R.M.'s birth mother had dropped out
of school in the 7th grade and had an I.Q. of 69. The parental
rights of both R.M.'s biological parents were terminated in
Yellowstone County, givingthe Department permanent custody of R.M.
in October 1987.
After obtaining custody of R.M., the Department placed her in
a series of foster homes. By the time she was four years old, she
had been in seven foster homes, including the home of Dennis and
Martha Kuipers. The Department removed R.M. from some of these
homes because of allegations of physical abuse, sexual abuse, or
neglect.
Although R.M. was available for adoption during the time she
was being placed in foster care, she was not an easy child to place
because of behavioral problems of the type caused by abuse.
Adoptive placement was further complicated because any adoptive
placement had to comply with the provisions of the Indian Child
Welfare Act 25 U.S.C. § 1915.
Following a series of events beginning when Dennis Kuipers
heard from a friend that R.M. was available for adoption, the
Department placed R.M. in foster care with Dennis and Martha
Kuipers (the Kuipers) of Belgrade, Montana, with the intent that
the Kuipers would adopt her if they were qualified by the
Department as adoptive parents. This was done in September 1988
after the Department investigated the Kuipers. This placement was
referred to by the Department as a "fos/adoptW placement.
Dennis Kuipers is of American Indian ancestry and thus better
qualified to adopt R.M. under the Indian Child Welfare Act than a
non-Indian person. Dennis Kuipers himself had been adopted by a
non-Indian family at a young age after being abused, neglected and
abandoned. He wanted to adopt R.M. because of the positive
experience of his own adoption. The Kuipers were foster parents at
all times during this action as the adoption was never completed.
Testimony was presented at trial which indicated that the
Department did not conduct a proper investigation prior to placing
R.M. in the Kuipersl home. For example, in response to a request
for recommendation for adoption, the Kuipers' counselor, Edna
Goodwin, wrote that Dennis Kuipers was I1working on his issues of
and that "there was previously an issue of abuse by Dennis to
rageEg
his wife and to one of their two children.!' The Department did not
contact Edna Goodwin about her comments in her letter despite
permission from the Kuipers to do so. Other testimony was
presented which indicated that the Department also did not follow
up on other reports of abuse or check its own records for reports
of abuse by Dennis Kuipers.
Ed Neuman, a Department employee, supervised the !!fos/adoptW
placement during the two months after R.M. was placed with the
Kuipers. On October 2, 1988, just three weeks after R.M. was
placed in the Kuipersl home, witnesses stated that Dennis Kuipers
beat R.M. outside the Rax restaurant in Bozeman, Montana, partly in
view of restaurant patrons and partly concealed within the family
van. Dennis Kuipers became upset with R.M. because she had wet her
pants. When he brought R.M. into the restaurant, she had black
marks on her cheeks, and was described as having a fixed stare as
though she were in shock. One witness testified that she looked
like a uzombie.ll
These descriptions came from two couples who observed the
incident from a location inside the Rax restaurant very near to
where the Kuiperst van was parked. One witness, Salvatore
Provenzano, telephoned the Bozeman police from the restaurant to
report the incident. Salvatore Provenzano and his wife, Joy
Provenzano, went to the police station at the request of the
officers to provide the Bozeman Police Department with a written
report. By the time the officers had arrived at the restaurant,
however, the other witnessing couple, the Stewarts, had left the
restaurant. The Stewarts provided the Bozeman police with a
written statement later that same week.
Two officers responded to Salvatore Provenzanops report and
came to the restaurant to investigate. Officer Linda Sanem took
Martha Kuipers aside and asked her numerous questions. Duringthat
interview, Martha Kuipers was holding R.M. Martha Kuipers believed
at that time that no abuse had occurred. She apparently had been
in the rest room and also behind a partition in the restaurant
ordering food during the abuse incident. She testified that up
until the time of Dennis Kuipersl plea agreement when he admitted
to hitting R.M. outside the restaurant, she believed that no abuse
had occurred there.
At the restaurant, while holding R.M., Martha Kuipers
convinced Officer Sanem that nothing had occurred. Testimony at
trial indicated that because R.M.'s hair was long, thick and dark,
it may have hidden physical signs of abuse. Other testimony was
presented that any initial redness may have disappeared by the time
the officers arrived and any subsequent bruising may not have been
present yet.
Officer Sanem testified that R.M. had bruises on her face but
they looked like they were not newly-inflicted. She further
testified that since none of the witnesses actually saw Dennis
Kuipers hit R.M.--they only saw his open hand and then his fist
going up and down inside the van--and there were no apparent newly-
inflicted bruises, the officers did not have probable cause to
arrest Dennis Kuipers for assault. She testified that she felt
uncomfortable about not being able to do anything further at that
time. At the time of the investigation, the officers did not have
the written reports from the Provenzanos and the Stewarts and had
only briefly spoken to Salvatore Provenzano over the phone when he
reported the incident. Sanem further testified:
Unless there's obvious signs of violence, you know,
physical injuries, we have to rely on what witnesses tell
us as to what actually occurred. And one point of fact
in this matter, that he, in fact, did not see the fist
actually hit the child, does not constitute an assault.
From our point of view, we have to look at it from
a criminal standpoint and in order for it to be an
assault under that statute. If there's no sign of an
injury, then we have to -- have to have actually have
that contact, and he couldn't say that he actually saw
that.
Officer Sanem also testifiedthat she believed Martha Kuipers'
statement that the child had bruises from falling down a lot lately
and that the Department was aware of that. Nonetheless, Officer
Sanem told Martha Kuipers that the incident would be referred to
the Department. Officer Sanem further testified that she has since
had further law enforcement training and would not have made the
same assessment of the Rax incident if she had had the training
prior to that time.
Officer Sanem testified that she was "very suspicious about
the bruises, but it was obvious to [her] that that hadn't just
occurred and it was an incident that obviously needed to be further
investigated." She further testified that the officers had two
options--to refer the incident to the Department or to take
immediate custody of the child. When she observed R.M., it did not
appear that she had been crying and she felt that they did not have
cause to take her. At that time, she had not investigated any
other abuse cases in which a child had been hurt within the
previous 15-20 minutes. Officer Sanem did not call the Department
that day and was off duty the following day; she left that duty of
reporting the incident to the Department to Officer Paul Erickson,
the other officer who was also at the Rax restaurant to investigate
the report.
Officer Erickson interviewed Dennis Kuipers at the R a x
restaurant and was convinced by him that he had not hit R.M., but
rather may have been waving a diaper up and down or something like
that. Officer Erickson, however, also.advised Dennis Kuipers that
the incident would be referred to the Department and more
thoroughly investigated by them. Officer Erickson testified that
he had been "fooledu by Dennis Kuipers.
However, the matter was referred to the Department for
investigation prior to the close of the police investigation. The
remainder of the police investigation included getting written
statements from the Provenzanos and the Stewarts. No charges were
made against Dennis Kuipers as a result of that investigation.
As previously stated, Ed Neuman supervised the placement of
R.M. with the Kuipers on behalf of the Department. The Kuipers
called Neuman to report the Rax incident to him later that
afternoon because the police officers had told them that the
Department would be notified. Dennis Kuipers' discussion with
Neuman minimized the seriousness of the incident and he denied
hitting R.M.
Officer Erickson reported the Rax incident to the Department
for further investigation. The police report actually states that
R.M. was injured and an investigation was pending. The Department
did investigate the incident but trial testimony demonstrated that
the Department's investigation was very limited. The investigator
did not search the Department's own files to check for prior
reported incidents of abuse by Dennis Kuipers. That search would
have provided information about the prior incident of abuse which
had been investigated by the Department. In addition, the
Department did not report the matter to the County Attorney as will
be subsequently discussed.
One month later, on November 1, 1988, Dennis Kuipers severely
beat R.M. As a result of this beating, R.M. had bruises over most
of her body and she was hospitalized for two weeks. During the
hospitalization, R.M. was initially in a coma. She also had
seizures and was paralyzed on one side of her body. A craniotomy
had to be performed to relieve acute fluid pressure on her brain.
Medical experts testified at the trial that R.M. had lost
substantial brain tissue as a result of the beating and that the
damages were irreversible.
The plaintiffs initially sued Dennis Kuipers, Martha Kuipers,
Edna Goodwin (the Kuipers' counselor), and both the Department and
its employee, Ed Neuman. The claim against Neuman was dismissed by
the court. Both Dennis Kuipers and Edna Goodwin settled with the
plaintiffs prior to trial and were dismissed pursuant to their
respective agreements with the plaintiffs following the settlement
conference. The trial proceeded against the remaining defendants--
Martha Kuipers and the Department.
The special verdict form presented to the jury included the
Department, Martha Kuipers and Edna Goodwin. Dennis Kuipers was
not included on the special verdict form because the District Court
ruled that his intentional conduct made him jointly and severally
liable for all damages and that 5 27-1-703 (4), MCA, does not permit
apportionment of liability for intentional conduct.
The jury awarded total damages of $637,480, apportioning
negligence comparatively--30 percent to the Department, 35 percent
to Martha Kuipers and 35 percent to Edna Goodwin. Subsequent to
the trial, Martha Kuipers settled with the plaintiffs and has been
dismissed with prejudice, leaving the Department as the sole
defendant in this negligence action.
ISSUE I: Standing.
Do the plaintiffs have standing to assert the rights of
unrepresented third persons included on the verdict form?
As a threshold issue, we address the Department's argument
that plaintiffs do not have standing to challenge the
constitutionality of 5 27-1-703, MCA, because by doing so they are
not asserting their own constitutional rights, but rather the
rights of unrepresented third parties such as settling parties and
unsued tortfeasors. Although this opinion does not address the
10
rights of unrepresented parties in the context of determining
whether they have been denied procedural due process or equal
protection, and although our ruling on substantive due process
relates to plaintiffs primarily, we do agree with plaintiffs that
they have standing to assert the constitutional rights of such
third parties.
Plaintiffs correctly argued that their own potential economic
loss gives them standing to assert the rights of third parties.
They argued that unrepresented parties included on the verdict form
can diminish a named defendant's portion of negligence below 50
percent, thereby making that defendant only severally liable, and
that any defendants still in the action had the power to attribute
blame to unrepresented tortfeasors, thereby reducing the potential
damage award to less than 100 percent because plaintiffs would be
unable to collect damages from unsued tortfeasors. These results
could affect a totally innocent plaintiff such as R.M. in the same
manner as they could affect a plaintiff with any contributory
negligence up to 50 percent.
We considered a similar issue in Belth v. Bennett (1987), 227
Mont. 341, 349, 740 P.2d 638, 643, where this Court held that a
state agency's records of insurance companies were not open to
public inspection. The Court also concluded that because there was
a potential economic loss to insurance companies as a result of
suits by insurance consumers, the companies had a potential
economic injury sufficient to establish standing. Belth, 740 P.2d
at 641. Also, in Montana Human Rights Division v. City of Billings
(1982), 199 Mont. 434, 443, 649 P.2d 1283, 1288, we allowed the
city to assert the privacy rights of its employees because of
potential economic injury to the city from possible lawsuits
against it by its employees if it divulged personal information
about its employees without their consent. Both Belth and Montana
Human Rishts Div. held that a party facing potential economic
injury may assert the constitutional rights of others.
We conclude the plaintiffs here have established they could
suffer economic loss if a percentage of negligence were attributed
to unrepresented parties. We further conclude the plaintiffs have
established a standing sufficient to assert the rights of the
unrepresented parties such as settling parties and unsued
tortfeasors.
We hold plaintiffs have the right to raise constitutional
issues relating to 5 27-1-703, MCA, which affect the rights of
unrepresented third parties.
ISSUE 11: Constitutional Issues.
Is Montana's comparative negligence statute, fi 27-1-703, MCA,
unconstitutional as amended by the 1987 legislature?
The plaintiffs contend that 5 27-1-703, MCA, violates the
constitutional guarantees of procedural and substantive due process
and equal protection and thus a new trial is required in this case.
As discussed below, the Court concludes that fi 27-1-703 (4), MCA,
violates substantive due process. As a result, the Court declines
to address the other constitutional issues.
This case represents constitutional challenges to major
changes in fi 27-1-703, MCA, which were enacted by the 1987 Montana
12
Legislature. Section 27-1-703, MCA, was a major vehicle for tort
reform enacted by the Montana Legislature in response to demands
from numerous factions in this state. That section concerns the
determination of liability when there are multiple defendants
involved in an action based upon negligence. Section 27-1-703, MCA
(1987), as amended by the 1987 legislature, is set forth in its
entirety in the appendix to this opinion, as is its predecessor,
27-1-703, MCA (1985) .
The 1987 Senate Judiciary Committee minutes indicate that
Senate Bill 51 (SB 5l), which amended § 27-1-703, MCA, was
patterned after a bill in Washington state. That bill was drafted
as an attempt to change Washington's comparative negligence statute
and was intended to match liability for damages to fault of each of
the parties involved in a tort action, excepting only the fault of
employers and co-employees to the extent of their tort immunity
under the Workersr Compensation Act. The stated aim of SB 51 was
to protect "deep pocketfrdefendants such as municipal and county
governments when they were faced with minimal percentages of
negligence assigned to them by juries but nonetheless required to
pay large judgments under joint and several liability principles.
As pointed out by Victor E. Schwartz in his comparative
negligence treatise, a substantial minority of states have now
abolished or severely limited the common law doctrine of joint and
several liability:
In the mid-1980rs,a significant number of states changed
the joint liability rule, in part, because of growing
awards against "deep pocketurdefendants who might be only
peripherally responsible for plaintiff's injuries. A few
13
states cut the Gordian knot by abolishing the doctrine
outright or limiting it to those who have acted in
concert. Nevada abolished it except in cases involving
strict liability, intentional torts, toxic wastes,
concerted acts, or products liability. A number of other
states have attempted to serve competing goals of
fairness and loss distribution by adopting systems for
imposing joint liability only for %oneconomicff damages
or for certain percentages of fault. Some states have
adopted a combination of exceptions.
V. Schwartz, Comparative Neqliqence 9 16.4 (2d ed. Supp. 1993).
The major changes in 5 27-1-703, MCA (1987), related to joint
and several liability and the addition of subsection (4) mandating
the trier of fact to consider the negligence of various described
persons and parties in order to determine liability and apportion
the percentage of liability among all such persons. Section 27-1-
703(4), MCA (1987), provides in pertinent part:
(4) . . . For purposes of determining the
percentage of liability attributable to each party whose
action contributed to the injury complained of, the trier
of fact shall consider the negligence of the claimant,
injured person, defendants, third-party defendants,
persons released from liability by the claimant, persons
immune from liability to the claimant, and any other
persons who have a defense against the claimant. The
trier of fact shall apportion the percentage of
negligence of all such persons. . . .
The above-quoted subsection (4) is new and takes the place of the
following from the prior statute:
Whenever more than one person is found to have
contributed as a proximate cause to the injury complained
of, the trier of fact shall apportion the degree of fault
among such persons.
The theory underlying substantive due process reaffirms the
fundamental concept that the due process clause contains a
substantive component which bars arbitrary governmental actions
regardless of the procedures used to implement them, and serves as
a check on oppressive governmental action. Even though a plaintiff
may have no property or liberty interest grounded in state law
which is protected from arbitrary government action, such action
still may be subject to review under substantive due process.
Substantive due process primarily examines the underlying
substantive rights and remedies to determine whether restrictions,
such as those placed on both remedies and procedures in this case,
are unreasonable or arbitrary when balanced against the purpose of
the legislature in enacting the statute. See J. McGuinness and L.
Parlagreco, The Reemerqence of Substantive Due Process As A
Constitutional Tort: Theorv, Proof, and Damases, 24 New Eng. 1129,
1133 (1990).
Substantive review for due process violations applies to
enactments which affect individual constitutional rights, and may
thus include a review of an enactment's inherent procedural
fairness. Rotunda & Nowak, 2 Treatise on Constitutional Law:
Substance and Procedure S 15.4 (2d ed. 1992).
In addressing a substantive due process challenge in Harrison
v. Chance (1990), 244 Mont. 215, 225, 797 P.2d 200, 206, we
referred to our analysis in Linder v. Smith (1981), 193 Mont. 20,
28-29, 629 P.2d 1187, 1192, stating: "The legislature is free to
impose reasonable procedural requirements on the available remedies
so long as those requirements have a rational basis.'1 Although the
Linder Court held there was no substantive due process violation on
the basis of the issues as raised by the parties, it did excise a
portion of the statute on substantive due process grounds, stating:
We find claimant's due process contentions to be without
merit, particularly when considered in view of the
limited effect which the panel's decision can have in
Montana in subsequent litigation. We do address one
issue, though, which was not initially raised by the
parties to the litigation, but which came to our
attention duringthe hearing in this case. Section 27-6-
704(2), MCA, provides that "[no] statement made by any
person during a hearing before the panel may be used as
impeaching evidence in court.1' In order to uphold the
constitutionality of the panel act, we determine that
this section must be severed from the act. It is
fundamental to our adversarial system that litigants
retain the right to impeach the sworn testimony of a
witness testifying against them. We are mindful that
this provision was enacted to aid the fact-finding by the
panel and to preserve the confidentiality of the
proceedings. But we cannot say that a litigant will
receive a full and fair hearing if he is unable to fully
cross-examine in court the witnesses that testified in
the prior hearing.
Linder, 629 P.2d 1192.
In Raisler v. Burlington N. Ry. Co. (1985), 219 Mont. 254,
263, 717 P.2d 535, 541, this Court stated, "Substantive due process
analysis requires a test of the reasonableness of a statute in
relation to the State's power to enact legislation." Its essence
is that the State cannot use its power to take unreasonable,
arbitrary or capricious action against an individual. Raisler, 717
P.2d at 541. Therefore, in order to satisfy guarantees of
substantive due process, a statute enacted by the legislature must
be reasonably related to a permissible legislative objective.
Raisler, 717 P.2d at 541. See also Ball v. Gee (1990), 243 Mont.
406, 412, 795 P.2d 82, 86, citing In re C.H. (1984), 210 Mont. 184,
In Montana Milk Control Bd. v. Rehberg (1962), 141 Mont. 149,
158-59, 376 P.2d 508, 514, this Court determined that substantive
due process was not violated by legislation which allowed the State
to control the retail price of milk and determined that the
legislation was reasonably related to the permissible legislative
purpose of ensuring an adequate supply of wholesome milk to the
citizens of Montana. More recently, in In the Matter of the
Adjudication of the Yellowstone River (1992), 253 Mont. 167, 179,
832 P.2d 1210, 1217, we stated that the State's regulatory power
over adjudicating water rights must be exercised consistent with
principles of substantive due process:
A statute must be reasonably related to a
permissible legislative objective to satisfy substantive
due process guarantees. . . . The 1972 Montana
Constitution mandates that the legislature "establish a
system of centralized records." There can be no doubt
that § 85-2-226, MCA, was enacted for a permissible
legislative objective.
However, the appellants challenge whether ... 5
85-2-226, MCA, is reasonably related to the objective of
adjudicating water rights. It is contended that . . .
[ § I 85-2-226, MCA, ... fails to be reasonably related
to these objectives, because its operation results in the
elimination of existing water rights. (Citations
omitted. )
In Matter of Yellowstone River, 832 P.2d at 1217, we ruled that the
challenged statute did not violate substantive due process in that
it was a reasonable means of "compelling comprehensive
participation, extinguishing duplicative and exaggerated rights,
and ridding local records of stale, unused water claims." The
statute's filing requirement was "neither burdensome, unreasonable
nor unrelated to the legitimate and proper legislative obje~tives.~~
Matter of Yellowstone River, 832 P.2d at 1217. We further noted
that neither the Supreme Court nor other states addressing the
constitutionality of statutes requiring filing had found the filing
requirement to be more than a minimal burden. Matter of
Yellowstone River, 832 P.2d at 1217.
Although most of the challenges brought to this Court which
have been grounded in substantive due process have failed, we have
ruled that substantive due process was violated by a restrictive
covenant in Town & Country Estates Ass'n v. Slater (1987), 227
Mont. 489, 493, 740 P.2d 668, 671. The restrictive covenant which
violated substantive due process in Town & Countrv Estates allowed
a Design Review Committee to disapprove house plans and prevent
construction of homes in the subdivision. We held that the
covenant was vague to a degree that violated substantive due
process and was enforceable only when used in connection with some
general plan or scheme. Town & Countrv Estates, 740 P.2d at 671.
In Town & Country Estates, the houses already built in the
subdivision were each unique in design and demonstrated a
"cacophony of styles" with a "hybrid mix of traditional, Tudor,
ranch, and contemporaryIt with the only common design
characteristics being a 2400 square foot size minimum and a shake
roof. Town & Countrv Estates, 740 P.2d at 671. The Court stated:
If the subdivision itself lacks consonance, the
Slatersv plan cannot lack harmony. In the context of
[Town and Country Estates] and Slaterst plan, the term
"harmony of external design" lacks the mutuality of
obligation central to the purpose of a restrictive
covenant. In view of the wide variety of designs, no one
seemed burdened by the covenant except the Slaters.
The approval or disapproval of plans by the [Design
Review Committee] must be based upon an objective design
standard. Without a quantifiable standard to guide them,
the decision ... is unenforceable. ... We hold that
the Slaters' house fell well within the broad
architectural spectrum of [Town & Country Estates]
houses. ~ p ~ l i ~ d
to the .. . subdivision and the
Slaters' ~ l a n , hold that Article V lacks sufficient
we
obiectivitv, and is vaque to a deqree that denies
substantive due Drocess to the Slaters.
Town & Country Estates, 740 P.2d at 671. (Emphasis supplied.)
In the case before us, plaintiffs contend that 5 27-1-703, MCA
(1987), arbitrarily prejudices plaintiffs by requiring them to
exonerate nonparties. They contend there is no reasonable basis to
require any plaintiff to prepare a defense at the last minute for
nonparties whom defendants seek to blame for the injury, but who
have not been joined as defendants; and that there is no reasonable
basis for requiring plaintiffs to examine jury instructions,
marshal evidence, make objections, argue the case, and examine
witnesses from the standpoint of unrepresented parties,
particularly when they do not know until the latter part of the
trial that defendants will seek to place blame on unrepresented
persons. These procedural problems form the bases for our holding
that 27-1-703, MCA (1987), in part violates substantive due
process.
We conclude that 5 27-1-703(4), MCA (1987),,unreasonably
mandates an allocation of percentages of negligence to nonparties
without any kind of procedural safeguard. As a result, plaintiffs
may not receive a fair adjudication of the merits of their claims.
It imposes a burden upon plaintiffs to anticipate defendants'
attempts to apportion blame up to the time of submission of the
verdict form to the jury. Such an apportionment is clearly
19
unreasonable as to plaintiffs, and can also unreasonably affect
defendants and nonparties.
We note that other states have enacted tort legislation
allowing the inclusion of nonparties. Colorado, as an example,
allows the inclusion of nonparties when apportioning fault, but
only when notice has been given by the defendant within 90 days of
commencement of the action. See Colo. Rev. Stat. 5 13-21-111.5
(1987). Indiana requires a defendant to assert a nonparty defense
and to bear the burden of proof of that defense if the defense is
asserted as part of an answer filed more than 45 days prior to the
running of the statute of limitations on a claim against a
nonparty. See Ind. Code 5 34-4-33-10 (1985) . Like Indiana, Kansas
places the burden of bringing in other parties, including those who
have settled, on the defendant. Glenn v. Fleming (Kan. 1987), 732
P.2d 750, 756. Although Kansas has abolished joint and several
liability altogether, it does not allow apportionment of percentage
of total damages to any person who is not a party. See Kan. Stat.
Ann. 5 60-258a(d) (1977). The establishment of the nonparty
defense in Indiana has brought many questions about the definition
of "nonpartyu and the procedural mechanisms for bringing in
additional defendants. Schwartz, Comuarative Neuliclence 5 16.5 (2d
ed. 1986 & Supp. 1993).
Numerous other comparative negligence statutes--although
rarely similar to an act of another state--include some type of
procedural safeguard for plaintiffs, defendants and nonparties.
Ohio's tort reform law, for example, limits allocation of
negligence to parties before the court. Schwartz, Com~arative
Neqliqence 5 16.5 (2d ed. Supp. 1993); Ohio Rev. Code Ann. 5
2315.19 (B) (4) (1991) . New Mexico allows settling defendants to be
called as witnesses and allows discovery regarding such witnesses
as if they remained in the action. Wilson v. Gillis (N.M. Ct.App.
1986), 731 P.2d 955, 958.
We have noted some of the procedural safeguards provided by
other jurisdictions to emphasize that Montana's statute provides
none of these protections. Our review of the comparative
negligence statutes from other jurisdictions does not provide much
help in the present case, however. Nearly every state has a unique
statute with nuances which make its case law interpreting the
statutes of little help to other courts.
We have previously mentioned that SB 51 was patterned after
Washington state's statute. Yet SB 51 is substantially different
from the 1986 enactment of Wash. Rev. Code Ann. 4.22.070, which is
also set forth in the appendix to this opinion. A striking
difference is that the Washington statute preserved joint and
several liability for innocent plaintiffs. In contrast, 5 27-1-
703, MCA (1987), treats all plaintiffs alike, lumping totally
innocent plaintiffs--like R.M. in this case--with those plaintiffs
whose comparative negligence may be as much as 50 percent. The
effect of 5 27-1-703, MCA (1987), is to diminish plaintiffs1
ability to collect 100 percent of damages in situations like the
present case. Where the trier of fact attributes less than 51
percent of the negligence to each person on the verdict form,
plaintiffs may be unable to collect for the portion of negligence
attributable to judgment-proof defendants, immune tortfeasors, or
other persons who may be included on the verdict form but who have
not been a part of the action.
Such was the case with the persons listed on the special
verdict form in the present case. Edna Goodwin was an
unrepresented nonparty on the basis of her settlement prior to
trial. Although Goodwin settled prior to trial and was no longer
a party, she nonetheless was included on the verdict form as a
settling party pursuant to 5 27-1-703(4), MCA. No attorney
represented Goodwin's interests at trial and as a result, it is
possible that the application of percentage of negligence was
higher than would have been appropriate had the facts as to her
case been presented by her own counsel.
None of the parties introduced evidence relating to the
standard of care of a professional counselor. Goodwin was included
on the verdict form as required by 5 27-1-703(4), MCA, without any
instruction to the jury as to the proper standard of care for a
professional counselor. On the verdict form the jury allocated 35
percent of the negligence to Ms. Goodwin, 35 percent to Mrs.
Kuipers and 30 percent to the Department. Section 27-1-703(5),
MCA, provides that if a party is found to be less than 50 percent
negligent, that party is liable for contribution only up to the
percentage of negligence attributed to him. As a result, under the
verdict given, if any party is unable to pay the full amount of the
judgment against that party, there will then be an inability on the
part of the plaintiffs to collect all damages. See State ex rel.
Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396,
for its treatment of joint and several liability prior to the 1991
enactment of 5 27-1-703(5), MCA.
In many jurisdictions--some mentioned above--comparative
negligence statutes allow an apportionment of liability to immune
parties and settling parties. However, these jurisdictions have
procedural aspects which provide for notice to plaintiffs, specific
burdens of proof, and other procedures for safeguarding the rights
of all involved--parties and nonparties alike. Consideration of
these procedural protections should have been considered by the
Montana Legislature at the time of the enactment of the statute.
While the listed reasons for enactment of comparative
negligence tort reform legislation are valid governmental purposes,
we conclude that the Montana Legislature has acted arbitrarily and
unreasonably in responding to this need. We conclude that the
allocation of percentages of liability to nonparties violates
substantive due process as to the plaintiffs.
We hold that the following portion of § 27-1-703(4), MCA
(1987), violates substantive due process:
...persons released from liability by the claimant,
persons immune from liability to the claimant, and any
other persons who have a defense against the claimant.
...
While we hold that the naming of Ifanyother persons who have
a defense against the claimantN violates substantive due process
where such persons are not parties, we further emphasize that the
reference in the statute to "any other persons who have a defense
23
against the claimanttt so vague as to make its meaning impossible
is
to understand.
This raises the question as to whether the above holding
renders the entire statute unconstitutional. In the enactment of
SB 51, the 1987 Montana Legislature included the following
"severability clauseu:
Section 3. Severability. If a part of this act is
invalid, all valid parts that are severable from the
invalid part remain in effect. If a part of this act is
invalid in one or more of its applications, the part
remains in effect in all valid applications that are
severable from the invalid applications.
Chapter 505, 1987 Mont. Laws 1232, 1233.
As pointed out in Montana Auto. Asstn v. Greeley (1981), 193
Mont. 378, 399, 632 P.2d 300, 311, if the invalid part of a statute
is severable from the rest, the portion which is constitutional may
stand while the part which is unconstitutional is stricken and
rejected. That case further emphasized that a statute is not
totally destroyed because of an improper provision, unless such
provision is necessary to the integrity of the statute, or was an
inducement to its enactment. When an unconstitutional portion of
the act is eliminated, if the remainder is complete in itself and
capable of being executed in accordance with apparent legislative
intent, it must be sustained. Montana Auto. Asstn, 632 P.2d at
311.
We here conclude that the unconstitutional portion of 5 27-1-
703(4), MCA (1987), is not essential to the integrity of the
statute, nor was it an inducement to its enactment. We further
conclude that the remainder of the statute is capable of being
24
executed in accordance with the legislative intent. As a result of
our holding of unconstitutionality, we have eliminatedthat portion
of the statute which allowed an allocation of negligence to
nonparties, and in particular to nonparties who had been released
from liability by the claimant, nonparties who were immune from
liability to the claimant, and any other nonparties who have a
defense against the claimants.
Therefore, in accord with our holding, the lined through
portion of 5 27-1-703(4), MCA (1987), as illustrated below is
hereby excised from the statute as unconstitutional:
27-1-703. Multiple defendants -- determination of
liability. ...
(4) On motion of any party against whom a claim is
asserted for negligence resulting in death or injury to
person or property, any other person whose negligence may
have contributed as a proximate cause to the injury
complained of may be joined as an additional party to the
action. For purposes of determining the percentage of
liability attributable to each party whose action
contributed to the injury complained of, the trier of
fact shall consider the negligence of the claimant,
injuredperson, defendants, [and] third-party defendant^^
+limw+c f " ,
r.,
. . .
11&111ty r't
L I C J
%-
c
. .
1 .. 1
+
X . p
trier of fact shall apportion the percentage of
negligence of all such persons. However, in attributing
negligence among persons, the trier of fact may not
consider or determine any amount of negligence on the
part of any injured person's employer or coemployee to
the extent that such employer or coemployee has tort
immunity under the Workers' Compensation Act or the
Occupational Disease Act of this state, of any other
state, or of the federal government. Contribution shall
be proportional to the liability of the parties against
whom recovery is allowed. Nothing contained in this
section shall make any party indispensable pursuant to
Rule 19, Montana Rules of Civil Procedure.
ISSUE 111: Counselorls standard of care.
Did the District Court err in allowing the jury to allocate a
percentage of negligence to Edna Goodwin when evidence was not
introduced as to the standard of care for a professional counselor?
The issue presented is whether the jury was properly
instructed as to the remaining defendants' burden in establishing
the negligence of a professional counselor. The jury was allowed
to apportion negligence to Goodwin based on an ordinary standard of
care instruction. Plaintiffs contend that the District Court
should have instructed the jury on the standard of care for a
professional counselor. The District Court determined that no
standard of care had been established by expert testimony for a
professional counselor. This Court has not previously ruled on
whether the standard of care for a mental health counselor must be
established by expert testimony or whether the jury is able to
determine this on their own. We address this issue for the benefit
of the parties in the event it remains an issue on retrial. It is
the rule in Montana that expert testimony is required as to the
standard of care, and as to the professional's violation of that
standard of care, before a trier of fact may find such professional
negligent. In Carlson v. Morton (1987), 229 Mont. 234, 239, 745
P.2d 1133, 1136, the Court stated that expert testimony identifying
the doctor's care as negligent or the doctor's own testimony
clearly establishing his own conduct as negligent was necessary.
This has been applied as well to dentists and orthodontists in
Llera v. Wisner (1976), 171 Mont. 254, 262, 557 P.2d 805, 810; to
manufacturers and distributors of pharmaceuticals in Hill v. Squibb
26
& Sons (l979), 181 Mont. 199, 207, 592 P.2d 1383, 1388; and to
abstractors of title in Doble v. Lincoln County Title Co. (1985),
215 Mont. 1, 5, 692 P.2d 1267, 1270. Most recently, the Court has
required expert testimony to establish the standard of care for a
veterinarian in Zimmerman v. Robertson (1993), 259 Mont. 105, 108,
854 P.2d 338, 340.
The rationale for requiring expert testimony to establish a
standard of care for professionals acting in their professional
capacity is that such professionals are required to possess a
minimum standard of special knowledge and ability, and as a result
juries which are composed of laypersons are normally incompetent to
pass judgment on such questions without the assistance of expert
testimony. Carlson, 745 P.2d at 1137. Professors Prosser and
Keeton suggest that although most of the decided cases have dealt
with medical doctors,
the same is undoubtedly true of dentists, pharmacists,
psychiatrists, veterinarians, lawyers, architects and
engineers, accountants, abstractors of title, and many
other professions and skilled trades.
Zimmerman, 854 P.2d at 339, citing Prosser & Keeton on The Law of
Torts, § 32 (5th ed. 1984). Montana's prior decisions on this
issue are in accordance with the general rule as summarized by
Prosser and Keeton.
We hold that expert testimony was required to establish the
standard of care for Ms. Goodwin as a professional counselor before
the jury could allocate a percentage of negligence to her.
Section 27-1-703(4), MCA, mandated that the trier of fact
consider the negligence and apportion the same to persons such as
27
counselor Goodwin who have been released from liability. As a
result, the District Court was faced with the difficult decision
and concluded that in order to comply with the statute, it was
necessary to instruct the jury to use the ordinary standard of care
to apportion negligence to counselor Goodwin. This was necessary
because neither party had established a standard of care for a
professional counselor and the question arose at the time of
settling jury instructions, which was after the conclusion of the
submission of evidence. While the District Court had limited
choice, we conclude that it was reversible error to apply the
ordinary negligence standard to counselor Goodwin.
We hold that the District Court erred in permitting Goodwin's
name to be listed on the special verdict form when the standard of
care for a professional counselor had not been established by
evidence, and there were no specific jury instructions as to the
professional standard requirement.
ISSUE IV: Admission of evidence.
Did the District Court err in admitting evidence concerning
R.M.'s biological parents?
At the beginning of the trial, plaintiffs submitted a Motion
in Limine to exclude all of defendants' highly prejudicial evidence
concerning R.M.'s natural parents. Although plaintiffs themselves
introduced evidence thatR.M.'s natural parents both had low I.Q.s,
and had used alcohol and kept her in a neglectful environment
during the first few months of her life, they contend on appeal
there was no evidence submitted which demonstrated that R.M.'s
parents' genetics or actions caused any mental or physical defects
28
to R.M. As a result, plaintiffs contend the District Court
committed reversible error in allowing the Department to introduce
certain evidence and to argue and comment on such evidence during
its closing argument.
At the beginning of the trial, the Department argued that it
could establish a causal connection between the natural parents and
R.M.'s mental impairment. Premised upon the establishment of a
causal connection, the District Court allowed the defendants to
introduce evidence about the natural parents. Plaintiffs argue
that the connection between the natural parents and R.M.'s mental
impairment was never made, that the court erred in failing to
admonish the jury and again erred in allowing closing arguments on
the evidence. They contend this was plain error under Montana law
and should have been excluded as more prejudicial than probative.
They claim that without any connection to R.M.'s present condition,
the evidence concerning her natural parents was inherently
prejudicial and is reversible error. As explained below, we agree
with plaintiffs that this was reversible error.
Defendants' closing argument included the following
statements:
Now, we know from the evidence that there are some
hereditary influences at work with [R.M.]. There were
drug and alcohol problems in the past there. She was a
victim of early abuse and neglect. And I'm really sorry
she went through that, but that's nothing that any of us
can do anything about except to help her try to get over
it in the future.
We know that her parents had problems emotionally
and socially, and we've got evidence that those kind of
things have a long, lasting effect.
The Department contends the evidence was properly admitted for
three reasons: (1) plaintiffs opened the door by asking their own
experts whether genetic factors contributed to R.M.'s functional
deficits; (2) defendants properly inquired about R.M.'s parents to
impeach the plaintiffs1 experts and since the evidence was not
complete, defendants had to cross-examine the experts in this area
because the experts based their opinions on incomplete information;
and (3) the evidence about R.M. 's parents was relevant to R.M. 's
damages because her impairments were caused by a variety of
factors, including genetic factors, according to a witness for the
Department, and plaintiffs1 own experts testified that factors
other than the brain injury contributed to her current problems.
They claim this last statement that plaintiffs' own experts
testified that factors other than the brain injury contributed to
her current problems provided the medical link required by Kimes v.
Herrin (1985), 217 Mont. 330, 705 P.2d 108.
In Kimes, the court allowed testimony regarding family
fighting and drinking by the appellant's father in an action where
damages were at issue and the reasons for the appellant's symptoms
were critical to the issue of damages. The appellant was a two-
year-old at the time of her injuries from an automobile accident.
Several years later she exhibited symptoms including listlessness,
drowsiness and staring. At trial, the respondent introduced
testimony about family fighting and her father's drinking to show
that these symptoms were caused by the appellant's environment and
not the collision.
We stated that the evidence about her family environment was
relevant under Rule 401, M.R.Evid., because it had a tendency to
make the alleged cause of the symptoms more or less probable than
it would be without the testimony and, thus, must be weighed to
determine whether it should be excluded under Rule 403, M.R.Evid.
Kimes, 705 P.2d at 110. Rule 403, M.R.Evid., provides that
relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice.
The decision whether or not to exclude such evidence will not
be reversed by this Court unless the district court has abused its
discretion. Kimes, 705 P.2d at 110. We stated:
We hold that the District Court abused its discretion in
allowingthis testimony. The District Court demonstrated
some concern over the admissibility of the questioned
testimony and allowed the testimony because the
respondent assured the District Court that home
environment would be medically linked to the appellant's
symptoms. We note that both partiest expert witnesses
indicated that poor home environment may cause symptoms
such as were exhibited by appellant. However, no
evidence at trial established a medical connection
between poor home environment and the appellant's
symptoms.
Kimes, 705 P.2d at 110.
In this case, the Department never made the causal connection.
The Department is correct in stating plaintiffs did ask their
expert some questions relating to R.M.'s biological parents.
Although testimony was elicited from several witnesses regarding
R.M.'s biological parents, none of the evidence links her
impairment to the natural parents. After a careful review of the
record, we conclude that the testimony provided by the medical
experts failed to establish a medical link between the actions of
R.M. Is biological parents and any condition which R.M. had prior to
the beatings by Dennis Kuipers. On the basis of our holding in
Kimes, we conclude that the similar sort of evidence introduced
here and commented upon in defendants' closing argument was more
prejudicial to R.M. than probative. We further conclude, as in
Kimes that although the medical experts of both parties indicated
I
that genetic factors and other information about the biological
parents could contribute to R.M.'s present condition, no evidence
was presented to make the causal connection more probable than not
in this case.
We hold the District Court abused its discretion in admitting
evidence concerning R.M.'s biological parents and in allowing the
Department to comment on such evidence during its closing argument.
ISSUE V Jury Instructions.
:
Did the District Court err in instructing the jury?
Plaintiffs contend that the District Court made several errors
involving jury instructions which constitute reversible error. We
will consider the same to the extent needed by the parties on
retrial. As stated in Story v. City of Bozeman ( 1 9 9 3 ) , 259 Mont.
207, 222, 856 P.2d 202, 211:
When examining whether certain jury instructions were
properly given or refused, we must consider the jury
instructions in their entirety and in connection with
other instructions given and the evidence introduced at
trial.
There is no reversible error in the giving or refusing of certain
instructions if the jury instructions, viewed in their entirety,
state the correct law applicable to the case. Walden v. State
(1991), 250 Mont. 132, 137, 818 P.2d 1190, 1193. Bearing these
principles in mind, we address the contentions of the plaintiffs
concerning the District Court's treatment of jury instructions in
this case.
a. Did the District court err in instructins the iurv on the
De~artmentof Familv Servicest duty to revort child abuse to
the County Attornev?
The District Court refused to give a jury instruction offered
by the plaintiffs on the Department's statutory duty to report
child abuse cases to the County Attorney. This is a matter of
interpreting 5 41-3-201, MCA, which provides in pertinent part:
(1) When the professionals and officials listed in
subsection (2) know or have reasonable cause to suspect,
as a result of information they receive in their
professional or official capacity, that a child is abused
or neglected, they shall report the matter promptly to
the department of family services or its local affiliate,
which then shall notify the county attorney of the county
where the child resides.
(2) Professionals and officials required to report
are :
. . .
(g) a peace officer or other law enforcement
official; ...
In Demaree v. Safeway Stores, Inc. (1973) 162 Mont. 47, 54,
508 P.2d 570, 575, the Court said that a jury instruction which
assumes as fact a matter legitimately in controversy, as shown by
the evidence, is erroneous. The fact issue here, according to the
Department, was whether "reasonable causettto suspect abuse or
neglect applied to both the law enforcement officers the
Department. We conclude that it applied only to the police
officers.
The Department did not notify the County Attorney of the
33
report it received from the Bozeman Police Department concerning
the Rax incident. We conclude that the plain language of this
statute required the Department to report the Rax incident to the
Gallatin County Attorney. This was not done.
Plaintiffs' proposed Instruction No. 30 relating to the
Department's duty to report abuse was as follows:
When the Department of Family Services receives a
report of child abuse, it is required to report the
incident to the County Attorney where the child resides.
The District Court refused to give this instruction and the
plaintiffs claim this affected the percentage of negligence
attributed to the Department and is reversible error. The
Department contends that the instruction was properly refused as it
did not apply to the evidence in this case because police had no
reasonable cause to suspect abuse at the Rax restaurant. This does
not agree with the record.
The record indicates police believed there was reasonable
cause to suspect abuse, but determined there was no probable cause
to arrest Dennis Kuipers. The officer who observed the child also
testified that she was new on the job and could not readily
identify certain signs which she later learned should have alerted
her that the child had been abused at the Rax restaurant, and that
she likely had probable cause then to arrest Dennis Kuipers.
Nonetheless, that is irrelevant here because the case was reported
to the Department and the statute quoted above requires the
Department subsequently to report it to the County Attorney.
The "reasonable cause1'reference in 5 41-3-201, MCA, applies
to the police having reasonable cause to suspect abuse or neglect.
As we have stated, it does not apply to the Department. The
statute requires the Department, upon receiving such a report, to
notify the County Attorney of the county where the child resides.
Plaintiffs' proposed Instruction No. 30 was a correct statement of
the law and was improperly refused.
One of the theories of plaintiffs' case was that the County
Attorney was deprived of the opportunity to protect R.M. because of
the Department's failure to comply with the statute. The District
Court's failure to instruct the jury on the duty of the Department
to notify the County Attorney prevented plaintiffs from arguing
this theory of the case and could have affected the percentage of
negligence attributed to the Department by the jury. In accord
with the principles stated above from Storv and Walden, refusal of
plaintiffs' proposed instruction failed to state the correct law of
the case.
We hold the District Court erred in refusing to give the
plaintiffs1 offered jury instruction relating to the Department's
statutory duty to report the Rax incident to the Gallatin County
Attorney's office.
b. Did the District Court err in instructins the iurv on
discountina economic damases?
Plaintiffs presented testimony by an expert in economics who
estimated future economic damages at $1,400,000 and testified about
the present value of that amount. Plaintiffs' expert prepared his
evaluation by using projected future medical costs based upon
figures given to him by the Missoula Community Hospital head injury
35
clinic. The economist then testified in detail about his method in
reducing the damages to present value. Plaintiffs contend that the
instruction given by the court allowed R.M. 's damages to be reduced
twice--first by the expert's testimony and then by the jury.
Plaintiffs contend that althoughthe District Court instructed
the jury on the proper law, there was no information given to the
jury from which they could base their own calculations to reduce to
present value any amount they arrived at as an appropriate award if
different from the amount asked for by the plaintiffs. Plaintiffs'
estimate of future damages through the economist was a much larger
figure than the amount allowed by the jury. Plaintiffs contend
that it is not known how the jury could have reduced the award
because no instruction was given in that regard. They contend
there should have been another instruction telling the jury how to
calculate present value if they did not accept the expert's measure
of damages. The Department counters that the law of Montana allows
the jury to disregard the experts entirely in determining the level
of damages.
Although the plaintiffst estimate of $1,400,000 in future
medical expenses alone was uncontested and the plaintiffs asked for
much more in damages, it is within the province of the jury to
reject entirely the amount of damages estimated by experts.
Plaintiffs argue that Itwemust assume that the jury followed the
law in this case and again discounted the damage figures given to
the jury by Plaintiff's expert." Although the amount of damages
is solely within the province of the jury, the jury is not given
carte blanche in that regard and there must be some substantial
evidence to support the jury verdict. Tappan v. Higgins (1989),
240 Mont. 158, 160, 783 P.2d 396, 397. The District Court
correctly instructed the jury that it was not bound by the
testimony of the experts. We conclude there is no basis to assume
that the damage figures provided by plaintiffs' expert were
discounted twice--once by the expert and again by the jury.
Instruction No. 35, offered by defendants and objected to by
the plaintiffs, provided as follows:
You must adjust future economic losses to their
present cash value.
Present cash value is a sum of money which, together
with what that money may reasonably be expected to earn
in the future, when invested at a reasonable rate of
return, will produce the dollar equivalent of such future
damages.
In arriving at present cash value you may also
consider the effect that inflation and increases in wages
will have on offsetting the amounts that money will earn.
This instruction was taken from MPI 25.91; however, the pattern
instruction was not given in its entirety. The following was
omitted:
The only amounts to be adjusted to present cash
value are future earnings and future medical costs. The
discount principles stated in this instruction do not
apply to any other damages.
The Comment to this instruction states that an instruction on
present value "should not be given unless there is sufficient
foundation in the testimony to allow the jury to make the
adjustment." MPI 25.91 Damages - Present Value.
If the instructions in their entirety correctly state the law,
there is no reversible error. We conclude, however, that
Instruction No. 35 as given by the District Court omitted a very
necessary portion regarding which amounts are to be discounted to
present value and thus did not correctly state the law.
We hold that the District Court erred in instructing the jury
by Instruction No. 35 and failing to include the provision that the
only amounts to be so adjusted to present cash value are "future
earnings and future medical costs."
For assistance at retrial, we emphasize that neither party
made reference to 5 25-9-402, MCA, which provides:
25-9-402. Findings by t r i e r of f a c t -- civil
actions. In any action for personal injury, property
damage, or wrongful death where liability is found after
trial and in which $ 1 0 0 , 0 0 0 or more in future damages is
awarded to the claimant, the trier of fact shall make a
separate finding as to the amount of any future damages
so awarded and state whether the amount of future damaaes
has been reduced to present value. (Emphasis supplied.)
While the special verdict form used in this case provided for
findings on future damages, there was no separate statement by the
jury as to whether the amount of future damages had been reduced to
present value as required by statute. Upon retrial, this statute
should also be followed.
I S S U E V I : Governmental Immunity.
Is the Department immune from tort liability for its failure
to protect R.M.?
In its Cross-Appeal, the Department argues that it is immune
from tort liability for two reasons. First, it contends that the
acts of approval for adoption, foster placement and investigation
of the child abuse report were quasi-judicial functions in which
the Department was acting in a quasi-judicial capacity and,
therefore, the District Court should have dismissed the tort claim
against it because the Department was acting in a discretionary
capacity concerning the placement of R.M. in the Kuipers' home.
Second, it argues that it is immune from tort liability based on
the language of 5 41-3-203, MCA, which grants immunity to persons
investigating or reporting incidents of child abuse or neglect
under 5 5 41-3-201 or 41-3-202, MCA.
This Court has addressed and clarified the concept of quasi-
judicial immunity in several cases. In Koppen v. Board of Medical
Examiners (1988), 233 Mont. 214, 219, 759 P.2d 173, 176, we stated
that the Board of Medical Examiners was a quasi-judicial body
because of the nature of its vested discretion to determine whether
or not to adjudicate an alleged violation by a licensee. However,
the Board of Medical Examiners was subject to the notice and
hearing requirements of the Montana Administrative Procedure Act
(MAPA), 5 2-4-101, MCA, et seq., and its decisions were subject to
judicial review--key aspects of our ruling that the Board of
Medical Examiners was a quasi-judicial body and absolutely immune
in the exercise of that determination. KopDen, 759 P.2d at 176.
In so holding, we cited Butz v. Economou (1978), 438 U.S. 478,
We think that adjudication within a federal
administrative agency shares enough of the
characteristics of the judicial process that those who
participate in such adjudication should also be immune
from suits for damages.
The Butz court characterized quasi-judicial immunity as a logical
descendant of prosecutorial immunity. The significance of that
analogy is that immunity in both circumstances is based on the
nature of the functions carried out by agencies or officials.
Butz
I 438 U.S. at 511-16, 98 S.Ct. at 291
22.
Thus, unlike the Board of Medical Examiners in Komen, in
State Bd. of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d
409, the Board of Dentistry was proceeding against a nonlicensee
under 5 37-4-328(3), MCA, which did not require an administrative
hearing before the Board of Dentistry under MAPA. The Board was
acting in its capacity as an executive agency seeking an injunction
in the district court, thereby putting itself in the role of
litigant or advocate, not adjudicator. Kandarian, 813 P.2d at 412.
The Board of Dentistry argued for immunity similar to prosecutorial
immunity. We emphasized that there were procedural safeguards
inherent in the prosecutorial system which acted as a check on the
prosecutor's independence and which were not present in that case.
Kandarian, 813 P.2d at 412.
In Kowen, 759 P.2d at 176, the Court summarized Butz and two
Montana opinions, Ronek v. Gallatin County (1987), 227 Mont. 514,
740 P.2d 1115, cert. denied, 485 U.S. 962, 108 S.Ct. 1226, 99
L.Ed.2d 426, and State ex rel. Dept. of Justice v. District Court
(1977), 172 Mont. 88, 560 P.2d 1328, as follows:
[They] stand for the proposition that entities called
upon to function judicially should be immunized in order
to facilitate the proper execution of their duties.
However, the basis for these decisions . . . is the
common law.
Thus, our decisions governing tort liability of governmental
agencies provide that a governmental entity may be immune from tort
liabiliby if it committed a tort while performing a quasi-judicial
function even when the governmental unit is not characterized as a
quasi-judicial entity.
We addressed this issue at some length in State ex rel.
Workers' Compensation Division v. District Court (hereinafter Great
Western Suqar) (1990), 246 Mont. 225, 805 P.2d 1272. We said that
the core determination for immunity to apply to the function of the
agency there was that it be quasi-judicial rather than
administrative or ministerial, noting that our prior decisions had
clouded the distinction. Section 2-15-102(9), MCA, of MAPA defines
"quasi-judicial function" as:
"Quasi-judicial function" means an adjudicatory function
exercised by an agency, involving the exercise of
judgment and discretion in making determinations in
controversies. ..
.
In Great Western Suqar, 805 P.2d at 1277, we further clarified this
as follows:
... Here, the statutory scheme mandates that the
Division at least review a self-insurer's financial
condition. Admittedly the statutes and administrative
rules grant the Division discretion in renewing GW's
application as a plan No. 1 self-insurer. However, in
this case the Division never exercised this discretion to
determine GW's eligibility to self-insure its risk under
plan no. 1. Rather, there was an admitted complete
failure by the Division to undertake any of the review
necessary to made such a determination. Thus, the
neqliqence occurred at a stase where the Division's
function was entirelv ministerial: (Emphasis supplied.)
"Official action, the result of performing a certain
specific duty arising from designated facts, is a
ministerial act. . . .
Another way of expressing the
same thought is that a duty is to be regarded as
ministerial when it is a duty that has been positively
imposed by law, and its performance required at a time
and in a manner, or upon conditions which are
specifically designated; the duty to perform under the
conditions specified not being dependent upon the
officer's judgment or discretion. . . .And that a
necessity may exist for the ascertainment, from personal
knowledge or from information derived from other sources,
of those facts or conditions, upon the existence or
fulfillment of which, the performance of the act becomes
a clear and specific duty, does not operate to convert
the act into one iudicial in its nature." (Emphasis is
original.)
The discretion afforded by the statutes and rules in
this case was never exercised, rather, the Division
breached its underlying duty, mandated by the statutory
scheme for plan no. 1 insurance, to investigate GW's
eligibility to self-insure. Such act was purely
ministerial . . .
and cannot be a basis for invoking
quasi-judicial immunity:
"Accordingly, to be entitled to immunity the state must
make a showing that such a policy decision, consciously
balancing risks and advantages, took place. The fact
that an employee normally engages in "discretionary
activity" is irrelevant if, in a given case, the employee
did not render a considered decision. ...
" (Citations
omitted.)
We then noted that our analysis was limited to common-law quasi-
judicial immunity, but that the "exercise of judgment and
discretiongtrequired by 3 2-15-102(9), MCA, of MAPA to invoke
immunity was analogous to the discretionary function exception to
the Federal Tort Claims Act, 28 U.S.C. 5 2680(a), under which the
FTCA does not waive immunity for claims based on negligence of
governmental employees exercising or performing discretionary
functions of a federal agency, regardless of whether the discretion
is abused. Great Western Suqar, 805 P.2d at 1277-78.
In Berkovitz v. United States (1988), 486 U.S. 531, 536, 108
S.Ct. 1958-59, 100 L.Ed.2d 531, 540-41, the United States Supreme
Court said immune acts must involve "permissible exercise of policy
discretion":
[Tlhe discretionary function exception will not apply
when a federal statute, regulation, or policy
specifically prescribes a course of action for an
employee to follow. In this event, the employee has no
rightful option but to adhere to the directive. And if
the employee's conduct cannot appropriately be the
product of judgment or choice, then there is no
discretion in the conduct for the discretionary function
exception to protect.
Both in Great Western Susar and as recognized by the District
Court in this case, there was a failure of the agency to follow
procedures that would enable the agency to make a decision:
The duties imposed by the statutory scheme on the
Division's employee were purely investigative,
ministerial and administrative. Because the Division
failed to perform its duty to review or examine G W t s
application as prescribed by statute, and because simply
performing this duty does not involve the use of quasi-
judicial discretion, the Division is not protected by
quasi-judicial immunity at this stage. The Division has
simply not functioned as such under these facts.
Great Western Susar, 805 P.2d at 1278. The Department is required
by statute to license and train foster care providers and to
investigate adoptive homes. See 5 41-3-1103(b) and (d), MCA; 5 41-
3-1142, MCA; and § 41-3-202(1) and (2), MCA. We conclude the
Department, at all times leading up to the tort sued upon in this
case, was acting ministerially.
The conclusion we reach in classifying the Department's
actions is significant only if quasi-judicial immunity can only
attach to a quasi-judicial body which is carrying out the function.
Great Western Suqar, 805 P.2d at 1276, which controls here,
provides in pertinent part:
We conclude that immunity does not attach because the
Division is not expressly designated a quasi-judicial
board, see 2-15-124, MCA, see generally Title 2,
Chapter 15, MCA, nor was it performing a quasi-judicial
function as will be discussed below. ...
The Department in this case was not a statutorily-designated quasi-
judicial board. Great Western Suqar, 805 P. 2d at 1277-78, provides
that immunity is not confined to entities which are statutorily-
designated as quasi-judicial boards. Gerber v. Commissioner of
Ins. (1990), 242 Mont. 369, 371-72, 786 P.2d 1199, 1200-01,
provides further clarification that quasi-judicial immunity may
apply beyond the context of a quasi-judicial board as the Insurance
Commissioner is not designated accordingly, yet the Insurance
Commissioner may be afforded quasi-judicial immunity for quasi-
judicial functions. For example, in Gerber, the Insurance
Commissionertsmethod of conducting an investigation was protected
by quasi-judicial immunity because the applicable statutes
expressly designated investigations as discretionary acts. Gerber,
786 P.2d at 1200-01. See also Trout v. Bennett (1992), 252 Mont.
416, 427, 830 P.2d 81, 88.
We agree with the Department that immunity may apply to the
exercise of a quasi-judicial function where there is no
statutorily-designated quasi-judicial board involved in the action.
However, like the Workerst Compensation Division in Great Western
Suaar, the Department here was not carrying on an investigation of
the sort which is granted immunity such as one that is a part of a
contested case hearing; it is not entitled to immunity when it is
not a quasi-judicial body carrying out a quasi-judicial function.
We conclude the Department was not acting in a quasi-judicial
role in its actions in this case. There was no contested case
hearing involved, nor was there any other adversarial type of
proceeding. In addition, the Department's actions were not
discretionary, but were mandated by statute and were ministerial
and administrative in nature.
The Department's second argument relating to immunity is that
it is granted statutory immunity by 5 41-3-203, MCA, which provides
immunity for persons required to report and investigate child abuse
under the provisions of $ 5 41-3-201 and 41-3-202, MCA. This
immunity is not intended for the Department; rather, it is intended
to protect individuals such as teachers, doctors, and psychologists
who are required to report suspected abuse. The stated public
policy of Montana is to "provide for the protection of children
whose health and welfare are or may be adversely affected and
further threatened by the conduct of those responsible for their
care and protection." Section 41-3-101(2), MCA. We conclude that
§ 41-3-203, MCA, also does not immunize the Department from tort
liability.
We hold the Department is not immune from tort liability for
its failure to protect R.M. in this case.
ISSUE VII: Who is to be included on the special verdict form
in a subsequent trial?
On retrial, under our holding on Issue 11, the trier of fact
can consider the negligence of the following parties to the action:
claimant, injured person, defendant and third party defendants. In
the absence of a record and briefing comprehensively addressing it,
45
we conclude it is not appropriate to further address this issue.
Affirmed in part, reversed in part and remanded.
we concur: - -
0
chief Justice
APPENDIX
Section 27-1-703, MCA (1987), provides as follows:
27-1-703. Multiple defendants -- determination of
liability. (1) Except as provided in subsections (2) and
( 3 ) , whenever the negligence of any party in any action is an
issue, each party against whom recovery may be allowed is
jointly and severally liable for the amount that may be
awarded to the claimant but has the right of contribution from
any other person whose negligence may have contributed as a
proximate cause to the injury complained of.
(2) Any party whose negligence is determined to be 50%
or less of the combined negligence of all persons described in
subsection (4) is severally liable only and is responsible
only for the amount of negligence attributable to him, except
as provided in subsection (3). The remaining parties are
jointly and severally liable for the total less the amount
attributable to the claimant.
(3) A party may be jointly liable for all damages caused
by the negligence of another if both acted in concert in
contributing to the claimant's damages or if one party acted
as an agent of the other.
(4) On motion of any party against whom a claim is
asserted for negligence resulting in death or injury to person
or property, any other person whose negligence may have
contributed as a proximate cause to the injury complained of
may be joined as an additional party to the action. For
purposes of determining the percentage of liability
attributable to each party whose action contributed to the
injury complained of, the trier of fact shall consider the
negligence of the claimant, injured person, defendants, third-
party defendants, persons released from liability by the
claimant, persons immune from liability to the claimant, and
any other persons who have a defense against the claimant.
The trier of fact shall apportion the percentage of negligence
of all such persons. However, in attributing negligence among
persons, the trier of fact may not consider or determine any
amount of negligence on the part of any injured persongs
employer or coemployee to the extent that such employer or
coemployee has tort immunity under the Workersg Compensation
Act or the Occupational Disease Act of this state, of any
other state, or ofthe federal government. Contribution shall
be proportional to the liability of the parties against whom
recovery is allowed. Nothing contained in this section shall
make any party indispensable pursuant to Rule 19, Montana
Rules of Civil Procedure.
(5) If for any reason all or part of the contribution
from a party liable for contribution cannot be obtained, each
of the other parties shall contribute a proportional part of
the unpaid portion of the noncontributing party's share and
may obtain judgment in a pending or subsequent action for
contribution from the noncontributing party. A party found to
be 50% or less negligent for the injury complained of is
liable for contribution under this section only up to the
percentage of negligence attributed to him.
Section 27-1-703, MCA (1985), provided:
27-1-703. Multiple defendants jointly and severally
liable --right of contribution. (1) Whenever the negligence
of any party in any action is an issue, each party against
whom recovery may be allowed is jointly and severally liable
for the amount that may be awarded to the claimant but has the
right of contribution from any other person whose negligence
may have contributed as a proximate cause to the injury
complained of.
(2) On motion of any party against whom a claim is
asserted for negligence resulting in death or injury to person
or property, any other person whose negligence may have
contributed as a proximate cause to the injury complained of
may be joined as an additional party to the action. Whenever
more than one person is found to have contributed as a
proximate cause to the injury complained of, the trier of fact
shall apportion the degree of fault among such persons.
Contribution shall be proportional to the negligence of the
parties against whom recovery is allowed. Nothing contained
in this section shall make any party indispensable pursuant to
Rule 19, M.R.Civ.P.
(3) If for any reason all or part of the contribution
from a party liable for contribution cannot be obtained, each
of the other parties against whom recovery is allowed is
liable to contribute a proportional part of the unpaid portion
of the noncontributing party's share and may obtain judgment
in a pending or subsequent action for contribution from the
noncontributing party.
Washington state's similar statute reads as follows:
5 4.22.070. Percentage of fault--Determination--Limitations.
(1) In all actions involving fault of more than one
entity, the trier of fact shall determine the percentage of
the total fault which is attributable to every entity which
caused the claimant's damages, including the claimant or
person suffering personal injury or incurring property damage,
defendants, third-party defendants, entities released by the
claimant, entities immune from liability to the claimant and
entities with any other individual defense against the
claimant. Judgment shall be entered against each defendant
except those who have been released by the claimant or are
immune from liability to the claimant or have prevailed on any
other individual defense against the claimant in an amount
which represents that party's proportionate share of the
claimant's total damages. The liability of each defendant
shall be several only and shall not be joint except:
(a) A party shall be responsible for the fault of another
person or for payment of the proportionate share of another
party where both were acting in concert or when a person was
acting as an agent or servant of the party.
(b) If the trier of fact determines that the claimant or
party suffering bodily injury or incurring property damages
was not at fault, the defendants against whom judgment is
entered shall be jointly and severally liable for the sum of
their proportionate shares o f the claimants total damages.
(2) If a defendant is jointly and severally liable under
one of the exceptions listed in subsections (l)(a) or (l)(b)
of this section, such defendant's rights to contributions
against another jointly and severally liable defendant, and
the effect of settlement by either such defendant, shall be
determined under RCW 4.22.040, 4.22.050, and 4.22.060.
(3)(a) Nothing in this section affects any cause of
action relating to hazardous wastes or substances or solid
waste disposal sites.
(b) Nothing in this section shall affect a cause of
action arising from the tortious interference with contracts
or business relations.
(c) Nothing in this section shall affect any cause of
action arising from the manufacture or marketing of a fungible
product in a generic form which contains no clearly
identifiable shape, color, or marking.
Wash. Rev. Code Ann. 5 4.22.070 (1988).