Scott v. Henrich

96-667

No. 96-667

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

DORIS A. SCOTT, individually and as Personal Representative
of the Estate of John William Scott, Deceased,

Plaintiff and Appellant,

v.

JAMES L. HENRICH, DAVID J. FLAMAND, BUTTE-SILVER BOW LAW
ENFORCEMENT AGENCY, CITY OF BUTTE, and COUNTY OF SILVER BOW,

Defendants and Respondents.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Curtis G. Thompson and William D. Jacobsen;
Thompson & Jacobsen; Great Falls, Montana

For Respondents:

Brendon J. Rohan; Poore, Roth & Robinson; Butte, Montana
(for Respondents Henrich, Flamand and Butte-Silver Bow
Law Enforcement Agency)

Marshal L. Mickelson; Corette, Pohlman & Kebe; Butte, Montana
(for Respondents City of Butte and County of Silver Bow)

Submitted on Briefs: April 4, 1997

Decided: June 10, 1997
Filed:

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__________________________________________
Clerk

Justice Jim Regnier delivered the Opinion of the Court.

Doris Scott appeals from the Silver Bow County, Second Judicial District Court's
entry of summary judgment against her in this negligence action for wrongful death
and
survivorship, arising from the shooting death of her husband by an officer of the
Butte-
Silver Bow Law Enforcement Agency. We reverse.
The sole issue before us is whether the District Court erred in granting summary
judgment against Scott on her state law negligence claims for wrongful death and
survivorship on the grounds of res judicata.
FACTUAL BACKGROUND
This case arises from the shooting death of John Scott by an officer of the
Butte-
Silver Bow Law Enforcement Agency. On August 4, 1984, police officers James L.
Henrich and David J. Flamand responded to a call reporting the discharge of firearms
at
701 West Park Street in Butte. When they arrived at the scene, a resident informed
them
that an individual had fired a rifle and entered a nearby apartment. Officer
Flamand then
saw a man peer out of a second story window in the building.
Both officers, with weapons drawn, approached the door of the apartment. Officer
Henrich banged and kicked on the door and identified himself and Officer Flamand as
police officers. A few minutes later, Officer Henrich again banged on the door and
identified himself as a police officer. According to the officers, Scott opened the
door,
holding a long gun pointed at them. Officer Henrich fired a shot that missed Scott.
Officer Flamand, mistakenly believing that Scott had fired at them, fired four shots
at
Scott, one of which killed him.
John Scott's wife, Doris Scott, brought an action in the United States District
Court, alleging violations of John's constitutional rights under 42 U.S.C. 1983
(1982),
as well as state law negligence claims for wrongful death and survivorship. After
the
initial discovery was completed, the defendants moved for summary judgement. United
States District Judge Paul Hatfield took the motions for summary judgment under
advisement, but allowed Scott sixty days to engage in further discovery limited to
the
issue of the reasonableness of the officers' conduct. Subsequently, Judge Hatfield
granted
the defendants summary judgment on the 1983 claims, but refused to exercise
jurisdiction on the pendent state law negligence claims. Scott appealed and then
filed this
action in state court. The Second Judicial District Court, Silver Bow County,
stayed the
state court proceedings pending resolution of the 1983 action in the federal court.
On November 2, 1994, the Ninth Circuit Court of Appeals affirmed the summary

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judgment granted by Judge Hatfield. The Ninth Circuit's opinion did not address
Judge
Hatfield's disposition of the state law negligence claims. Scott appealed the Ninth
Circuit's decision to the United States Supreme Court, which denied certiorari on
June
26, 1996.
After the federal claims were disposed of, the defendants next moved the state
district court for summary judgment. The defendants argued that they were entitled
to
summary judgment on the theories of res judicata or collateral estoppel. Scott
countered
that the federal district court did not decide her state law negligence claims and
therefore
she should be allowed to proceed in state court. The District Court granted the
defendants summary judgement, ruling that the issues raised before it in state court
were
identical to the issues decided in the federal court proceedings, so res judicata was
appropriate. The court focused upon the Ninth Circuit Court's opinion which affirmed
the federal district court's finding that the officers' conduct was objectively
reasonable.
The District Court noted that the Ninth Circuit Court of Appeals decided that the
defendants did not breach their duty to John Scott and their conduct was reasonable
and
proper. Without a breach of duty, plaintiff's negligence claims fail and the
defendants
are entitled to summary judgment.
Scott appeals from the order and the judgement granting the defendants' motion
for summary judgment.
DISCUSSION
Did the District Court err in granting summary judgment against Doris Scott on
her state law negligence claims for wrongful death and survivorship on the grounds of
res judicata?
Summary judgment is proper when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We
review a district court's grant of summary judgment de novo, applying the same Rule
56(c), M.R.Civ.P., criteria used by that court. In re Estate of Lien (1995), 270
Mont.
295, 298, 892 P.2d 530, 532. Such a review requires that we first determine whether
the moving party met its burden of establishing both the absence of genuine issues of
material fact and entitlement to judgment as a matter of law. See Estate of Lien,
270
Mont. at 298, 892 P.2d at 532.
The doctrine of res judicata prevents a party from re-litigating a matter that
the
party has already had an opportunity to litigate. Hollister v. Forsythe (1996), 277
Mont.
23, 918 P.2d 665; Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506,
510, 905 P.2d 158, 161. It is based on the public policy that there must be some
end to
litigation. Wellman v. Wellman (1983), 205 Mont. 504, 508, 668 P.2d 1060, 1062. A
claim is res judicata when four criteria are met--the parties or their privies are
the same;

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the subject matter of the claim is the same; the issues are the same and relate to
the same
subject matter; and the capacities of the persons are the same in reference to the
subject
matter and the issues. Greenwood v. Steve Nelson Trucking, Inc. (1995), 270 Mont.
216, 219, 890 P.2d 765, 767.
Respondents contend that Scott's state law negligence claims are barred by the
doctrine of res judicata and the District Court's grant of summary judgment was
entirely
proper. They offer the following analysis. First, the parties are the same in both
actions.
Second, the subject matter is also the same; both actions are based on the officers'
conduct that led to the shooting of John Scott. Third, the issue in Scott's state
court
action is identical to the issue previously raised and decided by the federal court,
the
reasonableness of the officers' conduct. Finally, the capacity of the parties
involved has
not changed in relation to the subject matter and the issues in litigation.
However, Scott argues that the issue litigated in the federal court is not
identical
to the issue in the state action, and therefore, the third requirement necessary for
the
application of res judicata has not been met. Scott points out that the federal
courts only
addressed whether the officers acted reasonably within the meaning of the Fourth
Amendment of the United States Constitution in the context of Scott's 1983 claims
and
the officers' claim of qualified immunity. Scott points out that the federal courts
did not
address whether the officers acted in a negligent fashion under Montana substantive
law.
Scott contends that she has not had the opportunity to litigate her state law
negligence
claims because those claims were severed from the federal proceedings at Judge
Hatfield's discretion on the basis of subject matter jurisdiction.
In granting summary judgment for the respondents, the District Court ruled as a
matter of law that Scott's state law negligence claims were barred by res judicata.
The
District Court framed the issue as whether or not the officers and the law
enforcement
agencies had breached their duty to John Scott. The District Court relied on the
Ninth
Circuit's decision that the officers did not breach their duty and their conduct was
reasonable and proper. The District Court evaluated Scott's state law negligence
claims
and determined that the issue was decided by a final judgment in federal court.
Because
Scott was allowed to litigate the reasonableness of the officers' conduct in federal
court,
the District Court ruled that it was bound by res judicata and adopted the federal
court's

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decision, finding that the officers' conduct was reasonable.
At first glance this case may seem like a proper candidate for summary
disposition
on the basis of res judicata. The United States District Court's opinions, as well
as the
Ninth Circuit's subsequent opinion, repeatedly characterized the officers' conduct as
"objectively reasonable" under the circumstances. If the officers had been found to
have
acted in an "objectively reasonable" manner by the federal courts, how can this same
conduct violate the standards of negligence required for a finding of liability in
the state
court? A closer analysis of the federal and state court actions, however, leads us
to the
conclusion that it would be improper to deny the plaintiff the opportunity to
litigate her
state court claims on the basis of res judicata.
Judge Hatfield first addressed Scott's 1983 claims in 1988. See Scott v.
Henrich
(D. Mont. 1988), 700 F. Supp. 498. Interestingly, the plaintiff had originally pled
her
civil rights action in the United States District Court under ordinary negligence
standards.
This prompted the defendants to move for summary judgment. In response to the
defendants' motion for summary judgement, the plaintiff sought leave of court to
amend
her complaint, substituting her allegations of ordinary negligence with gross
negligence.
Judge Hatfield allowed Scott to amend, noting that allegations of simple negligence
would
be insufficient to state a claim cognizable under 42 U.S.C. 1983. In Daniels v.
Williams (1986), 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662, the United States
Supreme Court held that a finding of mere negligence will not give rise to a claim
for the
deprivation of constitutional rights under 42 U.S.C. 1983. Judge Hatfield noted
that
since the Daniels decision the Ninth Circuit has followed earlier case law holding
that the
Due Process Clause of the United States Constitution can be implicated by conduct of
state officials amounting to "recklessness," "gross negligence," or "deliberate
indifference." See Wood v. Ostrander (9th Cir. 1988), 851 F.2d 1212, 1214;
Bergquist
v. County of Cochise (9th Cir. 1986), 806 F.2d 1364, 1370.
Therefore, it is clear that the conduct under scrutiny in the federal case was
not
evaluated under ordinary negligence principles, but rather under gross negligence
standards which are required in order to sustain a claim under 1983. What is
confusing, however, is that claims such as this, where it is alleged that law
enforcement
officers used excessive force in an arrest, investigatory stop, or seizure, are
analyzed
under the Fourth Amendment and its "reasonableness" standard. Graham v. Conner
(1989), 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443. Judge Hatfield and the

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Ninth Circuit ultimately exonerated the police officers from the 1983 claims by
concluding that their conduct when facing the exigent circumstances of having a rifle
pointed at them was "objectively reasonable." Yet it is important to note that the
federal
court never addressed or considered the simple negligence claims under Montana
substantive law. Again, Judge Hatfield's opinion is instructive on this issue:
Perhaps a more prudent course of procedure would have prevented
the death of John Scott. Nonetheless, the fact a necessarily instantaneous
decision by a police officer is not, in hindsight, the best, does not serve to
elevate negligence to a constitutional plane. Any malfeasance that may be
attributed to the conduct of Officers Henrich and Flamand does not rise to
the level of "gross" negligence essential to a claim for deprivation of
constitutional rights under 42 U.S.C. 1983. Whether Officers Henrich
and Flamand acted in a negligent fashion is, of course, an issue properly
left to the trier of fact.

Scott v. Henrich (January 3, 1991), No. CV-87-003-BU at p. 10 (Memorandum and
Order).
Judge Hatfield's ruling was subsequently affirmed, in its entirety, by the Ninth
Circuit Court of Appeals. Nowhere in its decision does the Ninth Circuit demonstrate
an intention to reverse Judge Hatfield or direct a resolution of Scott's negligence
claims.
In fact, at the time the Ninth Circuit ruled, Scott's negligence claims were not even
before that court. Judge Hatfield had dismissed the negligence claims, without
prejudice,
for lack of federal jurisdiction, and those claims had been refiled in Montana
district
court.
Thus, the Ninth Circuit's decision only addressed Scott's 1983 claims. Both
Judge Hatfield and the Ninth Circuit ruled that the officers acted reasonably,
within the
meaning of the Fourth Amendment, for the purposes of Scott's 1983 claims. As
stated
above, in finding that the officers acted reasonably, both federal courts ruled that
the
officers' conduct did not rise to the level of gross negligence required for a
finding of
deprivation of John Scott's constitutional rights under 42 U.S.C. 1983. The
federal
courts did not decide whether the officers' conduct was negligent under Montana
substantive law.
As discussed above, the United States District Court ruled that the officers'
conduct did not rise to the level of gross negligence required for a finding of
deprivation
of constitutional rights under 42 U.S.C. 1983. However, in her state court action,
Scott is not required to prove that the officers' conduct was grossly negligent to
prevail
on her claims. Scott must only prove that the officers' conduct was negligent in
her state
court action. The traditional standard of negligence, as defined under Montana law,
is
"conduct of a reasonable and prudent person under the circumstances." Abernathy v.

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Eline Oilfield Services, Inc. (1982), 200 Mont. 205, 211, 650 P.2d 772, 775. In this
case, the federal court's finding that the officers' conduct was reasonable as to
defeat
Scott's 1983 claims may not act on the basis of res judicata to bar a finding in
state
district court that the officers' same conduct might be unreasonable in an action
for a
state law negligence claim.
Furthermore, although both the United States District Court and the Ninth
Circuit
concluded that the officers acted reasonably within the meaning of the Fourth
Amendment, for purposes of Scott's 1983 claims, that ruling has no preclusive
effect
on Scott's negligence claims because the federal courts had specifically ceded
jurisdiction
over the negligence claims to the state courts of Montana. If the federal court had
intended by its ruling to bar litigation of Scott's negligence claims, it could have
granted
summary judgment on those claims when it granted summary judgment on Scott's 1983
claims.
This Court concludes that Scott's negligence claims for wrongful death and
survivorship, based on Montana state law, are not barred by res judicata. Judge
Hatfield's decision granting summary judgment on Scott's 1983 claims, and the
subsequent Ninth Circuit decision which affirmed his ruling in its entirety, do not
operate
to bar Scott's negligence claims based on res judicata.
We reverse and remand to the District Court.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART

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