*1 Individually MARGARET MAGUIRE, as Guardian of MARY MARGRETTA GLOVER, Incapacitated an Person and BABY GLOVER, Respondents,
Plaintiffs THE STATE OF MONTANA, MONTANA DEPARTMENT OF INSTITUTIONS,
THE MONTANA DEVELOPMENTAL CENTER
AND CARROLL V. SOUTH,
Department
Director
of Institutions,
Appellants.
Defendants
No. 91-313.
Submitted Mar.
1992.
Aug.
Decided
1992.
St.Rep.
688.
For Plaintiffs and William P. Bur- gess, Joyce Whelan, & Butte.
JUSTICE Opinion McDONOUGH delivered the of the Court. *3 appeals jury Margaret The State of Montana a verdict in favor of Maguire, individually guardian Mary Margretta and and Glover Court, judgment from a of the Second Judicial District Silver Bow County. affirm in and reverse in part. We following appeal:
We address the issues on summary 1. in granting partial Whether the District Court erred judgment directing and in a that verdict the State was liable for (Second) employee criminal conduct of an under Restatement 214; Agency § refusing 2. Whether the District Court erred in the State’s offer of 408, M.R.Evid., Maguire proof, based on Rule Mrs. acknow- ledged receiving good at Montana Ms. Glover was care moved; Developmental Center and that she should not be refusing 3. the District erred in to instruct on the Whether Court agency negligent hiring; theories of and Maguire allowing 4. Whether the District Court erred Mrs. distress; maintain an action in tort for emotional and jury’s refusing 5. Whether the District Court erred in to reduce the verdict. (Glover) severely 1988, Mary Margretta
In an autistic and Glover (MDC), Center patient Developmental retarded at Montana raped by employee, Lloyd and an MDC Dean Drummond. assaulted Glover, 43, 1979. In age Ms. has resided at what is now MDC since assigned Lloyd responsibility primary MDC Drummond caring bathing dressing Ms. His duties included Ms. Glover. Glover.
Margaret Maguire (Maguire), legal guar- Ms. Glover’s mother and dian, brought During Ms. Glover home for weekend visits. one visits, back, spread legs, placed Ms. Glover laid flat on her her visit, up During her knees towards her shoulders. another Mrs. Maguire gaining weight. Maguire noticed Ms. Glover was Mrs. telephoned personnel question MDC them about Ms. Glover’s weight gain. inquired She also as to whether or not Ms. Glover was having regular menses. She was informed that Ms. Glover had missed menses, probably her but that it was due to thorazine treatment. However, MDC weight gain staff members also noticed Ms. Glover’s and commented to they the head nurse that wished to be the first Lloyd going ones to tell Drummond that he was a to be father. In pregnancy November of test on Ms. Glover came back positive. baby April Ms. Glover delivered the without incident in legal guardian, 1989. As Ms. Glover’s Maguire Mrs. had to make regarding daughter’s pregnancy. decisions her Fear that Ms. Glover’s might congenital carry autism and retardation be made a decision to Further, the pregnancy Maguire to term difficult. Mrs. was concerned daughter’s safety. Catholic, for her making As a devout Roman very Ultimately decision to the pregnancy abort was also difficult. Mrs. decided to pregnancy have the carried to term. How- ever, she faced another difficult the child decision whether raise place herself or the child in an of her advanced adoptive home. view age, finally place adoptive parents. she decided to the child with Maguire sought
In December of medical attention for Mrs. depression rape pregnancy stress and related to the of her daughter. Maguire for physician, previously Her treated Mrs. in- depression anxiety problems, related noted her stress had “markedly.” complained creased and that she had deteriorated She *4 suicide, nightmares, generally of sleeping, contemplation trouble increased, feeling Maguire’s run visits to the doctor down. Mrs. begin improve April her condition did not until of but she psychologist through continued to see a 1990. there is
Our standard of review as to the verdict
is whether
support
jury
substantial credible evidence
the record to
verdict.
law,
law,
In reviewing
question
legal components
conclusions of
of
facts,
fact,
questions
of ultimate
or mixed
of law and
we
decide if
will
scope
lower court’s determination as to law is correct. The
discretionary
review
acts ofthe trial court is whether the trial court
Steer,
abused its
Our
plenary.
Depart
discretion.
review will be
Inc. v.
ment Revenue
245 Mont.
I Whether the District in granting partial summary Court erred judgment directing holding a verdict the State for the liable (Second) criminal its employee, conduct of based on Restatement Agency, 214. § granted partial summary judgment District Court directed a verdict in favor of Mrs. and Ms. Glover on the liability. issue of The District Court based its decision on Restatement (Second) Agency 214. Section 214 exception general is an § respondeat superior. rule of have adopted We not heretofore this provides: section. This section Principal Non-delegable
Failure of to Perform Duty. A principal duty provide master or other who is under a protection protect for or to have care used to others or their property performance and who confides the or such to a person subject servant or other to such others for harm to them agent perform caused the failure of such duty. previously analyzed
We have -under the respondeat cases (Second) superior Agency doctrine based on Restatement 228. Respondeat superior imposes liability wrong on an for the employer employee scope ful acts of an which are committed of his within employment. As stated in Mining we Kornec Mike Horse 1, 8, 120 Mont. 180 P.2d 256: agent acting servant or must have been the “course of his interest,”
employment,” employer’s in “furtherance of his or “for master;” “in scope employment,” the benefit of his of his etc. entirely generally But a servant who acts for his own benefit is scope employment held to be outside the of his and the master is (Citation omitted.) liability. relieved of (9th 1982), See Lutz v. United Cir. F.2d 1178. also States A party may vicariously damages be held hable for the caused *5 theory another on the respondeat of superior may held be directly theory liable on the negligent hiring of supervision. and/or Normally, an employer would not be held liable for tortious acts of its employee performed outside scope of employment. Hoover v. (Ill. University Chicago Hospitals 1977), 925, 929.Thus, 366 N.E.2d of under respondeat superior, the employer’s liability is derivative from negligent employee acts of the acting within scope employ of Boykin ment. v. District 1984), Columbia (D.C.App. 484 A.2d 561. It rape is clear this was outside the scope Lloyd Drummond’s employment.
Other jurisdictions, under liability, theories of vicarious hold employer an liable for the tortious employees acts ofits acting outside scope employment. These cases involve common carriers and innkeepers. In G.L. v.Kaiser Foundation Hospitals (1987), Or.App. 731, 734, 746 P.2d the Oregon Court of Appeals deferred to the legislature in declining hospitals to hold strictly hable for tortious acts of employees (sexual acting outside the scope employment assault). question The employer’s of an vicarious for the tortious employees acts of its acting scope outside the employment is a matter impression of first in Montana.
Both appellant and respondent cite cases from
jurisdictions
other
produce
which
opposite
Guardsmark,
results. MDC relies onRabon v.
(4th
1978),
Inc.
Cir.
Rabon,
Mrs. relies on Stropes Heritage House Childrens Ctr. (Ind. 1989), 547 N.E.2d analysis for her that Montana should adopt the non-delegable duty exception respondeat superior Stropes doctrine. involves a similar fact situation. In Stropes severe ly retarded fourteen-year-old boy raped by a nurse’s aide employed by Heritage House. The feeding, aide’s duties included bathing, and changing the rape child. The occurred after the aide boy’s entered the change room to his clothing bedding. Stropes at 245.
The Supreme Court, Indiana reviewing law, Indiana case found two cases which employers held hable for criminal acts of their employees, “originated because the acts closely activities so as- relationship its employment scope.” sociated with the as to fall within Stropes at 247. above, court noted Siropes distinguished also Rabón. As non-delegable duty
Fourth Circuit determined that South Carolina’s only extended carriers. at 250-251. How Stropes doctrine to common ever, out, Siropes pointed principles Indiana has under as identified and, lying fact, it to adoption exception, its has extended enterprises Stropes reach other at than common carriers. 252. relationships relevant Supreme Indiana Court concluded exception, embodied in the common carrier and the rationales under lying it, Heritage. Stropes applicable to at 253-254. were expounded respondeat superior
Montana followsthe doctrine of
*6
exception
not
common
adopted
Kornec. We have
the
carrier
to that
However,
accepted
concept
non-delegable
we
the
of a
doctrine.
have
duty
relationship
general
in a contractual
between a
contractor and
(1932), 92
independent
Schwieger
an
contractor. Ulmen v.
et al.
Mont.
331,
highway
Later,
non-delegable duty
held that a
contractor
general
we
had a
statutory duty
to
of a
to
employee
the
subcontractor based on a
(1981),
safety
Stepanek
at the
v.
Const.
191
maintain
worksite.
Kober
430,
injury
a
Stepanek
II in refusing the District Court erred the State’s offer Whether M.R.Evid., proof, on Rule based that Mrs. acknow ledged care receiving good Develop Ms. Glover was at the Montana mental Center and she should not be moved. M.R.Evid., provides:
Rule compromise. Compromise offers (1) furnish, offering or furnishing promising Evidence of or or (2) or accepting offering promising accept, valuable con- *7 compromising attempting compromise sideration in or to claim validity is not disputed which was as to either or amount admis- invalidity of the claim or its amount. prove sible to for or compromise negotia- or made in Evidence of conduct statements require This not ex- is likewise not admissible. rule does tions merely any because it clusion of evidence otherwise discoverable compromise negotiations. is in the This rule presented course of require when the evidence offered also does not exclusion witness, of a prejudice such bias or purpose, proving another delay, an effort to proving a contention of undue or negativing prosecution. investigation a criminal obstruct testimony from Rule the District Court excluded Based on did not witness, Pryor, Maguire that want Jennifer Mrs. defendant’s MDC the commissioners’ Ms. moved from MDC. cites Glover parties comments the Rule try to that should not to immunize their being by during evidence presenting negotiations. from admissible it The third sentence of Rule allows evidence which is otherwise discoverable. sought testimony Maguire
MDC to introduce that Mrs. did not want Ms. moved from MDC it Glover because was close to Butte and thought that she receiving good Ms. Glover was care at MDC. Moreover, Maguire rejected evidence existed Mrs. an offer placement during negotiations. alternative for Ms. Glover settlement placement Counsel for MDC admitted that outside of MDC was proposed settlement. Further, Maguire Mrs. testified on cross-examination that MDC was the place daughter best she could find for her and that she wanted keep Thus, to testimony by her close to Butte. proposed MDC was repetitive. Weconclude the evidence not fall the exception does within offered inMDC the For commissioners’ comments. the reasons above, stated we affirm the District on Court this issue.
Ill in refusing Whether District Court erred instruct to on the theories agency negligent hiring. adopted duty excep-
Because the District non-delegable Court doctrine, respondeat tion to the it superior proposed refused MDC’s negligent hiring agency. instructions on We concluded above adopting non-delegable duty District Court erred in exception respondeat superior Thus, Montana’s doctrine. we reverse the District Court on this issue. MCA, 53-20-142, provides part:
Section facility Persons admitted to a residential for a period habilita- enjoy following tion shall rights: (1) right Residents dignity, privacy, have a humane care... statutory
MDC has a Ms. Glover not with the inconsistent negligent supervision, theories hiring, negligent agency. Thus it was for the error District Court to refuse instructions based on these theories.
IV allowing Whether the District Court erred in Mrs. maintain an action in tort for emotional distress.
187
Maguire’s recovery
The District Court limited Mrs.
for emotional
by
make the
damages
being required
distress to those
caused
jury
in-
regarding
pregnancy
decisions
of Ms. Glover. The
was
damages
structed not to award
for emotional distress as
result
Maguire’s learning
daughter’s rape
pregnancy.
of her
This
Mrs.
past
recovery
latter instruction
correct. In the
have allowed
we
party
contemporaneous
to a third
of an accident or
observance
resulting
Transport
event
in shock to the senses. Versland v. Caron
(1983),
313,
206 Mont.
In Versland we traced the
of case
from a denial of
law
recovery
damages
if
physical
for emotional trauma
there was no
impact
expansion
to an
danger”
“zone of
rule. The “zone of
danger”
plaintiff recovery
rule allows the
if he
she
or
were located
negligent
within the zone of defendant’s
conduct and feared for his or
safety.
her own
using
reasoning
We abandoned this rule
seminal
Legg
72,
case of Dillon v.
Cal.2d
Cal.Rptr.
Versland,
1. The shock must impact upon result from a direct emotional the plaintiff sensory from the and contemporaneous perception of accident, learning as contrasted with of the accident from others after its occurrence. plaintiff closely related,
2. The and victim must be as contrasted any relationship only with absence of or the presence of a distant relationship.
3. Either
physical injury
death or serious
of the victim must
occurred
negligence.
have
result of the defendant’s
Wersland at
Part
of this test is in line
amplification
prong
and an
2(a) of Section 46 of the Restatement
Torts relative to intentional
and reckless conduct. This is sometimes referred to as the tort of
outrage.
Caple
See Lund v.
100 Wash.2d
(2) person, Where such conduct is directed at a third the actor is intentionally recklessly if causes subject to he severe emotional distress
(a) family person’s to a member of such immediate who time, in present at the whether or not such distress results harm, bodily
(b) time, if any person present to other who is at the such bodily distress results harm. part
The case us fails to meet one of the Versland three before part Maguire, test and 2 of 46 of the Restatement in that Mrs. § herein, present at conduct. She plaintiff was not the time of the policy presence The learned of the conduct from others. behind requirement may is to limit the recover for persons number guarantee genuineness emotional distress and to of the claim. See (Cal. 98, 1989), v. Psychiatric Cal.Rptr. Marlene F. Med. Clinic 257 278, concurring. Arguelles Eagleson 770 P.2d 285. J.J. and theory jury to the was whether or not Mrs. submitted may damages being required for emotional distress for recover regarding pregnancy daughter; make decisions of her those being daughter not the should an abortion decisions whether or have not, provide adoption and if for the care or of the child. No direct- Maguire. relationship any outrageous exists between act and Mrs. To independent goes beyond find an cause of action here the rationale progeny goes beyond and tests of the Dillon and Versland requirement. physical presence recovery physical
We have allowed
for emotional distress absent
Supersave
In
injury
only
limited circumstances.
Johnson
Markets,
465, 686
Big Sky
211
P.2d 209 and Niles v.
Inc.
Mont.
455,
114,
Eyewear (1989),
recovery
236 Mont.
771 P.2d
allowed
we
jail.
damages
imprisonment
emotional distress
for false
both
party.
the victim was not a third
Johnson
Niles
opinion
no
provides:
expresses
A caveat to 46
“The Institute
§
may
under which the
to whether there
not be other circumstances
inflic-
may
subject
for the intentional or reckless
actor
be
out,
Arguelles points
the caveat
tion of emotional distress.” As Justice
may
presence require-
not mandate the
speaks to situations which
1,
105,
285,
p.
46
79.
quoting
Marlene F. at
770 P.2d at
com.
ment.
of a child
Supreme
F
Court held a mother
In Marlene
the California
infliction of emotional distress after
negligent
could
a claim for
state
child, sexually
molested
treating
both the mother
psychologist
103,
at 283. The comb reasoned that
the child. Marlene F at
770 P.2d
duty
care to
damages are recoverable when the defendant owes a
plaintiff.
duty depends upon
The existence
foreseeability
from the
that severe emotional distress will result
101-102,
F
duty.
breach of that
Marlene
at
Relying on Marlene
Supreme
distinguished
the California
Court
bystander-witness
the
cases of the
In
progeny.
Dillon
Christensen v.
Superior
79, 91, 820
181, 193,
Court
2 Cal.Rptr.2d
P.2d
certain
wrongfully
mortuaries and crematoria
mishandled the decedents’
Despite failing
remains.
satisfy
presence requirement,
family
the
standing
members were allowed
negligent
to recover for
infliction of
99, 820
emotional distress. Christensen at
P.2d at 201. The defendants
duty
assumed a
to the close relatives of the decedents for whose
they
Further,
benefit
provide
were to
services.
the court reasoned that
the
special
defendants “created a
relationship
family
with the close
obligating
perform
dignified
members
them to
those
in a
services
respectful
91,
manner.” Christensen at
We are faced the question with here whether the facts us before satisfy foreseeability the causation and the requirements when the presence requirement view, doing is not met. In our so here would spiral liability jurisdictions increase the farther out than other (Iowa go. 1986), have chosen to See H.L.O. L.E.O. v. Hossle 381 (Mass. 641, 644-645; 1988), Nancy N.W.2d P. v. D’Amato 401 Mass. 516, 824, 517 N.E.2d 828. us, duty the case before MDC did not assume a towards Maguire.
Mrs. duty depends upon The existence of a of care foreseeability upon weighing policy risk and a considerations against imposition liability. Slaughter Legal for and See Cal.App.3d Process and Courier Service sufficiently Cal.Rptr. 196. The facts before us are not similar to by instructing the wife to duty the doctor assumed Molien analogous it diagnosis. inform her husband about the Nor is patient special relationship psychotherapist created between F. The fact comes the closest to Marlene situation Christensen However, the facts us. while the morticians and crematoria before (of decedents) duty a to the close for whose assumed relatives services, they performing funeral and related MDC did benefit were Maguire. no close not assume such a similar to Mrs. There was outrageous the extreme and acts and Mrs. connection between victim,” Maguire’s injury. present She is neither a “direct nor was she conduct, specific special parasitic at the time of nor a victim under circumstances. to allow Mrs.
We therefore decline to extend negligent either infliction of severe emotional distress or recover for intentional infliction of severe emotional distress. We reverse District Court on this issue.
V refusing the District Court erred in to treat Whether 2-9-108, single damages as a claim of under separate recoveries § MCA. MCA, $750,000 2-9-108, legislature limit imposed
Under (1991) (tem- 2-9-108, MCA against on each claim the State. Section part: states in porary),
(1) state, district, county, municipality, taxing nor Neither the in tort action any political other subdivision of state is liable officer, an damages suffered as a result of an act or omission of entity $750,000 for each agent, employee of that in excess of claim and million for each occurrence. $1.5 subjects of Mrs. subsequent pregnancy were the rape *11 trial, admitted Maguire’s original complaint. During the Drummond on additional occasions. raping Ms. Glover two $750,000 2-9-108, MCA, a is entitled to for each party Under § rape separate District that each was a agree claim. We with the Court in Court did not err wrongful act. conclude that the District We single claim. treat the recoveries as based on refusing to jury improper. The contends that the verdict forms were MDC also The among separate the claims. damage not its award separate did 2-9-108, Court found that MDC raised the limitation of District § MCA, Further, jury as a defense in its amended answer and demand. responsibility present District Court that it was found MDC’s apportion damage form jury a verdict which would allow the its 2-9-108, applying MCA. with the Court agree award We District § responsibility present separate rested that the with MDC to verdict forms; on we therefore affirm District Court this issue. above, part
For reasons stated we affirm in reverse proceedings and remand to the District Court for not inconsistent this opinion. with
CHIEF JUSTICE TURNAGE JUSTICES GRAYand WEBER concur. specially concurring.
JUSTICE HARRISON by majority opinion holding I concur the result reached in this District in granting partial summary judgment that the Court erred (Second) on Agency based Restatement 214. As noted in the opinion, previously this Court not adopted has this section as law and, in my opinion, Montana it is that Court unfortunate the District in this did case. concurring case, I any with the result of this do not in manner
approve, condone or support apparent hiring practices indifferent employed by the State of Montana in this case. The fact situation of clearly hiring imple- this case practices illustrates unconcerned by the appalling clearly mented State —it is it or no took little in the or integrity interest character of this defendant hired who was investigation to care for our The disadvantaged. disabled State’s potential employees prevented hiring should have such a who, man, during employment the course of his with the State Montana, brought only discredit not and to the himself institution employees but also other of that institution who are devoted truly care of this for our unfortunate citizens. citizens misfortune family State who suffer the in such having members peace of mind and the institutions deserve both assurance their loved ones are safe and well cared for. dissenting; joined by
JUSTICE TRIEWEILER JUSTICE HUNT. I from opinion majority. dissent of the opinion majority tragic misguided is a decision that, choice, majority again given which once demonstrates protect would the State rather than its citizens.
192 in people place
This Court has now elevated the trust that common carriers, elevators, important such as to a status than buses more right place public the trust that Montana citizens have a in the societys protect institutions that were created to most vulnerable people. age of developed
Greta Glover a severe mental disorder at the four autistic, years. variously diagnosed schizophrenic, She has been condition, incapable her is of com- and retarded. As result of she municating people. with other years, past
She has been institutionalized for the and has been (MDC) Boulder, Developmental Montana Center a resident of the Depart- Montana since 1972. Her care was entrusted to Montana’s mother, ment of Institutions because her who cared for her until the age longer of was no able to do so. house, for, and train Montana’s supervise,
MDC exists to care mentally physically Its residents are hand- disabled citizens. they These are icapped to the extent that cannot care for themselves. truly societys people. most vulnerable He Lloyd
MDC hired Dean Drummond to take care of Greta. was day-to-day including her care all responsible protection, personal hygiene bathing. caring He testified that the course of her, sexually by fondling he assaulted her her three to four times week, raped separate and he her on three occasions. Because of per condition, report mental to communicate and her Greta was unable any person. totally dependent this abuse to other She was on the care provided for her at MDC. majority opinion upon previous
The is based this Court’s decision 1, 180 Mining v.Mike Horse Co. 120 Mont. P.2d Kornec vicariously employer we held that an is not liable for the torts where employee employee’s scope conduct is outside the of his when employment. his and the on respondeat superior, exception
The modern rule of (Second) relies, majority are set forth in Restatement which (1958). provides That section as follows: Agency (1) subject liability A for the torts of his servants master is acting scope employment. in the of their committed while (2) subject is not for the torts ofhis servants Amaster employment, of their unless: acting scope outside (a) consequences, or the or The master intended the conduct (b) reckless, negligent or or The master was (c) nondelegable duty master, The violated conduct (d) speak to act purported servant or to on behalf of the principal upon apparent authority, and there was reliance or he aided in accomplishing the tort existence agency [Emphasis added.] relation.
Respondeat superior
principle.
majority
a common law
relied
exception
respondeat
on
common law to establish an
superior.
Kornec,
Furthermore,
See
Why majority suddenly then has the decided that it is appropriate to come to a halt in screeching the evolution of the common law under cry these which compellingly logical circumstances so out for its extension?
Nondelegable are clearly exception duties an to the principle relied (Second) upon by majority. Agency Restatement of provides duty that the by assumed defendants in case this was nondelegable. It as states follows:
A master or principal other who is a duty provide under to protection for or protect to have care used to others their property and performance duty who confides the of such to a servant or other person subject liability is to to such others for by harm caused to agent them the failure of such perform to duty. directly applicable
Section is to the presented facts in this case. duty The was provide MDC under a to for the protection and care of Greta Glover. It avoid responsibility perform cannot for failure to that duty by delegating Lloyd it to Dean Drummond. concept nondelegable of is not duty foreign to our common law. Cash, found an duty we that owner of elevator has a to exercise highest degree care in its maintenance and that delegated
cannot an independent be contractor because of the potential danger safely if the elevator not did maintained. We not legislature defer legislature where the had failed to act. We should not do so in this case. every vulnerable, placed
Greta Glover was bit as once under the Montana, care State people of the are enter elevators or passage entrust their other common carriers.
I agree Supreme Stropes with the decision of the Indiana Court in (Ind. 1989), 244. That Center 547 N.E.2d Heritage House Children’s was facts in this case. The victim facts identical to the presented case who, mental retardation boy because of severe 14-year-old a was, skill, care for himself. He was unable to insufficient verbal county therefore, in a home for children as ward placed security well-being. While assure his department welfare responsible by a nurse’s aide who was there, sexually he was molested his care. damages against the complaint filed a guardian The victim’s However, granted the trial court he was entrusted. home to which summary judgment on the basis that: law, was, committing a assault as a matter act of sexual
[T]he and, result, as a employment Griffin’s scope outside the of Robert House, Inc. based against Heritage cannot recover plaintiff respondeat superior. upon theory at 246. Stropes, 547 N.E.2d court on the words, by case dismissed the trial
In other
majority.
that this case was reversed
same basis
appeal
on
as:
Court characterized the issue
Supreme
The Indiana
law,
subject
liability
[Wlhether,
Heritage may be
as a matter of
respondeat
wrongful acts under
doctrine
employee’s
for its
theory
under a
traditionally applied or
superior as
or “non-
the “common carrier”
has been described as
which
*14
superior.
duty” exception
respondeat
to
delegable
Stropes,
After careful carrier” or “non- to extend the “common appropriate that it was the circumstances respondeat superior to to delegable duty” exception a “common out, already adopted pointed case. As we have in that only The superior. principles respondeat to the of exception carrier” in this the circumstances to extend it to issue before us is whether case. us, Supreme the Indiana language relevant to the issue before
Court concluded: against the relationship here of the relevant
An examination the rationales exception and the common carrier template of a non- Heritage clearly assumed that underlying it reveals safety and of David for the care duty responsible to be delegable facility, a result of its Heritage accepted David as Stropes. When he suffered and infirmities of the disabilities fully cognizant it was which, fact, in which him to care himself and rendered unable for undoubtedly relationship. formed the of their Their “contract basis that the for passage” contemplated responsibility entire David’s comfort, safety and be on and Heritage maintenance would that performance delegated the of these tasks be to its would degree autonomy employees. Given the lack of and his David’s dependence on Heritage degree Heritage’s care and control over David and the circumstances he found which himself, find Heritage non-delegable duty we that assumed a to provide protection and care so as to fall within the carrier common exception. Heritage David, standard care to which owed therefore, was that by Heritage actual care be used and its employees provide protection. that The trial court was error summarily reject duty claim that his such existed. Stropes, N.E.2d at 253-54.
I given degree would likewise conclude that depend- of Greta’s ence on the State of Montana for her and degree care of control her, is exercised over MDC a nondelegable duty assumed provide protection for her and care and it violated that when she raped sexually abused custody while State’s care. to the
Contrary expressed concerns by majority, holding such a totally would be consistent with the directives that have enacted been legislature. 53-20-101(1), MCA, Section which sets forth the purpose chapter pertaining developmentally Montana’s disabled, that: states purpose this to:
(1) secure for each person may developmentally be disabled such treatment and be habilitation as will suited to the needs of person and to assure that such treatment habilitation are skillfully and humanely administered with respect full person’s dignity personal integrity [Emphasis added.] .... 53-20-142, MCA, Section in that chapter, provides same that: facility period Persons admitted to a residential for a of habilita- enjoy following rights: tion shall (1) right dignity, Residents have a privacy, and humane care. (8) right physical resident Each has a to a humane environment *15 facility. within the residential
(10) Corporal punishment permitted. is not 53-20-163, MCA, provides in relevant as follows: Section (1) mistreatment, Every prohibit facility residential shall neglect, any any in form of resident. abuse majority legislature, In their concern deference to the the have for legislature. These actually express defeated the intentions obligations if the of Montana and statutory meaningless are State liability breaching can avoid the duties these statutes MDC by contending by one of impose simply that the breached way acting other employees. The State has no than the State’s through employees. its like majority’s protection people rationale is that Greta — up legislature. our it is responsibility
Glover is not legislature preempted the has the common It is true where However, government. law, defer to that branch of this Court should regulate has to equally legislature it clear that where the not acted is through people, obligation Court an to do so the the affairs of this has by previous is made clear our obligation common law. This both Railway legislative statute. See Haker v. Southwestern decisions 724, 1-1-108, (1978), 364, MCA. 176 Mont. 578 P.2d Co. in an area majority’s expressed acting concern about legislature is indeed a shallow basis should be reserved for in under past It has no similar reluctance much this result. shown compelling less circumstances. of this replete examples of this State is with
The common law
important
willingness
act where a
exists in an
area
Court’s
vacuum
litigants
appear
policy
rights
that involves
public
adopted
This
law of strict
without
before us.
Corut
(1973),
Toyota
legislature
Brandenburger
to do so in
v.
waiting for the
506, 513
damages
It
ofconsortium
P.2d268. allowed
for loss
162Mont.
(1991),
P.2d 429. This
v. Fox
248 Mont.
minors
Pence
transactions
regarding
bad faith
commercial
Court rewrote
law
Story City
Bozeman
waiting
legislature
for the
to do so
without
fact,
originally
This
was
to
a rule of
for
Court
elevators,
carriers,
presumably
owners of
and
other common
such as
trains,
buses,
and ski lifts. Cash v. Otis Elevator Co.
210 Mont.
Why
any significant departure
I agree Cardozo, with Benjamin treatise, Justice stated his (1931), “[t]he Law and law, Literature common unless bound and by statute, riveted has many instruments at hand of varieties and shapes molding justice for of that which is the end of her endeavor.”
This common willing Court is to selectively use law where it majority’s However, suits the policy. notions of sound public it has that important responsibility abdicated in this case. primary for independent govern- reason which an branch of
ment, judiciary, protect such as the rights private exists is to of individuals from governmental There abuse. can be no clearer ex- ample governmental of than agents abuse when one of its sexually rapes abuses and a retarded woman placed who had been government’s government care and protec- entrusted to the for her I, therefore, tion. majority’s dissent from the decision to reverse the District Court’s determination of the liability. defendant’s
I also dissent from that of majority opinion which holds Margaret Maguire was not a direct victim Dean of Drummond’s conduct, therefore, tortious cannot for damages recover emotional experienced. distress she has
Margaret Maguire is legal Greta Glover’s mother guardian. daughter She for cared her until 12 years age, Greta was when she longer was no able to do daughter so. After her was admitted state institutions, Margaret her frequently visited and took her home on weekends. 16, 1988,
On November daughter she was advised that her was pregnant. Her daughter incapable deciding was what do about pregnancy. Therefore, Margaret had make those decisions for literally her. Margaret substituted for herself Greta terms all the difficult decisions that are attendant to an unwanted pregnancy. She was concerned about Greta’s health and concerned about was her baby. Yet, healthy because could deliver
whether Greta process In the an abortion. beliefs, could not choose religious she decisions, required and she health deteriorated making these her medical treatment. psychological and both make the she had to April on baby After the was bom child. if it her own baby adoption, just as was place decision hospitalized baby adopted, she Following the decision to have thoughts of suicide. symptoms of starvation depression with she to the decisions problems health Her doctors related these severe adoption and the pregnancy to make about Greta’s was forced baby. make her own capacity to the intellectual any person
If with mentally, as Mar- physically and suffered raped decisions was to made that had be of the decisions garet Maguire did because *17 entitled person that would be rape, question there is no following that Margaret injuries. physical for those emotional compensation conduct of Dean Drummond’s less a direct victim Maguire was no than Greta Glover. Markets, (1984), 211 Mont. Inc. Supersave
In Johnson held that: P.2d we requires approach of case which adopts species the
This Court alleged the each case to determine whether analysis a factual of determining compensation. merits “emotional distress” showing physical a of absent compensable the distress is whether conduct results to whether tortious injury, we will look or mental interest and causes legally protected invasion of a in a substantial plaintiff. the upon person the of significant impact Johnson, at 213. 686 P.2d Maguire’s Margaret jury regarding given
The instruction com- distress was damages for her own emotional recover right to in- jury The in Johnson. our directive consistent with pletely as follows: structed causing responsible State of Montana was you
If find that the Margaret distress, plaintiff, Maguire emotional Margaret damages. You are instructed may entitled to recover Maguire, be from the emotional right to be free Maguire had a Margaret that regarding make decisions obligated to by being distress caused Before ward, Glover. Greta daughter her pregnancy awarded, must find you may be distress damages for emotional that substantially invaded Montana, defendant, State of that the right significant impact upon and that this invasion caused a plaintiff, Margaret Maguire, and resulted in severe emotional distress. (Cal. majority Psychiatric cites to Marlene F. v. Med. Clinic (Cal.
1989),
770 P.2d
and Molien v. Kaiser
Hospitals
Foundation
1980),
cases,