*1 al., et ORR, G. and SANDRA R. ORR HERBERT Appellants, Plaintiffs
v. entity, government MONTANA, OF STATE Respondent. Defendant 02-693. No. Argued 2003. June 12, 2003. November Submitted 14, 2004. Decided December February 2,
Rehearing 2006. Denied
106 P.3d *3 McGarvey Heberling For L. Appellants: Heberling (argued), Jon McGarvey, & Kalispell. Sullivan (argued),
For L. Christensen Respondent: Dana Christensen Bowe, Kalispell; Thomas G. Cummings Axelberg, Moore Cockrell & General, Attorney Assistant Helena. Law, Anderson, Attorney
For Amicus Curiae: Lawrence A. at (for Law, Falls; Englund. Attorney Karl J. Missoula Great Association). Lawyers Trial Montana Court. Opinion COTTER delivered the
JUSTICE Miners”) (hereinafter “the include an on- Plaintiffs/Appellants 1 The Montana, and Libby, miners the wife carpenter, site seven former miner, diagnosed all with asbestos of a former of whom have been of Montana and have sued the State disease. The Miners their families danger claiming the State knew the asbestos negligence working Libby associated with in the vermiculite mine failed to but them, protect mine requiring warn them owners to correct granted The unhealthful conditions. District Court the State’s Dismiss, concluding duty Motion to that the had no legal State appeal. Miners. The Miners reverse remand. We
ISSUES present following The Miners issues appeal: restated 1. District err in that the no ruling Did the Court State had Miners statutory duties which ran to the and their families? ruling
2. Did the District err in that the did not have Miners duty special of care to the and their families relationship under the doctrine?
3. err in have ruling Did the District Court State did not foreseeability through common law of care undertaking provide hygiene industrial services for the benefit Libby mine workers their families? provide 4. Can the doctrine of federal a defense for preemption the State in this case? sovereign immunity the State from the Miners’ Does insulate
cause of action? AND PROCEDURAL BACKGROUND
FACTUAL Libby Plaintiffs/Appellants in this case include seven former The ninth Plaintiff is a miners and the wife a former miner. worked
carpenter formerly employed by company a construction who Libby due employment for the duration of his at the mine. With group we will refer to the entire respect plаintiffs, the non-miner Miners all been Opinion Plaintiffs in this as “the Miners.” The have The Miners’ names and dates ofwork diagnosed with asbestos disease. Orr, 1965-1967, Graham, 1962-1990, Robert Robert
are: Herbert R. L. Smith, Dedrick, 1972-1973, Rice, 1968-1978, R. Leonard D. Donald work) (dates 1951-1987, Smith, 1951- Opal A. husband Donald’s 1975-1976, 1974-1977, Jacobson, Royce Ryan, N. James D. Riddle, Clayton and 1966-1969. H. 1959-1962 (Grace) existing mine and purchased W.R. Co. Zonolite Grace *4 (the Mine), operated in in It owned and Libby,
mill Montana 1963. ground from the and
Mine The Mine extracted vermiculite until 1990. airborne generated which substantial using procedure it a processed Board of when State containing dust tremolite asbestos. (the BOH) study hygiene an industrial
Health Board or conducted dust was toxic Mine, already that asbestos it was well-known perform did not inspection, the State During the 1956 Mine inhalant. accurate asbestos
analysis any samples determine on dust however, records, it concluded Relying the Mine’s concentration. dust in the airborne concentration of asbestos
that the maximum analyzed dust greater mppcf.”1 than 25 to The State would not “be in to the Mine returned samples for asbestos concentration when subsequent inspections. during 1958 and December 1958,1962, of Mine in performed inspections The State BOH
1963, 1964, 1966, the undertook government and 1967. In federal safety. result, regulation through of mine As a from 1971 mining accompanied by inspector, inspected a State agency, federal its own reports. performed The State Mine and issued written inspection in the federal for inspection assisting in as well as inspections did year. inspectors participate The federal not operations the Mine’s cessation after 1976. Between It performed of Mine. also inspections the State fourteen post-closure two in 1991 and 1992. performed inspections 1974, the each 1956 and State During inspection between The State inspectors unsanitary found unhealthful conditions. Zonolite, Grace, dangerous
notified and later conditions after likely each the seriousness of asbestosis and its inspection, explaining outcome, workers, including Mine fatal but did inform the Miners, exception identifying dangers. With the telling owners/managers hazardous conditions and the Mine’s problems, steps correct the the State took no ensure that Mine’s owners/managers working in a responded provided manner safe Moreover, inspections between 1971 environment. federal dangerous revealed levels of inspectors participated, in which State their inspectors reported dust in the Mine. The federal asbestos Grace, State. The findings provided copies reports oftheir Mine the federal notify State did not the Miners or other workers of findings. safe provide Grace for failure originally The Miners sued financial successfully Grace avoided environment.
working claims, however, protection under by filing for responsibility these The Miners Chapter bankruptcy April 11 of the federal laws time, acronym particles per mppcf At that for “millions of cubic foot air.” (MAC) according report, concentration asbestos maximum allowable State’s mppcf. in airborne dust was 5
396 failing protect They its them. thereafter sued the State for role failed to warn them of the known allege negligently that the State working Mine and their families associated dangers to all workers the Miners Mine, negligence, of the State’s at the and that as result damages. injuries and grave have suffered Miners, duty that it did not owe The State countered
¶8 On this finding negligence. could be no duty, without such a there Without it filed a Motion to Dismiss. grounds, and several other State, presented by dismissal grounds all of the for reaching duty no to the Miners agreed that the State owed District Court We appeal. Dismiss. The Miners granted the Motion to therefore reverse and remand. OF REVIEW
STANDARD ruling on a motion to dismiss district court’s We review de novo a State, MT 12(b)(6), v. ¶ M.R.Civ.P. pursuant to Rule Plouffe (citation omitted). “Amotion to 413, 8, Mont. 66 P.3d ¶ ¶ M.R.Civ.P., admitting all 12(b)(6), has the effect of Rule dismiss under motion, considering complaint. in the well-pleaded allegations the plaintiff, favorable to light construed in the most complaint is Plouffe, true.” therein are taken as of fact contained allegations and all (citation omitted). dismissal affirm the District Court’s We will 8¶ to relief not be entitled plaintiff that the would we conclude when support the claim. proven could be any set of facts that based on (citation omitted). of whether a The determination Plouffe, 8 ¶ law, District Court’s and the is a conclusion complaint states claim (citation Plouffe, 8 for correctness. of law are reviewed conclusions omitted).
DISCUSSION Statutory Duty Court erred the District presented is whether The first issue ran to the Miners statutory duty which had no
ruling that the State and their families. empowering the statutes that under The Miners maintain Division, the Hygiene creating an Industrial ofHealth and
State Board “to investigations” and “make mandatory had a made the claim the State They information.” disseminate the critical failed to disseminate required but investigations as investigations. from the derived information reasons, had no that, following argues The State to the Miners:
statutory duty Miners, laws, upon granted relied hygiene 1. industrial mandatory duties; no powers imposed certain but the State expressly impose a did not 2. the statutes hygiene industrial Miners; protect to warn upon the State facility in 1942 ruled Attorney Opinion
3. an General issued be disclosed confidential and could not inspection reports were public; to reporting 4. the statutes restrict the State hygiene industrial concerned”; “to inspection findings only the industries responsibility exclusive protection of workers *6 laws, theory the Miners’ labor and that employer under Montana “the that Grace would require of would State foresee negligence employer.” fulfill and legal obligations not as landowner It arguments. State’s noted agreed The with the District by the Miners contained upon relied its Order that none statutes “mine,” “asbestos,” This to the court the words or “miners.” indicated industry in general deal state of Montana “[t]he statutes type With specific industry and with no form of or of worker. such case, being argue designed it is hard to that the statutes... were industry or a specifically provide type toward a certain of type certain of worker.” We turn now to an examination of State’s of public health statutes which are at the center the District Court’s decision. 1474, The Board Health created in 1907. Section State of was (1907). (the 1967, Department of Health
RCM Until when DOH) created, responsible the BOH was for Department or was of interests health and life of citizens “general supervision and (1947). 69-105, 2448, (1921); part of the state.” Section RCM RCM As § “functions, duties,” and mandated powers legislature of the BOH’s sanitary investigations inquiries Board “shall make disease;... mortality, of and the effects regarding the causes causes of localities, affecting employments, of conditions ... and circumstances BOH also people,” among things. the health other was of respect to all these matters as charged “gather such information in may among people....” and use See proper deem diffusion (1947)(as 1961, 2448, 69-105, RCM revised in (1921); Sec. RCM 4). Replacement, Vol. BOH, the created, legislators In within Montana Division). (the granted The legislature Hygiene
Industrial Division Division, things, to: power among the new other
(1) hygiene occupational make studies of industrial disease industries;... problems in Montana
(3) investigations sanitary make conditions under which State;... men work in the and women various industries (5) report findings to the industries concerned the of such investigations remedy to work with such industries to unsanitary conditions. (3) 2(1), Additionally,
Sections Ch. L. 1939. 7 of the new provided law that:
every or clinic physician, hospital superintendent, having ... knowledge occupational report of a case disease ... shall hygiene same to the division industrial of the State ofMontana All reports .... and all and data of the division of such records pertaining hygiene industrial of the State Montana such hereby open diseases are declared to be records public inspection, and shall not be admissible as evidence any hearing action at law or in under the workmen’s act of compensation the State Montana. 127,L. renumbered Chapter subsequently
Section Ch. (1947). 69-201-208, RCM
and codified §§ effectively Montana lawmakers eliminated the Industrial possess, that the BOH “shall exercise Hygiene decreeing Division authority, and shall powers, and administer all of functions and duties, out, discharge all in the field of carry and execute (1947). 69-202-208, RCM Section 69- hygiene” industrial set forth in §§ 4). (1947)(1961, through Replacement, RCM Vol. Sections 202 *7 result, exclusively unchanged. a the BOH became remained As public the health and responsible programs general for State’s for safety. and safety occupational/industrial as well as health 1967, to both legislature In the Montana made further revisions It the DOH.2 hygiene and statutes. created public the health industrial 197, L. a of the creation of the Section Ch. 1967. As result to the Board formerly the and duties allocated Department, functions The DOH Department. the and the new were divided between Board investigations, disseminate responsibility to “make assumed the and information, make for control of diseases and recommendations persons, groups, public.” to or the improvement of health 2 Sciences, Subsequently Department known as of Health and Environmental the 1977) Department 69-4102(2), (1947)(Supp. the of Public Health and Human and § RCM (1997). 50-1-101(2), Services, MCA §
399 4). (1947)(1969, 2d Vol. Replacement, 69-4110(3), RCM Section administering the responsible for Moreover, DOH became (1947)(1969,2d 69-4105(1), RCM hygiene program. Section industrial 4). “investigate result, required to As a was Vol. Replacement, time,” any and to at any employment at place conditions of work industry3 and co concerned findings investigations to “report the correcting conditions which industry in preventing operate with 69-4203(3) (1947)(1969, and RCM to health.’’Section are hazardous 4). Replacement, 2d Vol. underwent further hygiene In the industrial statutes Act Occupational Heath statute was known as
revisions. (OHA) new 69-4206, 1971; 1, Ch. L. RCM § Montana. Section 1977). of OHA purpose was: policy The declared (1947)(Supp.
(1)... as workplace at the to and maintain such conditions achieve greatest safety, degree and to will human health protect convenience of the workers practicable, the comfort and foster productivity their workplace of state and enhance well-being.
(2) for co- purpose provide these it is the of this act to To ends abatement and control of ordinated statewide program occupational diseases.... 1977). 69-4207, (1947)(Supp.
Section RCM that, among things, adopt The new Act mandated other the BOH4 Act, implementing rules establish threshold limit values contaminants, necessary carry out the airborne and issue orders OHA, granted “powers.” Act. various Department Under requirement These included that the DOH enforce orders issued Board, develop comprehensive plan prepare and diseases, abatement, and that occupational and control of prevention, 3 relying “incomplete references We note that dissent accuses the Court misleading quotations” past such statute which dissent statutes. One here, 69-4203(4), which, language required quoted for the as refers is contains narrowly analysis. instance, apparently the word defines dissent’s the dissent 69-4203(4) management group “industry” employer mean or the as used who, actuality, up facility opposed make the workers and laborers given “industry” statute; industry. must be defined in the therefore it The term Co., meaning. Bottling ordinary Vending, MT v. Mont. Inc. Coca-Cola authority, supporting the term the dissent defines P.3d Without Mont. comprise Applying “industry” it. this narrow definition to exclude the workers who very designed safeguard Department program of these the health a workers runs of Health contrary purpose. to its Sciences the OHA. the Board of Health and Environmental Renamed *8 1977). 69-4208(11), (1947)(Supp. RCM
it “collect and information disseminate and conduct educational and training programs relating prevention control 69-4211.1(1), (3), oсcupational diseases.” Section RCM 1977). (1947)(Supp. Department power also had the to take monetary enforcement actions and on violators impose penalties ofthe 1977). 69-4221, 69-4215 RCM (1947)(Supp. OHA. Section addition, specific In the OHA set out a “emergency procedure” to upon discovery generalized be of “a implemented Department workplace” “creates emergency requiring hazard at a that an 69-4216(1), protect action to immediate human health.” Section RCM 1977). circumstances, (1947)(Supp. Department Under such was required persons causing contributing to order or to the hazard immediately creating “reduce or discontinue emissions hazard.” 1977). 69-4216(1), (1947)(Supp. Section RCM In the absence aof general granted creating emergency, Department condition an persons responsible the discretion to order the for “emissions from an causing danger ... imminent health” to operation human reduce or 69-4216(2), immediately. such discontinue emissions Section RCM 1977). (1947)(Supp. In the OHA 50-70-101etseq, was renumbered and became formerly
MCA. The section had “Powers” of the that referenced “Duties” of the As Department Department. now described had been versions, previous Department language was instructed duties, including perform it to “collect and “shall” these and training information and conduct educational disseminate relating prevention occupational to the and control of programs MCA(1978). 50-70-105(7), Section this obligation diseases....” discretionary legislature language changed became after the 50-70-105(7), more permissive “may.” MCA “shall” (1999). The District that none of the above-referenced Court concluded imposed duty protect warning the State to the Miners
statutes court, working Libby Mine. The of the known dangers them above, that none of significance noted found the fact these “mine,” used the “asbestos” or specifically expressly statutes words The court concluded that because statutеs apparently “miners.” mines, they applicable were not particular were not vermiculite mines. with this conclusion several disagree vermiculite We First, mining disputed be vermiculite is “an reasons. cannot every legislature industry If to describe industry.” the failure of the conclusion, logical then law to its applies which its law is followed This is absurd whatsoever. no industries cover would *9 is that jurisprudence maxim of our A well-established interpretation. to makes preferred is one which gives effect interpretation
“[a]n which 1-3-232, MCA. void.” Section in various forms Second, it the statutes their while is true that the or to running Department from the Board obligations
specified related to the themselves, gather to information the industries “for public employment the of conditions upon effects workers or or by displaced was never among people” and use the diffusion mandatory obligation from the The State had the eliminated from law. information and 1999 health-related through gather
1907 to 2448, 69-105, (1921); RCM people. it RCM provide to 69-4110(3), (1947); renumbered (1947); to RCM renumbered in 1969 § broadly 50-1-202(2), wrote this law legislature 1978 to MCA. The industries, or occupations workers. specific chose to limit it to The that the Court estáblishes the existence dissent maintains misleading from duty “by incomplete quotations references and a specifically our reliance on the yesterday.” It references statutes by by among people,” arguing “for diffusion and use that phrase statute, it “ripping phrase” from the the Court removed from its [this] 14, meaning. neglects dissent to note that in context and from statute, describing language when first we included deemed i.e., analysis, gather to the State BOH “shall such critical the dissent’s [statutorily-listed] may as it deem respect information in to all matters 69-105, for ....” Section proper among people diffusion and use 4). (1947)(as 1961, reading Vol. A close Replacement, RCM revised in depending upon interpretations of this statute can result different deem are may proper” paired whether the words “as result, the or end of sentence. As a beginning of the sentence statutory ambiguous undergo is and must plain language of statute Dist.(1982), P.2d v. Mont. 649 construction. Sink School 199 (If be inferred possible, legislative intent must statutes; only if there exists plain meaning words contained wording such the court resort to rules ambiguity in should construction.) statutory statutes. developed many principles interpreting Courts have will, avoid give legislative effect to the to principle designed
Each statutory , of whole part absurd result to view statute a Heath, v. See State purpose and to forward the scheme. scheme us, before we 126, 321 P.3d 426. In case 2004 MT Mont. statutory is to construction appropriate
conclude that method antecedent,” grammatical rule of has apply the “last which been “Under adopted this Court. the doctrine the last antecedent’ relative clauses in a statute must be construed to relate to the nearest sense; antecedent that make words and should qualifying phrases will phrases immediately preceding, be or unless an applied words clearly required by extension inclusion of others more remote is (1932), entire Act.” ex rel. Peck consideration of the State v. Anderson 231; 92 Mont. 13 P.2d Bow Local Govt. v. State Butte-Silver 398, 405, 327, 331. here, this rule Applying Mont. P.2d clearly may proper” we conclude that the words “as it deem are preceding them rather than the intended relate words words result, following we mean that them. As a construe statute to determine gather, had the but discretion what information gathered, it had discretion about once information no it. We forwards whether distribute believe construction statutory of the entire which was to create State purpose scheme *10 entity having supervision of the interests and health life “general state,” presumably the citizens for the of protection of those citizens. that do Finally, the District Court’s conclusion the statutes not
¶26 apply by to vermiculite miners is belied conclusiоn reached hygiene obligated that industrial statutes the State to elsewhere the concerned, only employees. to the industries and not their report obvious, if the statutes are to be construed to belaboring Without the then, industries, they to by implication, obviously apply the the protect Miners. weight Attorney General placed great The District Court also Attorney in 1942. The General was asked Opinion
Bonner’s issued of reports of the BOH whether the State’s then-Secretary anyone requesting should furnished to workplace investigations be by quoting Chapter Bonner 7 of Attorney responded them. General § (See above), reports are “not concluding 127 15 that BOH’s are, inspection. They they open public records are to public nor therefore, Both the State and District Court confidential character.” subsequent change did not this years, legislatures for emphasize that Attorney with General disagreement nor their provision express conclusion. Bonner’s then, Attorney understand General It is difficult to how could litigation, Court in the instant State and the District the medical against publication of prohibition that a
conclude disease was tantamount person occupational of a an records with 403 workplace the results of of dissemination against prohibition on whether sought opinion the BOH Secretary The of investigation. requesting those investigations workplace the results of
to furnish records. medical could disseminate not ask if he them; he did was a non Secretary’s inquiry response to Attorney General’s sought and opinion disparity between Given the sequitur. Opinion was bewildering that it is somewhat provided,
answer the results of the concealment years justify upon relied workplace inspections. to protect written Chapter It apparent § records, prohibit confidentiality patient’s medical of a during workplace information derived disclosing from given section title reinforced interpretаtion is
inspections. This 69-207, (1947)-“Duty RCM codified and renumbered when was - As records.” report reports private cases and others physicians to indicate held, presumed title an act is “[t]he frequently we have Light, & Puget Sound Power Dept. intent.” Rev. v. legislature’s applies 255, 263, presumption 1286. This 587 P.2d 179 Mont. in 1939 and an act. As written to titles of sections within equally date, diagnosed privacy person protects revised to section from health care workers occupational prohibits disease using these anyone medical records or disclosing person’s It balances the need medical records as documents. private diagnoses against occupational know of such disease the State to not, clearly does privacy. patient’s right individual of the results of however, to or constrain the dissemination apply inspections. workplace Attorney Bonner either General It seems clear the answer. question, or the BOH misconstrued
misinterpreted failings was the their individual or combined The unfortunate result of Libby Mine the workers at the decision to withhold from State’s *11 they being exposed were that revealed that investigation reports original Moreover, language of the daily basis. deadly toxins on significantly was revised Attorney General Bonner interpreted by 7§ revision was to legislative of the legislature in 1967. The result by the care workers health prohibit that continued to clarify 7 in a manner Attorney that rendered medical records but disclosing private Opinion moot. Bonner’s General of workers protection argument address the State’s nextWe
¶31 labor under Montana employer anof responsibility the exclusive is “the require would theory negligence of laws, the Miners’ and that legal not fulfill as obligations State to foresee that Grace would employer.” argument landowner and We conclude that the State’s disingenuous. August inspected State the Mine “to In when the determine
¶32 operation if ... were detrimental comрonents significant quantities of employees,” health it discovered It airborne dust. knew that there was an unknown concentration did exact analyze asbestos in the dust but the dust to determine an did, however, using It asbestos content at that time. Zonolite’s to 30 to Zonolite the mppcf, report estimated concentrations of 25 dangers breathing particles. with asbestos toxicity associated if to Mine 1958 to determine The State returned in December operation the Mine’s identified in 1956 components During the been or alleviated. detrimental to the Workers had reduced dust in inspection, analyzed the asbestos content several plant in the that the concentration of asbestos locations discovered the maximum allowable particles significantly greater was than In agencies. health by concentrations established officialfederal diagnosed a Zonolite was with far advanced February employee spent He several tuberculosis and asbestosis. pulmonary questionable 1959 and died in the State Tuberculosis Sanitarium November days 1961. congestive heart failure October of asbestosis-related died in October 1961 Additionally, employee another Zonolite pulmonary atherosclerosis and fibrosis. again in March inspected BOH the Mine The State health had deteriorated
discovered that the Mine’s environmental twenty samples, produced fifteen significantly. Of dust discrete samples Two exceeded levels far in excess of the MACs. asbestos samples times while nine other limits more than seven allowable Hygiene The State Industrial the limits four to six times. exceeded submitting report in his to Zonolite engineer even noted letter dust progress the lack of made in “disappointed State control.” Of dust April eight Mine investigated again The State content, eight all had asbestos
samples analyzed for asbestos early greater than the MACs. In two to times concentrations from six congestive employee Mine died from asbestos-related another heart failure. inspected sum, early 1956 and between employees Mine times; death notices three it received the
plant four deteriorating diseases, and had identified from asbestos-related *12 Surely, have noted workplace. the State would dangerous increasingly warning or had posted if Grace reports in its 1958 and Zonolite for medical safety equipment, arranged to signs employees, provided employees the safety protect to monitoring, procedures or established ever-increasing of asbestos airborne dust. concentrations that Mine argues The that it owner State could ¶37 foresee obligations employer. as This legal not fulfill its landowner would that neither light objective obvious and indications rings hollow of Plainly, its State protecting employees. Zonolite nor Grace was doing Mine’s inspections as result of that the owner was knew a nothing in their The protect to the workers from toxins midst. risks had been answered as
question of whether the were foreseeable 1956; already early dangers as to the workers were clear and fact, specifically found: present by that time. the District Court that the state of Montana was fairly [I]t could be said since dangerous Libby on that the asbestos dust at the mine was notice making the mine owner was not improvements that Also, it that the record is appears recommended State. miners
bereft of actions taken State to warn the or Libby of their townspeople plight. it to the Miners argument The State’s that owed no statutory investigations, “make
ignores obligation the State’s to information, disseminate and make recommendations for control of improvement public persons, groups, diseases and of health to 4). 69-4110(3), (1947X1969,2d Replacement, public.” Section RCM Vol. significantly, no argument More the State’s that had to (1967-1971), 69-4202, of RCM disregards provisions Miners prevent which are required which State to “correct or conditions any place employment.” Obviously, hazards hazardous to health at only people who place employment to health at a can affect work something there. of this bound the State do provisions The law known be hazardous prevent workplace correct or conditions health. statutory public ran to the and to duties the State thus health hazards. Had the employment subjected them to
persons whose advisor, industry intended limit State’s role to that legislature avoided expressed have both intent and presumably it would “omit It did neither. We cannot what declarations of duties to others. 1-2-101, MCA.
has been inserted” into these statutes. statutory that the had duties to Having concluded hazards, health we turn persons workplace confronted Duty next question application whether ofthe Public Doctrine liability preclude finding part would State to the Miners. Duty
The Public Doctrine argued, agreed, The State and the District Court *13 (PDD) principles Duty preclude finding the Public Doctrine of would a liability part Citing of on the to Miners. of the State Nelson v. (1999), 363, 983
Driscoll 295 Mont. P.2d the court concluded that duty a is a to no one in and is not particular, thus in a negligence acknowledging enforceable action. While that an special to the PDD exists when there a exception relationship and government agency plaintiffs giving between the rise to a no special duty, the court concluded that existed special relationship Miners, hand, in that special this case. The on the other contend a State, did exist them and and that relationship between the Public Duty preclude finding liability Doctrine would therefore not a of on the part of the State. Nelson; explained special relationship giving As we in a rise to a
¶42 a special duty relationship can arise in one offour circumstances. Such (1) by protect specific can a statute intended to a class be establishеd persons particular type of of which the is a member from a of plaintiff (2) harm; government agent specific when a undertakes action to (3) by governmental or that protect person property; a actions reasonably public; induce detrimental reliance a member of (4) circumstances, custody certain when the has actual agency under the plaintiff. of or of a who causes harm to plaintiff person third Nelson, 22. ¶ relationship Court that no existed special The District concluded
¶43 (1) specific a of general protect the statutes too class because: were (2) harm; government not persons particular type from a of did (3) person a or specific protect property; undertake a action to relied they detrimentally upon not that Miners could establish disagree the District Court’s government’s inspections. We conclusions. discussed were intended to The numerous statutes above above, the from As we stated
protect occupational workers diseases. meaningless. in does not render them lack these statutes specificity of working men and women designed protect were statutes Miners occupational Libby disease. industries in Montana various persons. undeniably specific are of this class members Mine, year specific to this Secondly, repeatedly the State returned any “if determining year, express purpose for the after were detrimental operation [the Mine] components found, expressly And the District as employees.” health of the recurring a in the affirmative. Such was answered question a qualifies “specific place particular-surely undertaking-at relationship between protect person” special creates action and the Miners. the State they indicating that presented affidavits Lastly, the Miners dust, had the ambient but concluded that
were concerned about danger. or This conclusion pose any did health risks dust inspected had regularly fact the State uniformly premised on the that Mine, Miners. Each reported danger had but never they inspections relied on these State Miner declared Montana, the Mine. working lack to continue warning State’s led to a course conduct “rightfully reliance occurs when one is performed.” properly faith that the act or will be action Nelson, led” the Miners inspections “rightfully The State’s working a safe environment. they believe were circumstances, the State had Under these we conclude that 69-202(5), 2(5),
statutory duty under Ch. L. RCM *14 4), 69-105, (1947)(1969, 69-4203(4), Replacement, 2d Vol. § RCM § 4), 69-4105(1), (1947)(1969, 2d Vol. (1947), Replacement, RCM RCM 4) 69-4110(3), (1947)(1969,2d Replacement, protect RCM Vol. dangers safety by warning and health the Miners them of known that, workplace. by their We also conclude virtue of associated with Miners, special relationship the State is not between the State and by application Duty Public Doctrine. shielded Duty Law Common The Miners ask that we also determine whether the District Court in that care ruling
erred the State did not have a common law statutory determined to them. of Montana had Having that Miners, unnecessary it is that we determine whether law duty. State also had a common Preemption
Federal rule on challenge The Miners also the District Court’s failure to to this case. applicability preemption of the doctrine of federal Miners in the District Court and preemption State claimed federal preemption defense. partial summary judgment to strike moved for However, ruling case without on District Court dismissed the that Court establish whether request appeal The Miners issue. Because this applies to this case. preemption
the doctrine of federal 408 likelihood, remand, will, in the again upon in all be raised
issue case, it economy and resolution of this we address judicial interest of now. Court disfavor Supreme United States Both the in independent sovereigns are our
preemption. “Because States system, long presumed Congress we have does federal cases, In all preemption state-law causes of action. cavalierly preempt police powers start with the that the historic assumption ... we the Federal Act unless that was superseded by were not to be States Sleath West Mont purpose Congress.” the clear and manifest v. 1, 23, Services, 381, 23, 16 P.3d 2000 MT 304 Mont. ¶
Home Health ¶ 470, 485, 116 (1996), 1042, v.Lohr 518 U.S. (citing Medtronic, 23 Inc. ¶ 2240, 2250, 135 700, Liggett Group, v. Cipollone L.Ed.2d 715 and S.Ct. 2608, 2617, (1992), 504, 516, 120 L.Ed.2d 112 S.Ct.
Inc. 505 U.S. 422). by only “can be overcome presumption against preemption This state Congress preempt and manifest’ intent of evidence of a ‘clear Sleath, v.Mortier (citing WisconsinPublic Intervenor law.” ¶ 546). 2476, 2484, 597, 610, 111 115 L.Ed.2d U.S. S.Ct. Co., and Const. in Favel v. American Renovation As we stated determining whether a MT 312 Mont. 59 P.3d law, including a common law cause law a state preempts federal to do As noted action, Congressional intent so. we look for evidence Favel, ways in which Miners, there are three explained First, may Congress law. may superseded by federal state law be Such an in the federal statute. preemption clause expressly include apply law will not make it clear that state express clause would Second, may intent congressional governed by the federal statute. area Congress intended reasonable to conclude implied where be no that there is comprehensive regulation such “occupy the field” may Lastly, federal law regulation. state supplementary room for actually conflict with state and federal law state law when the preempt comply impossible it is a conflict occurs when one another. Such law, “the law stands or because state the federal and state with both the full and execution of accomplishment an obstacle to the Favel, (citing Hillsborough objectives Congress.” purposes *15 707, 713, (1985), 105 471 U.S. Medical Labs. County v. Automated also, 714, 721; Concrete 2371, 2375, see Suislaw 85 L.Ed.2d S.Ct. 955). (9th Wash., 1986), F.2d Cir. 784 Of Transp. Dept. v. Const. or statutory federal to 1966 nо argue prior The Miners there existed. As a result Libby Mine governing scheme
regulatory for its to the State defense available preemption federal can be no
409 passed the Congress In prior activities Mine-related FMNMSA). (the Safety Act Mine Federal Metallic Non-Metallic we note the preemption, intent vis-a-vis Congressional looking in the FMNMSA: following provision
(a) chapter Conflict with this date of this upon law in effect effective No State or territorial thereafter, shall be may effective or which become chapter insofar chapter, except of this as any provision superseded chapter, or law is in conflict with this or such State territorial chapter. pursuant with orders issued this 738(a). to the Federal provision This was carried forward U.S.C.
Mine, Safety repealed and Health Amendments of 1977 that mine safety safety. non-coal with mine FMNMSAand consolidated coal 955(a). only be preemption 30 U.S.C. Just as will found those purpose Congress,” situations where it is “the clear (Rice manifest 218, 230, (1947), Fe U.S. Corp. v. Santa Elevator L.Ed. 1146, 1152), S.Ct. it be there is a will not found when contrary. Congress affirmatively
clear Because disclaimed intent preempt intention to state law with FMNMSA amendments, analyze there this issue. We is no need further preempt the FMNMSA do not state law conclude amendments in this case.
Sovereign Immunity Lastly, sovereign ask that whether Miners we determine case. District immunity applies While the Court dismissed issue, Complaint the issue of addressing Miners’ without above, preemption appropriate prior federal it is that we resolve To our this is a of first for this knowledge, impression remand. matter background, immunity sovereign Court. For a brief discussion of warranted. early kings Originally, sovereign immunity protected However,
England evolved King’s from suit Court. doctrine liability negligent protecting governmental into for the entities country’s adopted by this employees. acts of their officers and It was legal during century. Barry Hjort, nineteenth L. The system King is Dead! 34 Sovereign Immunity Montana: Passing of (1973). sovereign embracing first case Mont. L. Rev. 283 The Montana 33, 38, holding 1 Mont. immunity Langford King v. may government absent
citizens sue territorial 1889 neither government’s consent. The Montana Constitution of Thus, courts, sovereign immunity. nor Montana prohibited authorized *16 country, did the throughout struggled throughout as other courts the century consistency apply twentieth the doctrine with and reason. 1972,
Hjort Delegates at 289-93. to Montana Constitutional joined concluding other in that the doctrine Convention several states II, 18, Delegates was an The inserted Art. into § anachronism. II, Rights of the Montana Constitution. Article 18:
Declaration § state, cities, subject counties, towns, The all to suit. governmental immunity entities shall no other local have or injury person provision apply suit for to a This shall property. 1,1973. arising July to causes of after
only action 1, II, However, July Article effective on 1973. the last became in a result voter sentence of Section was deleted as against sovereign It is that the backdrop initiative. this historical in immunity issue this case arises. However, analysis, necessary presenting before our we find maintains, in dissent. The dissent
address remarks contained authority, sovereign immunity merely is without citation to not actually legal bar but is doctrine the effect that the to suit Immunity no its This is government duty owes citizens. is incorrect. (1992), avoidance, v.
a matter
an affirmative defense. Brown Ehlert
140, 146,
immunity
sovereign
P.2d
255 Mont.
The
duty; rather,
defense
not mean that there
an absence of
at
does
is
exists,
is
not
immunity
simply
time that the
defense
breach of
in
sovereign. The
scheme
effect in
against
statutory
actionable
sovereign immunity,
abrogation
1960's
illustrative. Prior to
is
RCM,
40-4402,
that an insurer for the state
adopted
provided
for
premium
who received a
from the state
political
or
subdivision
insurance,
liability
against
not-in
suit
the state-“raise
could
damage
against
immunity
any
brought
from suit in
action
defense of
circumstances]...
if the
[under
or
certain
such insured
insurer
insurance,
the court shall
applicable
verdict exceeds
limits
or award to a sum
judgment
equal
reduce the amount of such
policy.”
Jacques
in the
See
v. The Montana
applicable limit stated
505-06,
immunity unique law controls in reason for the by Court. The obvious presented to or answered a that, the elements of authority typically, in this area is absence of accrues, at the of action the same moment happen, tort and cause faulty time. man from a pedestrian, A strikes a a falls vehicle injures lifting while a scaffolding, nursing employee a home her back instances, damage these the occurs and the wrong each of patient-in Here, immediately wrongs the the but the results. occurred in 1960's words, damages years did not manifest until 20 later. In other simultaneously. tort At least elements did occur one that, suggests Montana case the elemеnts ofthe tort are bisected when immunity, by abrogation sovereign it will be the law in effect at injury applies. the time the occurs that appealed the defendant of Montana from a Jacques,
¶58 Montana Jacques against verdict entered in favor of National by injuries plaintiff Guard and the State of Montana for sustained Plaintiff, February in an that occurred in 1977. The explosion Smelter, traumatically legs had his employed the Anaconda large nearby, had found amputated when a shell that co-worker by testimony, had been left exploded. According the shell firing range nearby, years Guard an between the National old However, ground on the undetonated and 1966. shell remained at the Thus, immunity in full force and effect sovereign until 1977. occurred, when the wrong or the which was
time that tort ground left on the the National explosive negligently shells were however, until plaintiff, The was not sustained damage Guard. sovereign years after the abolition of explosion occurred five
immunity, in 1977. prior that the law in effect Jacques argued State in The control, thereby limiting its sovereign immunity
abrogation of should The in effect as of 1963. insurance limits exposure applicable so, Court, however, concluding sovereign refused to do because 1972, sovereign immunity, immunity been abolished in had it, Thus, raised as a defense. while the related to could not be statutes 1966, duty obviously occurred between 1956 tortious breach wrong time of the apply the law in effect at the court declined to damage occurred. the law in effect at the time the applied instead under have examined cases jurisdictions Three courts from other here. We look to them for presented the unusual circumstances 230, 22, Ford, 306 Mont. 2001 MT guidance. ¶ additional State v. 39 P.3d ¶ just outside of military plane crashed In March Carnes, and his friends 14-year boy, A old
Birmingham, Alabama. They also shortly after the crash occurred. to the crash scene went during cleanup operations, times the sсene several other visited were to take guards posted. boys were The allowed during which time his he parents, Unbeknownst to Carnes and “souvenirs” from the site. that, exploded and February device salvaged explosive
had seriously injured him. negligent act of The trial court held that because 1, 1945, January the Government had occurred before
Government jurisdiction. The Tenth Circuit and the court had no was immune injury accrued when his boy’s cause of action disagreed because 1,1945. the court occurred, language January was after which helpful: to another consists ofthe violation of negligence Actionable *18 no elementary and needs resulting injury to him. This is stated it. The correct rule is well support citation of authorities to 200 Company, Despatch Transportation in Schmidt v. Merchants 450, the said: 287, 200 824, 827, 104A.L.R. where court N.E. N.Y. very damage is of the negligence that ‘in actions of
“Wehave said negligence Though .... plaintiffs the cause.’ gist and essence of another, of no actionable person property the or may endanger only injury It is danger if the is averted. is committed wrong an which constitutes arising negligence from person property or law, and, therefore, an right, protected personal invasion of a wrong.” actionable until he the Government against have a claim
Appellant did not action in predicated have which he could injury upon suffered of jurisdiction the court gives that the Act It be noted court. will (10th on or after accruing emphasis) claims Cir. actions on all, 2, 1945, accrued, February 1,1945. if at on The claim January
413 had no claim to that time he injured. Prior appellant when was the Government. He could not have sued against the Government. he action, had, on the date suffered if he accrued
His cause Act, had the court the clear injury. language his Under upon this claim. predicated cause action jurisdiction of the (10th 1951), 648, also 186 F.2d 650. See Cir. v. United States Carnes (Plaintiffs (6th 1984), F.2d Cir. Diminnie v. United States arrest, and fаlse assault, battery, imprisonment, false claims for original at his arrest and all accrued the time of prosecution malicious Alcohol, Therefore, Bureau Tobacco indictment in 1973. Federal yet the FTCA had not was immune from suit because and Firearms enacted.) been 735, the Dept. of Transp. In Florida 476 So.2d Windham v. review a trial Appeals Court of of Florida was asked to
First District damages for dismissing plaintiffs’ complaint court’s decision According to arising groundwater. contaminated injuries facts, pave a section of the Florida DOT hired a contractor (TCE) trichloroethylene used to clean highway. Florida The contractor finished, he buried the drums TCE equipment his and when he leakage. their At ground any attempt safeguard against without buried, enjoyed time the State of Florida these drums were sovereign immunity. In a statute that legislature passed Florida waived occurring January
sovereign immunity for “incidents after” 1975. bought property adjacent Windhams years, they For ground
unknown drum burial and drilled well. six health They experiencing from this various began drank water well. eye form
problems their first born child born with rare eye. In requiring surgical cancer removal of the infant’s regulatory and found agency sampled environmental their water odorless, colorless, The Windhams sued and tasteless TCE. torts, Windham, 476 including negligence.
of Florida DOT various So.2d the State was immune from suit because court concluded here, occurring prior alleged acts or such as those
“negligent omissions date, may as the basis for not be utilized to the statute’s effective date.” injuries materializing after effective cause action for its conclusion Windham, So.2d at 739. The Florida court reached sovereign statute that waived by interpreting language of *19 as is defined immunity. that the term “incident” It concluded 414 and determined that the “incident” in the “happening,”
“occurrence”or
wrongful
causing
injury,
act
not the actual
Windham case was
Moreover,
Windham,
the Florida court
itself.
disagreed majority opinion with the stated, majority He “the states negligence.” traditional definition of from the actual separated breach thereof... can be is at minor child. This construction ... injury by plaintiffs sustained It is axiomatic that no principles common of tort law.... variance with the existence negligence, assuming for even cause of action can exist Windham, act, damage proven.” can be negligent of the where no So.2d at 742. precise language that courts first look These cases illustrate governmental immunity statute to determine when waiver rule of liability, and when it is not. This
entity is immune from “General rules of is familiar to Court. statutory construction statutory interpret Court to statutory require construction from, us, to, it. Section adding subtracting or language before without are 1-2-101, in statutes of Montana phrases MCA. Words and used usage of the approved to the context and the according construed Therefore, 1-2-106, interpreting when MCA. language. ordinary meaning of a
statutes, plain this Court will use 485, 487, Co., (1992), Mont. Grace & word.” Carroll v. W.R. 1253, 1254.
P.2d course, rather Montana, immunity statute but did not waive distinction, however, change does not This provision. constitutional Looking closely language language. interpret how we immunity from state... shall have no Delegates, “[t]he adopted by ...,” phrase the critical we conclude that injury person to a we suit for According to the Webster’s injury.” interpret must is “suit recovery of in a court for the process action or Dictionary, a suit is “an “any Edition, suit as Dictionary, 7th defines or claim.” Black’s right of law.” in a court parties against another by party proceeding words, claim the Miners’ usage of Certainly, under the common injury.” а “suit for qualifies as acts from alleged negligent seeks to bifurcate The State it was maintains that because ostensibly caused. It they
injuries *20 acts, that it retained committed purportedly at the time immune injury or of when suit immunity injury” regardless from “suits for below, that the conclude the reasons stated disagree We and for arose. legal incorporated injury” for phrase “suit
Delegates’ choice of concept of “accrual.” statehood, years prior ago one hundred More than of civil action commencement a the law relative to
Montana codified of limitations. and a statute prescribed periods within the only can be commenced
Civil actions accrued, shall have of action article, after the cause in this cases, prescribed limitations is where, special in different except added). by (Emphasis statute. Montana, language 28, minor C.Civ.Proc. 1879. With Laws essentially remains renumbering, this statute frequent
revisions and MCA, 1895; 6428, (1907); RCM 470, C.Civ.Proc. unchanged. See Sec. § (1921) 25-1-102, (1935); 93-2401, (1947); RCM § RCM (2003). Dictionary, Law 7th MCA “Cause of action” is defined Black’s Edition, rise one more bases giving “a facts or group operative as Convention in one suing.” By for the time of Constitutional years jurisprudence proposition hundred of Montana stood only cause of injury” upon a “suit for could be commenced an accrued Thus, immunity accruing no action. State has for causes action Next, July after 1973. we must determine when the Miners’ cause of action accrued. rapid Usually, negligence all the elements of claim occur in immediately plaintiff injured A is
succession. is breached and the asbestosis, far There is no paradigm as result. With different. person exposed One years can take to manifest.
dispute that asbestosis Libby may in Mine become ill within months to the toxins for decades. Some exposure may symptom-free another remain while plaintiffs. The ill all. so it was with these may never become And anywhere year from one for the Mine Miners in this case worked (Smith/1951-1987). (Jacobson/1975-1976) years Despite thirty-six developed men asbestosis. Mr. Smith exposure, in both differences diagnosed April July and Mr. Jacobson was diagnosed in was it closed in from 1962 until Graham worked for Mine 2000. Miner January long not after He died from mesothelioma as the disease finding here to when Although we make no diagnosis. the record appear from plaintiff, for each it does
became manifest early as 1973. plaintiffs symptomatic us of the were before “discovery rule” Montana adoption Prior to the states, many other such as the plaintiffs precluded Miners were bringing limitations, an action formerly because statute of linked element, expired. “discovery breach of would have rule” adopted by majority fairly of states because it allows injured plaintiffs long-dormant injuries to seek relief for caused 27-2-102, tortious conduct that occurred much earlier. Section MCA. Montana, action, suit, no cause of or for negligence accrues MCA, 27-2-102, provides:
until all elements of the claim exist. Section (1) purposes relating For the of statutes to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the occurred, right claim cause exist or have to maintain an complete, action on the claim or cause is and a court or other action; agency jurisdiction is authorized to accept *21 (3) period of does on or begin limitation not claim cause injury of action for an or until the person property facts or, claim in the constituting the have been discovered exercise of diligence, by injured party due should have been discovered the if:
(a) by the claim their nature constituting the facts are self-concealing; concealed or See, rule. long discovery e.g., This Court has embraced the
¶75
(1966),
125,
Hospital
Johnson v. St. Patrick’s
148 Mont.
We have the above-stated on Nelson, 151, MT numerous оccasions. See Nelson v. 310 Mont. (Cause
329,
injection-related
CONN,
343,
1256;
v.
1998 MT
289 Mont.
961 P.2d
Cechovic
Associates,
(1995),
Inc.
273 Mont.
discovery rule immunity analysis. sovereign in a as well apply should Township’s & 35 Pa.D. C.3d Carpenter v. In Hench at which time the negligent act
sewage committed a officer immunity. injury from this enjoy sovereign Hench’s did not Township eventually became years was for several but negligent act concealed Township August Township manifest. When he sued limitations Hench’s suit. barred two-year statute argued that tolled two-year statute limitations was Hench claimed that February claim his did not accrue until “discovery rule,” and that Township and cause. The injury he 1983 when discovered discovery time accrued under countered that Hench’s claim immunity rale, statute sovereign had enacted Township Township, agreed, stating: the court Siding immune. gives rise to the
Plaintiffs claim it is the breach of which 24, 1976, Since this was breached June cause of action. governmental immunity applied should be as they argue However, discovery applied the effect of the rale date. limitations, of a of action delay
statute of is to the acсrual cause injury conduct to when the negligent the time defendant’s plaintiff [citation knowledgeable becomes known discovery rale is Consequently, applied omitted]. in this case if for the cause of action accrued on purposes statute limitations February logically point time when 1983. This is governmental applied. be immunity defense should Hench, 35 Pa.D. & C.3d 405-06. opined plaintiffs argue cannot The court further that the cause of action did arise purposes
statute of limitations their *22 act, argue but then Township’s negligent until six years after of action at the time immunity purposes that the cause arose Hench, & See also negligent act. 35 Pa.D. C.3d 405-06. Township’s (1984), 33 & C.3d 157. This Township v. Pa.D. Hurst East Hanover apply the It is inconsistent logic simple compelling. is both statute of the accrual of a cause of action for discovery rule to sovereign conducting discard it when purposes, but then limitation analysis. immunity reasons, long-standing that the foregoing we conclude For
¶80 a cause to be commenced after that civil actions are rule Montana accrued, sovereign immunity analysis apply should our of action has accrues once the elements of the cause injury” here. A “suit for before us did The elements of the causes action action have accrued. immunity abrogated. had been sovereign accrue until well after
not Therefore, sovereign immunity prior the existence of we conclude that Miners’ causes of 1,1973, the State from the July does not insulate action.
CONCLUSION creating Court of It accuses this A final word about dissent. First, our accusation is off the mark. remedy out of thin air. The existed as the dissent duty create a where none decision here does not that because the rather, simply proposition it for the argues; stands at the time the immunity longer no existed affirmative defense of accrued, to their causes present it can no bar Miners’ causes of action The difficult Second, complex legal issues. this is а case with of action. forty years old and by industry standards
questions presented questions injuries of the Miners’ advance novel delayed onset unusual presumably the dissent would simple, Had the issues here been oflaw. authority point; would and with direct quickly have said so disagreement its paragraphs explain required fifty-seven have to these facts is that the law attendant majority. simple truth interpretations. arguably susceptible to different untested and is both Plaintiffs insistence, not handed the we have Contrary to the dissent’s establishing that the daunting task of still face the remedy-they damages their doing, and in so caused its to them State breached fact finder must make is that a injuries. What we have concluded these determinations. the District Court foregoing, we conclude upon Based Miners, legal duty no that the State had determining
erred in therefore reverse complaints. We dismissing the Miners’ for determination and remand Order of Dismissal District Court’s Miners, the State breached the fact-finder of whether claimed them. so, damages caused the such breach and if whether concur. REGNIER, LEAPHART NELSON and JUSTICES dissents. JUSTICE WARNER of this action and its remand Opinion Court’s I dissent from the requires of the law interpretation A Court. correct
to the District be affirmed. to dismiss this suit the District Court decision of ofthe adoption claims arose before all ofthe Miners’ Virtually July effective which became Constitution 1972 Montana sovereign doctrine of ofthe innovative re-definition the Court’s Absent
419 Thus, I discuss this this suit could not be maintained. immunity, first, not last. pivotal issue Immunity
Sovereign sovereign immunity the doctrine of The Court concludes at 80¶ duty the breach of alleged where Appellants’ does not bar claims conclusion, the reach Court July 1973. To this prior occurred II, injury” Article narrowly the “suit for contained focuses on words Constitution, equates then and of the Montana that, The result is because the the “accrual” of an action. language to the accrue after Miners’ for relief did not until claims suit, immunity the doctrine of governmentаl ended Constitution sovereign immunity apply. does not erroneously sovereign immunity a simple considers Thus, government. Court, the against
bar to reasons the a suits lifted, may purported lawsuit that “accrue” the is allowed. after bar tort, Focusing damages the of the Court does not element even thereof, lack attempt duty, sovereign to address the of issue that, immunity ignores context. The Court because of the nature of sovereign immunity, plaintiffs the the State had no whatsoever to and thus the by a tort State cannot be established no matter date of the injury. suit, being merely As a bar to opposed sovereign immunity is legal of doctrine to effect that actions or omissions
government do not of to its constitute breach owed citizens.
Sovereign immunity necessity political arose out ensure government by stability insulating public treasury economic monetary damages. from suits for It made no difference whether such It equity, suits were in contract or in tort. was deemed better that coffers, stability government, thus the not be
compromised by having something might be done pay government private to a citizen. ill nature any prince
[S]hould have so much weakness and ... the ... are inconveniency particular of some mischiefs well public, security of the recompensed peace being body, private that some few government ... safer for suffer, than that the head danger men be sometimes in should occasions, slight easily, upon republic should be exposed. (4th 1764). Government, Ch.18, Locke, ed.
John Two Treatises of initially king, being England theory was that feudal subject tribunal, and in that sense the ultimate maker higher to no law, wrong. period was As the medieval incapable considered theory and the doctrine into progressed, evolved transformed one is, holding king, government wrong, that the could do but this terms, wrong recognized by was not law.5 In Blackstone’s sovereign immunity phrased: doctrine *24 is, king of nor supposition
The law therefore that neither taken) parliament (colleсtively capable doing either of is of house in any wrong; incapable since such cases the law feels itself of any remedy. For which reason all furnishing adequate oppressions, may happen any branch of the spring which sovereign any be out of the reach of power, necessarily must rule, express provision or .... legal stated
Blackstone, vol.1, ch.7, 237-38 Laws England, Commentaries on the of (1765). words, government act though might unfairly, In other even
¶89 eyes a be common law negligent, breach contract or our wrong the law jurisprudence recognized. such was not a This more, different, a The particular and much than bar to a lawsuit. much government simply wrong. was not act or omission of century, revolted late-eighteenth In the the American colonists ¶90 monarch, government, oftheir own without a began and the formation Thus, in the there was no with constitution. United States and immunity may this “sovereign” per se to whom could attach. While doctrine, it remained been an time to discard the opportune have in the nation6. firmly entrenched new states, days Montana did not allow Like most from its territorial tort. subject liability to be for breach of a contract or
itself therefore, by hold, permitted law of this We that unless some government, of the no citizen Territory, general Territory or act of it. There is no law of Territory can sue is, then, legal to enforce Congress power it. There no permitting 5 Accountability Engdahl, Immunity For and Positive Governmental David E. (1972). Magna concept subject 1, 3 government Wrongs, 44 U. L. Rev. Carta Colo. wrong” actuality born, phrase king can do meant that the “the no to law was king certainly wrong, permitted law. do would not be could but sovereignty to the suit of an not to be amenable “It is in the nature of inherent sense, general practice general is the without its consent. This individual enjoyed sovereignty, mankind; exemption, is now of the attributes of and the one Hamilton, every government Federalist No. 81 Union.” Alexander State thе (1788). obligation words, there is no In other
territorial contracts. They faith of the simply good on territorial contracts. rest Territory. 1 Mont. 38.
Langford King v. is, duty to Montana, obligation, In had no State terms; no there is are correlative “where “Duty” “right”
citizens.
Gray, The Nature and
Chipman
right.”
there
be no
John
can
1921).
(2d
Thus,
Law,
ed.,
before
MacMillan Co.
Sources
right
damages
seek
citizen had no
adopted,
1972 Constitution
to its citizens.
no
against the
and the State had
correlative
(1991), 248 Mont.
acquired duty which had not existed right new created the correlative previously, imposed for first on the Montana State time *25 for Treasury obligation pay damages for a breach of a contract or an tortious conduct. Now, holds for the first time8 if the elements this Court that one of abrogation sovereign immunity, subsequent a tort occurs to the an act or omission sequence transmogrifies
this of events somehow By that wrong duty was not into a breach of did exist. that occurred, damage forgets on Court that at the focusing when State, duty it no at all alleged time of the breach of owed action, is a immunity is not a bar an Sovereign the Miners. respond that had no government doctrine to the effect legal sovereign acts or omissions. When damages to its citizens logic or law abolished, changed, but no stretch immunity was while the doctrine was can it be said that act or omission done I District retroactively duty. agree with Federal effect creates such 7 Engdahl, at 59. 493, 506-07, Jacques 649 P.2d 199 Mont. v. Montana Nat’l Guard sovereign happened proposition event that while does not stand for thе that an against years give immunity action State. was could 40 later rise to an in effect legislature damages plaintiff injured sustained after the
Jacques was and the were abrogated the doctrine. who, question, Molloy when faced with this same Judge immunity sovereign
determined accrual of based “[mjeasuring that determining basis for discovery damage principled is not Grace, Dickerman v. W.R. CV-00- sovereign immunity.” scope 2000). (D. 130-M-DWM,4 Mont. the Constitutional Convention any support from Without incorrectly delegates concludes at 70 the the Court
transcripts, actually intended the State would not Convention 1972 Constitutional is, matured, that that accrued claim for relief be immune However, Bill the 1972 Constitutional Convention July after 1973. that, the doctrine of made it clear while Rights
Of Committee unfair, no intention there was sovereign immunity was outdated II, the new Article Section subject pre-dated the State to claims that 18. of this implementation
The committee is well-aware [sic, if done uithout cause some difficulties provision could currently agencies upgrade their permitting without] affected that this coverage. Accordingly, it is recommended inadequate that, in order to application; in its provision retrospective not be coverage insurance adequate time to obtain permit agencies effective until it shall not be by legislative appropriation, provided [sic, only as to 1973]; and that it shall be effective June The committee commends arising action after that date. causes of adoption that its to the convention with belief provision on behalf wrongs will be administered insure that redress for will private. as well as parties, governmental all against of and Convention, Rights Of Committee Bill Constitutional Montana II, 23,1972, Comments, February p. Volume Proposal, only insurance was immunity abrogated because Sovereign be, not, cannot and is concerned This Court available. However, the insured. potential loss is of whether
question detеrmining the intent of relevant to highly of insurance is discussion II, Article concerning application retroactive delegates drafters of the 1972 the intention of the crystal clear it was 18. It is could not occurred previously had anything which Constitution *26 a clean slate. starting with Montana was give rise to lawsuits. Schedule, ofthe Transition plain words ignores The Court also
¶98 3, which states: the 1972 Constitution rights. of declaration Prospective operation Section 3. substantive, by time created for the first
Any procedural or rights, retroactive. and not prospective II Article shall be sue of a citizen to the State right There is question no ¶99 II, by Section created Article Montana was right prospective this was also is no new question
Constitution. There only. Further, Note Transition ignores Court the Convention
¶100 by delegates a committee of which was drafted Schedule to what each section to educate voters as presented populace states accomplish. Such note the new constitution was intended delegates: intention Notes: Convention only July II take effect after
Any rights new created in Article past events. any right 1973. It does not create acknowledgment delegates from This is an additional new right adoption
themselves that a new was created with rise to past give It not intended that events would constitution. was by subsequent obligations government. Indeed, previously recognized prospective this Court has Article the 1972 Montana
application rights” “new under II of right in context. In with the to be free Constitution another connection discrimination, right by from sex another new which created Constitution, II this held in Article of the 1972 a domestic relations case: II, Article
Appellant rely arising cannot under rights 4,1972 Constitution, Montana for under the Transition Schedule substantive, any “rights, procedural Section 3 created for * * * time first shall be and not retroactive.” prospective 403, 406, Rogers Rogers v. 169 Mont. 548 P.2d right Both to be sex Rogers, free from discriminаtion case, right newly to sue the State at issue were created in this as in
rights in Article II. The result must be the same case New created first the 1972 Montana Rogers. rights, by for the time Constitution, only. prospectively are to be enforced view, my expressions delegates 104 In these ofthe intentions ofthe
¶ to an statute cannot be avoided the Court’s reference at be concerning can such intention avoided periods of limitation. Nor or the Federal Tort referring to the dissimilar law of other states Act. Claims immunity abolishing sovereign It cannot be doubted that However, not the in these times. that is approach modern
preferred Sovereign immunity was the law us in this case. question before July Langford, until Court’s 1868 decision in Montana *27 424 regard at which time it was abolished to future acts. I
suspect people country tragic millions of in this know about the injuries by sympathy necessarily to the Miners now. I share the which to it a simply must flow them. But incorrect as matter oflaw for this it, immunity, change to redefine the doctrine of or find sovereign
Court provide remedy. it in an to a way a new around effort Since territorial legislature,, days people, the both the constitutional conventions consistently immunity. sovereign and this Court have relied on occur, occurred, or to Nothing prior sovereign immunity’s failed to 1,1973, subject liability July properly abolition on can State to for money in tort. damages Duty Legal Notwithstanding the Court’s erroneous conclusion that
sovereign immunity against does not defeat these Miners’ claims State, a legal duty part the Court still to find on the State’s needed It its desired that this suit is viable. finds order reach conclusion duty by incomplete misleading and from quotations such references By yesteryear. surgery, grafts together innovative the Court statutes However, variety statutory upon duties and foists them State. a these reveals a careful consideration of statutes “duties”imposed by the did not exist at the time the statutes enacted, only by judicial alchеmy. but are created the Court’s were duty The Court concludes that a to the Miners is established running a the State to duty the statutes cites created from because First, the 22 that the various the workers. Court concludes ¶ industry. This is correct. applied mining statutes vermiculite the District Court did not applied The statutes all industries and performance discretionary translating rule otherwise. But results, statute, required by as and the dissemination of function something entirely. The Court statutory duty to warn is else into explains in 23 this exists because: specifically upon to the effects gather [T]he information related “for diffusion employment of conditions of workers or displaced or eliminated among people” use never from mandatory obligation from the law. The State had health-related information through gather public 69-105, RCM (1921); RCM people. it to the provide 69-4110(3), (1947); RCM (1947); renumbered in 50-1-202, MCA. renumbered in 1978 to § analysis entirety of these cited However, an accurate story this so-called
statutory reveals a far different about provisions long 110, 1907, consisted of L. “mandatory Ch. obligation.” Section were which Board of Health to the State granted powers list of “general “general supervision” by that statute as characterized Court-“for emphasized phrase particular oversight.” states, entirety: in its among people’-actually diffusion such information gather shall Health] [T]hey State Board [the they may proper deem respect to all these matters added.] [Emphasis people .... among diffusion among from the people” “for diffusion Ripping phrase its context it from the Court removes mid-phrase,
statute *28 “mandatory obligation” which it into a turning meaning, magically contrary, an To through 1999. insists existed from of the power reading of statute demonstrates accurate discretion, it, proper its deemed gather Board to what information completely was “among people” and to diffuse such information all matters respect exercised “in discrеtionary with the Board-to be created, mandatory obligation was because they proper.” deem No discretionary. completely power was the exercise of this 69-105, statute, stayed in the see discretionary language This (1947), in 1967 repealed RCM until the entire section was time, At 223, 197, of Montana 1967. the same Chapter Laws relies, among “fordiffusion upon heavily which the Court language 1967, although law and did in the after people,” repealed, not exist Thus, it language was thereafter as discussed below. adopted, similar toto, merely bestowed studied in provisions, is clear that these when agency, nothing. discretionary options on the state and mandated enacted, statutory entirely new scheme was distinguished Board of newly the functions of the language regarding provisions, the Court Department Health and of Health. From these (1967), 69-4110(3), support RCM upon cites and relies continuing duty the workers. That conclusion that the State had a provided: statute Functions, and duties of powers department.
69-4110. board, department shall: policy guidance With the state (3) information, make make disseminate investigations, improvement for control of diseases recommendations persons, public [Emphasis or the .... groups health to added.] Department Although provision generally this authorized investigations “persons, information to
to make and disseminate groups or the public,” power this was to be exercised pursuant “policy guidance of the Clearly, state board.” exercise of the power remained a discretionary enactment, function under and a “mandatory obligation” giving legal duty rise to a was not created thereby. If the statute require did not the agency to exercise a power function, or to undertake a but rather options delineated to be exercised as the fit, Board from time to time saw provision such a cannot be construed as creating any mandatory whatsoever, duty much less a sрecific duty particular owed to the Miners here. part As a changes question, the law in
Legislature Chapter enacted Laws ofMontana Sections 19- These sections were 42, RCM, codified as the new Title Chapter Hygiene. Industrial Taking part of the new industrial hygiene context, statutes out of and omitting part statute, of the specific Court boldly Montana, states at 38 the State of virtue of 69-§ RCM took upon duty itself a to correct or prevent conditions which were hazardous to health at any place of employment, and thus the State had a prevent to Miners to injuries. their The clear and sweeping that, effect of this conclusion is during time, at least period the State undertook a legal obligation-a statutory duty in according tort to the Court-to correct all health, conditions which were hazardous every single place of Also, Court, work in Montana. according to the State had a prevent any recurrence of an unhealthful upon condition pain being *29 any injured liable in tort to large Indeed, worker. A undertaking! one I conclude borders on the absurd. Chapter (1967), Title RCM does occupational address corresponding Court,
diseases and duties. The again at does not 69-4202, reveal the entire statute. Section RCM stated “the state adopt board of health shall rules and make orders to correct or prevent conditions which are any place hazardous to health at of Then, section, employment.” 69-4203(3), RCM, the next requires the department investigate any of health to the place conditions of of employment any 69-4203(4),RCM, at time. Section merely requires the department to the “report findings investigations industry of concerned and co-operate industry with the or preventing correcting added.) conditions which are to (Emphasis hazardous health.” Section 69-4204(1), RCM, goes on require reporting occupational to the by providers employees days diseases hеalth care and state within 11 discovery. importance, reports public Of made “are neither records 69-4204(2), open public inspection.” Clearly, nor to RCM. Section these reports the require diseases regarding occupational specific statutes “industry the given be to are to by investigation the generated open public to records nor “are neither concerned” and the against general control specific These statutes inspection.” 1-2-102, the See MCA. regarding the duties of board. statutes 42, RCM, 69, Chapter Hygiene, Title Industrial reality, In 115¶ to, not, part the of the duty create a on way intended and did no pain workplace conditions on prevent State to correct or all hazardous completely if such were not making any damages hable for never to recur. eliminated 316, Laws of Chapter Legislature In enacted again law and created changed
Montana which Act, in addition to Act of Montana. This Occupational Health that Court, provide continued to information provisions cited are operations or Department concerning pollutants collected only only the Department of the and that confidential use operator inspected premises copy or of an can obtain a owner 115(3), 50-70-109(1), Importantly, the report request. See MCA. §§ provides Act it does Occupational expressly Health that not: limit, create, enlarge, affect [A]bridge, impair, or otherwise procedurally damage a or substantively right person or relief, substantively procedurally or affect or other otherwise injury a relief on account of right person damage or other an action or other persons property or maintain appropriate proceeding. 50-70-118(3), Thus, expressed intention of MCA. be
Legislature only inspection reports were not to was not disseminated, “enlarge” any or it was that the Act would not “create” dаmages. determining In procedural right to seek substantive liability, Act the State to special duty exposes creates which abrogates provision. Court carefully issue, addressing the District concluded, part, here and as follows:
analyzed the statutes issue statutes that have pointed Plaintiffs to a number of other have impose statutory feel years they existed over the However, do not by these Plaintiffs. the statutes enforceable protect employees impose duty on the State specifically employees dangers or to warn exposure from asbestos very general apply exposure. These statutes are such and do not deal with “various industries” all over state *30 by the State. prevented to be specific hazard detected as to specific these statutes are to note that none of ... it is critical They very all are being addressed. danger industry or the general. all, statutes, duty at they impose any if
It that these appears its employees of Health and Department a directive to the impose in nothing There is their duties are. general as to what concern with a legislative a specific that evidences these statutes Thus, short, in of worker. industry particular type or a particular may Plaintiffs duty exists on which statutory finds no their case. base do not These statutes analysis Court’s is correct. The District create, Department mention, owed the State let alone
even best, industry. At these particular the workers of a of Health to itself, by which agency general directives provisions constitute with the problems health to address agency empowered is been, actions may have the State’s Unfortunate as industry involved. industry,” “working purpose were for the yesteryear Therefore, with, these to, the workers. or communicated not directed to warn the State of Montana duty imposed on efforts did not create of the defalcations danger was in because that their health the Miners employer. of their agencies question in that the State acknowledges The Court in not opinion Bonner’s weight Attorney General
placed great they that It then concludes to the Miners. disseminating information Opinion concerning analysis The Court’s wrong doing in so. were justified were agencies health also The various and its use is flawed. reliance on it. their the Court at General, acknowledged by Attorney confidential. reports were of Health’s the Board concluded (“AG’s”) Court, Attorney General’s binding on this
Although not and will acquiesced persuasive Legislature has in which the Opinion See, Region II e.g., Stewart v. palpably erroneous. upheld unless be 913, 919; (1990), 88, 97, P.2d State 242 Mont. & Servs. Child Fam. 353; 305 P.2d Schye 130 Mont. Ebel v.
ex rel. 433, 436, 91 P.2d (1939), 108 Mont. v. District Court ex rel. Barr Opinion that the AG’s in its view Court is incorrect 400. The erroneous. palpably case is
issue however, correctness us, is not the The issue before Opinion-acquiesced is the effect of The issue
Opinion. and for at the time directed it was those to whom Legislature-on *31 an AG’s is thing Opinion It is one to conclude thereafter. decades an years later that It another to determine 62 quite erroneous. therefore, and, was binding was at the time it issued not
Opinion not While we have wrong doing it were so. who relied on persons issue, O’Shaughnessy v. indicated in directly addressed the we Wolfe 16, 361, 363, Opinions AG are (1984), 12, 212 P.2d that Mont. 685 they apply, to absent requesting on them or whom binding those can now “unbind” those contrary Court. How we ruling by contrary opinion AG’s on clearly by Opinion bound a 1942 our What, 80-year-old requiring statute then, purpose is the of our law? writing, Attorney opinions to provide legal
the Montana General See, fee, by e.g., law to them? request § without to those entitled 2-15-501, 199(6), 82-401(6), (1947); (1921); RCM RCM MCA. § case, thing by In its Miners in this right rush to do useless, dangerous. Opinions only makes not but What AG’s in his busy Attorney right General or her mind would continue to issue persons they held the to whom are opinions such once Court has rely Having Opinion, on them at their peril? directed obtained AG sought lеgal opinions, those it then seek or competing should who they may it it and merely ignore wrong relying should be because liability? may later be the basis of decades Opinion An of leads to the examination the AG’s conclusion not assuredly “palpably that it was not incorrect and most was 1939, Legislature Hygiene erroneous.” In created Industrial (IHD) it, required among Division of the Board of Health and other things, study investigate hygiene occupation industrial such “report findings disease and to the industries concerned of (3), (5), 1,2(1), L. re-codified investigations....” Sections Ch. added). (1947) of (emphasis 69-201 RCM Section 5 through
as §§ annual all Chapter 127 summaries of required least statistical diseases, of together with dissemination reported occupational prevent appropriate instruction and information believed “to all occupational employers occurrence or recurrence diseases added). required providers 7 health care (Emphasis this State.” secretary IHD, of the inspectors, upon request and certain mine report and file a report knowledge occupational disease equivocation regarding knowledge. Section 7 stated without pertaining to reports [IHD]... and all and data “such records open to be records or hereby public diseases are declared not such added). (emphasis L. 1939 inspection ....” Section Ch. public Chapter required or even nothing It is clear that suggested investigations dissemination of studies public reported IHD. Those matters were to be to the involved industries. Moreover, above, clearly as noted of Section 7 language prohibited making providers from health care and “all records and reports open public inspection. Attorney data of the division” or public Opinion in responded query General Bonner’s to a about whether anyone workplace investigations should be furnished to reports requesting relying language them on the clear Section He reports public open concluded the were not records 1) inspection. Opinion palpably I would conclude 2) erroneous, incorrect, binding even if from issuance until reasons, analysis For I today. disagree these with Court’s AG’s 1942 Opinion. agree Nor I the Court that the re-codification and do 69-207, of Section 7 of RCM
renumbering Chapter *32 69-207, language the law. The of RCM changed anything all about § (1947), 7. to former Section It respects was identical in all the require physicians, providers health care and mine continued to other of “having knowledge occupational of a case disease” to inspectors “upon secretary the of IHD. More report request” such cases of of division those “and all records and data of importantly, reports pertaining of of to hygiene industrial the state Montana such diseases public to be to hereby public open are declared not records entirety in The Court fails to read the statute and inspection.” according plain language. to its Moreover, simply wrong unsupported in its the Court
¶126 the title of an act as presumption accorded statement to of sections Legislature’s “applies equally intent titles expressing in Montana that contrary, To it is well established within act.” title precedence over the in matters of [a] “the text of statute takes See, (1997), Day Orozco 281 Mont. statutory interpretation.” e.g., v. Distributors, (1996), 1009, 1012; v. Inc. Trevor 934 P.2d ISC 185, 196, 903 170, 177;Manufacturing Acceptance Corp Mont. P.2d 28, 35, 438 667, 671. Consequently, P.2d Krsul 151Mont. v. (1947)-added 69-207, by the Code of RCM
so-called “title” § “duty and others Commissioner, physicians speaks and which not, contained cases”-cannot, impact language report and does to above, 69-207, RCM, § the statute. As discussed within contained language previously public the clear “not records” retained Chapter 127. in Section 7 of Opinion, 1942 AG the Court Additionally, regard to the
states at 30: by Attorney General language original interpreted ofthe
[T]he legislature in 1967. revisеd significantly was Bonner clarify in a manner revision was legislative result of disclosing care workers from health prohibit that continued Attorney General medical records but that rendered private Opinion moot. Bonner’s above, revised the Legislature generally As stated many Health, amending and repealing relating Board
laws so, Legislature created doing Ch. L. 1967. In statutes. See Health,” which “State Board of heading number of statutes under the duties, one general forth its of which created the board set information, make investigations, disseminate “make improvement public control of diseases and recommendations for 197, L. public.” 10(3), Ch. persons, or the See Sec. groups, health Nothing particular investigations, statutes requires those every investigation be requires much less that results each to the public. disseminated the 1942 Totally overlooked the Court in context of 69, Chapter 42,
Attorney Opinion General’s is Title Industrial chapter occupational This Hygiene. expressly addresses diseases corresponding previously As these statutes explained, specific duties. occupational only reports
regarding require diseases “industry generated by given investigation are to be open public concerned” and “are neither records nor inspection.” Thus, agree while I with the that the 1967 amendments reports occupational prohibition against
retained disclosure diseases, logic join giant neither nor law allows me to Court’s next is, that, implicit That I with the step. agree cannot Court’s conclusion *33 deleted, language the earlier data” because about “division thereby “mooting” portion Opinion, that of the AG there somehow sprang being requirement occupational into that express an other disseminated suddenly required be to the reports disease were to in in their it public. Nothing point history requires the statutes at and, indeed, provision belied the interpretation express such is into legislatiоn findings investigations in that the the 1967 reported industry to be “to the concerned occupational diseases were I compelled to the feel Finally, regard Opinion, AG’s when it language with the at 28 express my disappointment ¶ Court’s Opinion “to speaks justify reliance the AG the concealment the workplace inspections” results of and the statement at 30 about “the ¶ Libby at State’s decision withhold from the workers Mine investigation reports.” clearly public These imply statements State”- in employees-“the engaged conspiracy some sort of to harm the Libby I am fit to suggest Miners. sad Court would see government employees in the executive branch of would conduct a I disagree. themselves in such fashion.
Public Doctrine Duty duty, Having statutory invented a never enacted or intended by the determine the Legislature, goes the Court next on to Public Duty “special Doctrine does not defeat Miners’ claims because description relationship” exception applies. to the doctrine The Court’s Doctrine, Duty special exception and the relationship Public is view, however, special errs my concluding correct. In the Court in in relationship exception applies present case. fashion, First, special a circular Court states the
relationship exception applies because statutes here question occupational intended to workers from diseases.” “protect were Although correctly specificity Court “the in these reasons lack meaningless,” protective not render them a intent or statutes does meaning necessarily special relationship. Assuming, does not create a Miners, arguendo, duty statutes created a to the even these Thus, posit applied solely they them. cannot does these statutes plaintiffs apply “specific persons” said to class of of which be is, Libby members, at The statutes covered are that workers mines. every and in employed, occupation, workers who were
all Montana Duty provides that if a every place in the State. Public Doctrine duty everyone, it does not create a to a duty statute creates Yet, 41. acknowledges The Court this in specific persons. class ¶ duty everyone conclusion is that when a statute creates Court’s because it creates a exception Duty raises the to the Public Doctrine definition of Considering very to a class of specific persons. I Doctrine, singularly confusing. I must Duty the Public find disagree regard. with the Court in this mention, not even let alone create question The statutes in do with, industry. At relationship of a special particular workers itself,
best, agency general directives provisions these constitute problems. health agency empowered public to address by which the such, particular that is than the “special duty create no more they As Nelson, Nonetheless, the Court large.” owed to the *34 analysis which taken provisions, into these an special reads a relationship between special would create a logical conclusion Indeed, every place in ofwork. every single Montana citizen State and duty’ these statutes “special exists because the Court determines various working women designed to men and protect “were Such disease.” See 44. occupational ¶ in Montana industries any directive in virtually the Montana could be made about argument Code Annotated. Next, says relationship was created special that a they employees making repeatedly saw State
with the Miners because protect person’ a inspections “qualifies ‘specific and this as a action and the Miners.” special relationship creates a between the State discretionary Miners’ inspections. The taken were The actions ¶ affirmative is did take action to warn complaint the State may been, the as it have inspections. them after these Unfortunate “working for the past purpose State’s actions in decades were with, to, the workers. industry,” and not directed or communicated Therefore, “specific action to these efforts cannot be considered protect person.” actions which inspections Neither can the State’s be considered
reasonably special induced detrimental reliance which would create a Nelson, relationship Duty the Public 22. What under Doctrine. See ¶ though the Court essence at 46 is that even the Miners concludes danger, knew there was a the lack of information from the State telling equates danger. State them there was no This erroneous is the inspections conclusion reached because the Court fixates on may rely, not on upon themselves the “act” which Miners at all to Miners point representation the salient that there was no It reasonably rely. every logical which could is bit as upon they telling Miners equates reason the lack of information State However, took no danger. point there was is this: upon reasonably rely which would action which Miners could Miners, and the special relationship create a between contrary to be a stretch for a desired result. appears Court’s conclusion law at any dangers The workers were not told of because the disclosure, discretionary State’s prohibited that time such thus the inspections Libby to make could not create rebanee that decision gives necessary special relationship. rise to the end, of law changes In the I conclude that the Court centuries statutory duty out of sovereign immunity, mandatory creates a special and misconstrues
discretionary provisions, code Duty I too wish relationship to the Public Doctrine. exception not, I judgment proof. in all cannot probability, defendant was proper view, creation, fiat, is, by judicial of a my remedy join what a bankrupt employer. the State now substituted for where *35 I dissent. RICE in the join foregoing GRAYand JUSTICE CHIEF JUSTICE dissent.