*1 OWENS, v. PARKER Aрpellant, WILLIAM Plaintiff Respondent. CO., DRILLING Defendant No. 83-172. Submitted Nov. 1983. Decided Jan. 1984. Rehearing Denied March 1984. 162.
Lucas & Monaghan, Monaghan, argued, Miles Thomas M. City, for appellant.
Habedank, Best, Best, & Cumming, Jacque argued, W. Sidney, respondent. for defendant and
MR. JUSTICE opinion MORRISON delivered Court. (Owens) appeals order of the summary William Owens
Plaintiff County, granting partial Court, District Richland punitive damages judgment in an action al- the issue discriminatory firing leging Owеns defendant Parker (Parker). Drilling Company missing right inches below his arm from three
Owens part six arm when he was lost that of his elbow. He “roughneck” years drill old. Owens has worked or 1959. “hand” since 1958 April April through 4,1978
Owens worked Parker from by Roger Hystad discharged at He Parker 1978. was from given supervisors reason that the direction only his investigation to determine had one was made arm. No satisfactorily complete ability sаfely all of Owens appar- employment. fire was his The decision to duties of ently is unsafe one-armed worker made the basis that a per drilling operation. se aon physi- safety setting minimum has manual forth
Parker prohibiting requirements *3 cal for impairments persons arms, or with “severe disabilities fingers, legs, hands, feet and toes.” days, approximately for three Owens was of out work drilling company. by There is another then was hirеd an at times been that Owens has all considerable evidence rigs drilling both before safe on the able and worker after his with Parker. damages compensatory seeking brought this
Owens action discharge 49-4-101 and in Sections for unlawful violation-of “wrongful, damages punitive 102, for MCA. He also seeks of Defendant intentional, malicious, act willful, and reckless firing in Plaintiff.” partial summary judgment issue on the for
Parker mоved granted punitive damages. the mo- The District Court of genuine ruling plaintiff tion, a failed to establish had statute was of the violation factual issue as wanton, of acts defendant or or whether the criminal justify sufficiently culpable award state to mental done with
449 punitive damages 27-1-221, of Section MCA. under following appeal: issues are raised on plaintiff question punitive 1. Is entitled a trial on the оf damages genuine where has established a factual issue of discharge whether his unlawful constituted discrimination 102, 49-4-101, defined Sections MCA? produced 2. Has sufficient evidence establish genuine “op- issue factual of whether defendant acted with pression, presumed,” entitling malice, or fraud actual or recovery punitive damages? him ato argues statutory duty imposed Owens that breach of thе culpable, 49-4-101, 102, Sections MCA is so that such a necessarily genuine punitive breach issue raises a dam- ages. disagree. We
The mere fact that the conduct which the lawsuit is based is unlawful should not in of itself re authorize a covery punitive Fahrenberg (1980), Tengel damages. v. Graham, 211, 516; Wis.2d 291 N.W.2d v. Turner (Tex.Civ.App.1971), 831, 839; 472 S.W.2d Graham v. Clarks (Mont. 1981), Fork National Bank 718, 721, (1922), 1140, 1143-44; Luther v. Lee 62 Mont. example, m.p.h. exceeding P. 367. For the 55 speed may limit is intended, unlawful be even but does culpability warranting punitive not rise to the level dam ages high degree probability unless there that serious harm will result. provides punitive 27-1-221,
Section MCA awards “presumed” Thus, cases of “actual” malice and malice. proscribes where a statute which ac conduct tually damages punitive assault, malicious such as theft may sought violation of such statute. Violаtion damages other statutes warrants issue an presumed particular *4 where malice be from facts. Consideration of will recent decisions of this Court may presumed demonstrate when malice from violation of statute. Security (1979), 407,
In First Bank v. Goddard 181 Mont. 450
422, 1040, 1048-1049, malice could be P.2d we held that 593 company breached implied, where the defendant insurance insured in vio- possible its duty its as soon as with settle code, engaged defendant insurance because the lation and un- “knowing it be harmful in a course conduct Acc. Ram- lawful,” “unjustifiable.” and its actions 487-488, (1927), 480, 261 P. sbacher v. Hohman 80 Mont. Irrig. Huntley Project Dist. in Dvorak v. 273, Again 276. 167, 62, failure to (1981), P.2d an intentional 196 Mont. 639 statute in violation of provide rightful water to the claimant damages because punitive support was held to an award “unjustifiable”. the conduct of the defendant was cоncept of malice-in-law Another discussion of the 358, in Butcher v. Petranek (1979), 593 181 Mont. found stan- we a “recklessness” approved P.2d 743. that case presumed dard for malice. the acts jury
“The also take into account indicate a reck- complained of ‘of such a character as to are awarding disregard rights less v. Smith Mosback punitive damages. ‘reasonable amount’ of 910, 46-47, P. (1922), 42, 210 Sheеp Brothers Co. Mont. 65 912. malice, we stated concept of further on the
“Elaborating in 1927 that: “ torts, “malice,” not applied does . . . ‘The term spiteful, proceed from a which must necessarily mean that injurious conduct disposition but a revengeful malignant mind, ill-regulated another, from an though proceeding to an- injury occasions an sufficiently not cautious before it ‘ “ (1927), 80 Owens v. Hohman Ramsbachеr . . . other. 362, P.2d 743. Id. at 480, 487-88, 261 P. 276. Mont. damages is the same This recklessness standard of de- evaluating conduct this standard used Court by statute. proscribed fendants which was (Mont. Bank Fork National v. Clarks Graham e.g. See “reckless- 718, 721, 1981), (Mont. 1981), P.2d Farm v. State ness”; Shahrokhfar
451 Derenberger v. 653, 657, 1669,1673, St.Rep. “recklessly”; Lutey (Mont. 1983), 485, 1,] Mont. 674 P.2d [207 902, 907, misconduct”; Ferguson v. Town “willful or wanton Pump, Inc. (1978), 122, 132, 915, 921, 177 Mont. 580 P.2d Cashin v. Northern Pac. duty”; “willful disregard of Ry. Co. (1934), 92, 112, 96 Mont. “willful disregard or wanton of rights others.” The оf use words like “unjustifiable” and “reckless” re- present attempts of this to of Court describe that level con- duct, not, proscribed by or statute which so culpable is to punitive warrant an award of damages.
Much confusion has generated been inconsistent use of loosely willfulness, wantonness, defined terms such as reck- lessness, gross negligence, unjustifiable To conduct. avoid necessary future it adopt carefully confusion is to defined prescribe standard of its legal signifi- conduct and cance. adopt We this presumed standard for malice: person
When a knows has or reason to know of facts which create high degree risk of of harm to the substan another, tial interests of deliberately to proceeds and either act in conscious disregard risk, or or indifference proceeds recklessly disregard unreasonable of or indiffer risk, ence to that willful, his conduct meets the standard of wanton, reckless to which the law this State will and/or allow imposition of punitive damages pre the basis sumed malice.
This standard perhaps is more definitive more stringent than past. “unjustified those of the Certainly the conduct” measure extremely ap was broad and difficult ply. emphasize We also that substantial interests must be implicated disregard so that an intentional or reckless duties protect interests, that do not does not substantial give punitive standard, substance, rise to damages. The is supported by Law, Restatement of the Torts 2d. ] a. comment
The equally applicable statutory standard is vio- Thus, where a statute wrongful lations other conduct. of a designed protect the substantial interests risk, high degree is violated either and the statute from a dam- intentionally recklessly, jury question or under also be awarded damages raised. Punitive ages 27-1-221, oppression. This hold- MCA fraud Sections malice.” ing “presumed defines a standard present of whether case involves a determination statute, 49-4-101, protect designed Section MCA was high from a as Owens rights substantial such *6 harm, of the alleged violation risk and Parker’s reckless. statute was Statutes, Sections 49- Employment in
The Discrimination 4-101, 102, MCA, handicapped protect are to the enacted fairly employ- in the person’s right treated substantial to relationship. ment 49-4-101, MCA, as provides
Section follows: discriminate, prohibited. “Discrimination It is unlawful to the person employment, against in a because hiring discrimina- physical handicap person. of such There no reasonably handicap nature or extent of tion where the employment or precludes particular performance may subject the handi- particular employment where the physical harm.” his capped or fellow 49-4-102, MCA, provides follows: Section remedy. practices A dis- “Penalty and civil person who a misde- 49-4-101 commits in violation of crimination for civil court action also liable in a district meanor and is discriminated attorney’s person damages and fees discrim- allegedly practiced who against. Should to re- action, be entitled he shall prevail ination the civil person who al- attorney’s from the fees cover reasonable the discrimination.” leged designed protect
These stаtutes right a substantial from the handicapped persons denial relationship; such de fair in the treatment persons such harm to in economic nial result would damage families, their their sense self es- as well as teem. a claim for Violation of this statute warrants damages if be intentional or reck- such violation shown to Therefore, less. evidence issue is whether sufficient final way interrogаto- produced by depositions has been genuine creating ries to establish a issue of reckless conduct presumption support claim of malice which would punitive damages.The following facts have been established prima by Owens: facie missing right
1. Owens has been side forearm his years since he was 6 old. fully safely perform
2. Owens has been able to all of working drilling rigs. his duties while by Roger Hystad 3. Owens wаs fired on the sole basis that keep since he him had one arm it would not be safe to company policy on and it was fire him. to therefore investigation ability 4. No was made into the of Owens to safely fully complete employment. duties his specific supported
5. No facts the conclusion that Owens would be unsafe. company policy prohibited hiring
6. A written of workers although comрany policy condition; Owens’ it was also give handicapped persons “every consideration.” proven, support finding facts,
The above if would *7 recklessly proceeded the defendant in unreasonable disregard great of, to, in risk the substantial interests plaintiff. give employ of Failure to a chance in proscribed by wrong ment is the essence of the 49- Section investigate plaintiffs 4-101, MCA. Failure to еven worth by jury could be found to be recklessness. punitive damage op-
We add that there be a issue pression. Gary al, In & Purcell v. Automatic Gas et No. (Mont. 1983), 82-54 [207 223] Dec. Mont. oppression 1997, we defined to include acts which power.
constitute abuse an A determination of whether presenta- oppression may acts of should await involved tion of the evidence. capacity lay person’s for
There are those who distrust the disрassionate judgment. are those who There reasoned and tight compelled juries lest hold rein feel tolerate the but judicial chauvin- bank. This wretched twelve break the process. inevitably jury checked, will, erode the if ism peers parties’ to define are best able We feel that the setting, any justice. where reasonable factual measure protect peoplеs’ vigilantly disagree, will minds can we jural function. is remanded and the matter Court is reversed
The District for trial. HASWELL, MR. JUSTICES
MR. CHIEF JUSTICE SHEA, HARRISON AND SHEEHY.
MR. WEBER dissents as follows: JUSTICE opinion majority for his I of the do commend the author pu- presumed attempt prescribe malice standard for damage agree have not set I that our cases cases. nitive litigation. guidelines forth clear for future application my I belief that dissent because unjust present result. hаs reached an in the case standard safety physical applying Perhaps stan- that is a result the Law case. See Restatement to a discrimination dard Disregard of “Reckless Second, entitled Torts Section Safety.” safety director shows that the
The record this case hiring guidelines Drilling fir- Parker ing personnel Co. formulated posted guidelines in the and that these requirement physical drilling rig. “doghouse” on the “roughneck” guidelines job are as follows: for the on-the-job injuries possibility “In order to reduce the employees employee injury an em- caused fellow an Company Drilling impairment, ployee’s physical has Parker physical following all standards minimum set out the operations working the drill- in the field new ing rigs. *8 - Height 5’6”
“Minimum - Weight
“Minimum lbs. - glasses with or “Minimum Vision without corrective 20/ eye. 30 in each - Hearing in each
“Minimum еar. 15/20 - age of “Blood Pressure within normal limit for the individual. History
“No of Heart Condition. History
“No of Acute Diabetic Condition. Congenital Deformity “No the or Back Back Previous Surgery. Surgery.
“No or Hernia Previous Hernia Impairments Hands, Arms, “No Severe Disabilities Fingers, Legs, Feet and Toes.” application
Plaintiffs with the defendant company following questions: contained you any
“Do have [sic] cronic illnesses or known medical Yes_Nо_If yes, explain:” limitations? Plaintiff did mark the “No” or otherwise mention application right portion his his that hand and a his arm missing. discharge The reasons for are described deposition operation’s manager in the of Parker pertinent Drilling. part he stated: you by “Q. What else were told either one of these gentlemen? they
“A. I arm, was told that he had one and that felt safety that himself, he was a hazаrd as far as other they my crew members. And wanted advice as whether they possibility or not fire should him that because - suing My yes, policy he was, us. answer to that our was go requirements, that we had let him because our they safety hazard, that if felt he like was a all means let go. him
6t why
“Q. reasons, then, What are the he fired? other was During telephone “A. either conversation on the with pushers rig], they, in [tool Mr. ad- Cаrter or Heistad on the having only feeling dition him one arm and then safety hazard, himself the other crew was as far as to *9 per- good members, was not that he was not a worker and properly. forming his duties regard specifically doing to
“Q. with And what was he not doing job? doing his his duties or - They they checking en-
“A. that was not the told me he gine radiators, he was oil and the water in the and that following had was him asked tо do. And that the crew that gallons engines the low oil after found that were several - checking relieved, he wasn’t was and that the therefore engines properly.” his depositions operation’s manager the and one of
The of the pushers (manager rig) drilling that, in established tool on a years experience working fields, the oil a combined missing working anyone seen with an arm neither had ever rig. roughneck an as or a driller on oil plaintiff significant he is It is concludes also to note that punitive damages simply fact of because the entitled being discharged. his that there was He does not contend any wrongful, di- or intentional contract willful opinion key majority is the him. A of the rected at element capacity investigate the conclusion failure to into that plaintiff conclu- recklessness. That the could be found question. subject sion is to factual determining In discrimina- or not there has been considered, in- tion, 49-4-101, must be all of Section MCA pertinent cluding following part: the prohibited. discriminate, It unlawful to “Discrimination is extent nature or . . . where the There no discrimination precludes performance handicap reasonably the of the particular particular employment em- or the their ployment may where handicapped subject em- his fellow the ployees physical harm.” provisions specific statute, no the there the
Under plaintiff’s the if nature of discrimination in this case the arm, part of his handicap, being missing that hand rough- of his as reasonably precluded performance job the addition, neck is no discrimination oil field. there per- if handicap might handicapped that same subject wording son or his harm. physical fellow physical requirements of the type statute allows the haz- adopted by employer which were for the defendant ardous work oil upon rig. an While the facts do demonstrate plaintiff successfully that rig has worked on an oil not- handicap, withstanding quite unique. his he is The record successfully does not indiсate others have met test. accept testimony Common sense tends to two of the persons, who in years experience more than 30 never had working seen another drilling rigs. one-armed man instance, In this handicap is such present possibility a real physical harm to either *10 plaintiff or his employees. exception fellow This is explicitly contemplated by for concluding thе statute as a basis there has been no discrimination.
As I reviewed the cases in I majority opinion, cited the concluded that a common of denominator the Montana cases was type some of intentional conduct harm on the part of person the charged with justifying punitive conduct State damages. u. clearly This is set in forth Shahrokhfar (Mont. 1981), Farm 657, 653, 1669, 634 St.Rep. P.2d 38 1673, where the Court stated:
“Next, appellant alleges punitive error submission of damages claiming insufficient of reprehensible evidence conduct part on the of This State Farm. contention is dis of in Graham v. Clarks Fork Nat. Bank posed (1981), Mont., 718, Graham case 631 P.2d 1140. In St.Rep. the we found pu sufficient evidence the justify submission (1) nitive damages from the The following facts: defendant plaintiff’s cows, had seized mistakenly they thinking be longed (2) debtor; tо a bank plaintiff when the at tempted cows, to recover his adamantly the bank refused divulge their to the location and thereafter returned them wrong held raised an issue location. We that such facts the jury’s punitive damages the under consideration Valley in Klind v. ‘recklessness’ standard enunciated County (1924), 386, Bank 222 P.2d In this 69 Mont. 439. wrong person though case State Farm sued advised Graham, mistake, As in its refused to mаke a correction. that jury these facts are sufficient for the to determine recklessly subject State Farm it be to the acted that of punitive damages.” sanction Graham case, had seized cows and refused the bank divulge the location or to return them. cows claiming ownership, person
branded the brand of the with not in- clearly That alleged the bank’s debtor. form In a man- plaintiff. tеntional conduct aimed similar at wrong Shahrokhfar, company ner in the insurance sued the mistake, refused to make though advised of its specifically correction. there intentional conduct Again at This mean that plaintiff. aimed does not inten- damages where a tortfeasor are limited situations However, I tionally plaintiff. particular acts to harm a recognized affirm rule that tо warrant universally would must recovery complained punitive damages, act unlawful, but must also be characterized Allers v. Willis of aggravation. some circumstance See (Mont. 499,] 1982), Mont. [197 case, present In the substance 750. adoption policy prohibiting contends of a written re- physical meet minimum who fail to hiring workers in- applicant’s each quirements, testing without I do perform constitutes recklessness. capacity dividual *11 authority find cases for conclusion. good not the cited regula- While it contended rec- question, subject tions of the some defendant are and unreasonable does reckless action ord not disclose a plaintiff. risk of harm to the disregard or indifference to a meeting rationale, not majority’s Under each job must be for the physical qualifications the minimum individually unique tested ca- to determine whether had punitive damages pabilities. employer An could be liable past job application, investigating review of the even reasonably protected handicapped if refusal to hire physical Respondent’s his fellow from harm. em- ployment appears to be standard sanctioned 49-4-401, under Section I MCA. would therefore affirm holding precluded District Court in Court its that the was submitting question punitive damages. from Judge, HOLTER, The Honorable M. ROBERT District sitting place joins. GULBRANDSON, of MR. JUSTICE