Buhr on Behalf of Lloyd v. Flathead County

• Decision Date: 29 December 1994
• Docket Number: No. 92-061,92-061
• Citation: 268 Mont. 223,886 P.2d 381
• Parties: Allen BUHR, Personal Representative of the Estate of Joshua Lloyd, and on Behalf of the heirs, Tom LLOYD, and Michele Lloyd, Plaintiffs and Appellants, v. FLATHEAD COUNTY, a political subdivision of the State of Montana; Wallace S. Wilder, M.D.; Kalispell Regional Hospital; Western Montana Regional Mental Health Center, Defendants and Respondents.
• Court: Montana Supreme Court

Page 381

886 P.2d 381

268 Mont. 223

Allen BUHR, Personal Representative of the Estate of Joshua Lloyd, and on Behalf of the heirs, Tom LLOYD, and Michele Lloyd, Plaintiffs and Appellants, v. FLATHEAD COUNTY, a political subdivision of the State of Montana; Wallace S. Wilder, M.D.; Kalispell Regional Hospital; Western Montana Regional Mental Health Center Defendants and Respondents.

No. 92-061.

Supreme Court of Montana.

Submitted June 28, 1994.

Decided Dec. 8, 1994.

Rehearing Denied Dec. 29, 1994.

Edward P. Moriarity (argued), Spence, Moriarity & Schuster, Jackson, WY, James A. Manley, Manley Law Offices, Polson, Thomas J. Beers, Connell & Beers, Missoula, Mary C. Downey, Vuong, Downey & Louie, Coronado, CA, for appellants.

Dolphy O. Pohlman (argued), Corette, Pohlman, Allen, Black & Carlson, Butte, for Mental Health Center.

Larry E. Riley (argued), Garlington, Lohn & Robinson, Missoula, for Wallace S. Wilder, M.D.

Todd A. Hammer (argued), Warden, Christiansen, Johnson & Berg, Kalispell, for Flathead County.

James E. Vidal (argued), Murray & Kaufman, Kalispell, for Kalispell Regional Hosp.

James A. Haynes, Hamilton, MT, for respondents.

GRAY, Justice.

Allen Buhr appeals from judgments in favor of all defendants and from an order of the Eleventh Judicial District Court, Flathead County, denying his motion for a new trial. We affirm.

Buhr presents the following issues:

1. Did the District Court properly instruct the jury regarding negligence per se?

a. Did the District Court err in instructing the jury on the statutory duties of Flathead County and Mental Health by quoting statutory language?

b. Did the District Court err by failing to instruct on each element of Buhr's negligence per se claims?

c. Did the District Court fail to instruct the jury on the full theory of Buhr's negligence claims by refusing his instruction quoting § 53-21-146, MCA?

2. Did the District Court err in granting defendants' motion for a directed verdict on Buhr's civil rights claims against Flathead County and Sheriff Rhodes?

a. Did the District Court err in applying the deliberate indifference standard to Buhr's civil rights claims?

b. Did the District Court err in directing a verdict on Buhr's civil rights claims against Flathead County and Rhodes for their denial of medical treatment under the deliberate indifference standard?

c. Did the District Court err in directing a verdict on Buhr's civil rights claims involving alleged use of excessive force against Joshua under the deliberate indifference standard?

d. Did the District Court err in granting Rhodes immunity from Buhr's civil rights claims?

3. Was the jury's verdict that Flathead County, Wilder, and Mental Health were not negligent supported by substantial evidence and not the result of passion or prejudice?

a. With regard to Flathead County allegedly denying Harris access to the soft cell and Mental Health failing to enter the soft cell for purposes of evaluating Joshua, was the jury's verdict finding neither Flathead County nor Mental Health negligent supported by substantial credible evidence?

b. Was the jury's verdict finding Wilder not negligent supported by substantial credible evidence?

c. With regard to Buhr's negligence per se claim against Mental Health on the basis of an alleged violation of § 53-21-129(2), MCA, was the jury's finding that Mental Health was not negligent supported by substantial credible evidence?

4. Did the District Court err in denying Buhr's motion for a new trial based on surprise and improper judicial comments?

a. Did Sheriff Rhodes' trial testimony concerning Flathead County's policies and procedures contradict his deposition testimony to Buhr's detriment?

b. Did the District Court's allegedly improper and prejudicial remarks provide a sufficient basis for Buhr's motion for a new trial?

5. Did Wilder's attorney prejudice the jury by making improper remarks while questioning witnesses and during closing argument?

6. Did the cumulative effect of the asserted errors prejudice Buhr to the extent that he was unable to receive a fair trial?

Joshua Lloyd (Joshua) was the son of Michele Lloyd (Michele) and Tom Lloyd. He had undergone two surgical procedures while living in Utah: the first, at age four, removed a brain tumor and the second, at age thirteen, removed scar tissue which had developed as a result of radiation and chemotherapy treatment. The second operation damaged Joshua's hypothalamus and resulted in severe short-term memory loss, elevated temperatures, abnormal appetite control and liquid intake, and an occasional rage reaction.

Michele moved to Kalispell, Montana, with Joshua and his sister Mary in September, 1987. Within a short time thereafter, Michele took Joshua to the Kalispell Regional Hospital (Kalispell Regional) emergency room on three occasions with high fevers. On the third visit, Joshua met Dr. Wallace S. Wilder (Wilder), a pediatrician who subsequently became Joshua's primary treating physician.

On referral from her daughter's school counselor, Michele also began seeing Sally Cameron-Russell (Russell), a counselor and therapist with Western Montana Regional Community Mental Health Center (Mental Health). She sought counseling for emotional issues arising from Joshua's condition and, on one occasion, to discuss the possibility of institutionalizing Joshua because of his violent outbursts.

The frequency of Joshua's violent outbursts was increasing by January, 1988. Joshua directed his rage at Michele and his sister, occasionally causing injuries to both of them. Wilder and Michele discussed a plan using the Kalispell police to control Joshua's outbursts. They hoped that, when Joshua became violent, the appearance of the police would result in improvements in Joshua's behavior. If not, Michele would progress to having Joshua placed in the police car, taken to the police station and, if necessary, placed in juvenile detention.

On January 17, 1988, Joshua had a violent outburst. He broke a window in his bedroom around 5:00 a.m., and Michele punished him and put him back to bed. He awoke three hours later and began to beat down the door of his room with a baseball bat. When he refused to stop, Michele called the police. Three officers responded shortly thereafter and took Joshua to the Kalispell police station.

Juvenile detention personnel stated that Joshua could not be placed in juvenile detention and recommended consulting with mental health personnel. Russell, Mental Health's therapist on call, came to the station at 11:30 a.m. and evaluated Joshua for approximately one-half hour. Joshua was calm during Russell's initial evaluation. While Russell discussed placement options with Michele, however, Joshua again became violent, throwing objects and threatening the police. At that point, Russell informed Michele that Joshua could be held for a few days under the Montana Mental Health Act.

Following calls to the County Attorney, Sheriff Charles Rhodes (Rhodes), and District Judge Michael Keedy, Joshua was transferred at approximately 3:00 p.m. to the Flathead County Sheriff's Department by order of Judge Keedy, and remanded to the custody of the Flathead County detention center under a mental health hold. Russell contacted her supervisor, Bill Harris (Harris), and discussed Joshua's condition and placement options. Harris concurred with Russell's evaluation that Joshua could not return home and that placement in the detention center's "soft cell" was appropriate.

Joshua remained in the soft cell overnight and was monitored by sheriff's department personnel. Observations were conducted every fifteen to thirty minutes both in person and via visual and audio monitor.

Harris went to the detention center at approximately 7:30 a.m. the next morning to observe Joshua and follow up on the previous day's evaluation for the mental health hold. Harris observed Joshua through a window and attempted to talk to him. He received only "huh" responses, which he believed indicated Joshua was sleeping and did not want to be disturbed. After determining that no medical emergency existed, Harris returned to Mental Health and discussed Joshua's condition with Russell. They agreed that Joshua should not remain in the soft cell, but should be transferred to Kalispell Regional. Russell contacted Wilder, who made arrangements to have Joshua placed in Kalispell Regional's security room, a sparsely furnished room with padded walls, and assigned one-on-one nursing care, on his transfer to the hospital.

Approximately two hours later, Joshua was transferred to Kalispell Regional and taken to the security room. He had a major motor seizure forty-five minutes later and died when resuscitation efforts failed.

Allen Buhr (Buhr), personal representative of Joshua's estate, brought a personal injury action on behalf of Joshua's estate and wrongful death actions on behalf of Michele, Tom, and Mary Lloyd. The actions alleged negligence against Wilder, Kalispell Regional, Mental Health, and Flathead County and civil rights claims against Flathead County and Rhodes. The District Court directed a verdict on the civil rights claims during trial. Following trial, the jury returned a special verdict finding each of the defendants not negligent. The District Court denied Buhr's motion for a new trial and Buhr appeals. Additional facts are included in our discussion of the issues.

1. Did the District Court properly instruct the jury regarding negligence per se?

Jury Instructions 26 through 32, as given, related to Buhr's claims of negligence per se against Mental Health and Flathead County for their involvement in Joshua's evaluation, detention, and restraint. This series of instructions began with a broad definition of negligence per se. The next instruction quoted the statutorily-stated purpose of the Montana Mental Health Act; it was followed by two instructions setting out statutory definitions of various terms as contained in § 53-21-102,...