Azure v. City of Billings, 14079

• Decision Date: 11 July 1979
• Docket Number: No. 14079,14079
• Parties: Jeffrey L. AZURE, by and through his next friend and guardian ad litem, Dorothy Marchington, Appellant and Plaintiff, v. The CITY OF BILLINGS, an Incorporated Montana Municipality, Respondent and Defendant.
• Court: Montana Supreme Court

Page 460

596 P.2d 460

182 Mont. 234

Jeffrey L. AZURE, by and through his next friend and guardian ad litem, Dorothy Marchington, Appellant and Plaintiff, v. The CITY OF BILLINGS, an Incorporated Montana Municipality,

Respondent and Defendant.

No. 14079.

Supreme Court of Montana.

Submitted Oct. 17, 1978.

Decided May 30, 1979.

As Amended On Denial of Rehearing July 11, 1979.

Lynaugh Fitzgerald, Schoppert, Skaggs & Essman, William Fitzgerald (argued), Billings, George Huss (argued), Miles City, for appellant and plaintiff.

Keefer & Roybal, Neil S. Keefer (argued), Billings, for respondent and defendant.

SHEA, Justice.

Plaintiff, who was the nominally successful party below, appeals from a jury verdict and judgment in the Yellowstone County District Court, awarding him $20,000 in damages against the defendant City of Billings. He contends that several errors occurred during the course of the trial which prevented the jury from awarding him adequate compensation.

Plaintiff filed this action against the City of Billings (City herein) seeking approximately one million dollars in damages because of the alleged negligence of the City in failing to bring him to an emergency medical service, as required by statute. As a result of this failure he alleged that he is permanently and totally disabled.

The facts giving rise to this lawsuit follow. Plaintiff, while in a Billings bar, was assaulted by the bar owner with a heavy, blunt object commonly known as a sap. He was found by Billings police approximately seven hours later in a seemingly intoxicated condition. The police had responded to a call reporting what seemed to be an attempted burglary and they discovered plaintiff on the premises. They placed plaintiff under arrest and took him to the city jail. Plaintiff was charged with public intoxication and trespass. The intoxication charge was based on the officers detecting the smell of alcohol on plaintiff and his general demeanor which was indicative of intoxication. Although plaintiff showed obvious signs of recent injury, mainly two black eyes, a large bruise on his forehead and dried blood on his lips and teeth, he remained in jail for sixteen hours before the police sought medical treatment for him.

By the time the police took plaintiff to a hospital emergency room his condition had significantly deteriorated and he was in a semiconscious condition. At the hospital, he received an initial examination but nothing was detected. Approximately thirty hours later, during which time he had been under observation for signs of neurological deterioration, Dr. Wood, a neurosurgeon, determined the blows plaintiff received had caused blood vessels to break in plaintiff's brain. The broken blood vessels in turn began to form blood clots (hematomas). The clots were then surgically removed. The surgery, however, did not appreciably correct plaintiff's physical problem. Plaintiff lost his right field of vision in both eyes and he is permanently and totally disabled.

Plaintiff filed separate lawsuits, one against James Mankin, the person who had assaulted him, and the other against the City of Billings. He received a $10,000 settlement from Mankin. This amount was the limit of Mankin's insurance policy.

Before the trial started against the City of Billings, the trial court granted plaintiff's motion in limine to prohibit the defendant from introducing evidence that plaintiff had settled with Mankin for $10,000. The court granted the motion because such evidence would be prejudicial to plaintiff's case. However, the trial court denied plaintiff's motion which sought to prohibit defendant from introducing evidence identifying the person who assaulted the plaintiff.

The main battleground was the issue of causation. Plaintiff contended that his permanent injuries were at least in part the proximate result of the failure of the City police to take him to an emergency medical service as required by statute. Plaintiff's medical expert, Dr. Wood, who was the treating physician, testified that the delay of sixteen hours in the police station contributed significantly to the formation and damaging effects of the hematomas, which ultimately caused plaintiff's permanent disability.

Defendant, on the other hand, contended that the plaintiff's permanent disability could be laid directly at the doorstep of the person who had assaulted him, and that the delay in taking plaintiff to a hospital did not contribute to the ultimate permanent injuries sustained by plaintiff. Defendant's medical expert, Dr. Hitselberger, a neurologist, testified that the resulting injuries were caused directly by the severe blows. According to Dr. Hitselberger, the sixteen hour delay out of a total fifty-three hour delay between injury and surgery played no causal role in bringing about plaintiff's permanent injuries.

On the issue of damages plaintiff introduced evidence showing the extent of his physical disability as well as wage losses and medical expenses incurred up to the time of trial, and of course future anticipated wage losses and medical expenses. An economics expert testified to the losses incurred and those projected for the future life expectancy of the plaintiff. The undisputed past wage losses and medical expenses up to the time of trial were $60,122. Future wage losses, together with future medical expenses, were estimated to be $987,550. There were, moreover, additional losses about which an economics expert could not testify, such as past and future pain and suffering. Before his injury, plaintiff had been a skilled welder, then employed at the Colstrip project. Defendant presented no evidence on damages.

Before taking any evidence in the case, to the jury, the trial court ruled on the question of liability that the City of Billings had violated a statute intended for the plaintiff's protection in failing to bring plaintiff to an emergency medical facility, and was therefore negligent as a matter of law. Accordingly, he submitted the case to the jury on the issues of proximate cause and damages. We note here that the City contends it was error to hold the City negligent as a matter of law, and because it is a threshold issue, we will discuss this contention before proceeding to the issues raised by plaintiff.

The statute involved, section 80-2716(2), R.C.M.1947, now section 53-24-303 MCA, provides as follows:

"(2) A person who appears to be incapacitated by alcohol shall be taken into protective custody by the police and forthwith brought to an approved public treatment facility for emergency treatment. If no approved public treatment facility is readily available, he shall be taken to an emergency medical service customarily used for incapacitated persons. The police, in detaining the person and in taking him to an approved public treatment facility, is (sic) taking him into protective custody and shall make every reasonable effort to protect his health and safety. In taking the person into protective custody, the detaining officer may take reasonable steps to protect himself. No entry or other record may be made to indicate that the person taken into custody under this section has been arrested or charged with a crime."

This statute became effective July 1, 1974 and plaintiff was injured on July 27, 1974; thus the statute was in effect on the day the police arrested the plaintiff and took him to jail.

In Conway v. Monidah Trust (1913), 47 Mont. 269, 132 P. 26, this Court adopted the general rule concerning the effect of a statutory violation. We stated:

" '. . . It is the general rule that where a statute makes a requirement or prohibits a thing for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal or not.' " 132 P. at 27.

The violation of a statute enacted for the protection of the public is negligence per se. Daly v. Swift and Company (1931), 90 Mont. 52, 300 P. 265. For this rule to apply, the plaintiff must be a member of the class in whose favor a duty was imposed by the statute, Conway, supra; and the defendant must be a member of the class against whom a duty is imposed. Williams v. Maley (1967), 150 Mont. 261, 434 P.2d 398. Both requirements were fulfilled in this case.

The class of persons who have a duty imposed in their favor are those "who (appear) to be incapacitated by alcohol". And of course, the statute imposes the duty against "the police". The statute requires that the incapacitated person be "forthwith brought to an approved public treatment facility for emergency treatment . . ." The statute just as clearly provides the alternative duty imposed on the police: "If no approved public treatment facility is readily available, He shall be taken to an emergency medical (facility) customarily used for incapacitated persons." (Emphasis added.) Section 80-2716(2), R.C.M.1947, now section 53-24-303 MCA.

The arresting officers believed that plaintiff was intoxicated. When they booked him, he exhibited symptoms of intoxication and as a result, he was charged with public intoxication as well as with trespass. Moreover, his physical appearance was a clear signal of a need for medical treatment. Notwithstanding these facts, the police waited for sixteen hours before they took him to an emergency medical facility. By this time his condition had greatly deteriorated. Given these facts, we have no difficulty in determining that the City violated the statute and was therefore negligent as a matter of law.

But the City seeks to avoid application of this statute by a dual argument that the statute was not actually scheduled to take effect until January 1, 1976 and because no public treatment facility existed at the time plaintiff was arrested and taken to jail. The statute involved provides that the program outlined was not required to be fully...