Gatlin–Johnson v. City of Miles City

• Decision Date: 21 December 2012
• Docket Number: No. DA 12–0129.,DA 12–0129.
• Parties: Alyssa GATLIN–JOHNSON (a minor) by Tiffany GATLIN, parent and next friend of Alyssa Gatlin–Johnson, Plaintiff and Appellant, v. CITY OF MILES CITY, Defendant and Appellee.
• Court: Montana Supreme Court

367 Mont. 414

291 P.3d 1129

Alyssa GATLIN–JOHNSON (a minor) by Tiffany GATLIN, parent and next friend of Alyssa Gatlin–Johnson, Plaintiff and Appellant,

v.CITY OF MILES CITY, Defendant and Appellee.

No. DA 12–0129.

Supreme Court of Montana.

Submitted on Briefs Oct. 3, 2012.

Decided Dec. 21, 2012.

For Appellant: Michael G. Eiselein; Eiselein & Grubbs, PLLP, Billings, Montana.

For Appellee: Gerald B. Murphy, Emily Jones; Moulton Bellingham, P.C., Billings, Montana.

For Amici Curiae: Justin Staples; Beck & Amsden, PLLC, Bozeman, Montana (for Montana Trial Lawyers), Steven R. Milch; Crowley Fleck PLLP, Billings, Montana (for Montana Association of Counties), Jim Nugent, Missoula City Attorney, Susan A. Firth, Chief Civil/Administrative Attorney, Missoula, Montana (for Montana League of Cities and Towns).

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[367 Mont. 415]¶ 1 Tiffany Gatlin (Gatlin) appeals from the District Court's order dated February 7, 2012, granting summary judgment to the City of Miles City (City). We reverse.

¶ 2 We restate the issue on appeal as follows:

¶ 3 Whether the District Court properly applied the public duty doctrine to grant summary judgment to the City.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 The following facts are taken from the District Court's order on summary judgment. Riverside Park is a facility owned and operated by the City. It includes an area of playground equipment for the use of children. The City designed and planned the playground area in Riverside Park and installed and maintained the equipment. The City accepted responsibility for the safety and maintenance of the playground equipment and the area around it.

¶ 5 In 2001, the City undertook a review of its park system, focusing on playground maintenance and safety. A review committee reported to the City Council that surface protection for playground equipment was important and that the goal was “to prevent serious injury and death.” A risk specialist with the City's insurer recommended establishing adequate surfacing and “fall zones” under playground equipment, following guidelines developed by the Consumer Product Safety Commission. The City's park review committee recommended adoption of a policy to install fall areas around all playground equipment, and that those areas be raked daily in periods of peak use. In January 2002, the City Council adopted a resolution adopting “current safety standards” for the City's parks.

¶ 6 In July 2002, Tiffany Gatlin brought her daughter, age 8, to play in Riverside Park. The child fell from a slide in the playground area and suffered a severe head injury. Gatlin sued the City for negligently failing to maintain a safe depth of impact-absorbing material (the City used bark chips) in the area under the slide. Gatlin also alleges that when the City received the slide from the manufacturer in 1997, the installation instructions required a “protective fall zone” below the slide. The manufacturer stated that there must be 12 inches of impact-absorbing material under the slide, in compliance with standards set by the Consumer Product Safety Commission.

¶ 7 The District Court granted summary judgment to the City, determining that the City owed no duty to Gatlin's daughter and that absent a duty the City could not be held liable for the accident. The District Court determined that the duty alleged by Gatlin—to safely maintain the playground area in the park—was not a duty owed specifically to her daughter, but was “owed to the general public at large” because the park was open and available to the general public. The District Court determined that the case required application of the “public duty doctrine,” and that “[w]here a tort claim is made against a public body, such as a municipality, the public duty doctrine bars recovery unless a duty is created by a ‘special relationship.’ ” The District Court determined that none of the recognized exceptions to the public duty doctrine applied.

¶ 8 In addition, the District Court rejected Gatlin's argument that the recreational use statute, § 70–16–302, MCA, applies to this case and imposes liability upon the City for willful or wanton misconduct. The District Court held that the intent of the statute was to “lessen the duty of safety for landowners” and not to provide any protection for those who use land for recreational purposes.

¶ 9 Based upon these conclusions of law, the District Court granted summary judgment to the City.

STANDARD OF REVIEW

¶ 10 This Court reviews a district court's decision on a motion for summary judgment de novo, to determine whether it is correct, using the same considerations as the district court under M.R. Civ. P. 56. Newman v. Lichfield, 2012 MT 47, ¶ 24, 364 Mont. 243, 272 P.3d 625. Summary judgment is proper when the moving party shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Weinert v. City of Great Falls, 2004 MT 168, ¶ 19, 322 Mont. 38, 97 P.3d 1079.

¶ 11 The existence of duty is an issue of law, and this Court reviews a decision on an issue of law to determine whether it is correct. Newman, ¶ 23;Town & Country Foods v. Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283.

DISCUSSION

¶ 12 Issue 1: whether the District Court properly applied the public duty doctrine to grant summary judgment to the City.

¶ 13 The plaintiff in a negligence case must establish that the defendant had a legal duty; that the defendant breached that duty; and that the breach caused injury and damages. Lopez v. Great Falls Pre–Release Services, 1999 MT 199, ¶ 18, 295 Mont. 416, 986 P.2d 1081. Duty turns primarily upon foreseeability, which depends upon whether or not the injured party was within the scope of risk created by the action of the alleged tortfeasor; that is, whether the injured party was a foreseeable plaintiff. Lopez, ¶ 28. Foreseeability analysis also includes determining the moral blame attached to the defendant's conduct, the prevention of future harm, the extent of the burden imposed, the consequence to the public of imposing duty, and the availability and cost of insurance. Fisher v. Swift Transportation Co., 2008 MT 105, ¶ 28, 342 Mont. 335, 181 P.3d 601. Determining whether there is a legal duty is an issue of law for the court. Massee v. Thompson, 2004 MT 121, ¶ 27, 321 Mont. 210, 90 P.3d 394. Determining whether there was a breach of duty is an issue of fact for the fact finder in the case. Lopez, ¶ 31

[367 Mont. 418]¶ 14 In Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972, this Court recognized the “public duty doctrine” in claims alleging negligence by law enforcement officers. “The public duty doctrine provides that a governmental entity cannot be held liable for an individual plaintiff's injury resulting from a governmental officer's breach of a duty owed to the general public rather than to the individual plaintiff.” Massee, ¶ 41. “The rule protects municipalities [and other governmental entities] from liability for failure to adequately enforce general laws and regulations, which were intended to benefit the community as a whole.” E. McQuillin, The Law of Municipal Corporations, § 53.04.25 at 195–97 (3d ed. 2003).

¶ 15 This Court has recognized the applicability of the public duty doctrine to numerous situations involving claims that law enforcement officers breached a duty to the plaintiff. In that context, “the public duty doctrine expresses the policy that an officer's overarching duty to protect and preserve the peace is owed to the public at large, not to individual members of the public.” Nelson v. State, 2008 MT 336, ¶ 41, 346 Mont. 206, 195 P.3d 293 (citing Eklund v. Trost, 2006 MT 333, ¶ 33, 335 Mont. 112, 151 P.3d 870). The doctrine has been applied to law enforcement's response to a crime scene, Gonzales v. City of Bozeman, 2009 MT 277, 352 Mont. 145, 217 P.3d 487, and to a missing person report, Eves v. Anaconda–Deer Lodge County, 2005 MT 157, 327 Mont. 437, 114 P.3d 1037. We also have recognized the doctrine's applicability to governmental action involving the licensing of medical providers, Nelson v. State, ¶¶ 46–50, and to land use decisions by a local government body, Prosser v. Kennedy Enterprises, Inc., 2008 MT 87, ¶¶ 23, 26–27, 342 Mont. 209, 179 P.3d 1178.

¶ 16 Even when the doctrine is applicable to governmental functions, however, we have applied exceptions where a “special relationship” exists that gives rise to a duty to a particular class of people to which the plaintiff belongs. A special relationship can be established where there is a statute intended to protect from harm a specific class of persons including the plaintiff; when the government undertakes to protect a specific person; when governmental actions reasonably induce detrimental reliance by an individual; and where the government has actual custody of the plaintiff or of a third person who harms the plaintiff. See e.g. Orr v. State, 2004 MT 354, ¶¶ 41–47, 324 Mont. 391, 106 P.3d 100 (special relationship found by virtue of specific public health protection statutes, State's repeated health inspections of mine, and reliance by miners on State inspections to disclose health hazards); Massee, ¶¶ 42–44 (domestic violence victim was within statutorily-protected class, giving rise to special relationship with law enforcement charged with enforcing domestic violence statutes); Eklund, ¶ 39 (law enforcement owed duty to plaintiff as member of a special class of persons who, “by use of the streets and highways[,] are potential victims of a high speed chase”); Nelson v. Driscoll, ¶ 38 (officers had special relationship and thus owed duty to plaintiff where they undertook affirmative steps to keep her from driving her vehicle when intoxicated and she was later struck by passing motorist).

¶ 17 In the present case the District Court noted language from prior decisions from this Court that “it is...