Kent v. City of Columbia Falls

Citation2015 MT 139,379 Mont. 190,350 P.3d 9
Decision Date19 May 2015
Docket NumberNo. DA 14–0309.,DA 14–0309.
PartiesSara KENT, individually and as Personal Representative of the Estate of Casey Kent, deceased, and as guardian for their minor children, Stella Kent and Lila Kent, Plaintiff and Appellant, v. CITY OF COLUMBIA FALLS, Defendant and Appellee.
CourtUnited States State Supreme Court of Montana

379 Mont. 190
350 P.3d 9
2015 MT 139

Sara KENT, individually and as Personal Representative of the Estate of Casey Kent, deceased, and as guardian for their minor children, Stella Kent and Lila Kent, Plaintiff and Appellant
v.
CITY OF COLUMBIA FALLS, Defendant and Appellee.

No. DA 14–0309.

Supreme Court of Montana.

Submitted on Briefs Dec. 24, 2014.
Decided May 19, 2015.


350 P.3d 10

For Appellant: John F. Lacey, McGarvey, Heberling, Sullivan & Lacey, PC, Kalispell, Montana.

For Appellee: Todd A. Hammer, Angela K. Jacobs, Hammer, Jacobs & Quinn, PLLC, Kalispell, Montana.

For Amicus Curiae: Justin Stalpes, Beck & Amsden, PLLC, Bozeman, Montana (Attorney for Montana Trial Lawyers Association), Jim Nugent, Missoula City Attorney, Susan A. Firth, City of Missoula Chief Civil/Administrative Attorney, Missoula, Montana; (Attorneys for Montana League of Cities and Towns).

Opinion

Justice PATRICIA COTTER delivered the Opinion of the Court.

379 Mont. 191

¶ 1 Casey Kent, aged 35, died on June 14, 2008, as the result of a head injury he suffered on June 2, 2008, after falling while skateboarding in Cedar Pointe Estates in Columbia Falls, Montana. Sara Kent, Casey's wife, sued the City of Columbia Falls and various other entities involved in designing, developing, and constructing Cedar Pointe Estates. She alleged multiple counts including negligence, premises liability, breach of professional duties, and wrongful death. Sara claims that a portion of the paved path upon which Casey was skating was built with a 24% grade and the steepness of this grade caused Casey's fall and resultant fatal head injury. Sara ultimately settled with all defendants except the City of Columbia Falls. The Eleventh Judicial District Court for Flathead County granted the City's motions for summary judgment. Sara appeals. We reverse and remand.

350 P.3d 11

ISSUE

¶ 2 A restatement of the issue is whether the District Court properly applied the public duty doctrine to grant summary judgment to the City.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Development of a 20–acre plot of land in southeast Columbia Falls began in approximately 2003. Donald Gatzke owned the property and

379 Mont. 192

hired John Schwarz with Schwarz Architecture & Engineering (later APEC Engineering) to design the infrastructure, draft and submit official and detailed plans to the City, and construct what became a 79–lot residential PUD development known as Cedar Pointe Estates. A PUD, a/k/a “planned unit development,” is a planned community that allows for varied and compatible land uses. This type of development gives local governments and developers greater flexibility in designing a proposed subdivision than would be allowed with a traditional subdivision. It authorizes a city to approve a project that might not otherwise conform to applicable zoning and subdivision regulations.

¶ 4 In the design documents submitted to the City for approval, Gatzke and Schwarz proposed features for Cedar Pointe that did not meet City standards. For example, they proposed installing narrow streets without sidewalks. Narrow streets that do not allow emergency vehicles to navigate a neighborhood if cars are parked on the streets do not meet the City's standards for a residential development but can satisfy the requirements for a PUD if other accommodations are made. As an accommodation for narrow streets and the lack of sidewalks, Gatzke and Schwarz proposed construction of multiple small parking lots and a trail system that included both a bike and a walking path.

¶ 5 In October 2003, the City Council of Columbia Falls adopted Resolution No. 1316 in which it conditionally approved the preliminary plat submitted for Cedar Pointe.1 Attached to the resolution were 28 conditions imposed by the City. Condition 12 stated: “In lieu of sidewalks throughout the development the applicant shall install a bicycle and pedestrian trail system as shown on Drawing C–3 prepared by Schwarz Engineering and dated 09–18–03 ...” with modifications. The City instructed that the trail system be widened and extended in specified locations. It also required the city manager to “approve of the design and location of the trails prior to the start of construction.”

¶ 6 In November 2003, the City Council approved Ordinance No. 647, an amendment to the development of the Cedar Pointe PUD. Attached to the ordinance was another set of conditions. Condition 9 provided that a non-motorized trail system (bike path) was to be constructed as part of the subdivision. It described where the bike path was to be located, the width of the bike path, and that the City would maintain all portions of the bike trail as it was located within the City's right-of-way. Condition 10 instructed that a walking path would be built within

379 Mont. 193

the subdivision and would provide direct access to every lot that did not share a property line with either the bike path or a public street. The location and width of the walking path was specified. Again, the City retained the right to “approve of the design and location of the trails prior to the start of construction.”

¶ 7 In July 2007, the City Council approved Ordinance No. 690 which included additional amendments to Cedar Pointe. Attachments to Ordinance No. 690 required that the bike path be re-routed in places and that both the bike and the walking paths be paved. The Subdivision Improvement Agreement (SIA) attached to Ordinance No. 690 stated: “The City, in its sole and exclusive discretion, shall determine when and if all of the required conditions of the PUD, Plat or related documents have been met.” Attached to the SIA was a Final Plat Report requiring the developer to post a security bond of $471,867.75 to cover completion of the proposed work. Also attached was an APEC Inspector's Daily

350 P.3d 12

Record of Work Progress dated March 8, 2007, indicating remaining items to be completed. One such item was “Bike path and walking paths will need to be completed with specified grades and surfacing materials.”

¶ 8 On July 31, 2007, a contractor on the Cedar Pointe construction project contacted APEC questioning the grade of the bike path and whether it met ADA (Americans with Disabilities Act) standards. APEC responded in writing that the bike path must be ADA-compliant but that the walking path need not be. The letter indicated that APEC had conferred with the city manager who stated the City had no expectation of ADA-compliance for the walking path. The Manager further advised that Gatzke should seek legal advice concerning whether an ADA-non-compliant sidewalk was acceptable from a liability standpoint. APEC opined that “it would be exceedingly challenging to meet ADA grade guidelines for the complete walk path system on the Cedar Pointe property.”

¶ 9 Throughout construction of the trail system, City officials made numerous on-site visits and inspections. Additionally, at multiple times during construction the City notified engineers and contractors on the project that failure to comply with the City's instructions could result in the City's denial of approval or rejection of the project. On December 21, 2007, the City Director of Public Works indicated that the final inspection of all infrastructure items had been completed and approved, with the exception of a short list of remaining items not pertinent to the trail system, and that the original security bond should be released.

¶ 10 On June 2, 2008, Casey Kent was skateboarding within the

379 Mont. 194

subdivision along the paved walking path. At the bottom of a 24% decline in the path, Casey fell off his board, hit his head, and lost consciousness. He was transported by ambulance and subsequently airlifted to a hospital where he died 12 days later of severe head trauma.

¶ 11 On June 1, 2011, Sara filed suit against the City of Columbia Falls, Gatzke, Schwarz, APEC, the Cedar Pointe Estates Homeowners' Association, and various John Does. Among her complaints against all defendants, including the City, were allegations of negligence, willful or wanton misconduct, negligence per se, and wrongful death. She alleged claims of premises liability, nuisance, and attractive nuisance against the City, Gatzke, and the Homeowner's Association. Lastly, she asserted a claim exclusively against the City for failure to follow its own regulations. During the first three years of litigation, Sara settled with all the defendants except the City of Columbia Falls.

¶ 12 In February 2012, early in the proceedings, the City moved for summary judgment on all counts against it. The City disputed premises liability, claiming that it did not own the property, did not construct the path, and expressly required the homeowner's association to maintain the walking path. The City also argued that it did not assume any duty by virtue of its supervisory authority over and involvement in designing the walking path's layout...

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    ...plaintiff in a way that would give rise to a tort action were the harm committed by a private actor (see Kent v. City of Columbia Falls, 379 Mont. 190, 201, 350 P.3d 9 [2015] ["(C)ourts should first determine whether a governmental defendant has a specific duty to a plaintiff arising from ‘......
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