Kichnet v. Butte-Silver Bow Cnty.

• Decision Date: 22 March 2012
• Docket Number: No. DA 11–0445.,DA 11–0445.
• Parties: Kevin KICHNET, Plaintiff and Appellant, v. BUTTE–SILVER BOW COUNTY and State of Montana, acting through the office of the State Medical Examiner, Department of Justice, Defendants and Appellees.
• Court: Montana Supreme Court

2012 MT 68

274 P.3d 740

364 Mont. 347

Kevin KICHNET, Plaintiff and Appellant,

v.BUTTE–SILVER BOW COUNTY and State of Montana, acting through the office of the State Medical Examiner, Department of Justice, Defendants and Appellees.

No. DA 11–0445.

Supreme Court of Montana.

Submitted on Briefs Jan. 25, 2012.Decided March 22, 2012.

For Appellant: Wade J. Dahood, Bernard J. “Ben” Everett, Michelle Sievers, Knight, Dahood, Everett & Sievers, Anaconda, Montana.

For Appellee Butte–Silver Bow County: Brendon J. Rohan, Poore, Roth & Robinson, P.C., Butte, Montana.

For Appellee State of Montana: Randy J. Cox, Thomas J. Leonard, Boone Karlberg, P.C., Missoula, Montana.For Amicus Curiae Montana Trial Lawyers Association: Lawrence A. Anderson, Attorney at Law, Great Falls, Montana, Karl J. Englund, Attorney at Law, Missoula, Montana.Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[364 Mont. 348] ¶ 1 For several months nineteen-year-old Kevin Kichnet had been babysitting his young nieces, Eternity and Jerica, on Wednesdays and Thursdays and was doing so on November 16, 2006. On November 16, Kichnet met three-year-old Eternity across the street from the children's house when the Head Start bus dropped her off after school. Kichnet claimed he was holding her hand as they crossed the street when Eternity collapsed. He carried her inside and called 9–1–1 but shortly after Eternity reached the hospital she was pronounced dead. The authorities determined Eternity died from blunt force trauma to her body. On November 17, Kichnet was arrested for deliberate homicide and jailed. Kichnet remained in jail for approximately two months until he was able to post bail. On July 15, 2007, charges against Kichnet were dropped when it was determined that the Head Start school bus had run over Eternity. Kichnet sued Butte–Silver Bow County (BSB or the County) claiming BSB law enforcement officers performed their investigation negligently resulting in Kichnet's arrest and incarceration. He also sued the State of Montana claiming the State Medical Examiner performed his duties negligently when he reported Eternity's death as a homicide, leading to Kichnet's arrest. BSB and the State both moved for summary judgment and the Third Judicial District Court granted the motions. We affirm.

ISSUE

¶ 2 The dispositive issue on appeal is whether the District Court erred in granting summary judgment to BSB and the State.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Kichnet was babysitting for his young nieces on November 16, 2006. At 1:55 p.m., while the younger child slept, Kichnet met three-year-old Eternity at the Head Start bus stop across the street from their house. Minutes later Kichnet was on the phone with 9–1–1 reporting that Eternity was unconscious. Numerous BSB officers responded to the call, some of whom worked with emergency medical personnel to transport Eternity to the hospital and some of whom spoke with Kichnet about what happened.

¶ 4 Kichnet told officers at the scene that he had met Eternity at the bus stop, taken her hand once she was off the bus, and walked her in front of the bus while still holding hands. He said he noticed the Head Start bus turn north onto Jackson Street, then felt Eternity's grasp loosen as she “collapsed” to the ground. He reported that her eyelids were partially closed and her eyes were rolled to the back of her head. He claimed he heard strange noises from her throat. He spoke to her but she was unresponsive. Kichnet stated he picked her up and quickly carried her inside, placing her on the couch, and removing her coat, shoes and the “bus pass” hanging around her neck. He explained that he called two family members but was unable to reach them. His third call was to his aunt who instructed him to call 9–1–1 immediately which he did. While awaiting the ambulance and after detecting Eternity's heartbeat but no breath, he began performing chest compressions on her.

¶ 5 Kichnet's aunt and her boyfriend arrived almost immediately and the boyfriend began CPR. An ambulance arrived shortly thereafter and took Eternity to the hospital. Eternity was pronounced dead with thirty minutes of arriving at St. James Hospital. She was then transported to Missoula for an autopsy. During this time, two officers transported Kichnet to the police station for further questioning. Kichnet repeated his story during the station interview, but when questioned about how Eternity's severe injuries could be reconciled with Kichnet's version of her collapse to the ground, Kichnet invoked his right to counsel. The interview was stopped and he was placed on a 48–hour investigative hold and was appointed counsel. That same day, officers returned to the house and recovered potential evidence, including a pink coat Eternity had been wearing when she got off the bus. Officers noticed a tread pattern mark on the coat that they believed could match Kichnet's shoes. The following day, after repeated interviews in which Kichnet could not explain what happened to Eternity, Kichnet was arrested for deliberate homicide.

[364 Mont. 350] ¶ 6 On the evening of November 16, Dr. Walter Kemp, the Deputy State Medical Examiner in Missoula, performed an autopsy on Eternity. At that time, Kemp was told of Kichnet's description of the events; thus, Kemp believed that Kichnet had been holding Eternity's hand and Eternity had collapsed to the ground after the bus had departed. As a result of Kichnet's statements, Kemp ruled out the bus as a cause of Eternity's injuries. In his initial report issued on December 15, 2006, Kemp concluded Eternity had died from blunt force injuries to the trunk of her body and that her death was a homicide.

¶ 7 On November 16 and 17, officers spoke with the bus driver and the bus assistant who helped Eternity out of the bus. Both stated that Eternity and Kichnet were near the sidewalk or the gate when the bus pulled away. The bus had been washed overnight so had there been any evidence of an accident, it had been washed away.

¶ 8 On December 1, the Deputy County Attorney for BSB filed an Application for Leave to File an Information by Affidavit (Affidavit). This Affidavit set forth the detailed events of November 16 as related by Kichnet and the responding officers. The Affidavit also contained Kemp's conclusion that Eternity's death was a homicide. The District Court determined that based on the facts set forth in the seven-page Affidavit, probable cause existed for the filing of an Information charging Kichnet with deliberate homicide.

¶ 9 On April 4, 2007, the State forensic scientist reported that the tread mark on Eternity's coat did not match Kichnet's shoes. On April 30, 2007, the forensic scientist indicated that the tread track on Eternity's coat matched the rear tires of the Head Start bus. On May 18, 2007, Kemp issued an amended report concluding the same cause of death but that the manner of death was “undetermined.” Also in May 2007, Kichnet admitted for the first time that he had lied about holding Eternity's hand and possibly about the location of the bus as he and Eternity were crossing the street. On July 15, 2007, charges against Kichnet were dropped.

¶ 10 On August 27, 2009, Kichnet filed suit against BSB and the State alleging negligent investigation of the cause of death and negligent arrest. Both parties answered the complaint and asserted numerous affirmative defenses, including but not limited to statutory immunity and protection under the public duty doctrine (PDD).¹ They also argued that any delay in analyzing the tires of the bus was caused by Kichnet's affirmative misrepresentation of the facts. In August 2010, the State filed a motion for summary judgment, and in March 2011, BSB did so as well. On June 7, 2011, the District Court granted both parties' motions. Kichnet appeals.

STANDARD OF REVIEW

¶ 11 We review the grant of summary judgment de novo, using the same M.R. Civ. P. 56 criteria used by the district court. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230.

DISCUSSION

¶ 12 Did the District Court err in granting summary judgment to BSB and the State?

Summary Judgment for the State

¶ 13 Kichnet argued to the District Court that State Medical Examiner Kemp exceeded his statutory authority when he opined that the manner of death was homicide. Kichnet asserted that Kemp should have limited the information contained in his report to the cause of death, i.e., blunt force trauma, with no reference to the manner of death. Kichnet claimed that when Kemp declared the manner of death, “he had a duty to avoid negligence in doing so.” He asserted that Kemp's declaration of homicide constituted negligence and this negligence led to Kichnet's unlawful arrest and false imprisonment. The State argued that it was statutorily immune from such prosecution or, in the alternative, the public duty doctrine protected it from liability arising from Kichnet's negligence claim.

¶ 14 Kichnet countered that §§ 44–3–401 and 46–4–104, MCA (2009), relied upon by the State, did not immunize the State from liability because the statutes were applicable to negligently performed autopsies, and not claims of negligence in post-autopsy reporting. He also claimed that the “ special relationship” exception to the PDD applied. Additionally, Kichnet argued that the PDD was unconstitutional and that it should be abolished.

¶ 15 Without analysis, the District Court declared §§ 44–3–401 and 46–4–104, MCA (2009), inapplicable stating that the statutes apply exclusively to “performing an autopsy,” and not to claimed negligent behavior following an autopsy. The court then analyzed the case under the PDD and concluded that the PDD immunized the State of Montana from Kichnet's negligence claims. It determined that no...