LaTray v. City of Havre

Decision Date04 May 2000
Docket NumberNo. 99-286.,99-286.
Citation2000 MT 119,999 P.2d 1010
PartiesDebra LaTRAY and Marlin Latray, Plaintiffs and Appellants, v. CITY OF HAVRE, Montana, Defendant and Respondent.
CourtMontana Supreme Court

William D. Jacobsen, Thompson, Jacobsen & Potts, Great Falls, Montana, For Appellant.

Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze, Havre, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 Debra and Marlin LaTray (the LaTrays) appeal from the grant of summary judgment in favor of the City of Havre (the City) by the Twelfth Judicial District Court, Hill County. In bringing suit against the City, the LaTrays alleged that the City's police officers had acted negligently in failing to exercise proper control over an intoxicated female whom they had transported to the Northern Montana Hospital, thus allowing her to intentionally assault and injure Debra LaTray (LaTray), a nurse at the hospital. The District Court held that since the assault was not reasonably foreseeable, the City owed no duty to LaTray. We reverse and remand for trial.

¶ 2 The LaTrays raise two issues on appeal:

¶ 3 (1) Did the District Court err in awarding summary judgment to the City on the ground that the individual's attack on LaTray was unforeseeable as a matter of law?

¶ 4 (2) Should the trial of this case be moved to another county on remand?


¶ 5 This case was initially tried before a jury in Hill County in June of 1998. At the close of the evidence in the first trial, the City made a motion for a directed verdict on the ground that the assault was unforeseeable. The District Court denied this motion, ruling that there was sufficient evidence of foreseeability to raise a jury issue. Ultimately, the jury returned a verdict in favor of the City. However, the District Court subsequently ordered a new trial because of juror misconduct. Following the award of a new trial, the City disqualified the trial judge and then moved for summary judgment. The LaTrays moved for a change of venue for the retrial based on the allegedly prejudicial publicity that had surrounded the first trial. The new trial judge denied the LaTrays' motion for a change of venue on retrial, and subsequently granted the City's motion for summary judgment.

¶ 6 The facts giving rise to this dispute occurred on June 25, 1991. Those facts, viewed in a light most favorable to the LaTrays, reveal the following. At approximately 9:00 a.m., the City's police dispatcher received a call from a citizen reporting that there were two girls fighting in downtown Havre. Two police officers, Lt. Gene Harada and Sgt. Michael Ritz (the officers), responded to the call in separate squad cars. Upon arriving at the scene of the fight almost simultaneously, the officers observed two large girls yelling at each other. The officers did not know the girls and had no prior knowledge of their criminal history or background. One of the girls, later identified as Marsha Cochran (Marsha), was attempting to leave the scene, while the other girl, later identified as her sister, Shawn Cochran (Shawn), was attempting to restrain Marsha.

¶ 7 There was blood visible on both girls. The officers immediately separated the two girls. Both officers testified that it was standard police procedure for officers, when responding to reports of physical disputes between citizens, to separate the combative parties and keep them separate. After separating the two girls, the officers learned that the girls were sisters and that Marsha had cut her wrists in an attempt to commit suicide. The officers also noted that both girls had been drinking; their police report later characterized Marsha and Shawn as having been "intoxicated."

¶ 8 The officers decided to place Marsha in protective custody and transport her to the hospital for medical and psychological evaluation. The officers had no basis for taking Shawn into custody. Although it was not necessary, the officers decided to transport Shawn to the hospital as well and made plans to take the two girls to the hospital in separate squad cars. The officers testified, again, that it was standard police procedure to keep reported combatants separated. However, Shawn did not want to ride separately from her sister and resisted the officers' efforts to make her ride in a separate squad car. Notwithstanding the dictates of their training, the officers ultimately gave in to Shawn and allowed her to ride together with Marsha. One of the officers testified that in failing to keep the two girls separate, they were acting contrary to proper police procedure and were taking a risk that the girls might behave unpredictably.

¶ 9 During the ride to the hospital, the girls occasionally argued with each other. Upon arriving at the hospital emergency room driveway, one of the officers attempted to remove Marsha from the squad car but she resisted his efforts. At this point, Shawn began to act in an increasingly agitated manner. Although it was contrary to standard police practice, the officers allowed Shawn, who was unrestrained, to engage in the use of force to remove Marsha from the squad car. Shawn initially attempted to push Marsha out of the squad car. She then reached into the car and grabbed Marsha by the hair in an effort to forcibly drag her out of the vehicle. The officers made no attempt to remove or physically restrain Shawn, who appeared increasingly impatient with the situation. Finally, one of the officers was able to remove Marsha from the squad car. Shawn then grabbed hold of Marsha but the other officer told her to let go and she complied with his request.

¶ 10 At about this time, LaTray, who was working as a nurse in the emergency room of the hospital, came out of the emergency room. Seeing the officers and an injured person in the emergency room driveway, LaTray went over to render assistance. The officers did not request assistance from LaTray. While it was not common practice for nurses to come outside into the driveway when police arrived, one of the officers observed LaTray approaching and saw nothing improper with LaTray coming over to render assistance. When LaTray approached, Marsha screamed profanities at LaTray. LaTray could also hear Shawn yelling at her from the background.

¶ 11 When LaTray reached out to grab Marsha's arm and inspect her injuries, Shawn suddenly and without warning took a swing at LaTray and struck her in the jaw. The force of the blow caused LaTray to fall backwards against the open door of the squad car, thus injuring her back. Immediately after the incident, the officers had to wrestle Shawn to the ground. Shawn violently resisted and screamed profanities. With the assistance of other police officers, Shawn was finally restrained and placed in a squad car; however, Shawn then began kicking the door of the squad car with such force that it bowed outwards several inches with each kick.

¶ 12 At trial, the LaTrays presented testimony from an expert in police procedures, Sam Damon (Damon), who stated that the officers committed numerous errors in their handling of the situation on June 25, 1991. Damon testified that the officers made the following errors: the officers failed to maintain control over the situation and, beginning with Shawn's refusal to ride in a separate squad car, had in fact allowed the girls to assume control over the situation; the officers failed to keep the girls separated from each other notwithstanding that the girls had been reported fighting and the officers' observations that the girls had been drinking; and the officers failed to deter or remove Shawn from the vicinity of the emergency room driveway when she began using force against her sister in an effort to extract her from the squad car. Damon also testified that, based upon the conduct of the girls, the officers should have foreseen that the failure to follow proper police procedures could create a potential for harm to persons in the vicinity.


¶ 13 (1) Did the District Court err in awarding summary judgment to the City on the ground that the individual's attack on LaTray was unforeseeable as a matter of law?

¶ 14 We review a grant of summary judgment de novo, applying the same evaluation as the district court based on Rule 56, M.R.Civ.P. Summary judgment is proper only where the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P. The party seeking summary judgment has the initial burden of establishing the complete absence of genuine issues of material fact. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 436, 901 P.2d 116, 118. Only where the moving party has carried its initial burden does the burden then shift to the non-moving party to show, by more than mere denial, speculation, or conclusory statements, that a genuine issue of material fact exists. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

¶ 15 In a summary judgment proceeding, the evidence must be viewed in the light most favorable to the non-moving party. Bowen v. McDonald (1996), 276 Mont. 193, 199, 915 P.2d 201, 205. In reviewing the record, all reasonable inferences will be drawn in favor of the party opposing summary judgment. Porter v. Galarneau (1996), 275 Mont. 174, 179, 911 P.2d 1143, 1146. Ordinarily, questions of negligence are poorly suited to adjudication by summary judgment and are better left for jury determination at trial. Scott v. Henrich, 1998 MT 118, ¶ 13, 288 Mont. 489, ¶ 13, 958 P.2d 709, ¶ 13; Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869; Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312; Pappas v. Midwest Motor Express, Inc. (1994), 268 Mont. 347, 350, 886 P.2d 918, 920; Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018; Hendrickson v. Neiman (1983)...

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