Massee v. Thompson

• Decision Date: 05 May 2004
• Docket Number: No. 03-567.,03-567.
• Citation: 321 Mont. 210,90 P.3d 394,2004 MT 121
• Parties: James Edward MASSEE, Michael William Massee, and Raymond Massee as Guardian and Conservator of Marcus James Massee, Plaintiffs and Appellants, v. Richard THOMPSON and Broadwater County, Defendants and Respondents.
• Court: Montana Supreme Court

90 P.3d 394

2004 MT 121

321 Mont. 210

James Edward MASSEE, Michael William Massee, and Raymond Massee as Guardian and Conservator of Marcus James Massee, Plaintiffs and Appellants, v. Richard THOMPSON and Broadwater County, Defendants and Respondents.

No. 03-567.

Supreme Court of Montana.

Submitted on Briefs February 24, 2004.

Decided May 5, 2004.

For Appellants: James G. Hunt, Hunt & Molloy Law Firm, Helena, Montana.

For Respondents: Elizabeth S. Baker, Stuart L. Kellner, Hughes, Kellner, Sullivan & Alke, Helena, Montana.

For Amicus: Monte Jewell, Smith Jewell, PLLP, Missoula, Montana (for Silent Witnesses, et al.), Mikel L. Moore, Christensen Moore Cockrell Cummings & Axelberg, Kalispell, Montana (for Montana Sheriffs and Peace Officers Association).

Justice PATRICIA O. COTTER, delivered the Opinion of the Court.

¶ 1 James, Michael and Marcus Massee (the Massees or the sons) are the surviving sons of Vickie Doggett, who was fatally shot by her husband, Ray Doggett, in May 1997. The Massees brought a wrongful death action against Sheriff Richard Thompson of Broadwater County (the Sheriff or Thompson) and Broadwater County, as principal. A jury returned a verdict in favor of the Massees in February 2003, awarding the sons a total of $358,000. On a Motion for Judgment as a Matter of Law, the First Judicial District Court vacated the jury verdict on the grounds that the Sheriff had no legal duty to protect Vickie from Ray and could not be held liable for failure to do so. The Massees appeal. We reverse.

ISSUE

¶ 2 The only issue before this Court is whether the District Court erred by granting Thompson's Motion for Judgment as a Matter of Law.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The following facts, while lengthy, are critical to the jury's verdict, the District Court's Order, and our decision here.

¶ 4 Vickie Sue Massee (Vickie) and Ray Doggett (Ray) were married in October 1990. Prior to Vickie's marriage to Doggett, Vickie had been married to Raymond Massee (Massee). She had three sons during her marriage to Massee, James, Michael and Marcus. For most of the times at issue, the three boys lived with Vickie and Ray.

¶ 5 Over the course of the Doggetts' tumultuous marriage, members of the Broadwater County Sheriff's Office (BCSO or Sheriff's Office), and most notably Thompson, became intimately involved in the lives of Ray and Vickie. BCSO's first involvement with the couple occurred approximately one year after Vickie and Ray got married, when the Sheriff's Office responded to a domestic violence disturbance at the Doggetts' home. Vickie and Ray had each struck and injured the other. They were sentenced to counseling which they completed.

¶ 6 From the record, it appears that the marriage had frequent ups and downs, with the downs generally occurring after Ray and/or Vickie had been drinking. Ray became unable to work shortly after he and Vickie married and he began suffering from bouts of depression. With his depression came binge drinking, accusations of infidelity, and threats of suicide or murder.

¶ 7 Just before midnight on October 29, 1994, the Broadwater County Undersheriff responded to a call from Vickie. She was at a Townsend bar and asked that an officer come get her, collect her sons, and then drive them all to the county line to be picked up by the children's grandparents. Vickie indicated that she and Ray were arguing and that she wanted to be away from Ray. Undersheriff Ludwig responded. On the way to the county line, Vickie decided she would let the boys go with their grandparents, and she would return home. Undersheriff Ludwig, after confirming there had been no physical violence in the earlier argument, convinced Vickie that she and Ray should spend the night apart while each sobered up. Vickie ultimately conceded.

¶ 8 On Ludwig's return to Townsend, she was then dispatched to Ray's house. Ray had called the BCSO threatening suicide if Ludwig did not tell him where Vickie was. When Ludwig arrived at the Doggetts' home with a reserve deputy, Ray was sitting at a table with a loaded .44 magnum pistol. Ludwig assured him that Vickie was safe, and while the reserve deputy talked with Ray in an effort to calm him, the Undersheriff took Ray's pistol for safekeeping. The record is unclear as to when the weapon was returned to Ray.

¶ 9 On December 10, 1994, the BCSO received another domestic dispute call from the Doggetts' home, and two deputies were dispatched. According to the Sheriff's Office log, Vickie and Ray were intoxicated and engaged in a serious argument. When the two deputies arrived, they could hear the argument escalating. Upon entering the home, they discovered that one of Vickie's teenage sons was also present. The officers ushered him outside to safety and then returned inside, at which time Ray threatened them with bodily harm. Thompson was then called and advised of the situation. The Sheriff immediately telephoned Ray and began talking to him. At that time, one of the responding officers was called away to another incident. When the remaining officer got on the telephone to talk to Thompson, Ray left the room, ostensibly to go to the bathroom, but moments later emerged from the bedroom with the .44 magnum revolver (the same revolver that had been earlier confiscated). The deputy reported this to the Sheriff who told the deputy to leave the house immediately. The deputy obeyed. Shortly thereafter, the BCSO dispatcher called the Doggett home and Vickie told her that Ray was holding a gun to her head. Within minutes, the officer who had responded to another call returned with a third officer. The three deputies stayed outside and awaited the Sheriff's arrival a few minutes later.

¶ 10 Thompson and a deputy entered the home while the other officers remained outside. Ray was agitated, drunk and wielding his .44 magnum handgun. After talking to the Sheriff for a short period of time, Ray put the gun to his own head. The Sheriff and his deputy were able to wrestle the loaded pistol from him. After several minutes of calming discussion, the deputies were told they could leave and the Sheriff remained to counsel Ray. Two deputies left. The third deputy waited in the car parked in a location that allowed him to see inside the Doggetts' home where Ray and the Sheriff were talking.

¶ 11 At trial, there was substantial testimony presented that one of the responding officers, as recorded in his official report, had seen Ray holding the gun to Vickie's head. This deputy also indicated in his report that the Sheriff decided not to arrest Ray but did confiscate Ray's gun. The Sheriff testified that he did not know that Ray had held the gun to Vickie's head until some later date, and that during the time he was at the Doggett residence, Ray had not done anything that would warrant arrest. The Sheriff's report of this event, however, differs from the Sheriff's testimony. Thompson's official report dated December 11, 1994, states, "While on the way into town, I heard the officers at the scene talking to dispatch and telling her that Ray was pointing the gun at Vickie."

¶ 12 After these events, the marriage appeared to stabilize somewhat. However, on October 6, 1996, the BCSO's log reflects three calls between 4:00 a.m. and 4:30 a.m. from Ray Doggett during which he sounded depressed and requested that the Sheriff come visit him because he needed a friend. Then, again, in the early morning hours of December 18, 1996, Ray called for a deputy. When two deputies arrived, they found Ray alone and drunk. He was complaining, as he had before, that Vickie was being unfaithful. The officers then received an unrelated call, and Ray told them he would be all right and that they could leave.

¶ 13 About ten days later, Ray asked that the BCSO send a particular deputy to his home. When the deputy arrived, Ray was drunk and claiming that Vickie wanted him dead. Vickie told the officer that Ray was always threatening to kill himself and she was considering leaving the marriage because of the overwhelming stress. Vickie's son Marcus was also present, and informed the deputy that Ray had a revolver in the back of his pants. The deputy warned Ray that if Ray touched his gun, he would shoot him. The deputy stayed and talked with Ray until he was calm. Vickie and Marcus left the house during this time, upon suggestion of the deputy.

¶ 14 Within a few minutes of the deputy's departure, Ray called the BCSO to tell them he was going to the local bar. Meanwhile, Vickie and Marcus had arrived at the home of Roger Reiman, a friend of Vickie's sons. James and Michael were also present. She told them she wanted to spend the night in Helena, but was afraid to return to the house for the overnight items she would need. James and Roger went to get the items for her. When they arrived at the house and walked inside, Ray, who had returned from the bar and whose back was to the door, turned, pulled his gun and pointed it at them. He lowered it after about 5 seconds. James, who was quite frightened by the experience, retrieved his own .38 pistol while getting his mother's toiletry items, and hid it under his jacket in case he needed to protect himself while leaving the house. While James was out of the room, Ray pulled his gun on Roger and suggested that they go outside. Just then, however, the BCSO called and Ray answered the phone. While Ray was on the phone with the Sheriff's Office, James and Roger left.

¶ 15 James and Roger immediately went to the BCSO to report what had occurred, but did not sign a formal complaint. Vickie and her sons left Roger's house, and spent the night with friends in Helena. James gave his gun to Roger before leaving because Roger was afraid Ray would come looking for him when he realized Vickie was not coming home that night.

¶ 16 Later that night, Roger called the BCSO to report that Ray had called and threatened to kill him and to hunt down Vickie, James and Michael and kill...