Nelson v. Driscoll, 97-222.

CourtUnited States State Supreme Court of Montana
Citation1999 MT 193,983 P.2d 972
Docket NumberNo. 97-222.,97-222.
PartiesStephen NELSON, individually and as Personal Representative of the Estate of Trina Falcon Nelson, deceased, Plaintiff and Appellant, v. Mark DRISCOLL and Butte-Silverbow County, a political subdivision of the State of Montana, Defendants and Respondents.
Decision Date12 August 1999

Bernard J. "Ben" Everett, Knight, Dahood, McLean & Everett, Anaconda, Montana, for Appellant.

Brendon J. Rohan, Poore, Roth & Robinson, Butte, Montana, for Respondent.

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

¶ 1 Stephen Nelson (Stephen) brought this action in the Second Judicial District Court, Silver Bow County, against Police Officer Mark Driscoll(Officer Driscoll) and Butte-Silver Bow County (the County) (collectively the County) for the wrongful death and violation of the civil rights of Trina Falcon Nelson. The court granted summary judgment in favor of the County. Stephen appealed. We reverse and remand for further proceedings consistent with this opinion.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in granting the County's motion for summary judgment on the ground that Officer Driscoll owed no legal duty to protect Trina?

¶ 4 2. Did the District Court err in granting the County's motion for summary judgment on the ground that Stephen did not state an actionable 42 U.S.C. § 1983 claim under the state-created danger theory?


¶ 5 This is the second appeal filed in this case concerning the tragic death of Trina Falcon Nelson (Trina). See Nelson v. Driscoll (1997), 285 Mont. 355, 948 P.2d 256

(hereinafter Nelson I). Nelson I, involving a procedural matter, provides only a brief summary of the facts giving rise to this case. The following paragraphs set forth a more detailed account of the facts so that we may thoroughly address the issues raised in this appeal. The facts are undisputed.

¶ 6 In the early morning hours of February 2, 1995, Trina and Stephen left a casino in Butte, Montana, and began driving home. While at the casino, between the hours of 6:30 p.m. and 1:30 a.m., Stephen and Trina had each consumed approximately fifteen alcoholic beverages. Stephen and Trina were regular casino customers, frequenting casinos two to four times per week. Stephen described Trina as a "problem drinker," noting that she would generally consume fifteen or sixteen drinks each time she visited a casino.

¶ 7 At approximately 1:43 a.m., Officer Driscoll observed Trina driving her vehicle in an erratic manner while turning west on Cobban Street from Massachusetts Avenue. Officer Driscoll observed that in executing her turn, Trina "seemed to cut the corner too sharp" on the icy road causing her vehicle to fishtail. He observed Trina correct her turn and continue west on Cobban. Noting the hour, the fact that the bars were closing, and Trina's erratic driving, Officer Driscoll decided to stop Trina.

¶ 8 After stopping Trina, Officer Driscoll noted that she had no trouble pulling over and parking her vehicle. Officer Driscoll approached Trina and asked whether she had been drinking. Trina told Officer Driscoll that she had consumed several drinks throughout the evening, had just left the Double Eagle Casino, and was on her way home. As Trina was talking, Officer Driscoll looked for signs which would indicate Trina's possible intoxication. Officer Driscoll noted that Trina was "communicating fine" with him and did not have slurred speech. He did not detect an odor of alcohol. In light of Trina's admission that she had been drinking, Officer Driscoll asked Trina to exit the vehicle and to accompany him to the sidewalk to conduct field sobriety testing. He asked Trina to remove her eyeglasses and attempted to conduct the horizontal gaze nystagmus (HGN)test. Trina told Officer Driscoll that she was "almost blind" and "couldn't see a thing" without her glasses. In later describing this incident, Officer Driscoll testified that Trina "could not or would not follow" his instructions regarding the HGN test. Officer Driscoll stated that he did not conduct the "one leg stand" or the "walk and turn" sobriety tests due to the icy conditions of the sidewalk. He stated that he himself almost fell while exiting his patrol car and, given that Trina's shoes appeared to have less traction than his vibram-soled shoes, he thought it unsafe to conduct further sobriety testing.

¶ 9 Officer Driscoll walked to the passenger side of the vehicle and asked Stephen whether he too had been drinking. Stephen indicated that he had. When Officer Driscoll walked back to where Trina was standing, Stephen exited the vehicle "in somewhat of a belligerent manner." After several requests by Officer Driscoll to get back into the vehicle, Stephen finally obeyed.

¶ 10 Officer Driscoll testified that in assessing the situation, he did not believe he had sufficient probable cause to arrest Trina for driving under the influence of alcohol (DUI). Nevertheless, he thought there was a possibility that Trina might be impaired. Officer Driscoll informed Trina that although she did not appear to be intoxicated, he thought it unwise for either her or Stephen to drive home given the icy conditions and the fact that they had been drinking. He directed Trina to park her vehicle around the corner on a side street. Officer Driscoll told Trina that she and Stephen could either walk home or he would give them a ride. Trina and Stephen were more than two miles away from their home. Trina made a motion toward Harrison Avenue, a main thoroughfare of Butte, and asked if she could call a friend for a ride, to which Officer Driscoll responded that it was up to her. Trina told Officer Driscoll that she would call a friend. Officer Driscoll informed Trina that he would remain in the area to make sure neither she nor Stephen attempted to drive home. When asked whether he gave Trina and Stephen a warning about returning to their vehicle, Officer Driscoll answered:

I told them if they come back—if they try to drive the vehicle again, we might have to, you know, go further, whatever that would be. It was more of a scare tactic than anything, I guess.

However, Officer Driscoll later testified that he did not think he had the lawful authority to prevent Trina and Stephen from driving their vehicle. He stated that, as far as he was concerned, Trina could have gotten into the vehicle and driven home.

¶ 11 Officer Driscoll waited for the couple to park their vehicle and watched them walk west on Cobban Street toward Harrison Avenue. Officer Driscoll circled once around the block and observed the couple standing at opposite sides of the parking lot of Taco John's restaurant. It appeared to Officer Driscoll that the two were quarreling. Officer Driscoll circled around the block again and observed Stephen walking toward their vehicle. He did not see Trina. Once Stephen saw Officer Driscoll, he turned and began walking west on Cobban Street again. Moments later, Officer Driscoll observed Stephen walking toward the area of their vehicle and shined his spotlight on Stephen. Undeterred by the spotlight, Stephen continued walking toward the vehicle. Officer Driscoll circled around once more and observed Stephen sitting in the passenger seat of the vehicle. Again, Officer Driscoll shined his spotlight on Stephen and drove on. A few minutes later, Officer Driscoll observed Stephen walking south on Florence Avenue. The last time Officer Driscoll saw Trina was when she and Stephen were quarreling in the parking lot of Taco John's. Officer Driscoll was aware that a public telephone was located in front of Downey Drug, within a block and a half of Taco John's.

¶ 12 Two witnesses, driving northbound on Harrison Avenue, observed Trina wearing dark clothing and walking between the two southbound driving lanes of Harrison. The witnesses testified that Trina was not stumbling, and did not exhibit outward signs of intoxication. A third witness, driving in the left southbound driving lane of Harrison, observed Trina walking in or near the shoulder of the right southbound driving lane of Harrison. This witness also testified that Trina did not exhibit outward signs of intoxication.

¶ 13 Moments later, at approximately 2:15 a.m., Trina was struck and killed by a motorist later determined to have a blood alcohol content (BAC) of .24. The coroner's autopsy report indicated that Trina had a BAC of .25.

¶ 14 Stephen brought this action against Officer Driscoll and the County alleging negligence and a violation of Trina's constitutional rights pursuant to 42 U.S.C. § 1983. After discovery, the parties filed cross-motions for summary judgment. The parties agreed that there were no material facts in dispute, but each argued that the facts supported a different legal conclusion regarding liability.

¶ 15 In its January 15, 1997 order granting the County's motion for summary judgment, the District Court concluded that Officer Driscoll lacked probable cause to place Trina under arrest. The court further concluded that because Officer Driscoll lacked probable cause to arrest, no special relationship existed between Officer Driscoll and Trina which would give rise to a duty to protect her from harm. The court stated that without a duty, Stephen's negligence action failed.

¶ 16 The court further concluded that Trina and Stephen were not deprived of any rights afforded by the United States Constitution. Regarding Stephen's claim that Officer Driscoll seized Trina's vehicle in violation of the Fourth Amendment right to be free from unreasonable seizures, the court concluded that the right to drive a car is not a fundamental right, but a privilege that may be revoked. Regarding Stephen's claim that Officer Driscoll deprived Trina of her right to life guaranteed by the Fourteenth Amendment, the court cited to DeShaney v. Winnebago County Department of Social Services (1989),...

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