Orr v. State, 02-693

Citation2004 MT 354, 106 P.3d 100
Case DateDecember 14, 2004
CourtUnited States State Supreme Court of Montana

2004 MT 354
106 P.3d 100

HERBERT R. ORR and SANDRA G. ORR, et al., Plaintiffs and Appellants,
STATE OF MONTANA, a government entity, Defendant and Respondent.

No. 02-693

Supreme Court of Montana.

Argued: June 26, 2003

Submitted: November 12, 2003

Decided: December 14, 2004

For Appellants: Jon L. Heberling (argued), McGarvey Heberling Sullivan & McGarvey, Kalispell, Montana.

For Respondent: Dana L. Christensen (argued), Christensen Moore Cockrell Cummings & Axelberg, Kalispell, Montana; Thomas G. Bowe, Assistant Attorney General, Helena, Montana.

For Amicus Curiae: Lawrence A. Anderson, Attorney at Law, Great Falls, Montana; Karl J. Englund. Attorney at Law, Missoula, Montana (for Montana Trial Lawyers Association).

Justice Patricia O. Cotter, delivered the Opinion of the Court.

¶1 The Plaintiffs/Appellants (hereinafter "the Miners") include an on-site carpenter, seven former miners from Libby, Montana, and the wife of a former miner, all of whom have been diagnosed with asbestos disease. The Miners and their families have sued the State of Montana for negligence claiming that the State knew of the asbestos danger associated with working in the Libby vermiculite mine but failed to warn them, or protect them by requiring the mine owners to correct the unhealthful conditions. The District Court granted the State's Motion to Dismiss, concluding that the State had no legal duty to the Miners. The Miners appeal. We reverse and remand.


¶2 The Miners present the following restated issues on appeal:

1. Did the District Court err in ruling that the State had no statutory duties which ran to the Miners and their families?
2. Did the District Court err in ruling that the State did not have a duty of care to the Miners and their families by a special relationship under the public duty doctrine?
3. Did the District Court err in ruling that the State did not have a common law duty of care through foreseeability and an undertaking to provide industrial hygiene services for the benefit of the Libby mine workers and their families?
4. Can the doctrine of federal preemption provide a defense for the State in this case?
5. Does sovereign immunity insulate the State from the Miners' cause of action?


¶3 The Plaintiffs/Appellants in this case include seven former Libby miners and the wife of a former miner. The ninth Plaintiff is a carpenter formerly employed by a construction company who worked for the duration of his employment at the Libby mine. With due respect to the non-miner plaintiffs, we will refer to the entire group of Plaintiffs in this Opinion as "the Miners." The Miners have all been diagnosed with asbestos disease. The Miners' names and dates of work are: Herbert R. Orr, 1965-1967, Robert L. Graham, 1962-1990, Robert Dedrick, 1972-1973, Leonard D. Rice, 1968-1978, Donald R. Smith, 1951-1987, Opal A. Smith, (dates of husband Donald's work) 1951-1987, James D. Jacobson, 1975-1976, Royce N. Ryan, 1974-1977, and Clayton H. Riddle, 1959-1962 and 1966-1969.

¶4 W.R. Grace Co. (Grace) purchased the existing Zonolite mine and mill in Libby, Montana (the Mine), in 1963. It owned and operated the Mine until 1990. The Mine extracted vermiculite from the ground and processed it using a procedure which generated substantial airborne dust containing tremolite asbestos. In 1956, when the State Board of Health (the Board or BOH) conducted an industrial hygiene study of the Mine, it was already well-known that asbestos dust was a toxic inhalant. During the 1956 Mine inspection, the State did not perform analysis on any dust samples to determine an accurate asbestos concentration. Relying on the Mine's records, however, it concluded that the maximum concentration of asbestos in the airborne dust would not "be greater than 25 to 30 mppcf."1 The State analyzed dust samples for asbestos concentration when it returned to the Mine in December 1958 and during subsequent inspections.

¶5 The State BOH performed inspections of the Mine in 1958, 1962, 1963, 1964, and 1967. In 1966, the federal government undertook regulation of mine safety. As a result, from 1971 through 1976, the federal agency, accompanied by a State mining inspector, inspected the Mine and issued written reports. The State performed its own inspection in 1974, as well as assisting in the federal inspection for that year. The federal inspectors did not participate in any inspections after 1976. Between 1979 and the Mine's cessation of operations in 1990, the State performed fourteen inspections of the Mine. It also performed two post-closure inspections in 1991 and 1992.

¶1 During each State inspection between 1956 and 1974, the State inspectors found unsanitary and unhealthful conditions. The State notified Zonolite, and later Grace, of the dangerous conditions after each inspection, explaining the seriousness of asbestosis and its likely fatal outcome, but did not inform the Mine workers, including the Miners, of the dangers. With the exception of identifying the hazardous conditions and telling the Mine's owners/managers to correct the problems, the State took no steps to ensure that the Mine's owners/managers responded in a manner that provided a safe working environment. Moreover, federal inspections between 1971 and 1975, in which State inspectors participated, revealed dangerous levels of asbestos dust in the Mine. The federal inspectors reported their findings to Grace, and provided copies of their reports to the State. The State did not notify the Miners or other Mine workers of the federal findings.

¶2 The Miners originally sued Grace for its failure to provide a safe working environment. Grace successfully avoided financial responsibility for these claims, however, by filing for protection under Chapter 11 of the federal bankruptcy laws in April 2001. The Miners thereafter sued the State for its role in failing to protect them. They allege that the State negligently failed to warn them of the known dangers to all Mine workers and their families associated with working at the Mine, and that as a result of the State's negligence, the Miners have suffered grave injuries and damages.

¶3 The State countered that it did not owe a duty to the Miners, and without such a duty, there could be no finding of negligence. On this and several other grounds, it filed a Motion to Dismiss. Without reaching all of the grounds for dismissal presented by the State, the District Court agreed that the State owed no duty to the Miners and therefore granted the Motion to Dismiss. The Miners appeal. We reverse and remand.


¶4 We review de novo a district court's ruling on a motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, ¶ 8, 66 P.3d 316, ¶ 8 (citation omitted). "A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true." Plouffe, ¶ 8 (citation omitted). We will affirm the District Court's dismissal when we conclude that the plaintiff would not be entitled to relief based on any set of facts that could be proven to support the claim. Plouffe, ¶ 8 (citation omitted). The determination of whether a complaint states a claim is a conclusion of law, and the District Court's conclusions of law are reviewed for correctness. Plouffe, ¶ 8 (citation omitted).


Statutory Duty

¶5 The first issue presented is whether the District Court erred in ruling that the State had no statutory duty which ran to the Miners and their families.

¶6 The Miners maintain that under the statutes empowering the State Board of Health and creating an Industrial Hygiene Division, the State had a mandatory duty to "make investigations" and "to disseminate information." They claim the State made the investigations as required but failed to disseminate the critical information derived from the investigations.

¶7 The State argues that, for the following reasons, it had no statutory duty to the Miners:

1. the industrial hygiene laws, relied upon by the Miners, granted the State certain powers but imposed no mandatory duties;
2. the industrial hygiene statutes did not expressly impose a duty upon the State to warn and protect the Miners;
3. an Attorney General Opinion issued in 1942 ruled that facility inspection reports were confidential and could not be disclosed to the public;
4. the industrial hygiene statutes restrict the State to reporting its inspection findings only "to the industries concerned"; and
5. protection of workers is the exclusive responsibility of an employer under Montana labor laws, and that the Miners' theory of negligence would require "the State to foresee that Grace would not fulfill its legal obligations as landowner and employer."

¶8 The District Court agreed with the State's arguments. It noted in its Order that none of the statutes relied upon by the Miners contained the words "mine," "asbestos," or "miners." This indicated to the court that "the statutes deal with a general state of industry in Montana and with no specific form of industry or type of worker. With such being the case, it is hard to argue that the statutes . . . were designed to specifically provide a duty toward a certain type of industry or a certain type of worker." We turn now to an examination of the State's public health statutes which are at the center of the District Court's decision.

¶9 The State Board of Health was created in 1907. Section 1474, RCM (1907). Until 1967, when the State Department of Health (the Department or DOH) was created, the BOH was responsible for the "general supervision of the interests and health and life of the citizens of the state." Section 2448, RCM (1921); § 69-105, RCM (1947). As part of the BOH's...

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