Pfost v. State

Decision Date20 February 1986
Docket NumberNo. 85-07,85-07
Citation713 P.2d 495,219 Mont. 206,42 St.Rep. 1957
CourtMontana Supreme Court
PartiesRichard B. PFOST, Plaintiff and Respondent, v. The STATE of Montana, Missoula County, and Mineral County, political subdivisions of the State of Montana, Defendants and Appellants.

J. Michael Young argued, Clayton Herron, Dept. of Admin., Helena, Boone, Karlberg & Haddon, Randy J. Cox argued, Missoula, for Missoula County, M. Shaun Donovan, Mineral Co. Atty., Superior, for defendants and appellants.

Green, MacDonald & Kirscher, Joan B. Newman argued, Missoula, for Pfost.

Mike Greely, Atty. Gen., Helena, Goetz, Madden & Dunn, James Goetz argued, Bozeman, Michael W. Flanigan, Anchorage, Alaska, for Leslie Erickson, amicus curiae.

Crowley Law Firm, Randall Bishop, Billings, for Oscar L. Heinrich, Jr., amicus curiae.

SHEEHY, Justice.

We hold in this case that § 2-9-107, MCA, is unconstitutional, insofar as it limits the liability of the State or any political subdivision in tort actions for damages suffered from an act or omission of an officer, agent, or employee of the entity to amounts not in excess of $300,000 for each claimant and $1,000,000 for each occurrence.

Richard B. Pfost filed his complaint in the District Court, Fourth Judicial District, Missoula County, for personal injuries that he alleged were due to the negligence of the State of Montana, Department of Highways, Montana Highway Patrol, and Missoula and Mineral Counties. Mineral County was subsequently dismissed from the suit.

Pfost alleged that on April 6, 1981, he was driving a 1977 Peterbilt tractor on Interstate 90 about 23 miles west of Missoula when he encountered a bridge on Nine Mile Hill. The bridge was extremely icy, dangerous and hazardous and had been left in such a condition for several hours. He alleged no precautions were taken by defendants despite the fact that three separate wrecks had occurred prior to Pfost's arrival. Pfost lost control of his rig, crashed through the guardrail, and plummeted over the west bank of the bridge. He sustained a broken neck and is now a quadriplegic. He seeks compensatory damages of $6 million.

On the same day as his complaint for personal injuries, Pfost filed an action for declaratory judgment in the same District Court alleging that § 2-9-107, MCA, is unconstitutional. The District Court, after holding a hearing and accepting briefs on the question of declaratory relief, granted Pfost's motion for summary judgment and declared § 2-9-107, MCA, unconstitutional. The State and Missoula County appealed that ruling to this Court.


A review of the history in Montana of state governmental immunity in tort actions is helpful for perspective in this case.

There was no provision in the 1889 Montana Constitution directly bearing on governmental immunity. In Art. VII, § 20 of that Constitution, it was provided that "... no claim against the state, except for salaries and compensation of officers fixed by law, [should] be passed upon by the legislative assembly without first having been considered and acted upon by [the Board of Examiners]," which then consisted of the Governor, the Secretary of State, and the Attorney General. 1889 Mont. Const., Art. VII, § 20. It was held that Art. VII, § 20 of the 1889 Constitution applied to unliquidated claims. State ex rel. Schneider v. Cunningham (1909), 39 Mont. 165, 172, 101 P. 962, 963.

In 1907, the legislature provided a method for presenting unsettled claims against the state. Any person having a claim, the settlement of which was not otherwise provided for by law, was required to present the same to the Board of Examiners, at least two months before the legislative assembly, accompanied by a verified statement showing the facts constituting the claim. The Board of Examiners was to examine such claims and make a report to the legislature as to the facts found and its recommendations. It was then up to the legislature, if it accepted a claim, to make an appropriation for its payment. Once the claim was rejected either by the Board or by the legislature, a demand could not be made against the State again. There was, however, an appeal from an adverse decision of the Board to the legislative assembly itself. See sections 242 to 248 inclusive, R.C.M. 1935.

The view of this Court respecting state immunity was expressed in Mills v. Stewart (1926), 76 Mont. 429, 436, 247 P. 332, 333. That case involved the tort claim of George Rietz, a student at the State University at Missoula, who had stepped through a door leading to an elevator shaft instead of to a bathroom as he surmised. He received injuries which were the basis of his claim against the State.

This Court said:

"If the contention advanced by Rietz is well founded in fact, his injuries resulted proximately from the negligence of the person responsible for the care and management of the dormitory building, and against such person he has a valid, legal claim which he might enforce in an appropriate action at law. The dormitory building is the property of the state, and the state is charged with its management and control, and, while it does not have any moral right to commit a tortious act, it has the same capacity to do so as any other corporation. (Citing authority.) The maxim of the English law, 'the King can do no wrong,' does not find a place in the jurisprudence in this country. (Citing authority.) The state, like any other corporation, can act only through its agents, and if the state of Montana were a private corporation, it would be responsible to Rietz in an action at law for the damages resulting proximately from the negligence of its agent in charge of the dormitory building. But the state is a public corporation, and out of considerations of public policy the doctrine of respondeat superior does not apply to it unless assumed voluntarily. In other words, the state is not liable for the negligent acts of its agents unless through the legislative department of government it assumes such liability." 76 Mont. at 435-36, 247 P. at 333.

In Mills, this Court held that the appropriation of money to pay the Rietz's claim was an appropriation for a public and not a private purpose and therefore met the requirements of the 1889 Montana Constitution.

Under this system of acting on tort claims against the State submitted by the Board of Examiners, the legislature found itself in the unpalatable position of acting as judge, jury, and responsible party in determining and settling such tort claims. See for example, claim of Chamberlain, House Bill no. 55, at 1110, Laws of Montana (1959); claim of Jenkins, House Bill no. 458, at 901, Laws of Montana (1965).

The sovereign immunity of the State was construed by this Court to prevent suits against officers or agents of the State individually when acting in their official capacity. In a claim and delivery action against the Fish and Game commissioners, a game warden and a deputy game warden, in their official capacities, to recover a confiscated shotgun, the suit was an ex delicto action against the State and could not be maintained where the State had not consented to be sued. Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501.

The blanket immunity that was extended to the State, its officers, agents and employees by court decisions was not complete for counties, cities, or other entities which had authority less extensive than the State. For school districts and counties, it made a difference whether the activity of the district or county which gave rise to the tort action was considered governmental or proprietary. Cities did not enjoy immunity from suits, even if the tort arose from what would be considered governmental operations. Thus, a city could be sued for injuries resulting from its failure to exercise an active vigilance to keep all of its streets in a safe condition suitable for public use, and to avoid the accumulation of snow and ice. O'Donnell v. City of Butte (1922), 65 Mont. 463, 211 P. 190. A city's liability for keeping the streets reasonably safe could not be delegated to the abutting landowner. Headley v. Hammond Building, Inc., et al. (1934), 97 Mont. 243, 33 P.2d 574. This Court explained the historical reasons for extending immunity to counties from tort actions but not to cities in Johnson v. City of Billings, et al. (1936), 101 Mont. 462, 54 P.2d 579. Nonetheless, while the city acted in its proprietary capacity in maintaining a fire department, when firemen were actually engaged in the performance of their duties as such, they were acting in a governmental capacity and in such cases the city was not liable for their torts. State ex rel. Kern v. Arnold (1935), 100 Mont. 346, 49 P.2d 976.

The county was held liable to suit for tort on the ground that maintaining a ferry across the Missouri River was a proprietary function. Jacoby v. Chouteau County (1941), 112 Mont. 70, 112 P.2d 1068. Likewise a county, working jointly with a city in the construction of a drain ditch, was acting in a proprietary function, and liable in a tort action although the action arose from the repair of a road which might ordinarily be considered a governmental function. Johnson v. City of Billings, supra.

In Longpre v. School District No. 2 (1968), 151 Mont. 345, 443 P.2d 1, it was held that governmental immunity of a school district to tort action was waived by the legislature when it required school districts to purchase bodily injury and liability insurance in the operation of school buses to transport school children.

In 1963, the legislature adopted section 40-4402, R.C.M. 1947, which provided that when an insurer insured any political subdivision of the state, municipality, or any public body for casualty or liability insurance, neither the insured nor insurer could raise the defense of immunity from suit in a damage action brought against the insured or insurer. This statute...

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