Plumb v. Fourth Judicial Dist. Court, Missoula County

Decision Date30 May 1996
Docket NumberNo. 96-023,96-023
Citation53 St.Rep. 1187,279 Mont. 363,927 P.2d 1011
PartiesRoberta PLUMB and Martin Plumb, Petitioners, v. The FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY, Montana, Respondent. . Heard
CourtMontana Supreme Court

Gregory O. Morgan (argued) and Robert Cameron (argued), Gregory O. Morgan, P.C., Bozeman, for Petitioners.

Dan L. Spoon, Reep, Spoon & Gordon, Missoula, and John Alke (argued), Hughes, Kellner, Sullivan & Alke, Helena, for Defendant Southgate Mall.

Richard F. Cebull (argued) and Tiffany B. Lonnevik, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, for Dr. Timothy Adams.

J. Daniel Hoven, Browning, Kaleczyc, Berry & Hoven, Helena, for Montana Municipal Insurance Authority.

Jerome T. Loendorf, Harrison, Loendorf, Poston & Duncan, Helena, for Montana Medical Association.

R. Stephen Browning, Browning, Kaleczyc, Berry & Hoven, Helena, for Montana Hospital Association.

Randy J. Cox, Boone, Karlberg & Haddon, Missoula, and T. Thomas Singer, Moulton, Bellingham, Longo & Mather, Billings, for Montana Defense Trial Lawyers, Inc.

Robert L. Sterup, Dorsey & Whitney, Billings, for CBI Services, Inc.

William A. Rossbach and Elizabeth A. Brennan, Rossbach & Whiston, Missoula, for Montana Trial Lawyers Association.

TRIEWEILER, Justice.

I have no doubt that if the records of the time of that ancient and apparently earliest of lawgivers, Hammurabi, could be completely restored, we should learn that in the third millennium before Christ men were complaining about the inefficiency of legal procedure, and I fancy that if any of you are destined in the year 7000 A.D. to revisit the glimpses of the moon to examine and write a monograph for the celestial choirs upon the condition of human law courts, you will be obliged to report to some Seraphic Commission that mankind still exhibits the same discontentment with its methods of adjusting human differences that you know today. I must therefore ask you to believe that in the course of a half hour I do not hope to lay my finger on the cure for a condition which is probably so inherent in our human imperfections as to be persistent as long as the need for litigation itself endures. We shall, I fear, be scarcely satisfied with our settlement of disputes until we have so purged and purified our natures as to bring down the dove of domestic peace to be a permanent sojourner amid the haunts of homo sapiens.

United States District Judge Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, a 1921 lecture before The Association of the Bar of the City of New York, reprinted in 31 Int'l Soc'y of Barristers Q. 309 (1996).

Nowhere is our society's "discontentment with [our] methods of adjusting human differences" more apparent than in the periodic enactment, interpretation, and amendment of § 27-1-703, MCA, which relates to apportionment of liability for damages. What follows is this Court's most recent effort to blend due consideration for the Legislature's responsibility to assure that those efforts are pursued within constitutional parameters.

The plaintiffs, Roberta Plumb and Martin Plumb, brought this action in the District Court for the Fourth Judicial District in Missoula County to recover damages from the defendant, Southgate Mall Associates, for injuries allegedly sustained by Roberta when she slipped and fell while on the Mall's premises due to the Mall's alleged negligent maintenance of those premises. Over plaintiffs' objection, the Mall was allowed to file an amended answer in which it alleged that plaintiffs' damages were caused or contributed to by the negligent treatment and care provided by Roberta's treating physician, and that its liability should be reduced accordingly based on § 27-1-703(6), MCA (1995). The Plumbs petitioned this Court for supervisory control based on our decision in Newville v. State, Department of Family Services (1994), 267 Mont. 237, 883 P.2d 793. We granted supervisory control, and now, after consideration of the arguments by both parties and numerous amici curiae, we reverse the order of the District Court which allowed the Mall to assert as an affirmative defense that its liability should be diminished due to the fault of an unnamed third party.

We have been asked to decide the following issues:

1. Are the facts and issues presented in this case appropriate for resolution by supervisory control?

2. Does the opportunity for a defendant to reduce its liability by asserting as an affirmative defense that plaintiffs' damages have been caused or contributed to by unnamed third parties pursuant to § 27-1-703(6), MCA (1995), violate principles of substantive due process as guaranteed by the federal and state constitutions?

PROCEDURAL BACKGROUND

In their complaint, Roberta and Martin Plumb allege that on September 13, 1992, Roberta entered the Southgate Mall in Missoula, and just inside the entrance, slipped and fell after stepping on a film of water which had not been visible on the highly polished floor. The Plumbs allege that Roberta's fall was caused by the Mall's negligent failure to keep its premises in a reasonably safe condition and its negligent failure to warn her that the floor was dangerously slippery. They allege that as a result of her fall, Roberta injured her lower leg, and that because of that injury, she has undergone a series of complicated surgical procedures and other complications, following which her ability to walk is substantially impaired. Both Roberta and Martin sought damages from the Mall for their losses related to Roberta's injuries.

For its answer, the Mall admitted that it owned and controlled the property in question, but denied the other material allegations of the complaint and asserted various affirmative defenses.

Deadlines for the completion of discovery and amendments to pleadings were established. However, four and one-half months after its answer was filed, the Mall moved to amend the scheduling order, based on Senate Bill 212 which amended § 27-1-703, MCA (1987), by permitting the assertion of a "nonparty defense," and providing certain procedural requirements in apparent response to our decision in Newville. That Bill was signed by the Governor on April 5, 1995, and became effective on that date. By its terms, the Bill was applicable to all claims which had not yet been reduced to final judgment.

The Mall's motion to amend the scheduling order was granted. It then filed a motion to amend its answer pursuant to § 27-1-703(6), MCA (1995), to allege as a seventh affirmative defense that the Plumbs' injuries were caused, in whole or in part, by a third party--specifically, Roberta's treating physician, Dr. Timothy J. Adams. As part of its proposed seventh affirmative defense, the Mall alleged that since Dr. Adams' conduct contributed to or caused Roberta's injuries, it is entitled to a proportionate reduction in any damages for which it might be liable pursuant to the amended statute.

The Plumbs opposed the Mall's motion to amend for various reasons. Significant to our decision is their contention that § 27-1-703(6), MCA (1995), violates their rights and Dr. Adams' right to substantive due process pursuant to our decision in Newville.

Over the Plumbs' objection, the District Court granted the Mall's motion to amend its answer, and allowed the Mall to allege as a seventh affirmative defense that Dr. Timothy Adams contributed to or caused Roberta's injuries and that its own liability should be reduced or eliminated accordingly.

In order to avoid the time and expense of proceeding through trial preparation and possible trial without knowing the proper issues to be decided or the proper parties to be named, and blamed or defended, the Plumbs petitioned this Court for supervisory control.

ISSUE 1

Are the facts and issues presented in this case appropriate for resolution by supervisory control?

The Plumbs contend that supervisory control is appropriate because this case involves a constitutional issue of major state-wide importance, there are no factual disputes related to that issue, and the normal appeal process is inadequate.

The Mall contends that supervisory control is not appropriate because factual issues underlie its "nonparty defense," and that those issues should first be resolved by the District Court.

We have, essentially, two lines of authority which set forth the standard for when supervisory control should be exercised. However, those standards are not consistent.

The most oft-cited standard is that "supervisory control is appropriate where the district court is proceeding under a mistake of law, and in so doing is causing a gross injustice." See, e.g., Potter v. District Court (1994), 266 Mont. 384, 880 P.2d 1319; State ex rel. Torres v. District Court (1994), 265 Mont. 445, 877 P.2d 1008; State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 701 P.2d 1346; State ex rel. Fitzgerald v. District Court (1985), 217 Mont. 106, 703 P.2d 148. This standard has its roots in the turn-of-the-century case of State ex rel. Whiteside v. District Court (1900), 24 Mont. 539, 63 P. 395, in which this Court explained:

[Supervisory control] has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate. Under such circumstances, the case being exigent, no relief could be granted under the other powers of this Court, and a denial of a speedy remedy would be tantamount to a denial of justice.

Whiteside, 24 Mont. at 562-63, 63 P. at 400.

A second line of authorities follows our decision in State ex rel. Racicot v. District Court (1990), ...

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