Pretty on Top v. City of Hardin

• Decision Date: 18 April 1979
• Docket Number: No. 14519,14519
• Citation: 597 P.2d 58,182 Mont. 311
• Parties: Regina PRETTY ON TOP, as surviving spouse, and Dorothy Marchington, Administratrix of the Estate of Melvin Pretty On Top, deceased, Plaintiffs and Appellants, v. CITY OF HARDIN, Montana and Robert Hamilton, chief of police of the City of Hardin, Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 58

597 P.2d 58

182 Mont. 311

Regina PRETTY ON TOP, as surviving spouse, and Dorothy Marchington, Administratrix of the Estate of Melvin Pretty On Top, deceased Plaintiffs and Appellants, v. CITY OF HARDIN, Montana and Robert Hamilton, chief of police of the City of Hardin, Montana, Defendants and Respondents.

No. 14519.

Supreme Court of Montana.

Submitted Feb. 13, 1979.

Decided April 18, 1979.

Lynaugh, Fitzgerald, Schoppert, Skaggs & Essman, Billings, Thomas J. Lynaugh (argued), Billings, for plaintiffs and appellants.

Keefer & Roybal, Billings, J. Dwaine Roybal (argued), Billings, for defendants and respondents.

SHEEHY, Justice.

On the afternoon of September 18, 1973, Hardin City patrolman Harvey Kern observed three men sitting in a truck behind the Big Horn Bar in Hardin, Montana. They were passing a bottle from one person to another. Patrolman Kern watched the men for approximately fifteen minutes before one of the men got out of the truck and left the scene. The patrolman then approached the vehicle and informed the occupants of the city ordinance which prohibited public possession of an open bottle containing an alcoholic beverage. After informing the men of their rights, patrolman Kern arrested them and took them to the Hardin City Jail where they were searched and incarcerated.

One of the men was Melvin Pretty On Top, a Native American. He had been arrested numerous times in the past for alcohol-use offenses. On this occasion it appeared to the patrolman that Pretty On Top had been drinking, but that he was in control of his body. He did not stagger and he was coherent.

On the morning after his arrest, Pretty On Top pleaded guilty to the open-bottle charge. The Police Court imposed a $100 fine. Because Pretty On Top was unable to pay the fine, he was returned to the jail to serve time at a rate of $10 per day.

The Hardin City Jail is used almost entirely for detoxification. Of the 300 persons incarcerated in the jail for a twelve month period immediately preceding September 1973, 98 percent were jailed on alcohol-use offenses. Of these offenders, 95 percent of those jailed were Native Americans. The jail is inspected, but not searched, numerous times each day by the police chief and the officers on duty. Visiting hours are from 8:00 a. m. until 4:00 p. m. Visitors are permitted to go back to the cell and talk to prisoners through the bars. Before doing so, the visitor is asked to remove his coat and leave behind packages, but a search of the visitor is not made. Overall, the security maintained by the authorities depends on the jail population. Since the jail is used primarily for detoxification, minimum security is usually maintained.

On September 22, at 6:03 p. m., four days after his arrest, Melvin Pretty On Top committed suicide by stabbing himself in the throat, neck and chest with a wooden paring knife. None of the authorities knew how Pretty On Top obtained the knife or how long he possessed it prior to his death. However, one of the trusties (a prisoner who receives $5.00 credit each day for doing janitorial work in the cell and reporting anything unusual to the officer on duty) knew that Pretty On Top had the knife in his possession, but failed to inform anyone.

Pretty On Top's wife, Regina, had asked to see her husband approximately one hour before his death, but her request was denied because visiting hours had ended. This was the only record of anyone attempting to visit Pretty On Top.

Hardin City Police Chief Robert Hamilton observed Pretty On Top each day before his death during inspections. His general demeanor, attitude and activities were normal. Pretty On Top did not have a history of mental disease or emotional disturbances, nor had he attempted suicide previously.

On January 2, 1974, Regina Pretty On Top and the administratrix of Pretty On Top's estate (plaintiffs) filed a complaint in District Court, Big Horn County, alleging that Pretty On Top's death was caused by the negligence of defendants City of Hardin and Police Chief Robert Hamilton in failing to exercise due care in the maintenance and supervision of the jail facility.

On October 28, 1975, defendants moved for summary judgment, stating:

"The City of Hardin and Robert Hamilton submit that the undisputed facts do not support any theory of liability and therefore they are entitled to judgment as a matter of law. Three independent and equally supportable reasons are here presented in support of motion for summary judgment.

". . .

"1. The defendants breached no duty owed to the deceased.

"2. The suicide of Melvin Pretty On Top was not foreseeable by any defendant.

"3. The suicide of Melvin Pretty On Top was his own volitional act and as such was a sufficient superceding and intervening act to cut off responsibility for any negligence of the defendant."

An order granting defendants' motion for summary judgment was entered by the District Court on September 20, 1978, and this appeal followed.

The ultimate issue to be decided in this case is whether the summary judgment is proper.

A party against whom a claim is asserted may, at any time, move for summary judgment in his favor. Rule 56(b), Mont.R.Civ.P. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Mont.R.Civ.P.

The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and the party opposing the motion must come forward with evidence supporting the existence of a genuine fact issue. Hollinger v. McMichael (1978), Mont., 580 P.2d 927, 35 St.Rep. 856.

In the case before us, the District Court considered the pleadings, depositions, answers to interrogatories, and the parties' briefs before granting defendants' motion for summary judgment. For purposes of testing the propriety of the summary judgment, defendants do not dispute the material facts found in the court's file. Those material facts are set forth above.

Actionable negligence arises only from a breach of legal duty, and to sustain an action for damages resulting from negligence, the complaint must allege the duty, its breach, the damages, and that the breach of duty was the proximate cause of the injury. Ritchie v. Northern Pac. Ry. Co. (1954), 128 Mont. 218, 272 P.2d 728. Related to these basic rules of negligence law is the rule that a defendant who could not reasonably foresee any danger of direct injury resulting from his conduct or any risk from an intervening force is not negligent. Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777.

A jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. Reasonable and Ordinary care must be exercised for the life and health of the prisoner. Porter v. County of Cook (1976), 42 Ill.App.3d 287, 355 N.E.2d 561; see also: 79 A.L.R.3d 1210; 60 Am.Jur.2d, Penal and Correctional Institutions, § 17, p. 821. As stated in Kendrick v Adamson (1935), 51 Ga.App. 402, 180 S.E. 647, "A sheriff owes to a prisoner placed in his custody a duty to keep the prisoner safely and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him."

However, ". . . a jailer is not liable to a prisoner in his keeping for injuries resulting from the prisoner's own intentional conduct (citation omitted.) Absent some possible special circumstances a jailer is under no duty to prevent the latter from taking his own life." Lucas v. City of Long Beach (1976), 60 Cal.App.3d 341, 131 Cal.Rptr. 470.

"Special circumstances" form the basis of virtually every decision involving a jailer's liability for a prisoner's acts of self-destruction.

In Porter v. County of Cook, supra, the plaintiff had been incarcerated in the Cook County House of Correction for threatening to harm his wife. He was physically examined by a county-employed psychiatrist who recommended "that he be admitted to a hospital immediately as an emergency for the protection from physical harm of himself or others." The plaintiff was then placed in an isolated cell where he began hearing voices that threatened him. He yelled for the guards to come to his aid and for medication. None came. The voices kept getting worse and worse. In an attempt to drive the voices away, the plaintiff set his mattress on fire. Soon his hair caught on fire and he started screaming. A guard from two tiers above his cell rescued him, but not before he had suffered severe burns on his face and hands. The Appellate Court of Illinois upheld the trial court's factual determination that the county, which was obligated to provide reasonable care for its prisoners, did not do so when its employees failed to strip the defendant, take away his personal effects, and protect him from harming himself.

In the above-discussed case the defendant knew or should have known that the prisoner was suicidal, thereby satisfying the requirement that "special circumstances" exist before liability will attach. But liability is not limited to cases involving prisoners with suicidal histories. For example, numerous courts have held the jailer responsible for the prisoner's actions when the prisoner injures himself because he is in a state of helpless intoxication. Decisions stating that a greater duty is owed when a person is so intoxicated as to be incapacitated for physical or mental effort are: Thomas v. Williams (1962), 105 Ga.App. 321, 124 S.E.2d 409; Barlow v. City of New Orleans (1970), 257 La. 91, 241 So.2d 501; and Shuff v. Zurich-American Ins. Co. (1965 La.App.), 173 So.2d 392.

Finally, a case arising in the neighboring state of North Dakota provides a clear insight into the problem. In Falkenstein v. City of Bismarck (N.D.1978), 268 N.W.2d 787, the...