Maguire v. State

No. 91-313

IN THE SUPREME COURT OF THE STATE OF MONTANA

MARGARET MAGUIRE, individually

and as Guardian of MARY MARGRETTA

GLOVER, an Incapacitated Person and

BABY GLOVER,

Plaintiffs and Respondents,

B)?

THE STATE OF MONTANA, MONTANA

DEPARTMENT OF INSTITUTIONS, THE

MONTANA DEVELOPMENTAL CENTER AND

CARROLL V. SOUTH, Director of

Department of Institutions,

Defendants and Appellants.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Sam E. Haddon argued, Boone, Karlberg & Haddon,

Missoula, Montana

G. Curtis Drake, Keller, Reynolds, Drake, Sternhagen

& Johnson, Helena, Montana

For Respondent:

William P. Joyce argued, Burgess, Joyce & Whelan,

Butte, Montana

submitted : March 10, 1992

Decided: August 12, 1992

Filed:

. .

I Clerk

Justice R. C. McDonough delivered the Opinion of the Court.

The State of Montana appeals a jury verdict in favor of

Margaret Maguire, individually and as guardian of Mary Margretta

Glover and from a judgment of the Second Judicial District Court,

silver Bow County. W affirm i n part and reverse i n part.

e

We address the following issues on appeal:

1. Whether the District Court erred in granting partial

summary judgment and in directing a verdict that the State was

liable for criminal conduct of an employee under Restatement

(Second) of Agency 3 214;

2. Whether the District Court erred in refusing the State's

offer of proof, based on Rule 408, M.R.Evid., that Mrs. Maguire

acknowledged that Ms. Glover was receiving good care at the Montana

Developmental Center and that she should not be moved;

3. Whether the District Court erred in refusing to instruct

on the theories of agency and negligent hiring;

4. Whether the District Court erred in allowing Mrs. Maguire

to maintain an action in tort for emotional distress; and

5. Whether the District Court erred in refusing to reduce the

jury's verdict.

In 1988, Mary Margretta Glover (Glover) an autistic and

severely retarded patient at Montana Developmental Center (MDC),

was assaulted and raped by an MDC employee, Lloyd Dean Drummond.

Ms. Glover, age 43, has resided at what is now MDC since 1979. In

2988, MDC assigned Lloyd Drumrnond the primary responsibility for

caring for Ms. Glover. His duties included bathing and dressing

Ms. Glover.

Margaret Maguire (Maguire), Ms. Glover's mother and legal

guardian, brought Ms. Glover home for weekend visits. During one

of the visits, Ms. Glover laid flat on her back, spread her legs,

and placed her knees up towards her shoulders. During another

visit, Mrs. Maguire noticed Ms. Glover was gaining weight. Mrs.

Maguire telephoned MDC personnel to question them about Ms.

Glover's weight gain. She also inquired as to whether or not Ms.

Glover was having regular menses. She was informed that Ms. Glover

had missed her menses, but that it was probably due to thorazine

treatment. However, MDC staff members also noticed Ms. Glover's

weight gain and commented to the head nurse that they wished to be

the first ones to tell Lloyd Drummond that he was going to be a

father.

In November of 1988, a pregnancy test on Ms. Glover came back

positive. Ms. Glover delivered the baby without incident in April

of 1989. As Ms. Glover's legal guardian, Mrs. Maguire had to make

decisions regarding her daughter's pregnancy. Fear that Ms.

Glover's autism and retardation might be congenital made a decision

to carry the pregnancy to term difficult. Further, Mrs. Maguire

was concerned for her daughter's safety. As a devout Roman

Catholic, making a decision to abort the pregnancy was also very

difficult. Ultimately Mrs. Maguire decided to have the pregnancy

carried to term. However, she faced another difficult decision in

whether to raise the child herself or place the child in an

adoptive home. In view of her advanced age, she finally decided to

place the child with adoptive parents.

In December of 1988, Mrs. Maguire sought medical attention for

stress and depression related to the rape and pregnancy of her

daughter. Her physician, who previously treated Mrs. Maguire for

depression and anxiety related problems, noted her stress had

increased and that she had deteriorated "markedly. She complained

of trouble sleeping, nightmares, contemplation of suicide, and

generally feeling run down. Mrs. Maguire's visits to the doctor

increased, and her condition did not begin to improve until April

of 1989, but she continued to see a psychologist through 1990.

Our standard of review as to the verdict is whether there is

substantial credible evidence in the record to support the jury

verdict. In reviewing conclusions of law, question of law, or

legal components of ultimate facts, or mixed questions of law and

fact, we will decide if the lower court's determination as to law

is correct. The scope of review of discretionary acts of the trial

court is whether the trial court abused its discretion. Our review

will be plenary. Steer, Inc. v. Department of Revenue (1990), 245

Mont. 470, 803 P.2d 601.

I

Whether the District Court erred in granting partial summary

judgment and directing a verdict holding the State liable for the

criminal conduct of its employee, based on Restatement (Second) of

Agency, 5 214.

The District Court granted partial summary judgment and

directed a verdict in favor of Mrs. Maguire and Ms. Glover on the

issue of liability. The District Court based its decision on

Restatement (Second) of Agency 5 214. Section 214 is an exception

to the general rule of respondeat superior. We have not heretofore

adopted this section. This section provides:

Failure of Principal to Perform Non-delegable Duty.

A master or other principal who is under a duty to

provide protection for or to have care used to protect

others or their property and who confides the performance

or such duty to a servant or other person is subject to

liability to such others for harm caused to them by the

failure of such agent to perform the duty.

We have previously analyzed cases under the respondeat

superior doctrine based on Restatement (Second) of Agency 5 228.

Respondeat superior imposes liability on an employer for the

wrongful acts of an employee which are committed within the scope

of his employment. As we stated in Kornec v. Mike Horse Mining

(1947), 120 Mont. 1, 8, 180 P.2d 252, 256,

The servant or agent must have been acting in the "course

of his employment," in tlfurtherance of his employer's

interest,'' or "for the benefit of his master:' "in the

scope of his employment," etc. But a servant who acts

entirely for his own benefit is generally held to be

outside the scope of his employment and the master is

relieved of liability. (Citation omitted.)

See also Lutz v. United States (9th Cir. 1982), 685 F.2d 1178.

A party may be held vicariously liable for the damages caused

by another on the theory of respondeat superior or may be held

directly liable on the theory of negligent hiring and/or

supervision. Normally, an employer would not be held liable for

tortious acts of its employee performed outside the scope of

employment. Hoover v. University of Chicago Hospitals (Ill. 1977),

366 N.E.2d 925, 929. Thus, under respondeat superior, the

employer's liability is derivative from the negligent acts of the

employee acting within the scope of employment. Boykin v. District

of Columbia (D.C.App. 1984), 484 A.2d 560, 561. It is clear this

rape was outside the scope of Lloyd Drummond's employment.

Other jurisdictions, under theories of vicarious liability,

hold an employer liable for the tortious acts of its employees

acting outside the scope of employment. These cases involve common

carriers and innkeepers. In G.L. v, Kaiser Foundation Hospitals

(1987), 88 0r.App. 528, 746 P.2d 731, 734, the Oregon Court of

Appeals deferred to the legislature in declining to hold hospitals

strictly liable for tortious acts of employees acting outside the

scope of employment (sexual assault). The question of an

employer's vicarious liability for the tortiaus acts of its

employees acting outside the scope of employment is a matter of

first impression in Montana.

Both appellant and respondent cite cases from other

jurisdictions which produce opposite results. MDC relies on Rabon

v. Guardsmark, Inc. (4th Cir. 1978), 571 F.2d 1277. In Rabon, the

Fourth Circuit held that neither South Carolina common law nor

South Carolina statutes justify application of the non-delegable

duty rule of § 214 to the employer of a security guard (rape). The

Fourth Circuit found that South Carolina only recognized the non-

delegable duty exception to the general rule of respondeat superior

in cases involving common carriers. Rabon at 1280.

Mrs. Maguire relies on Stropes v. Heritage House ~hildrens

Ctr. (Ind. 1989), 547 N.E.2d 244, for her analysis that Montana

should adopt the non-delegable duty exception to the respondeat

superior doctrine. Stro~esinvolves a similar fact situation. In

Stropes a severely retarded fourteen-year-old boy was raped by a

nurse's aide employed by Heritage House. The aide's duties

included feeding, bathing, and changing the child. The rape

occurred after the aide entered the boy's room to change his

clothing and bedding. Stropes at 245.

The Indiana Supreme Court, in reviewing Indiana case law,

found two cases which held employers liable for criminal acts of

their employees, because the acts "originated in activities so

closely associated with the employment relationship as to fall

within its scope." Strooes at 247.

The Stroses court also distinguished Rabon. As noted above,

the Fourth Circuit determined that South Carolina's non-delegable

duty doctrine only extended to common carriers. Stropes at 250-

251. However, as Stropes pointed out, Indiana has identified

principles underlying its adoption of the exception, and, in fact,

has extended it to reach enterprises other than common carriers.

Stropes at 252. The Indiana Supreme Court concluded that the

relevant relationships embodied in the common carrier exception,

and the rationales underlying it, were applicable to Heritage.

Stropes at 253-254.

Montana follows the doctrine of respondeat superior as

expounded in Kornec. We have not adopted the common carrier

exception to that doctrine. However, we have accepted the concept

of a non-delegable duty in a contractual relationship between a

general contractor and an independent contractor. Ulmen v.

Schwieger et al. (1932), 92 Mont. 331, 12 P.2d 856. Ulmen involved

a highway contract. We concluded that there was a non-delegable

duty based on the inherently dangerous and hazardous nature of the

project to the public. Ulmen at 347, 12 P.2d at 859. In Ulmen

this duty was extended to third parties.

Later, we held that a general contractor had a non-delegable

duty to the employee of a subcontractor based on a statutory duty

to maintain safety at the worksite. Stepanek v. Kober Const.

(1981), 191 Mont. 430, 625 P.2d 51. Steuanek involved a

construction injury after a fall from a scaffold. In Cash v. Otis

Elevator (1984), 210 Mont. 319, 684 P.2d 1041, this Court adopted

a higher standard of care for the owner of a premises with respect

to operation of an elevator. We determined that an elevator

performs the function of a common carrier and that the owner of the

elevator had a non-delegable duty as to the safety of the elevator

because elevators are inherently dangerous. Cash at 324, 684 P.2d

at 1043.

In summary, we have limited application of the non-delegable

duty exception to the respondeat superior doctrine to instances of

safety where the subject matter is inherently dangerous. We

decline to extend the exception to the facts here. There are a

number of reasons for and against extending the liability of the

employer, such as here, when an intentional tort is committed only

because of or by virtue of the employment situation. The employer

is better able to attempt to avoid such wrongs. The employer has

the ability to minimize them, while the victim has no control over

the situation. Such a burden is incidental to running a business.

However, such a major change to the respondeat superior doctrine is

best left to the legislature.

Massachusetts declined to extend the non-delegable duty

exception to group day care centers because it would constitute a

significant extension of Massachusetts law. Worcester Ins. v.

Fells Acres Day School (1990), 408 Mass. 393, 558 N.E.2d 958, 968.

(Rape and indecent assault.) Likewise creating a major exception

to the respondeat superior doctrine, by extending liability to a

caretaker, would constitute a significant extension of Montana law.

Without support of prior judicial decisions, such an extension of

liability should come from the legislature. See Sandman v. Hagan

(Towa 1968), 154 N.W.2d 113, 118-119. We conclude that the

District Court erred in its determination to apply 5 214 of the

Restatement (Second) of Agency to the facts here. We reverse the

District Court on this issue. Inasmuch as we are reversing on the

first issue, our discussion of the balance of the issues is

advisory for the purpose of a second trial.

II

Whether the District Court erred in refusing the State's offer

of proof, based on Rule 408, M.R.Evid., that Mrs. Maguire

acknowledged Ms. Glover was receiving good care at the Montana

Developmental Center and that she should not be moved.

Rule 408, M.R.Evid., provides:

Compromise and offers to compromise.

Evidence of (I) furnishing or offering or promising

to furnish, or (2) accepting or offering or promising to

accept, a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to

either validity or amount is not admissible to prove

liability for or invalidity of the claim or its amount.

Evidence of conduct or statements made in compromise

negotiations is likewise not admissible. This rule does

not require exclusion of any evidence otherwise

discoverable merely because it is presented in the course

of compromise negotiations. This rule also does not

require exclusion when the evidence is offered for

another purpose, such as proving bias or prejudice of a

witness, negativing a contention of undue delay, or

proving an effort to obstruct a criminal investigation or

prosecution.

Based on Rule 408, the District Court excluded testimony from

defendant ' s witness, Jennifer Pryor, that Mrs. Maguire did not want

Ms. Glover moved from MDC. MDC cites the commissioners1 comments

to the Rule that parties should not try to immunize their evidence

from being admissible by presenting it during negotiations. The

third sentence of the Rule allows evidence which is otherwise

discoverable.

MDC sought to introduce testimony that Mrs. Maguire did not

want Ms. Glover moved from MDC because it was close to Butte and

that she thought Ms. Glover was receiving good care at MDC,

Moreover, evidence existed that Mrs. ~aguirerejected an offer of

alternative placement for Ms. Glover during settlement

negotiations. Counsel for MDC admitted that placement outside of

MDC was part of the proposed settlement.

Further, Mrs. Maguire testified on cross-examination that MDC

was the best place she could find for her daughter and that she

wanted to keep her close to Butte. Thus, proposed testimony by MDC

was repetitive. We conclude the evidence does not fall within the

exception offered by MDC in the commissioners' comments. For the

reasons stated above, we affirm the District Court on this issue.

I11

Whether the District Court erred in refusing to instruct on

the theories of agency and negligent hiring.

Because the District Court adopted the non-delegable duty

exception to the respondeat superior doctrine, it refused M D C q s

proposed instructions on negligent hiring and agency. We concluded

above that the District Court erred in adopting the non-delegable

duty exception to Montana's respondeat superior doctrine. Thus, we

reverse the District Court on this issue.

section 53-20-142, MCA, provides in part:

Persons admitted to a residential facility for a

period of habilitation shall enjoy the following rights:

(1) Residents have a right to dignity, privacy, and

humane care ...

MDC has a statutory duty to Ms. Glover not inconsistent with the

theories of negligent hiring, negligent supervision, and agency.

Thus it was error for the District Court to refuse instructions

based on these theories.

IV

Whether the District Court erred in allowing Mrs. Maguire to

maintain an action in tort for emotional distress.

The District Court limited Mrs. Maguirels recovery for

emotional distress to those damages caused by being required to

make the decisions regarding the pregnancy of Ms. Glover. The j u r y

was instructed not to award damages for emotional distress as a

result of Mrs. Maguirels learning of her daughter's rape and

pregnancy. This latter instruction was correct. In the past we

have allowed recovery to a third party for contemporaneous

observance of an accident or event resulting in shock to the

senses. Versland v. Caron Transport (1983), 206 Mont. 313, 671

In Versland we traced the history of case law from a denial of

recovery for damages for emotional trauma if there was no physical

impact to an expansion to the Inzoneof dangernn

rule. The "zone of

dangern*rule allows the plaintiff recovery if he or she were

located within the zone of defendant's negligent conduct and feared

for his or her own safety. We abandoned this rule using the

reasoning of the seminal case of Dillon v. Legg (19681, 68 Cal.2d

728, 69 Cal.Rptr. 72, 441 P.2d 912. In Versland, we adopted

guidelines derived from Dillon, and articulated a three part test

for third party claims for negligent infliction of emotional

distress :

1. The shock must result from a direct emotional

impact upon the plaintiff from the sensory and

contemporaneaus perception of the accident, as contrasted

with learning of the accident from others after its

occurrence.

2. The plaintiff and victim must be closely

related, as contrasted with absence of any relationship

or the presence of only a distant relationship.

3. Either death or serious physical injury of the

victim must have occurred as a result of the defendant's

negl igence.

Versland at 322, 671 P.2d 583.

Part (1) of this test is in line with, and an amplification

of, prong 2 ( a ) of Section 46 of the Restatement of Torts relative

to intentional and reckless conduct. This is sometimes referred to

as the tort of outrage. See Lund v . Caple (19841, 100 Wash.2d 739,

675 P.2d 226. Restatement (Second) of Torts § 46 provides:

(1 One who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional

distress to another is subject to liability for such

emotional distress, and if bodily harm to the other

results from it, f o r such bodily harm.

(2) Where such conduct is directed at a third person,

the actor is subject to liability if he intentionally or

recklessly causes severe emotional distress

(a) to a member of such person's immediate family

who is present at the time, whether or not

such distress results in bodily harm, or

(b) to any other person who is present at the

time, if such distress results in bodily harm.

The case before us fails to meet part one of the Versland

three part t e s t and part 2 of § 46 of the Restatement in that Mrs.

Maguire, the plaintiff herein, was not present at the time of the

conduct. She learned of the conduct from others. The policy

behind t h e presence requirement is to limit the number of persons

who may recover for emotional distress and to guarantee the

genuineness of t h e claim. See Marlene F. v. Psychiatric Med.

Clinic (Cal. 1989), 257 Cal.Rptr. 98, 770 P.2d 278, 285. JJ.

Arguelles and Eagleson concurring,

The theory submitted to the jury was whether or not Mrs.

Maguire may recover for damages for emotional distress for being

r e q u i r e d t o make d e c i s i o n s r e g a r d i n g the pregnancy af her daughter;

those decisions being whether or not the daughter should have an

abortion and if not, to provide for the care or adoption of the

child. No direct relationship e x i s t s between any outrageous act

and Mrs. Maguire. To find an independent cause of action here goes

beyond the rationale and tests of the Dillon and Versland progeny

and goes beyond the physical presence requirement.

We have allowed recovery for emotional distress absent

physical injury in only limited circumstances. In Johnson v.

Supersave Markets, Inc. (l984), 211 Mont. 465, 686 P.2d 209 and

Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 771 P.2d 114, we

allowed recovery for emotional distress damages for false

imprisonment in jail. In both Johnson and Niles the victim was not

a third party.

A caveat to 46 provides: "The Institute expresses no

opinion as to whether there may not be other circumstances under

which the actor may be subject to liability for the intentional or

reckless infliction of emotional di~tress.'~As Justice Arguelles

points out, the caveat speaks to situations which may not mandate

the presence requirement. Marlene F. at 105, 770 P.2d at 285,

quoting § 46 com. 1, p. 79. In Marlene F the California Supreme

Court held a mother of a child could state a claim for negligent

infliction of emotional distress after a psychologist treating both

the mother and child, sexually molested the child. Marlene F at

103, 770 P.2d at 283. The court reasoned that damages are

recoverable when the defendant owes a duty of care to the

plaintiff. The existence of the duty depends upon the

foreseeability that severe emotional distress will result from the

breach of that duty. Marlene F at 101-102, 770 P.2d at 281-282.

Justice Eagleson, in his concurring opinion in Marlene F,

points out that the relationship between the psychotherapist and

patient gives rise to a duty to refrain from conduct that

foreseeably will harm the patient. He also points out that an

earlier decision permitted a husband a cause of action for

emotional distress after a doctor misdiagnosed his wife as having

syphilis. The husband was not present at the diagnosis. Marlene

F

- at 108, 770 P.2d at 288, citing Molien v. Kaiser Foundation

Hospitals (1980), 167 Cal.Rptr. 831, 616 P.2d 813. In Molien the

court reasoned that the doctor assumed a duty to the husband when

he directed the wife to communicate the diagnosis to him, thus it

was foreseeable to the doctor that a misdiagnosis would cause the

husband emotional distress. Molien at 835, 616 P.2d at 817. In

reality, the plaintiffs in Molien and Marlene F. could be

considered Itdirectvictims1* the tortious conduct.

of

Relying on Marlene F., the California Supreme Court

distinguished the bystander-witness cases of the Dillon progeny.

In Christensen v. Superior Court (1991), 2 Cal.Rptr.2d 79, 91, 820

P.2d 181, 193, certain mortuaries and crematoria wrongfully

mishandled the decedents' remains. Despite failing to satisfy the

presence requirement, family members were allowed standing to

recover for negligent infliction of emotional distress.

Christensen at 99, 820 P.2d at 201. The defendants assumed a duty

to the close relatives of the decedents for whose benefit they were

to provide services. Further, the court reasoned that the

defendants "created a special relationship with the close family

members obligating them to perform those services in a dignified

and respectful manner." Christensen at 91, 820 P.2d at 193.

We are faced with the question here whether the facts before

15

us satisfy the causation and the foreseeability requirements when

the presence requirement is not met. In our view, doing so here

would increase the spiral of liability farther out than other

jurisdictions have chosen to go. See H.L.O. by L.E.O. v. Hossle

(Iowa 1986), 381 N.W.2d 641, 644-645; Nancy P. v. D'Amato (Mass.

1988), 401 Mass. 516, 517 N.E.2d 824, 828.

In the case before us, MDC did not assume a duty towards Mrs.

Maguire. The existence of a duty of care depends upon the

foreseeability of the risk and upon a weighing of policy

considerations for and against the imposition of liability. See

Slaughter v. Legal Process and Courier Service (1984), 162

Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189, 196. The facts before us

are not sufficiently similar to the duty the doctor assumed in

Molien by instructing the wife to inform her husband about the

diagnosis. Nor is it analogous to the special relationship created

between the psychotherapist and patient in Marlene F. The fact

situation in Christensen comes the closest to the facts before us.

However, while the morticians and crematoria assumed a duty to the

close relatives (of the decedents) for whose benefit they were

performing funeral and related services, MDC did not assume such a

similar duty to Mrs. Maguire. There was no close connection

between the extreme and outrageous acts and Mrs. Maguire's injury.

She is neither a "direct victim," nor was she present at the time

of conduct, nor a victim under specific special parasitic

circumstances.

We therefore decline to extend liability to allow Mrs. Maguire

to recover for either negligent infliction of severe emotional

16

distress or intentional infliction of severe emotional distress.

We reverse the District Court on this issue.

v

Whether the District Court erred in refusing to treat the

separate recoveries as a single claim of damages under 5 2-9-108,

MCA.

Under 5 2-9-108, MCA, the legislature imposed a $750,000 limit

on claim against the State. Section 2-9-108, MCA (1991)

(temporary), states in part:

(1) Neither the state, a county, municipality,

taxing district, nor any other political subdivision of

the state is liable in tort action for damages suffered

as a result of an act or omission of an officer, agent,

or employee of that entity in excess of $750,000 for each

claim and $1.5 million for each occurrence.

The rape and subsequent pregnancy were the subjects of Mrs.

Maquire's original complaint. During the trial, Drummond admitted

to raping Ms. Glover on two additional occasions.

Under 5 2-9-108, MCA, a party is entitled to $750,000 for each

claim. We agree with the District Court that each rape was a

separate wrongful act. We conclude that the District Court did not

err in refusing to treat the recoveries as based on a single claim.

MDC also contends that the verdict forms were improper. The

jury did not separate its damage award among the separate claims.

The District Court found that MDC raised the limitation of § 2-9-

108, MCA, as a defense in its amended answer and jury demand.

Further, the District Court found that it was MDC's responsibility

to present a verdict form which would allow the jury to apportion

its damage award applying 5 2-9-108, MCA. We agree with the

District Court that the responsibility rested with MDC to present

separate verdict forms; we therefore affirm the District Court on

this issue.

For the reasons stated above, we affirm in part and reverse in

part and remand to the ~istrict Court for proceedings not

inconsistent with this opinion.

We Concur:

' chief Justice A.

Justices

Justice John Conway Harrison specially concurring.

I concur in the result reached by majority in this opinion

holding that the District Court erred in granting partial summary

judgment based on Restatement (Second) of Agency 8 214. As noted

in the opinion, this Court has not previously adapted this section

as law in Montana and, in my opinion, it is unfortunate that the

District Court did in this case.

In concurring with the result of this case, I do not in any

manner approve, condone or support the apparent indifferent hiring

practices employed by the State of Montana in this case. The fact

situation of this case clearly illustrates the unconcerned hiring

practices implemented by the State--it is appalling that it clearly

took little or no interest in the character or integrity of this

defendant who was hired to care for our disabled or disadvantaged.

The State's investigation of potential employees should have

prevented the hiring of such a man, who, during the course of his

employment with the State of Montana, brought discredit not only to

himself and to the institution but also to the other employees of

that institution who are devoted and who truly care for our

unfortunate citizens. The citizens of this State who suffer the

misfortune of having family members in such institutions deserve

both the peace of mind and the assurance that their loved ones are

safe and well cared for.

Justice Terry N. Trieweiler dissenting.

I dissent from the opinion of the majority.

The opinion of the majority is a tragic and misguided decision

which once again demonstrates that, given a choice, the majority

would protect the State rather than its citizens.

This Court has now elevated the trust that people place in

common carriers, such as buses and elevators, to a more important

status than the trust that Montana citizens have a right to place

in the public institutions that were created to protect society's

most vulnerable people.

Greta Glover developed a severe mental disorder at the age of

four years. She has been variously diagnosed as autistic,

schizophrenic, and retarded. As a result of her condition, she is

incapable of communicating with other people.

She has been institutionalized for the past 30 years, and has

been a resident of the Montana Developmental Center (MDC) in

Boulder, Montana since 1972. Her care was entrusted to Montana's

Department of Institutions because her mother, who cared for her

until the age of 12, was no longer able to do so.

MDC exists to house, supervise, care for, and train Montana's

disabled citizens. Its residents are mentally and physically

handicapped to the extent that they cannot care for themselves.

These are truly society's most vulnerable people.

MDC hired Lloyd Dean Drummond to take care of Greta. He was

responsible for her day-to-day care and protection, including all

personal hygiene and bathing. He testified that in the course of

caring for her, he sexually assaulted her by fondling her three to

four times per week, and he raped her on three separate occasions.

Because of her mental condition, Greta was unable to communicate

and report this abuse to any other person. She was totally

dependent on the care provided for her at MDC.

The majority opinion is based upon this Court's previous

decision in Kornecv. MikeHorseMiningCo. (1947), 120 Mont. 1, 180 P.2d

252, where we held that an employer is not vicariously liable for

the torts of his employee when that employee's conduct is outside

the scope of his employment.

The modern rule of respondeatsuperior, and the exception on which

the majority relies, are set forth in Restatement (Second) of

Agency g 219 (1958). That section provides as follows:

(1) A master is subject to liability for the torts

of his servants committed while acting in the scope of

their employment.

(2) A master is not subject to liability for the

torts of his servants acting outside the scope of their

employment, unless:

(a) The master intended the conduct or the

consequences, or

(b) The master was negligent or reckless, or

(c) The conduct violated a nondeleqable dutv of the

master, or

(d) The servant purported to act or to speak on

behalf of the principal and there was reliance upon

apparent authority, or he was aided in accomplishing the

tort by the existence of the agency relation. [Emphasis

added. ]

Respondeatsuperior is a common law principle. The majority relied

on the common law to establish an exception to respondeatsuperior. See

Komec, 180 P. 2d at 256-57. Furthermore, this Court has previously,

by common law, established duties which are nondelegable. Seecash

v. OtkElevatorCo. (19841, 210 Mont. 319, 684 P.2d 1041.

Why then has the majority suddenly decided that it is

appropriate to come to a screeching halt in the evolution of the

common law under these circumstances which so compellingZy cry out

for its logical extension?

Nondelegable duties are clearly an exception to the principle

relied upon by the majority. Restatement (Second) of Agency 9 214

(1958), provides that the duty assumed by the defendants in this

case was nondelegable. It states as follows:

A master or other principal who is under a duty to

provide protection for or to have care used to protect

others or their property and who confides the performance

of such duty to a servant or other person is subject to

liability to such others for harm caused to them by the

failure of such agent to perform the duty.

section 214 is directly applicable to the facts presented in

this case. The MDC was under a duty to provide for the protection

and care of Greta Glover. It cannot avoid responsibility for

failure to perform that duty by delegating it to Lloyd Dean

Drummond .

The concept of nondelegable duty is not foreign to our common

law. In Cash, we found that the owner of an elevator has a duty to

exercise the highest degree of care in its maintenance and that

that duty cannot be delegated to an independent contractor because

of the potential danger if the elevator is not safely maintained.

We did not defer to the legislature where the legislature had

failed to act. We should not do so in this case.

Greta Glover was every bit as vulnerable, once placed under

the care of the State of Montana, as people are who enter elevators

or entrust their passage to other common carriers.

I agree with the decision of the Indiana Supreme Court in

Stropesv.HeritageHorcseChikfren~sCenter(Ind. 1989), 547 N.E.2d 244. That

case presented facts identical to the facts in this case. The

victim was a 14-year-old boy who, because of severe mental

retardation and insufficient verbal skill, was unable to care for

himself. He was, therefore, placed in a home for children as a

ward of the county welfare department to assure his security and

well-being. While there, he was sexually molested by a nurse's

aide who was responsible for his care.

The victim's guardian filed a complaint for damages against

the home to which he was entrusted. However, the trial court

granted summary judgment on the basis that:

[Tlhe act of committing a sexual assault was,

as a matter of law, outside the scope of

Robert Griffin's employment and, as a result,

plaintiff cannot recover against The Heritage

House, Inc. based upon a theory of respondeat

superior.

In other words, that case was dismissed by the trial court on

the same basis that this case was reversed by the majority.

The Indiana Supreme Court characterized the issue on appeal

[Wlhether, as a matter of law, Heritage may be subject to

liability for its employee's wrongful acts under the

doctrine of respondeat superior as traditionally applied

or under a theory of liability which has been described

as the "common carriern or "non-delegable duty" exception

to respondeat superior.

Stropes, 547 N.E.Z~ at 247.

After careful consideration, the Indiana Supreme Court

concluded that it was appropriate to extend the "common carrier" or

"nondelegable dutyw exception to respondeatsuperior to the circumstances

in that case. As pointed out, we have already adopted a 8*common

carrier" exception to the principles of respondeat superior. The only

issue before us is whether to extend it to the circumstances in

this case.

In language relevant to the issue before us, the Indiana

Supreme Court concluded:

An examination of the relevant relationship here against

the template of the common carrier exception and the

rationales underlying it reveals that Heritage clearly

assumed a non-delegable duty to be responsible for the

care and safety of David Stropes. When Heritage accepted

David as a result of its facility, it was fully cognizant

of the disabilities and infirmities he suffered which

rendered him unable to care for himself and which, in

fact, undoubtedly formedthe basis oftheir relationship.

Their "contract of passage" contemplated that the entire

responsibility for David's comfort, safety and

maintenance would be on Heritage and that the performance

of these tasks would be delegated to its employees.

Given the degree of David's lack of autonomy and his

dependence on Heritage for care and the degree of

Heritage's control over David and the circumstances in

which he found himself, we find that Heritage assumed a

non-delegable duty to provide protection and care so as

to fall within the common carrier exception. The

standard of care which Heritage owed to David, therefore,

was that actual care be used by Heritage and its

employees to provide that protection. The trial court

was in error to summarily reject his claim that such a

duty existed.

I would likewise conclude that given the degree of Greta's

dependence on the State of Montana for her care and the degree of

control that is exercised over her, MDC assumed a nondelegable duty

to provide for her protection and care and that it violated that

duty when she was raped and sexually abused while in the State's

custody and care.

Contrary to the concerns expressed by the majority, such a

holding would be totally consistent with the directives that have

been enacted by the legislature. Section 53-20-101(1), MCA, which

sets forth the purpose of Montana's chapter pertaining to the

developmentally disabled, states that:

The purpose of this part is to:

(1) secure for each person who may be

developmentally disabled such treatment and habilitation

as will be suited to the needs of the person and to

assure that such treatment and habilitation are

skillfully and humanely administered with full respect

for the ~erson'sdianitv and personal intearitv ....

[Emphasis added.]

Section 53-20-142, MCA, in that same chapter, provides that:

Persons admitted to a residential facility for a

period of habilitation shall enjoy the following rights:

(1) Residents have a right to dignity, privacy, and

humane care.

( 8 ) Each resident has a right to a humane physical

environment within the residential facility.

(10) Corporal punishment is not permitted.

Section 53-20-163, MCA, provides in relevant part as follows:

(1) Every residential facility shall prohibit

mistreatment, neglect, or abuse in any form of any

resident.

In their concern for deference to the legislature, the

majority have actually defeated the express intentions of the

legislature. These statutory obligations are meaningless if the

State of Montana and MDC can avoid liability for breaching the

duties these statutes impose by simply contending that the duty was

breached by one of the State's employees. The State has no way of

acting other than through its employees.

The majority Is rationale is that protection of people like

Greta Glover is not our responsibility--it is up to the

legislature.

It is true that where the legislature has preempted the common

law, this Court should defer to that branch of government.

However, it is equally clear that where the legislature has not

acted to regulate the affairs of people, this Court has an

obligation to do so through the common law. This obligation is

made clear by both our previous decisions and legislative statute.

SeeHakerv. SouthwestemRaiIway Co. (1978), 176 Mont. 364, 578 P.2d 724,

and § 1-1-108, MCA.

The majority's expressed concern about acting in an area that

should be reserved for the legislature is indeed a shallow basis

for this result. It has shown no similar reluctance in the past

under much less compelling circumstances.

The common law of this State is replete with examples of this

Court's willingness to act where a vacuum exists in an important

area of public policy that involves the rights of the litigants who

appear before us. This Court adopted the law of strict liability

without waiting for the legislature to do so in Brandenburgerv. Toyota

(1973), 162 Mont. 506, 513 P.2d 268. It allowed damages for loss

of consortium by minors in Pence v. Fox (1991), 248 Mont. 521, 813

P.2d 429. This Court rewrote the law regarding bad faith in

commercial transactions without waiting for the legislature to do

so in Stoty v. City of Bozeman (lggO), 243 Mont. 436, 791 P.2d 767. In

fact, this Court originally adopted the very exception to respondeat

superior that forms the basis of this decision without waiting for the

legislature to do so. Komecv. MikeHorseMiningCo. (1947), 120

Mont. 1, 180 P.2d 252. Why is the majority willing to adopt by

common law part of the rule on respondeatsuperior which is set forth in

Restatement (Second) of Agency !

j 219 (1958), but unwilling to adopt

the rest of that same rule by the same process?

his Court was willing to adopt a rule of nondelegable duty

for owners of elevators, and presumably other common carriers, such

as buses, trains, and ski lifts. Cash v O h Elevator Co. (1984), 210

.

Mont. 319, 684 P.2d 1041. Why is it any significant departure from

what was done in Cash to extend the same protection to an autistic,

retarded woman incapable of protecting herself or communicating

with others when she has been sexually abused by the employees of

the very institution in which she was placed for her protection and

care?

I agree with Justice Benjamin Cardozo, who stated in his

treatise, Law and Literature (1931), I8[t]he common law, unless

bound and riveted by statute, has instruments at hand of many

varieties and shapes for molding of that justice which is the end

of her endeavor.

This Court is willing to use the common law selectively where

it suits the majority's notions of sound public policy. However,

it has abdicated that important responsibility in this case.

The primary reason for which an independent branch of

government, such as the judiciary, exists is to protect the rights

of private individuals from governmental abuse. There can be no

clearer example of governmental abuse than when one of its agents

sexually abuses and rapes a retarded woman who had been placed in

the government's care and entrusted to the government for her

28

protection. I, therefore, dissent from the majority's decision to

reverse the District Court's determination of the defendant's

liability.

I also dissent from that part of the majority opinion which

holds that Margaret Maguire was not a direct victim of Dean

Drummond's tortious conduct, and therefore, cannot recover damages

for the emotional distress she has experienced.

Margaret Maguire is Greta Glover's mother and legal guardian.

She cared for her daughter until Greta was 12 years of age, when

she was no longer able to do so. After her daughter was admitted

to state institutions, Margaret visited her frequently and took her

home on weekends.

On November 16, 1988, she was advised that her daughter was

pregnant. Her daughter was incapable of deciding what to do about

the pregnancy. Therefore, Margarethad to make those decisions for

her. Margaret literally substituted herself for Greta in terms of

all the difficult decisions that are attendant to an unwanted

pregnancy. She was concerned about Greta's health and was

concerned about whether Greta could deliver a healthy baby. Yet,

because of her religious beliefs, she could not choose an abortion.

In the process of making these decisions, her health deteriorated

and she required both psychological and medical treatment.

After the baby was born on April 4, 1989, she had to make the

decision to place the baby for adoption, just as if it was her own

child. Following the decision to have the baby adopted, she was

hospitalized for depression with symptoms of starvation and

thoughts of suicide. Her doctors related these severe health

problems to the decisions she was forced to make about Greta's

pregnancy and the adoption of the baby.

If any person with the intellectual capacity to make her own

decisions was raped and suffered physically and mentally, as

Margaret Maquire did because of the decisions that had to be made

following that rape, there is no question that that person would be

entitled to compensation forthose emotional and physical injuries.

Margaret Maguire was no less a direct victim of Dean Drummond's

conduct than Greta Glover.

In Johnson v. Supersave Markets, Inc. (1984) , 211 Mont . 4 65, 686 P. 2d

209, we held that:

This Court adopts the species of case approach which

requires a factual analysis of each case to determine

whether the alleged "emotional distress" merits

compensation. In determining whether the distress is

compensable absent a showing of physical or mental

injury, we will look to whether tortious conduct results

in a substantial invasion of a legally protected interest

and causes a significant impact upon the person of the

plaintiff.

Johnson, 686 P.2d at 213.

The instruction given to the jury regarding Margaret Maguire's

right to recover damages for her own emotional distress was

completely consistent with our directive in Johnson. The jury was

instructed as follows:

If you find that the State of Montana was

responsible in causing Margaret Maguire emotional

distress, the plaintiff, Margaret Maguire, may be

entitled to recover damages. You are instructed that

Margaret Maguire had a right to be free from the

emotional distress caused by being obligated to make

decisions regarding the pregnancy of her daughter and

ward, Greta Glover. Before damages for emotional

distress may be awarded, you must find that the

defendant, State of Montana, substantially invaded that

right and that this invasion caused a significant impact

upon the plaintiff, Margaret Maguire, and resulted in

severe emotional distress.

The majority cites to Marlene F v. PsychiatricMed. Clinic (Cal. 1989),

.

770 P.2d 278, and Molienv. KakerFoundationHospitaIs (Cal. 1980), 616 P.2d

813. In both of these cases, plaintiffs were entitled to claim

damages for emotional distress, even though they were not the

direct victim of the negligent conduct which gave rise to their

claims. The basis for recovery in both cases was that they were

owed a duty of care by the tort-feasor. The majority concludes

that the existence of that duty "depends upon the foreseeability

that severe emotional distress will result from the breach of that

duty." Certainly, on that basis, the State of Montana owed a duty

to Margaret Maguire in this case. Not only did she entrust her

daughter to them with the understanding that they would provide for

her care and security, but it was obvious to the employees of MDC

that it was Margaret Maguire who necessarily made every decision

that affected Greta Glover's personal life. How could it not be

foreseeable that if Greta Glover was raped and impregnated, that

Margaret Maguire would be left with all of the decisions made

necessary because of that pregnancy?

The majority decision is disturbing on several levels. First,

and most importantly, it unnecessarily deprives the plaintiffs, who

have suffered so much from such brutal treatment by the agents of

the State, from the necessary compensation with which they could

begin putting their lives back together. Second, it sets a

terrible precedent which will be applied to bar future victims of

intentional abuse by State employees from reasonable compensation,

no matter how serious and devastating their loss. Finally, this

Court's decision regarding Margaret Maguire's damages, creates the

fiction that Margaret Maguire was not a direct victim of Dean

Drummond's brutal conduct. This decision ignores the reality of

this lady's unique situation and this family's terrible suffering.

For these reasons, I dissent from Parts I, 111, and IV of the

majority decision. I would affirm the judgment of the District

Court.

Justice William E. Hunt, Sr., joins in the foregoing dissent

of Justice Trieweiler.