Newville v. State, Dept. of Family Services

No. 92-310

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

JEANNINE NEWVILLE and DAMON GANNETT,

Co-Guardians ad litem for R.M., a minor,

Plaintiffs, Appellants and

L& ->li,il&

STATE OF MONTANA, DEPARTMENT OF FAMILY CLERK

STATE

SU;>A:?~E c O U ~

OF MONTANA

SERVICES, an agency of the state of

Montana,

Defendant, Respondent and Cross-Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Monte D. Beck, John J. Richardson, Beck Law Offices,

Bozeman, Montana; Larry A. Anderson, Howard F.

Strause, Great Falls, Montana

For Respondent:

R.H. Bellingham, T. Thomas Singer, Moulton,

Bellingham, Longo and Mather, Billings, Montana

For Amci:

Robert J. Phillips, John E. Bohyer, Phillips &

Williams, Missoula, Montana; Randy J. Cox, Boone,

Karlberg & Haddon, Missoula, Montana (Montana

Defense Trial Lawyers Association)

L. Randall Bishop, Jarussi & Bishop, Billings,

Montana; Donald W. Molloy, Billings, Montana; David

R. Paoli, Missoula, Montana (Montana Trial Lawyers

Association)

Heard: Oct. 14, 1993

Submitted: March 16, 1994

Decided: A u g u s t 29, 1994

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Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal by the plaintiffs from a jury verdict

arising out of the Eighteenth Judicial District Court, Gallatin

County, in favor of plaintiffs' ward, R.M., in a negligence action

concerning severe injuries inflicted upon R.M. by her foster father

while in his care pending an adoption. The jury attributed

negligence under 5 27-1-703, MCA, Montana's comparative negligence

statute, to the State of Montana Department of Family Services

(30%), the foster mother (35%) and a professional counselor who had

treated the foster mother and father over a period of years (35%).

The foster father was not listed on the special verdict form

because the District Court found his conduct was intentional and

not negligent. Amici curiae Montana Defense Trial Lawyers and

Montana Trial Lawyers Association also presented the Court with

arguments concerning constitutional issues. We affirm in part,

reverse in part and remand for a new trial.

Plaintiffs now seek a new trial solely against the State of

Montana Department of Family Services (the Department), presenting

the Court with numerous issues, as does the Department in its

Cross-Appeal, which we have restated as follows:

I. Do the plaintiffs have standing to assert the rights

of unrepresented third persons included on the verdict

form?

11. Is Montana's comparative negligence statute, 5 27-1-

703(4), MCA, unconstitutional as amended by the 1987

legislature?

111. Did the District Court err in allowing the jury to

allocate a percentage of negligence to Edna Goodwin, who

settled with the plaintiffs prior to trial, when no

evidence had been introduced to establish the standard of

care for a professional counselor?

IV. Did the District Court err in admitting evidence

concerning R.M.'s biological parents?

V. Did the District Court err in instructing the jury?

VI. Is the Department immune from tort liability for its

failure to protect R.M.?

VII. Who is to be included on the special verdict form if

there is a subsequent trial in this action?

The plaintiffs in this case are co-guardians ad litem for

R.M., an American Indian child born to a 16-year-old mother.

R.M.'s natural mother left R.M. in the custody of her grandmother

prior to the age of seven months and could not be located when R.M.

was subsequently removed from her grandmother's home by the police

at the age of seven months. Because R.M.'s mother could not

initially be found and her father was unavailable, the court

appointed a guardian ad litem for her and placed her in the

temporary custody of the Department.

In addition to R.M.'s birth mother being under age, she and

the birth father had problems with intellectual functioning and

with drug and alcohol abuse. R.M.'s birth mother had dropped out

of school in the 7th grade and had an I.Q. of 69. The parental

rights of both R.M.'s biological parents were terminated in

Yellowstone County, givingthe Department permanent custody of R.M.

in October 1987.

After obtaining custody of R.M., the Department placed her in

a series of foster homes. By the time she was four years old, she

had been in seven foster homes, including the home of Dennis and

Martha Kuipers. The Department removed R.M. from some of these

homes because of allegations of physical abuse, sexual abuse, or

neglect.

Although R.M. was available for adoption during the time she

was being placed in foster care, she was not an easy child to place

because of behavioral problems of the type caused by abuse.

Adoptive placement was further complicated because any adoptive

placement had to comply with the provisions of the Indian Child

Welfare Act 25 U.S.C. § 1915.

Following a series of events beginning when Dennis Kuipers

heard from a friend that R.M. was available for adoption, the

Department placed R.M. in foster care with Dennis and Martha

Kuipers (the Kuipers) of Belgrade, Montana, with the intent that

the Kuipers would adopt her if they were qualified by the

Department as adoptive parents. This was done in September 1988

after the Department investigated the Kuipers. This placement was

referred to by the Department as a "fos/adoptW placement.

Dennis Kuipers is of American Indian ancestry and thus better

qualified to adopt R.M. under the Indian Child Welfare Act than a

non-Indian person. Dennis Kuipers himself had been adopted by a

non-Indian family at a young age after being abused, neglected and

abandoned. He wanted to adopt R.M. because of the positive

experience of his own adoption. The Kuipers were foster parents at

all times during this action as the adoption was never completed.

Testimony was presented at trial which indicated that the

Department did not conduct a proper investigation prior to placing

R.M. in the Kuipersl home. For example, in response to a request

for recommendation for adoption, the Kuipers' counselor, Edna

Goodwin, wrote that Dennis Kuipers was I1working on his issues of

and that "there was previously an issue of abuse by Dennis to

rageEg

his wife and to one of their two children.!' The Department did not

contact Edna Goodwin about her comments in her letter despite

permission from the Kuipers to do so. Other testimony was

presented which indicated that the Department also did not follow

up on other reports of abuse or check its own records for reports

of abuse by Dennis Kuipers.

Ed Neuman, a Department employee, supervised the !!fos/adoptW

placement during the two months after R.M. was placed with the

Kuipers. On October 2, 1988, just three weeks after R.M. was

placed in the Kuipersl home, witnesses stated that Dennis Kuipers

beat R.M. outside the Rax restaurant in Bozeman, Montana, partly in

view of restaurant patrons and partly concealed within the family

van. Dennis Kuipers became upset with R.M. because she had wet her

pants. When he brought R.M. into the restaurant, she had black

marks on her cheeks, and was described as having a fixed stare as

though she were in shock. One witness testified that she looked

like a uzombie.ll

These descriptions came from two couples who observed the

incident from a location inside the Rax restaurant very near to

where the Kuiperst van was parked. One witness, Salvatore

Provenzano, telephoned the Bozeman police from the restaurant to

report the incident. Salvatore Provenzano and his wife, Joy

Provenzano, went to the police station at the request of the

officers to provide the Bozeman Police Department with a written

report. By the time the officers had arrived at the restaurant,

however, the other witnessing couple, the Stewarts, had left the

restaurant. The Stewarts provided the Bozeman police with a

written statement later that same week.

Two officers responded to Salvatore Provenzanops report and

came to the restaurant to investigate. Officer Linda Sanem took

Martha Kuipers aside and asked her numerous questions. Duringthat

interview, Martha Kuipers was holding R.M. Martha Kuipers believed

at that time that no abuse had occurred. She apparently had been

in the rest room and also behind a partition in the restaurant

ordering food during the abuse incident. She testified that up

until the time of Dennis Kuipersl plea agreement when he admitted

to hitting R.M. outside the restaurant, she believed that no abuse

had occurred there.

At the restaurant, while holding R.M., Martha Kuipers

convinced Officer Sanem that nothing had occurred. Testimony at

trial indicated that because R.M.'s hair was long, thick and dark,

it may have hidden physical signs of abuse. Other testimony was

presented that any initial redness may have disappeared by the time

the officers arrived and any subsequent bruising may not have been

present yet.

Officer Sanem testified that R.M. had bruises on her face but

they looked like they were not newly-inflicted. She further

testified that since none of the witnesses actually saw Dennis

Kuipers hit R.M.--they only saw his open hand and then his fist

going up and down inside the van--and there were no apparent newly-

inflicted bruises, the officers did not have probable cause to

arrest Dennis Kuipers for assault. She testified that she felt

uncomfortable about not being able to do anything further at that

time. At the time of the investigation, the officers did not have

the written reports from the Provenzanos and the Stewarts and had

only briefly spoken to Salvatore Provenzano over the phone when he

reported the incident. Sanem further testified:

Unless there's obvious signs of violence, you know,

physical injuries, we have to rely on what witnesses tell

us as to what actually occurred. And one point of fact

in this matter, that he, in fact, did not see the fist

actually hit the child, does not constitute an assault.

From our point of view, we have to look at it from

a criminal standpoint and in order for it to be an

assault under that statute. If there's no sign of an

injury, then we have to -- have to have actually have

that contact, and he couldn't say that he actually saw

that.

Officer Sanem also testifiedthat she believed Martha Kuipers'

statement that the child had bruises from falling down a lot lately

and that the Department was aware of that. Nonetheless, Officer

Sanem told Martha Kuipers that the incident would be referred to

the Department. Officer Sanem further testified that she has since

had further law enforcement training and would not have made the

same assessment of the Rax incident if she had had the training

prior to that time.

Officer Sanem testified that she was "very suspicious about

the bruises, but it was obvious to [her] that that hadn't just

occurred and it was an incident that obviously needed to be further

investigated." She further testified that the officers had two

options--to refer the incident to the Department or to take

immediate custody of the child. When she observed R.M., it did not

appear that she had been crying and she felt that they did not have

cause to take her. At that time, she had not investigated any

other abuse cases in which a child had been hurt within the

previous 15-20 minutes. Officer Sanem did not call the Department

that day and was off duty the following day; she left that duty of

reporting the incident to the Department to Officer Paul Erickson,

the other officer who was also at the Rax restaurant to investigate

the report.

Officer Erickson interviewed Dennis Kuipers at the R a x

restaurant and was convinced by him that he had not hit R.M., but

rather may have been waving a diaper up and down or something like

that. Officer Erickson, however, also.advised Dennis Kuipers that

the incident would be referred to the Department and more

thoroughly investigated by them. Officer Erickson testified that

he had been "fooledu by Dennis Kuipers.

However, the matter was referred to the Department for

investigation prior to the close of the police investigation. The

remainder of the police investigation included getting written

statements from the Provenzanos and the Stewarts. No charges were

made against Dennis Kuipers as a result of that investigation.

As previously stated, Ed Neuman supervised the placement of

R.M. with the Kuipers on behalf of the Department. The Kuipers

called Neuman to report the Rax incident to him later that

afternoon because the police officers had told them that the

Department would be notified. Dennis Kuipers' discussion with

Neuman minimized the seriousness of the incident and he denied

hitting R.M.

Officer Erickson reported the Rax incident to the Department

for further investigation. The police report actually states that

R.M. was injured and an investigation was pending. The Department

did investigate the incident but trial testimony demonstrated that

the Department's investigation was very limited. The investigator

did not search the Department's own files to check for prior

reported incidents of abuse by Dennis Kuipers. That search would

have provided information about the prior incident of abuse which

had been investigated by the Department. In addition, the

Department did not report the matter to the County Attorney as will

be subsequently discussed.

One month later, on November 1, 1988, Dennis Kuipers severely

beat R.M. As a result of this beating, R.M. had bruises over most

of her body and she was hospitalized for two weeks. During the

hospitalization, R.M. was initially in a coma. She also had

seizures and was paralyzed on one side of her body. A craniotomy

had to be performed to relieve acute fluid pressure on her brain.

Medical experts testified at the trial that R.M. had lost

substantial brain tissue as a result of the beating and that the

damages were irreversible.

The plaintiffs initially sued Dennis Kuipers, Martha Kuipers,

Edna Goodwin (the Kuipers' counselor), and both the Department and

its employee, Ed Neuman. The claim against Neuman was dismissed by

the court. Both Dennis Kuipers and Edna Goodwin settled with the

plaintiffs prior to trial and were dismissed pursuant to their

respective agreements with the plaintiffs following the settlement

conference. The trial proceeded against the remaining defendants--

Martha Kuipers and the Department.

The special verdict form presented to the jury included the

Department, Martha Kuipers and Edna Goodwin. Dennis Kuipers was

not included on the special verdict form because the District Court

ruled that his intentional conduct made him jointly and severally

liable for all damages and that 5 27-1-703 (4), MCA, does not permit

apportionment of liability for intentional conduct.

The jury awarded total damages of $637,480, apportioning

negligence comparatively--30 percent to the Department, 35 percent

to Martha Kuipers and 35 percent to Edna Goodwin. Subsequent to

the trial, Martha Kuipers settled with the plaintiffs and has been

dismissed with prejudice, leaving the Department as the sole

defendant in this negligence action.

ISSUE I: Standing.

Do the plaintiffs have standing to assert the rights of

unrepresented third persons included on the verdict form?

As a threshold issue, we address the Department's argument

that plaintiffs do not have standing to challenge the

constitutionality of 5 27-1-703, MCA, because by doing so they are

not asserting their own constitutional rights, but rather the

rights of unrepresented third parties such as settling parties and

unsued tortfeasors. Although this opinion does not address the

10

rights of unrepresented parties in the context of determining

whether they have been denied procedural due process or equal

protection, and although our ruling on substantive due process

relates to plaintiffs primarily, we do agree with plaintiffs that

they have standing to assert the constitutional rights of such

third parties.

Plaintiffs correctly argued that their own potential economic

loss gives them standing to assert the rights of third parties.

They argued that unrepresented parties included on the verdict form

can diminish a named defendant's portion of negligence below 50

percent, thereby making that defendant only severally liable, and

that any defendants still in the action had the power to attribute

blame to unrepresented tortfeasors, thereby reducing the potential

damage award to less than 100 percent because plaintiffs would be

unable to collect damages from unsued tortfeasors. These results

could affect a totally innocent plaintiff such as R.M. in the same

manner as they could affect a plaintiff with any contributory

negligence up to 50 percent.

We considered a similar issue in Belth v. Bennett (1987), 227

Mont. 341, 349, 740 P.2d 638, 643, where this Court held that a

state agency's records of insurance companies were not open to

public inspection. The Court also concluded that because there was

a potential economic loss to insurance companies as a result of

suits by insurance consumers, the companies had a potential

economic injury sufficient to establish standing. Belth, 740 P.2d

at 641. Also, in Montana Human Rights Division v. City of Billings

(1982), 199 Mont. 434, 443, 649 P.2d 1283, 1288, we allowed the

city to assert the privacy rights of its employees because of

potential economic injury to the city from possible lawsuits

against it by its employees if it divulged personal information

about its employees without their consent. Both Belth and Montana

Human Rishts Div. held that a party facing potential economic

injury may assert the constitutional rights of others.

We conclude the plaintiffs here have established they could

suffer economic loss if a percentage of negligence were attributed

to unrepresented parties. We further conclude the plaintiffs have

established a standing sufficient to assert the rights of the

unrepresented parties such as settling parties and unsued

tortfeasors.

We hold plaintiffs have the right to raise constitutional

issues relating to 5 27-1-703, MCA, which affect the rights of

unrepresented third parties.

ISSUE 11: Constitutional Issues.

Is Montana's comparative negligence statute, fi 27-1-703, MCA,

unconstitutional as amended by the 1987 legislature?

The plaintiffs contend that 5 27-1-703, MCA, violates the

constitutional guarantees of procedural and substantive due process

and equal protection and thus a new trial is required in this case.

As discussed below, the Court concludes that fi 27-1-703 (4), MCA,

violates substantive due process. As a result, the Court declines

to address the other constitutional issues.

This case represents constitutional challenges to major

changes in fi 27-1-703, MCA, which were enacted by the 1987 Montana

12

Legislature. Section 27-1-703, MCA, was a major vehicle for tort

reform enacted by the Montana Legislature in response to demands

from numerous factions in this state. That section concerns the

determination of liability when there are multiple defendants

involved in an action based upon negligence. Section 27-1-703, MCA

(1987), as amended by the 1987 legislature, is set forth in its

entirety in the appendix to this opinion, as is its predecessor,

27-1-703, MCA (1985) .

The 1987 Senate Judiciary Committee minutes indicate that

Senate Bill 51 (SB 5l), which amended § 27-1-703, MCA, was

patterned after a bill in Washington state. That bill was drafted

as an attempt to change Washington's comparative negligence statute

and was intended to match liability for damages to fault of each of

the parties involved in a tort action, excepting only the fault of

employers and co-employees to the extent of their tort immunity

under the Workersr Compensation Act. The stated aim of SB 51 was

to protect "deep pocketfrdefendants such as municipal and county

governments when they were faced with minimal percentages of

negligence assigned to them by juries but nonetheless required to

pay large judgments under joint and several liability principles.

As pointed out by Victor E. Schwartz in his comparative

negligence treatise, a substantial minority of states have now

abolished or severely limited the common law doctrine of joint and

several liability:

In the mid-1980rs,a significant number of states changed

the joint liability rule, in part, because of growing

awards against "deep pocketurdefendants who might be only

peripherally responsible for plaintiff's injuries. A few

13

states cut the Gordian knot by abolishing the doctrine

outright or limiting it to those who have acted in

concert. Nevada abolished it except in cases involving

strict liability, intentional torts, toxic wastes,

concerted acts, or products liability. A number of other

states have attempted to serve competing goals of

fairness and loss distribution by adopting systems for

imposing joint liability only for %oneconomicff damages

or for certain percentages of fault. Some states have

adopted a combination of exceptions.

V. Schwartz, Comparative Neqliqence 9 16.4 (2d ed. Supp. 1993).

The major changes in 5 27-1-703, MCA (1987), related to joint

and several liability and the addition of subsection (4) mandating

the trier of fact to consider the negligence of various described

persons and parties in order to determine liability and apportion

the percentage of liability among all such persons. Section 27-1-

703(4), MCA (1987), provides in pertinent part:

(4) . . . For purposes of determining the

percentage of liability attributable to each party whose

action contributed to the injury complained of, the trier

of fact shall consider the negligence of the claimant,

injured person, defendants, third-party defendants,

persons released from liability by the claimant, persons

immune from liability to the claimant, and any other

persons who have a defense against the claimant. The

trier of fact shall apportion the percentage of

negligence of all such persons. . . .

The above-quoted subsection (4) is new and takes the place of the

following from the prior statute:

Whenever more than one person is found to have

contributed as a proximate cause to the injury complained

of, the trier of fact shall apportion the degree of fault

among such persons.

The theory underlying substantive due process reaffirms the

fundamental concept that the due process clause contains a

substantive component which bars arbitrary governmental actions

regardless of the procedures used to implement them, and serves as

a check on oppressive governmental action. Even though a plaintiff

may have no property or liberty interest grounded in state law

which is protected from arbitrary government action, such action

still may be subject to review under substantive due process.

Substantive due process primarily examines the underlying

substantive rights and remedies to determine whether restrictions,

such as those placed on both remedies and procedures in this case,

are unreasonable or arbitrary when balanced against the purpose of

the legislature in enacting the statute. See J. McGuinness and L.

Parlagreco, The Reemerqence of Substantive Due Process As A

Constitutional Tort: Theorv, Proof, and Damases, 24 New Eng. 1129,

1133 (1990).

Substantive review for due process violations applies to

enactments which affect individual constitutional rights, and may

thus include a review of an enactment's inherent procedural

fairness. Rotunda & Nowak, 2 Treatise on Constitutional Law:

Substance and Procedure S 15.4 (2d ed. 1992).

In addressing a substantive due process challenge in Harrison

v. Chance (1990), 244 Mont. 215, 225, 797 P.2d 200, 206, we

referred to our analysis in Linder v. Smith (1981), 193 Mont. 20,

28-29, 629 P.2d 1187, 1192, stating: "The legislature is free to

impose reasonable procedural requirements on the available remedies

so long as those requirements have a rational basis.'1 Although the

Linder Court held there was no substantive due process violation on

the basis of the issues as raised by the parties, it did excise a

portion of the statute on substantive due process grounds, stating:

We find claimant's due process contentions to be without

merit, particularly when considered in view of the

limited effect which the panel's decision can have in

Montana in subsequent litigation. We do address one

issue, though, which was not initially raised by the

parties to the litigation, but which came to our

attention duringthe hearing in this case. Section 27-6-

704(2), MCA, provides that "[no] statement made by any

person during a hearing before the panel may be used as

impeaching evidence in court.1' In order to uphold the

constitutionality of the panel act, we determine that

this section must be severed from the act. It is

fundamental to our adversarial system that litigants

retain the right to impeach the sworn testimony of a

witness testifying against them. We are mindful that

this provision was enacted to aid the fact-finding by the

panel and to preserve the confidentiality of the

proceedings. But we cannot say that a litigant will

receive a full and fair hearing if he is unable to fully

cross-examine in court the witnesses that testified in

the prior hearing.

Linder, 629 P.2d 1192.

In Raisler v. Burlington N. Ry. Co. (1985), 219 Mont. 254,

263, 717 P.2d 535, 541, this Court stated, "Substantive due process

analysis requires a test of the reasonableness of a statute in

relation to the State's power to enact legislation." Its essence

is that the State cannot use its power to take unreasonable,

arbitrary or capricious action against an individual. Raisler, 717

P.2d at 541. Therefore, in order to satisfy guarantees of

substantive due process, a statute enacted by the legislature must

be reasonably related to a permissible legislative objective.

Raisler, 717 P.2d at 541. See also Ball v. Gee (1990), 243 Mont.

406, 412, 795 P.2d 82, 86, citing In re C.H. (1984), 210 Mont. 184,

In Montana Milk Control Bd. v. Rehberg (1962), 141 Mont. 149,

158-59, 376 P.2d 508, 514, this Court determined that substantive

due process was not violated by legislation which allowed the State

to control the retail price of milk and determined that the

legislation was reasonably related to the permissible legislative

purpose of ensuring an adequate supply of wholesome milk to the

citizens of Montana. More recently, in In the Matter of the

Adjudication of the Yellowstone River (1992), 253 Mont. 167, 179,

832 P.2d 1210, 1217, we stated that the State's regulatory power

over adjudicating water rights must be exercised consistent with

principles of substantive due process:

A statute must be reasonably related to a

permissible legislative objective to satisfy substantive

due process guarantees. . . . The 1972 Montana

Constitution mandates that the legislature "establish a

system of centralized records." There can be no doubt

that § 85-2-226, MCA, was enacted for a permissible

legislative objective.

However, the appellants challenge whether ... 5

85-2-226, MCA, is reasonably related to the objective of

adjudicating water rights. It is contended that . . .

[ § I 85-2-226, MCA, ... fails to be reasonably related

to these objectives, because its operation results in the

elimination of existing water rights. (Citations

omitted. )

In Matter of Yellowstone River, 832 P.2d at 1217, we ruled that the

challenged statute did not violate substantive due process in that

it was a reasonable means of "compelling comprehensive

participation, extinguishing duplicative and exaggerated rights,

and ridding local records of stale, unused water claims." The

statute's filing requirement was "neither burdensome, unreasonable

nor unrelated to the legitimate and proper legislative obje~tives.~~

Matter of Yellowstone River, 832 P.2d at 1217. We further noted

that neither the Supreme Court nor other states addressing the

constitutionality of statutes requiring filing had found the filing

requirement to be more than a minimal burden. Matter of

Yellowstone River, 832 P.2d at 1217.

Although most of the challenges brought to this Court which

have been grounded in substantive due process have failed, we have

ruled that substantive due process was violated by a restrictive

covenant in Town & Country Estates Ass'n v. Slater (1987), 227

Mont. 489, 493, 740 P.2d 668, 671. The restrictive covenant which

violated substantive due process in Town & Countrv Estates allowed

a Design Review Committee to disapprove house plans and prevent

construction of homes in the subdivision. We held that the

covenant was vague to a degree that violated substantive due

process and was enforceable only when used in connection with some

general plan or scheme. Town & Countrv Estates, 740 P.2d at 671.

In Town & Country Estates, the houses already built in the

subdivision were each unique in design and demonstrated a

"cacophony of styles" with a "hybrid mix of traditional, Tudor,

ranch, and contemporaryIt with the only common design

characteristics being a 2400 square foot size minimum and a shake

roof. Town & Countrv Estates, 740 P.2d at 671. The Court stated:

If the subdivision itself lacks consonance, the

Slatersv plan cannot lack harmony. In the context of

[Town and Country Estates] and Slaterst plan, the term

"harmony of external design" lacks the mutuality of

obligation central to the purpose of a restrictive

covenant. In view of the wide variety of designs, no one

seemed burdened by the covenant except the Slaters.

The approval or disapproval of plans by the [Design

Review Committee] must be based upon an objective design

standard. Without a quantifiable standard to guide them,

the decision ... is unenforceable. ... We hold that

the Slaters' house fell well within the broad

architectural spectrum of [Town & Country Estates]

houses. ~ p ~ l i ~ d

to the .. . subdivision and the

Slaters' ~ l a n , hold that Article V lacks sufficient

we

obiectivitv, and is vaque to a deqree that denies

substantive due Drocess to the Slaters.

Town & Country Estates, 740 P.2d at 671. (Emphasis supplied.)

In the case before us, plaintiffs contend that 5 27-1-703, MCA

(1987), arbitrarily prejudices plaintiffs by requiring them to

exonerate nonparties. They contend there is no reasonable basis to

require any plaintiff to prepare a defense at the last minute for

nonparties whom defendants seek to blame for the injury, but who

have not been joined as defendants; and that there is no reasonable

basis for requiring plaintiffs to examine jury instructions,

marshal evidence, make objections, argue the case, and examine

witnesses from the standpoint of unrepresented parties,

particularly when they do not know until the latter part of the

trial that defendants will seek to place blame on unrepresented

persons. These procedural problems form the bases for our holding

that 27-1-703, MCA (1987), in part violates substantive due

process.

We conclude that 5 27-1-703(4), MCA (1987),,unreasonably

mandates an allocation of percentages of negligence to nonparties

without any kind of procedural safeguard. As a result, plaintiffs

may not receive a fair adjudication of the merits of their claims.

It imposes a burden upon plaintiffs to anticipate defendants'

attempts to apportion blame up to the time of submission of the

verdict form to the jury. Such an apportionment is clearly

19

unreasonable as to plaintiffs, and can also unreasonably affect

defendants and nonparties.

We note that other states have enacted tort legislation

allowing the inclusion of nonparties. Colorado, as an example,

allows the inclusion of nonparties when apportioning fault, but

only when notice has been given by the defendant within 90 days of

commencement of the action. See Colo. Rev. Stat. 5 13-21-111.5

(1987). Indiana requires a defendant to assert a nonparty defense

and to bear the burden of proof of that defense if the defense is

asserted as part of an answer filed more than 45 days prior to the

running of the statute of limitations on a claim against a

nonparty. See Ind. Code 5 34-4-33-10 (1985) . Like Indiana, Kansas

places the burden of bringing in other parties, including those who

have settled, on the defendant. Glenn v. Fleming (Kan. 1987), 732

P.2d 750, 756. Although Kansas has abolished joint and several

liability altogether, it does not allow apportionment of percentage

of total damages to any person who is not a party. See Kan. Stat.

Ann. 5 60-258a(d) (1977). The establishment of the nonparty

defense in Indiana has brought many questions about the definition

of "nonpartyu and the procedural mechanisms for bringing in

additional defendants. Schwartz, Comuarative Neuliclence 5 16.5 (2d

ed. 1986 & Supp. 1993).

Numerous other comparative negligence statutes--although

rarely similar to an act of another state--include some type of

procedural safeguard for plaintiffs, defendants and nonparties.

Ohio's tort reform law, for example, limits allocation of

negligence to parties before the court. Schwartz, Com~arative

Neqliqence 5 16.5 (2d ed. Supp. 1993); Ohio Rev. Code Ann. 5

2315.19 (B) (4) (1991) . New Mexico allows settling defendants to be

called as witnesses and allows discovery regarding such witnesses

as if they remained in the action. Wilson v. Gillis (N.M. Ct.App.

1986), 731 P.2d 955, 958.

We have noted some of the procedural safeguards provided by

other jurisdictions to emphasize that Montana's statute provides

none of these protections. Our review of the comparative

negligence statutes from other jurisdictions does not provide much

help in the present case, however. Nearly every state has a unique

statute with nuances which make its case law interpreting the

statutes of little help to other courts.

We have previously mentioned that SB 51 was patterned after

Washington state's statute. Yet SB 51 is substantially different

from the 1986 enactment of Wash. Rev. Code Ann. 4.22.070, which is

also set forth in the appendix to this opinion. A striking

difference is that the Washington statute preserved joint and

several liability for innocent plaintiffs. In contrast, 5 27-1-

703, MCA (1987), treats all plaintiffs alike, lumping totally

innocent plaintiffs--like R.M. in this case--with those plaintiffs

whose comparative negligence may be as much as 50 percent. The

effect of 5 27-1-703, MCA (1987), is to diminish plaintiffs1

ability to collect 100 percent of damages in situations like the

present case. Where the trier of fact attributes less than 51

percent of the negligence to each person on the verdict form,

plaintiffs may be unable to collect for the portion of negligence

attributable to judgment-proof defendants, immune tortfeasors, or

other persons who may be included on the verdict form but who have

not been a part of the action.

Such was the case with the persons listed on the special

verdict form in the present case. Edna Goodwin was an

unrepresented nonparty on the basis of her settlement prior to

trial. Although Goodwin settled prior to trial and was no longer

a party, she nonetheless was included on the verdict form as a

settling party pursuant to 5 27-1-703(4), MCA. No attorney

represented Goodwin's interests at trial and as a result, it is

possible that the application of percentage of negligence was

higher than would have been appropriate had the facts as to her

case been presented by her own counsel.

None of the parties introduced evidence relating to the

standard of care of a professional counselor. Goodwin was included

on the verdict form as required by 5 27-1-703(4), MCA, without any

instruction to the jury as to the proper standard of care for a

professional counselor. On the verdict form the jury allocated 35

percent of the negligence to Ms. Goodwin, 35 percent to Mrs.

Kuipers and 30 percent to the Department. Section 27-1-703(5),

MCA, provides that if a party is found to be less than 50 percent

negligent, that party is liable for contribution only up to the

percentage of negligence attributed to him. As a result, under the

verdict given, if any party is unable to pay the full amount of the

judgment against that party, there will then be an inability on the

part of the plaintiffs to collect all damages. See State ex rel.

Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396,

for its treatment of joint and several liability prior to the 1991

enactment of 5 27-1-703(5), MCA.

In many jurisdictions--some mentioned above--comparative

negligence statutes allow an apportionment of liability to immune

parties and settling parties. However, these jurisdictions have

procedural aspects which provide for notice to plaintiffs, specific

burdens of proof, and other procedures for safeguarding the rights

of all involved--parties and nonparties alike. Consideration of

these procedural protections should have been considered by the

Montana Legislature at the time of the enactment of the statute.

While the listed reasons for enactment of comparative

negligence tort reform legislation are valid governmental purposes,

we conclude that the Montana Legislature has acted arbitrarily and

unreasonably in responding to this need. We conclude that the

allocation of percentages of liability to nonparties violates

substantive due process as to the plaintiffs.

We hold that the following portion of § 27-1-703(4), MCA

(1987), violates substantive due process:

...persons released from liability by the claimant,

persons immune from liability to the claimant, and any

other persons who have a defense against the claimant.

...

While we hold that the naming of Ifanyother persons who have

a defense against the claimantN violates substantive due process

where such persons are not parties, we further emphasize that the

reference in the statute to "any other persons who have a defense

23

against the claimanttt so vague as to make its meaning impossible

is

to understand.

This raises the question as to whether the above holding

renders the entire statute unconstitutional. In the enactment of

SB 51, the 1987 Montana Legislature included the following

"severability clauseu:

Section 3. Severability. If a part of this act is

invalid, all valid parts that are severable from the

invalid part remain in effect. If a part of this act is

invalid in one or more of its applications, the part

remains in effect in all valid applications that are

severable from the invalid applications.

Chapter 505, 1987 Mont. Laws 1232, 1233.

As pointed out in Montana Auto. Asstn v. Greeley (1981), 193

Mont. 378, 399, 632 P.2d 300, 311, if the invalid part of a statute

is severable from the rest, the portion which is constitutional may

stand while the part which is unconstitutional is stricken and

rejected. That case further emphasized that a statute is not

totally destroyed because of an improper provision, unless such

provision is necessary to the integrity of the statute, or was an

inducement to its enactment. When an unconstitutional portion of

the act is eliminated, if the remainder is complete in itself and

capable of being executed in accordance with apparent legislative

intent, it must be sustained. Montana Auto. Asstn, 632 P.2d at

311.

We here conclude that the unconstitutional portion of 5 27-1-

703(4), MCA (1987), is not essential to the integrity of the

statute, nor was it an inducement to its enactment. We further

conclude that the remainder of the statute is capable of being

24

executed in accordance with the legislative intent. As a result of

our holding of unconstitutionality, we have eliminatedthat portion

of the statute which allowed an allocation of negligence to

nonparties, and in particular to nonparties who had been released

from liability by the claimant, nonparties who were immune from

liability to the claimant, and any other nonparties who have a

defense against the claimants.

Therefore, in accord with our holding, the lined through

portion of 5 27-1-703(4), MCA (1987), as illustrated below is

hereby excised from the statute as unconstitutional:

27-1-703. Multiple defendants -- determination of

liability. ...

(4) On motion of any party against whom a claim is

asserted for negligence resulting in death or injury to

person or property, any other person whose negligence may

have contributed as a proximate cause to the injury

complained of may be joined as an additional party to the

action. For purposes of determining the percentage of

liability attributable to each party whose action

contributed to the injury complained of, the trier of

fact shall consider the negligence of the claimant,

injuredperson, defendants, [and] third-party defendant^^

+limw+c f " ,

r.,

. . .

11&111ty r't

L I C J

%-

c

. .

1 .. 1

+

X . p

trier of fact shall apportion the percentage of

negligence of all such persons. However, in attributing

negligence among persons, the trier of fact may not

consider or determine any amount of negligence on the

part of any injured person's employer or coemployee to

the extent that such employer or coemployee has tort

immunity under the Workers' Compensation Act or the

Occupational Disease Act of this state, of any other

state, or of the federal government. Contribution shall

be proportional to the liability of the parties against

whom recovery is allowed. Nothing contained in this

section shall make any party indispensable pursuant to

Rule 19, Montana Rules of Civil Procedure.

ISSUE 111: Counselorls standard of care.

Did the District Court err in allowing the jury to allocate a

percentage of negligence to Edna Goodwin when evidence was not

introduced as to the standard of care for a professional counselor?

The issue presented is whether the jury was properly

instructed as to the remaining defendants' burden in establishing

the negligence of a professional counselor. The jury was allowed

to apportion negligence to Goodwin based on an ordinary standard of

care instruction. Plaintiffs contend that the District Court

should have instructed the jury on the standard of care for a

professional counselor. The District Court determined that no

standard of care had been established by expert testimony for a

professional counselor. This Court has not previously ruled on

whether the standard of care for a mental health counselor must be

established by expert testimony or whether the jury is able to

determine this on their own. We address this issue for the benefit

of the parties in the event it remains an issue on retrial. It is

the rule in Montana that expert testimony is required as to the

standard of care, and as to the professional's violation of that

standard of care, before a trier of fact may find such professional

negligent. In Carlson v. Morton (1987), 229 Mont. 234, 239, 745

P.2d 1133, 1136, the Court stated that expert testimony identifying

the doctor's care as negligent or the doctor's own testimony

clearly establishing his own conduct as negligent was necessary.

This has been applied as well to dentists and orthodontists in

Llera v. Wisner (1976), 171 Mont. 254, 262, 557 P.2d 805, 810; to

manufacturers and distributors of pharmaceuticals in Hill v. Squibb

26

& Sons (l979), 181 Mont. 199, 207, 592 P.2d 1383, 1388; and to

abstractors of title in Doble v. Lincoln County Title Co. (1985),

215 Mont. 1, 5, 692 P.2d 1267, 1270. Most recently, the Court has

required expert testimony to establish the standard of care for a

veterinarian in Zimmerman v. Robertson (1993), 259 Mont. 105, 108,

854 P.2d 338, 340.

The rationale for requiring expert testimony to establish a

standard of care for professionals acting in their professional

capacity is that such professionals are required to possess a

minimum standard of special knowledge and ability, and as a result

juries which are composed of laypersons are normally incompetent to

pass judgment on such questions without the assistance of expert

testimony. Carlson, 745 P.2d at 1137. Professors Prosser and

Keeton suggest that although most of the decided cases have dealt

with medical doctors,

the same is undoubtedly true of dentists, pharmacists,

psychiatrists, veterinarians, lawyers, architects and

engineers, accountants, abstractors of title, and many

other professions and skilled trades.

Zimmerman, 854 P.2d at 339, citing Prosser & Keeton on The Law of

Torts, § 32 (5th ed. 1984). Montana's prior decisions on this

issue are in accordance with the general rule as summarized by

Prosser and Keeton.

We hold that expert testimony was required to establish the

standard of care for Ms. Goodwin as a professional counselor before

the jury could allocate a percentage of negligence to her.

Section 27-1-703(4), MCA, mandated that the trier of fact

consider the negligence and apportion the same to persons such as

27

counselor Goodwin who have been released from liability. As a

result, the District Court was faced with the difficult decision

and concluded that in order to comply with the statute, it was

necessary to instruct the jury to use the ordinary standard of care

to apportion negligence to counselor Goodwin. This was necessary

because neither party had established a standard of care for a

professional counselor and the question arose at the time of

settling jury instructions, which was after the conclusion of the

submission of evidence. While the District Court had limited

choice, we conclude that it was reversible error to apply the

ordinary negligence standard to counselor Goodwin.

We hold that the District Court erred in permitting Goodwin's

name to be listed on the special verdict form when the standard of

care for a professional counselor had not been established by

evidence, and there were no specific jury instructions as to the

professional standard requirement.

ISSUE IV: Admission of evidence.

Did the District Court err in admitting evidence concerning

R.M.'s biological parents?

At the beginning of the trial, plaintiffs submitted a Motion

in Limine to exclude all of defendants' highly prejudicial evidence

concerning R.M.'s natural parents. Although plaintiffs themselves

introduced evidence thatR.M.'s natural parents both had low I.Q.s,

and had used alcohol and kept her in a neglectful environment

during the first few months of her life, they contend on appeal

there was no evidence submitted which demonstrated that R.M.'s

parents' genetics or actions caused any mental or physical defects

28

to R.M. As a result, plaintiffs contend the District Court

committed reversible error in allowing the Department to introduce

certain evidence and to argue and comment on such evidence during

its closing argument.

At the beginning of the trial, the Department argued that it

could establish a causal connection between the natural parents and

R.M.'s mental impairment. Premised upon the establishment of a

causal connection, the District Court allowed the defendants to

introduce evidence about the natural parents. Plaintiffs argue

that the connection between the natural parents and R.M.'s mental

impairment was never made, that the court erred in failing to

admonish the jury and again erred in allowing closing arguments on

the evidence. They contend this was plain error under Montana law

and should have been excluded as more prejudicial than probative.

They claim that without any connection to R.M.'s present condition,

the evidence concerning her natural parents was inherently

prejudicial and is reversible error. As explained below, we agree

with plaintiffs that this was reversible error.

Defendants' closing argument included the following

statements:

Now, we know from the evidence that there are some

hereditary influences at work with [R.M.]. There were

drug and alcohol problems in the past there. She was a

victim of early abuse and neglect. And I'm really sorry

she went through that, but that's nothing that any of us

can do anything about except to help her try to get over

it in the future.

We know that her parents had problems emotionally

and socially, and we've got evidence that those kind of

things have a long, lasting effect.

The Department contends the evidence was properly admitted for

three reasons: (1) plaintiffs opened the door by asking their own

experts whether genetic factors contributed to R.M.'s functional

deficits; (2) defendants properly inquired about R.M.'s parents to

impeach the plaintiffs1 experts and since the evidence was not

complete, defendants had to cross-examine the experts in this area

because the experts based their opinions on incomplete information;

and (3) the evidence about R.M. 's parents was relevant to R.M. 's

damages because her impairments were caused by a variety of

factors, including genetic factors, according to a witness for the

Department, and plaintiffs1 own experts testified that factors

other than the brain injury contributed to her current problems.

They claim this last statement that plaintiffs' own experts

testified that factors other than the brain injury contributed to

her current problems provided the medical link required by Kimes v.

Herrin (1985), 217 Mont. 330, 705 P.2d 108.

In Kimes, the court allowed testimony regarding family

fighting and drinking by the appellant's father in an action where

damages were at issue and the reasons for the appellant's symptoms

were critical to the issue of damages. The appellant was a two-

year-old at the time of her injuries from an automobile accident.

Several years later she exhibited symptoms including listlessness,

drowsiness and staring. At trial, the respondent introduced

testimony about family fighting and her father's drinking to show

that these symptoms were caused by the appellant's environment and

not the collision.

We stated that the evidence about her family environment was

relevant under Rule 401, M.R.Evid., because it had a tendency to

make the alleged cause of the symptoms more or less probable than

it would be without the testimony and, thus, must be weighed to

determine whether it should be excluded under Rule 403, M.R.Evid.

Kimes, 705 P.2d at 110. Rule 403, M.R.Evid., provides that

relevant evidence is inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice.

The decision whether or not to exclude such evidence will not

be reversed by this Court unless the district court has abused its

discretion. Kimes, 705 P.2d at 110. We stated:

We hold that the District Court abused its discretion in

allowingthis testimony. The District Court demonstrated

some concern over the admissibility of the questioned

testimony and allowed the testimony because the

respondent assured the District Court that home

environment would be medically linked to the appellant's

symptoms. We note that both partiest expert witnesses

indicated that poor home environment may cause symptoms

such as were exhibited by appellant. However, no

evidence at trial established a medical connection

between poor home environment and the appellant's

symptoms.

Kimes, 705 P.2d at 110.

In this case, the Department never made the causal connection.

The Department is correct in stating plaintiffs did ask their

expert some questions relating to R.M.'s biological parents.

Although testimony was elicited from several witnesses regarding

R.M.'s biological parents, none of the evidence links her

impairment to the natural parents. After a careful review of the

record, we conclude that the testimony provided by the medical

experts failed to establish a medical link between the actions of

R.M. Is biological parents and any condition which R.M. had prior to

the beatings by Dennis Kuipers. On the basis of our holding in

Kimes, we conclude that the similar sort of evidence introduced

here and commented upon in defendants' closing argument was more

prejudicial to R.M. than probative. We further conclude, as in

Kimes that although the medical experts of both parties indicated

I

that genetic factors and other information about the biological

parents could contribute to R.M.'s present condition, no evidence

was presented to make the causal connection more probable than not

in this case.

We hold the District Court abused its discretion in admitting

evidence concerning R.M.'s biological parents and in allowing the

Department to comment on such evidence during its closing argument.

ISSUE V Jury Instructions.

:

Did the District Court err in instructing the jury?

Plaintiffs contend that the District Court made several errors

involving jury instructions which constitute reversible error. We

will consider the same to the extent needed by the parties on

retrial. As stated in Story v. City of Bozeman ( 1 9 9 3 ) , 259 Mont.

207, 222, 856 P.2d 202, 211:

When examining whether certain jury instructions were

properly given or refused, we must consider the jury

instructions in their entirety and in connection with

other instructions given and the evidence introduced at

trial.

There is no reversible error in the giving or refusing of certain

instructions if the jury instructions, viewed in their entirety,

state the correct law applicable to the case. Walden v. State

(1991), 250 Mont. 132, 137, 818 P.2d 1190, 1193. Bearing these

principles in mind, we address the contentions of the plaintiffs

concerning the District Court's treatment of jury instructions in

this case.

a. Did the District court err in instructins the iurv on the

De~artmentof Familv Servicest duty to revort child abuse to

the County Attornev?

The District Court refused to give a jury instruction offered

by the plaintiffs on the Department's statutory duty to report

child abuse cases to the County Attorney. This is a matter of

interpreting 5 41-3-201, MCA, which provides in pertinent part:

(1) When the professionals and officials listed in

subsection (2) know or have reasonable cause to suspect,

as a result of information they receive in their

professional or official capacity, that a child is abused

or neglected, they shall report the matter promptly to

the department of family services or its local affiliate,

which then shall notify the county attorney of the county

where the child resides.

(2) Professionals and officials required to report

are :

. . .

(g) a peace officer or other law enforcement

official; ...

In Demaree v. Safeway Stores, Inc. (1973) 162 Mont. 47, 54,

508 P.2d 570, 575, the Court said that a jury instruction which

assumes as fact a matter legitimately in controversy, as shown by

the evidence, is erroneous. The fact issue here, according to the

Department, was whether "reasonable causettto suspect abuse or

neglect applied to both the law enforcement officers the

Department. We conclude that it applied only to the police

officers.

The Department did not notify the County Attorney of the

33

report it received from the Bozeman Police Department concerning

the Rax incident. We conclude that the plain language of this

statute required the Department to report the Rax incident to the

Gallatin County Attorney. This was not done.

Plaintiffs' proposed Instruction No. 30 relating to the

Department's duty to report abuse was as follows:

When the Department of Family Services receives a

report of child abuse, it is required to report the

incident to the County Attorney where the child resides.

The District Court refused to give this instruction and the

plaintiffs claim this affected the percentage of negligence

attributed to the Department and is reversible error. The

Department contends that the instruction was properly refused as it

did not apply to the evidence in this case because police had no

reasonable cause to suspect abuse at the Rax restaurant. This does

not agree with the record.

The record indicates police believed there was reasonable

cause to suspect abuse, but determined there was no probable cause

to arrest Dennis Kuipers. The officer who observed the child also

testified that she was new on the job and could not readily

identify certain signs which she later learned should have alerted

her that the child had been abused at the Rax restaurant, and that

she likely had probable cause then to arrest Dennis Kuipers.

Nonetheless, that is irrelevant here because the case was reported

to the Department and the statute quoted above requires the

Department subsequently to report it to the County Attorney.

The "reasonable cause1'reference in 5 41-3-201, MCA, applies

to the police having reasonable cause to suspect abuse or neglect.

As we have stated, it does not apply to the Department. The

statute requires the Department, upon receiving such a report, to

notify the County Attorney of the county where the child resides.

Plaintiffs' proposed Instruction No. 30 was a correct statement of

the law and was improperly refused.

One of the theories of plaintiffs' case was that the County

Attorney was deprived of the opportunity to protect R.M. because of

the Department's failure to comply with the statute. The District

Court's failure to instruct the jury on the duty of the Department

to notify the County Attorney prevented plaintiffs from arguing

this theory of the case and could have affected the percentage of

negligence attributed to the Department by the jury. In accord

with the principles stated above from Storv and Walden, refusal of

plaintiffs' proposed instruction failed to state the correct law of

the case.

We hold the District Court erred in refusing to give the

plaintiffs1 offered jury instruction relating to the Department's

statutory duty to report the Rax incident to the Gallatin County

Attorney's office.

b. Did the District Court err in instructins the iurv on

discountina economic damases?

Plaintiffs presented testimony by an expert in economics who

estimated future economic damages at $1,400,000 and testified about

the present value of that amount. Plaintiffs' expert prepared his

evaluation by using projected future medical costs based upon

figures given to him by the Missoula Community Hospital head injury

35

clinic. The economist then testified in detail about his method in

reducing the damages to present value. Plaintiffs contend that the

instruction given by the court allowed R.M. 's damages to be reduced

twice--first by the expert's testimony and then by the jury.

Plaintiffs contend that althoughthe District Court instructed

the jury on the proper law, there was no information given to the

jury from which they could base their own calculations to reduce to

present value any amount they arrived at as an appropriate award if

different from the amount asked for by the plaintiffs. Plaintiffs'

estimate of future damages through the economist was a much larger

figure than the amount allowed by the jury. Plaintiffs contend

that it is not known how the jury could have reduced the award

because no instruction was given in that regard. They contend

there should have been another instruction telling the jury how to

calculate present value if they did not accept the expert's measure

of damages. The Department counters that the law of Montana allows

the jury to disregard the experts entirely in determining the level

of damages.

Although the plaintiffst estimate of $1,400,000 in future

medical expenses alone was uncontested and the plaintiffs asked for

much more in damages, it is within the province of the jury to

reject entirely the amount of damages estimated by experts.

Plaintiffs argue that Itwemust assume that the jury followed the

law in this case and again discounted the damage figures given to

the jury by Plaintiff's expert." Although the amount of damages

is solely within the province of the jury, the jury is not given

carte blanche in that regard and there must be some substantial

evidence to support the jury verdict. Tappan v. Higgins (1989),

240 Mont. 158, 160, 783 P.2d 396, 397. The District Court

correctly instructed the jury that it was not bound by the

testimony of the experts. We conclude there is no basis to assume

that the damage figures provided by plaintiffs' expert were

discounted twice--once by the expert and again by the jury.

Instruction No. 35, offered by defendants and objected to by

the plaintiffs, provided as follows:

You must adjust future economic losses to their

present cash value.

Present cash value is a sum of money which, together

with what that money may reasonably be expected to earn

in the future, when invested at a reasonable rate of

return, will produce the dollar equivalent of such future

damages.

In arriving at present cash value you may also

consider the effect that inflation and increases in wages

will have on offsetting the amounts that money will earn.

This instruction was taken from MPI 25.91; however, the pattern

instruction was not given in its entirety. The following was

omitted:

The only amounts to be adjusted to present cash

value are future earnings and future medical costs. The

discount principles stated in this instruction do not

apply to any other damages.

The Comment to this instruction states that an instruction on

present value "should not be given unless there is sufficient

foundation in the testimony to allow the jury to make the

adjustment." MPI 25.91 Damages - Present Value.

If the instructions in their entirety correctly state the law,

there is no reversible error. We conclude, however, that

Instruction No. 35 as given by the District Court omitted a very

necessary portion regarding which amounts are to be discounted to

present value and thus did not correctly state the law.

We hold that the District Court erred in instructing the jury

by Instruction No. 35 and failing to include the provision that the

only amounts to be so adjusted to present cash value are "future

earnings and future medical costs."

For assistance at retrial, we emphasize that neither party

made reference to 5 25-9-402, MCA, which provides:

25-9-402. Findings by t r i e r of f a c t -- civil

actions. In any action for personal injury, property

damage, or wrongful death where liability is found after

trial and in which $ 1 0 0 , 0 0 0 or more in future damages is

awarded to the claimant, the trier of fact shall make a

separate finding as to the amount of any future damages

so awarded and state whether the amount of future damaaes

has been reduced to present value. (Emphasis supplied.)

While the special verdict form used in this case provided for

findings on future damages, there was no separate statement by the

jury as to whether the amount of future damages had been reduced to

present value as required by statute. Upon retrial, this statute

should also be followed.

I S S U E V I : Governmental Immunity.

Is the Department immune from tort liability for its failure

to protect R.M.?

In its Cross-Appeal, the Department argues that it is immune

from tort liability for two reasons. First, it contends that the

acts of approval for adoption, foster placement and investigation

of the child abuse report were quasi-judicial functions in which

the Department was acting in a quasi-judicial capacity and,

therefore, the District Court should have dismissed the tort claim

against it because the Department was acting in a discretionary

capacity concerning the placement of R.M. in the Kuipers' home.

Second, it argues that it is immune from tort liability based on

the language of 5 41-3-203, MCA, which grants immunity to persons

investigating or reporting incidents of child abuse or neglect

under 5 5 41-3-201 or 41-3-202, MCA.

This Court has addressed and clarified the concept of quasi-

judicial immunity in several cases. In Koppen v. Board of Medical

Examiners (1988), 233 Mont. 214, 219, 759 P.2d 173, 176, we stated

that the Board of Medical Examiners was a quasi-judicial body

because of the nature of its vested discretion to determine whether

or not to adjudicate an alleged violation by a licensee. However,

the Board of Medical Examiners was subject to the notice and

hearing requirements of the Montana Administrative Procedure Act

(MAPA), 5 2-4-101, MCA, et seq., and its decisions were subject to

judicial review--key aspects of our ruling that the Board of

Medical Examiners was a quasi-judicial body and absolutely immune

in the exercise of that determination. KopDen, 759 P.2d at 176.

In so holding, we cited Butz v. Economou (1978), 438 U.S. 478,

We think that adjudication within a federal

administrative agency shares enough of the

characteristics of the judicial process that those who

participate in such adjudication should also be immune

from suits for damages.

The Butz court characterized quasi-judicial immunity as a logical

descendant of prosecutorial immunity. The significance of that

analogy is that immunity in both circumstances is based on the

nature of the functions carried out by agencies or officials.

Butz

I 438 U.S. at 511-16, 98 S.Ct. at 291

22.

Thus, unlike the Board of Medical Examiners in Komen, in

State Bd. of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d

409, the Board of Dentistry was proceeding against a nonlicensee

under 5 37-4-328(3), MCA, which did not require an administrative

hearing before the Board of Dentistry under MAPA. The Board was

acting in its capacity as an executive agency seeking an injunction

in the district court, thereby putting itself in the role of

litigant or advocate, not adjudicator. Kandarian, 813 P.2d at 412.

The Board of Dentistry argued for immunity similar to prosecutorial

immunity. We emphasized that there were procedural safeguards

inherent in the prosecutorial system which acted as a check on the

prosecutor's independence and which were not present in that case.

Kandarian, 813 P.2d at 412.

In Kowen, 759 P.2d at 176, the Court summarized Butz and two

Montana opinions, Ronek v. Gallatin County (1987), 227 Mont. 514,

740 P.2d 1115, cert. denied, 485 U.S. 962, 108 S.Ct. 1226, 99

L.Ed.2d 426, and State ex rel. Dept. of Justice v. District Court

(1977), 172 Mont. 88, 560 P.2d 1328, as follows:

[They] stand for the proposition that entities called

upon to function judicially should be immunized in order

to facilitate the proper execution of their duties.

However, the basis for these decisions . . . is the

common law.

Thus, our decisions governing tort liability of governmental

agencies provide that a governmental entity may be immune from tort

liabiliby if it committed a tort while performing a quasi-judicial

function even when the governmental unit is not characterized as a

quasi-judicial entity.

We addressed this issue at some length in State ex rel.

Workers' Compensation Division v. District Court (hereinafter Great

Western Suqar) (1990), 246 Mont. 225, 805 P.2d 1272. We said that

the core determination for immunity to apply to the function of the

agency there was that it be quasi-judicial rather than

administrative or ministerial, noting that our prior decisions had

clouded the distinction. Section 2-15-102(9), MCA, of MAPA defines

"quasi-judicial function" as:

"Quasi-judicial function" means an adjudicatory function

exercised by an agency, involving the exercise of

judgment and discretion in making determinations in

controversies. ..

.

In Great Western Suqar, 805 P.2d at 1277, we further clarified this

as follows:

... Here, the statutory scheme mandates that the

Division at least review a self-insurer's financial

condition. Admittedly the statutes and administrative

rules grant the Division discretion in renewing GW's

application as a plan No. 1 self-insurer. However, in

this case the Division never exercised this discretion to

determine GW's eligibility to self-insure its risk under

plan no. 1. Rather, there was an admitted complete

failure by the Division to undertake any of the review

necessary to made such a determination. Thus, the

neqliqence occurred at a stase where the Division's

function was entirelv ministerial: (Emphasis supplied.)

"Official action, the result of performing a certain

specific duty arising from designated facts, is a

ministerial act. . . .

Another way of expressing the

same thought is that a duty is to be regarded as

ministerial when it is a duty that has been positively

imposed by law, and its performance required at a time

and in a manner, or upon conditions which are

specifically designated; the duty to perform under the

conditions specified not being dependent upon the

officer's judgment or discretion. . . .And that a

necessity may exist for the ascertainment, from personal

knowledge or from information derived from other sources,

of those facts or conditions, upon the existence or

fulfillment of which, the performance of the act becomes

a clear and specific duty, does not operate to convert

the act into one iudicial in its nature." (Emphasis is

original.)

The discretion afforded by the statutes and rules in

this case was never exercised, rather, the Division

breached its underlying duty, mandated by the statutory

scheme for plan no. 1 insurance, to investigate GW's

eligibility to self-insure. Such act was purely

ministerial . . .

and cannot be a basis for invoking

quasi-judicial immunity:

"Accordingly, to be entitled to immunity the state must

make a showing that such a policy decision, consciously

balancing risks and advantages, took place. The fact

that an employee normally engages in "discretionary

activity" is irrelevant if, in a given case, the employee

did not render a considered decision. ...

" (Citations

omitted.)

We then noted that our analysis was limited to common-law quasi-

judicial immunity, but that the "exercise of judgment and

discretiongtrequired by 3 2-15-102(9), MCA, of MAPA to invoke

immunity was analogous to the discretionary function exception to

the Federal Tort Claims Act, 28 U.S.C. 5 2680(a), under which the

FTCA does not waive immunity for claims based on negligence of

governmental employees exercising or performing discretionary

functions of a federal agency, regardless of whether the discretion

is abused. Great Western Suqar, 805 P.2d at 1277-78.

In Berkovitz v. United States (1988), 486 U.S. 531, 536, 108

S.Ct. 1958-59, 100 L.Ed.2d 531, 540-41, the United States Supreme

Court said immune acts must involve "permissible exercise of policy

discretion":

[Tlhe discretionary function exception will not apply

when a federal statute, regulation, or policy

specifically prescribes a course of action for an

employee to follow. In this event, the employee has no

rightful option but to adhere to the directive. And if

the employee's conduct cannot appropriately be the

product of judgment or choice, then there is no

discretion in the conduct for the discretionary function

exception to protect.

Both in Great Western Susar and as recognized by the District

Court in this case, there was a failure of the agency to follow

procedures that would enable the agency to make a decision:

The duties imposed by the statutory scheme on the

Division's employee were purely investigative,

ministerial and administrative. Because the Division

failed to perform its duty to review or examine G W t s

application as prescribed by statute, and because simply

performing this duty does not involve the use of quasi-

judicial discretion, the Division is not protected by

quasi-judicial immunity at this stage. The Division has

simply not functioned as such under these facts.

Great Western Susar, 805 P.2d at 1278. The Department is required

by statute to license and train foster care providers and to

investigate adoptive homes. See 5 41-3-1103(b) and (d), MCA; 5 41-

3-1142, MCA; and § 41-3-202(1) and (2), MCA. We conclude the

Department, at all times leading up to the tort sued upon in this

case, was acting ministerially.

The conclusion we reach in classifying the Department's

actions is significant only if quasi-judicial immunity can only

attach to a quasi-judicial body which is carrying out the function.

Great Western Suqar, 805 P.2d at 1276, which controls here,

provides in pertinent part:

We conclude that immunity does not attach because the

Division is not expressly designated a quasi-judicial

board, see 2-15-124, MCA, see generally Title 2,

Chapter 15, MCA, nor was it performing a quasi-judicial

function as will be discussed below. ...

The Department in this case was not a statutorily-designated quasi-

judicial board. Great Western Suqar, 805 P. 2d at 1277-78, provides

that immunity is not confined to entities which are statutorily-

designated as quasi-judicial boards. Gerber v. Commissioner of

Ins. (1990), 242 Mont. 369, 371-72, 786 P.2d 1199, 1200-01,

provides further clarification that quasi-judicial immunity may

apply beyond the context of a quasi-judicial board as the Insurance

Commissioner is not designated accordingly, yet the Insurance

Commissioner may be afforded quasi-judicial immunity for quasi-

judicial functions. For example, in Gerber, the Insurance

Commissionertsmethod of conducting an investigation was protected

by quasi-judicial immunity because the applicable statutes

expressly designated investigations as discretionary acts. Gerber,

786 P.2d at 1200-01. See also Trout v. Bennett (1992), 252 Mont.

416, 427, 830 P.2d 81, 88.

We agree with the Department that immunity may apply to the

exercise of a quasi-judicial function where there is no

statutorily-designated quasi-judicial board involved in the action.

However, like the Workerst Compensation Division in Great Western

Suaar, the Department here was not carrying on an investigation of

the sort which is granted immunity such as one that is a part of a

contested case hearing; it is not entitled to immunity when it is

not a quasi-judicial body carrying out a quasi-judicial function.

We conclude the Department was not acting in a quasi-judicial

role in its actions in this case. There was no contested case

hearing involved, nor was there any other adversarial type of

proceeding. In addition, the Department's actions were not

discretionary, but were mandated by statute and were ministerial

and administrative in nature.

The Department's second argument relating to immunity is that

it is granted statutory immunity by 5 41-3-203, MCA, which provides

immunity for persons required to report and investigate child abuse

under the provisions of $ 5 41-3-201 and 41-3-202, MCA. This

immunity is not intended for the Department; rather, it is intended

to protect individuals such as teachers, doctors, and psychologists

who are required to report suspected abuse. The stated public

policy of Montana is to "provide for the protection of children

whose health and welfare are or may be adversely affected and

further threatened by the conduct of those responsible for their

care and protection." Section 41-3-101(2), MCA. We conclude that

§ 41-3-203, MCA, also does not immunize the Department from tort

liability.

We hold the Department is not immune from tort liability for

its failure to protect R.M. in this case.

ISSUE VII: Who is to be included on the special verdict form

in a subsequent trial?

On retrial, under our holding on Issue 11, the trier of fact

can consider the negligence of the following parties to the action:

claimant, injured person, defendant and third party defendants. In

the absence of a record and briefing comprehensively addressing it,

45

we conclude it is not appropriate to further address this issue.

Affirmed in part, reversed in part and remanded.

we concur: - -

0

chief Justice

APPENDIX

Section 27-1-703, MCA (1987), provides as follows:

27-1-703. Multiple defendants -- determination of

liability. (1) Except as provided in subsections (2) and

( 3 ) , whenever the negligence of any party in any action is an

issue, each party against whom recovery may be allowed is

jointly and severally liable for the amount that may be

awarded to the claimant but has the right of contribution from

any other person whose negligence may have contributed as a

proximate cause to the injury complained of.

(2) Any party whose negligence is determined to be 50%

or less of the combined negligence of all persons described in

subsection (4) is severally liable only and is responsible

only for the amount of negligence attributable to him, except

as provided in subsection (3). The remaining parties are

jointly and severally liable for the total less the amount

attributable to the claimant.

(3) A party may be jointly liable for all damages caused

by the negligence of another if both acted in concert in

contributing to the claimant's damages or if one party acted

as an agent of the other.

(4) On motion of any party against whom a claim is

asserted for negligence resulting in death or injury to person

or property, any other person whose negligence may have

contributed as a proximate cause to the injury complained of

may be joined as an additional party to the action. For

purposes of determining the percentage of liability

attributable to each party whose action contributed to the

injury complained of, the trier of fact shall consider the

negligence of the claimant, injured person, defendants, third-

party defendants, persons released from liability by the

claimant, persons immune from liability to the claimant, and

any other persons who have a defense against the claimant.

The trier of fact shall apportion the percentage of negligence

of all such persons. However, in attributing negligence among

persons, the trier of fact may not consider or determine any

amount of negligence on the part of any injured persongs

employer or coemployee to the extent that such employer or

coemployee has tort immunity under the Workersg Compensation

Act or the Occupational Disease Act of this state, of any

other state, or ofthe federal government. Contribution shall

be proportional to the liability of the parties against whom

recovery is allowed. Nothing contained in this section shall

make any party indispensable pursuant to Rule 19, Montana

Rules of Civil Procedure.

(5) If for any reason all or part of the contribution

from a party liable for contribution cannot be obtained, each

of the other parties shall contribute a proportional part of

the unpaid portion of the noncontributing party's share and

may obtain judgment in a pending or subsequent action for

contribution from the noncontributing party. A party found to

be 50% or less negligent for the injury complained of is

liable for contribution under this section only up to the

percentage of negligence attributed to him.

Section 27-1-703, MCA (1985), provided:

27-1-703. Multiple defendants jointly and severally

liable --right of contribution. (1) Whenever the negligence

of any party in any action is an issue, each party against

whom recovery may be allowed is jointly and severally liable

for the amount that may be awarded to the claimant but has the

right of contribution from any other person whose negligence

may have contributed as a proximate cause to the injury

complained of.

(2) On motion of any party against whom a claim is

asserted for negligence resulting in death or injury to person

or property, any other person whose negligence may have

contributed as a proximate cause to the injury complained of

may be joined as an additional party to the action. Whenever

more than one person is found to have contributed as a

proximate cause to the injury complained of, the trier of fact

shall apportion the degree of fault among such persons.

Contribution shall be proportional to the negligence of the

parties against whom recovery is allowed. Nothing contained

in this section shall make any party indispensable pursuant to

Rule 19, M.R.Civ.P.

(3) If for any reason all or part of the contribution

from a party liable for contribution cannot be obtained, each

of the other parties against whom recovery is allowed is

liable to contribute a proportional part of the unpaid portion

of the noncontributing party's share and may obtain judgment

in a pending or subsequent action for contribution from the

noncontributing party.

Washington state's similar statute reads as follows:

5 4.22.070. Percentage of fault--Determination--Limitations.

(1) In all actions involving fault of more than one

entity, the trier of fact shall determine the percentage of

the total fault which is attributable to every entity which

caused the claimant's damages, including the claimant or

person suffering personal injury or incurring property damage,

defendants, third-party defendants, entities released by the

claimant, entities immune from liability to the claimant and

entities with any other individual defense against the

claimant. Judgment shall be entered against each defendant

except those who have been released by the claimant or are

immune from liability to the claimant or have prevailed on any

other individual defense against the claimant in an amount

which represents that party's proportionate share of the

claimant's total damages. The liability of each defendant

shall be several only and shall not be joint except:

(a) A party shall be responsible for the fault of another

person or for payment of the proportionate share of another

party where both were acting in concert or when a person was

acting as an agent or servant of the party.

(b) If the trier of fact determines that the claimant or

party suffering bodily injury or incurring property damages

was not at fault, the defendants against whom judgment is

entered shall be jointly and severally liable for the sum of

their proportionate shares o f the claimants total damages.

(2) If a defendant is jointly and severally liable under

one of the exceptions listed in subsections (l)(a) or (l)(b)

of this section, such defendant's rights to contributions

against another jointly and severally liable defendant, and

the effect of settlement by either such defendant, shall be

determined under RCW 4.22.040, 4.22.050, and 4.22.060.

(3)(a) Nothing in this section affects any cause of

action relating to hazardous wastes or substances or solid

waste disposal sites.

(b) Nothing in this section shall affect a cause of

action arising from the tortious interference with contracts

or business relations.

(c) Nothing in this section shall affect any cause of

action arising from the manufacture or marketing of a fungible

product in a generic form which contains no clearly

identifiable shape, color, or marking.

Wash. Rev. Code Ann. 5 4.22.070 (1988).