Gatlin-Johnson Ex Rel. Gatlin-Johnson v. City of Miles City

December 21 2012
DA 12-0129
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 302ALYSSA GATLIN-JOHNSON (a minor) by
TIFFANY GATLIN, parent and next friend
of ALYSSA GATLIN-JOHNSON,
Plaintiff and Appellant,
v.
CITY OF MILES CITY,
Defendant and Appellee.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DV 05-103
Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael G. Eiselein; Eiselein & Grubbs, PLLP, Billings, Montana
For Appellee:
Gerald B. Murphy, Emily Jones; Moulton Bellingham, P.C., Billings,
Montana
For Amici Curiae:
Justin Staples; Beck & Amsden, PLLC, Bozeman, Montana (for Montana
Trial Lawyers)
Steven R. Milch; Crowley Fleck PLLP, Billings, Montana (for Montana
Association of Counties)
Jim Nugent, Missoula City Attorney, Susan A. Firth, Chief Civil/Admin-
istrative Attorney, Missoula, Montana (for Montana League of Cities and
Towns)
Submitted on Briefs: October 3, 2012
Decided: December 21, 2012
Filed:
__________________________________________
Clerk
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Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Tiffany Gatlin (Gatlin) appeals from the District Court’s order dated February 7,
2012, granting summary judgment to the City of Miles City (City). We reverse.
¶2 We restate the issue on appeal as follows:
¶3 Whether the District Court properly applied the public duty doctrine to grant
summary judgment to the City.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 The following facts are taken from the District Court’s order on summary
judgment. Riverside Park is a facility owned and operated by the City. It includes an
area of playground equipment for the use of children. The City designed and planned the
playground area in Riverside Park and installed and maintained the equipment. The City
accepted responsibility for the safety and maintenance of the playground equipment and
the area around it.
¶5 In 2001, the City undertook a review of its park system, focusing on playground
maintenance and safety. A review committee reported to the City Council that surface
protection for playground equipment was important and that the goal was “to prevent
serious injury and death.” A risk specialist with the City’s insurer recommended
establishing adequate surfacing and “fall zones” under playground equipment, following
guidelines developed by the Consumer Product Safety Commission. The City’s park
review committee recommended adoption of a policy to install fall areas around all
playground equipment, and that those areas be raked daily in periods of peak use. In
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January 2002, the City Council adopted a resolution adopting “current safety standards”
for the City’s parks.
¶6 In July 2002, Tiffany Gatlin brought her daughter, age 8, to play in Riverside Park.
The child fell from a slide in the playground area and suffered a severe head injury.
Gatlin sued the City for negligently failing to maintain a safe depth of impact-absorbing
material (the City used bark chips) in the area under the slide. Gatlin also alleges that
when the City received the slide from the manufacturer in 1997, the installation
instructions required a “protective fall zone” below the slide. The manufacturer stated
that there must be 12 inches of impact-absorbing material under the slide, in compliance
with standards set by the Consumer Product Safety Commission.
¶7 The District Court granted summary judgment to the City, determining that the
City owed no duty to Gatlin’s daughter and that absent a duty the City could not be held
liable for the accident. The District Court determined that the duty alleged by Gatlin—to
safely maintain the playground area in the park—was not a duty owed specifically to her
daughter, but was “owed to the general public at large” because the park was open and
available to the general public. The District Court determined that the case required
application of the “public duty doctrine,” and that “[w]here a tort claim is made against a
public body, such as a municipality, the public duty doctrine bars recovery unless a duty
is created by a ‘special relationship.’” The District Court determined that none of the
recognized exceptions to the public duty doctrine applied.
¶8 In addition, the District Court rejected Gatlin’s argument that the recreational use
statute, § 70-16-302, MCA, applies to this case and imposes liability upon the City for
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willful or wanton misconduct. The District Court held that the intent of the statute was to
“lessen the duty of safety for landowners” and not to provide any protection for those
who use land for recreational purposes.
¶9 Based upon these conclusions of law, the District Court granted summary
judgment to the City.
STANDARD OF REVIEW
¶10 This Court reviews a district court’s decision on a motion for summary judgment
de novo, to determine whether it is correct, using the same considerations as the district
court under M. R. Civ. P. 56. Newman v. Lichfield, 2012 MT 47, ¶ 24, 364 Mont. 243,
272 P.3d 625. Summary judgment is proper when the moving party shows that there is
no genuine issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law. Weinert v. City of Great Falls, 2004 MT 168, ¶ 19, 322 Mont. 38, 97
P.3d 1179.
¶11 The existence of duty is an issue of law, and this Court reviews a decision on an
issue of law to determine whether it is correct. Newman, ¶ 23; Town & Country Foods v.
Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283.
DISCUSSION
¶12 Issue 1: whether the District Court properly applied the public duty doctrine to
grant summary judgment to the City.
¶13 The plaintiff in a negligence case must establish that the defendant had a legal
duty; that the defendant breached that duty; and that the breach caused injury and
damages. Lopez v. Great Falls Pre-Release Services, 1999 MT 199, ¶ 18, 295 Mont.
5416, 986 P.2d 1081. Duty turns primarily upon foreseeability, which depends upon
whether or not the injured party was within the scope of risk created by the action of the
alleged tortfeasor; that is, whether the injured party was a foreseeable plaintiff. Lopez, ¶
28. Foreseeability analysis also includes determining the moral blame attached to the
defendant’s conduct, the prevention of future harm, the extent of the burden imposed, the
consequence to the public of imposing duty, and the availability and cost of insurance.
Fisher v. Swift Transportation Co., 2008 MT 105, ¶ 28, 342 Mont. 335, 181 P.3d 601.
Determining whether there is a legal duty is an issue of law for the court. Massee v.
Thompson, 2004 MT 121, ¶ 27, 321 Mont. 210, 90 P.3d 394. Determining whether there
was a breach of duty is an issue of fact for the fact finder in the case. Lopez, ¶ 31.
¶14 In Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972, this Court
recognized the “public duty doctrine” in claims alleging negligence by law enforcement
officers. “The public duty doctrine provides that a governmental entity cannot be held
liable for an individual plaintiff’s injury resulting from a governmental officer’s breach of
a duty owed to the general public rather than to the individual plaintiff.” Massee, ¶ 41.
“The rule protects municipalities [and other governmental entities] from liability for
failure to adequately enforce general laws and regulations, which were intended to
benefit the community as a whole.” E. McQuillin, The Law of Municipal Corporations, §
53.04.25 at 195-97 (3d ed. 2003).
¶15 This Court has recognized the applicability of the public duty doctrine to
numerous situations involving claims that law enforcement officers breached a duty to
the plaintiff. In that context, “the public duty doctrine expresses the policy that an
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officer’s overarching duty to protect and preserve the peace is owed to the public at large,
not to individual members of the public.” Nelson v. State, 2008 MT 336, ¶ 41, 346 Mont.
206, 195 P.3d 293 (citing Eklund v. Trost, 2006 MT 333, ¶ 33, 335 Mont. 112, 151 P.3d
870). The doctrine has been applied to law enforcement’s response to a crime scene,
Gonzales v. City of Bozeman, 2009 MT 277, 352 Mont. 145, 217 P.3d 487, and to a
missing person report, Eves v. Anaconda-Deer Lodge County, 2005 MT 157, 327 Mont.
437, 114 P.3d 1037. We also have recognized the doctrine’s applicability to
governmental action involving the licensing of medical providers, Nelson v. State, ¶¶ 46-
50, and to land use decisions by a local government body, Prosser v. Kennedy
Enterprises, Inc., 2008 MT 87, ¶¶ 23, 26-27, 342 Mont. 209, 179 P.3d 1178.
¶16 Even when the doctrine is applicable to governmental functions, however, we
have applied exceptions where a “special relationship” exists that gives rise to a duty to a
particular class of people to which the plaintiff belongs. A special relationship can be
established where there is a statute intended to protect from harm a specific class of
persons including the plaintiff; when the government undertakes to protect a specific
person; when governmental actions reasonably induce detrimental reliance by an
individual; and where the government has actual custody of the plaintiff or of a third
person who harms the plaintiff. See e.g. Orr v. State, 2004 MT 354, ¶¶ 41-47, 324 Mont.
391, 106 P.3d 100 (special relationship found by virtue of specific public health
protection statutes, State’s repeated health inspections of mine, and reliance by miners on
State inspections to disclose health hazards); Massee, ¶¶ 42-44 (domestic violence victim
was within statutorily-protected class, giving rise to special relationship with law
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enforcement charged with enforcing domestic violence statutes); Eklund, ¶ 39 (law
enforcement owed duty to plaintiff as member of a special class of persons who, “by use
of the streets and highways[,] are potential victims of a high speed chase”); Nelson v.
Driscoll, ¶ 38 (officers had special relationship and thus owed duty to plaintiff where
they undertook affirmative steps to keep her from driving her vehicle when intoxicated
and she was later struck by passing motorist).
¶17 In the present case the District Court noted language from prior decisions from
this Court that “it is necessary” to consider the public duty doctrine whenever there is a
negligence claim against a public entity or person. See e.g. Massee, ¶ 41. Consideration
of the public duty doctrine does not mean, however, that it always applies whenever a
public entity or person is a defendant in a negligence case. The public duty doctrine was
not intended to apply in every case to the exclusion of any other duty a public entity may
have. It applies only if the public entity truly has a duty owed only to the public at large,
such as a duty to provide law enforcement services or regulate the practice of medicine.
It does not apply where the government’s duty is defined by other generally applicable
principles of law.
¶18 We have, for example, consistently applied the duty of ordinary care in premises
liability cases to governmental defendants. Dobrocke v. City of Columbia Falls, 2000
MT 179, 300 Mont. 348, 8 P.3d 71 (rules of landowner liability applied to city property);
Henricksen v. State, 2004 MT 20, 319 Mont. 307, 84 P.3d 38 (State could be held liable
under rules applicable to property owners for injury sustained in State-owned building).
In Kaiser v. Town of Whitehall, 221 Mont. 322, 718 P.2d 1341 (1986), this Court held
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that the town owed to the plaintiff “and to the general public lawfully traveling on a
public sidewalk . . . a duty to exercise ordinary care and to keep the premises (sidewalk)
reasonably safe.” This duty arose from general principles of premises liability. Kaiser,
221 Mont. at 325, 718 P.2d at 1343. In Richardson v. Corvallis Public School District,
286 Mont. 309, 321, 950 P.2d 748, 755 (1997), this Court applied the rules of landowner
premises liability (duty to use ordinary care in maintaining premises in a reasonably safe
condition and to warn of any hidden dangers) in a case where the plaintiff fell on an icy
walkway on school property. In Dobrocke, this Court again applied general principles of
landowner premises liability to a claim arising from plaintiff’s fall on city-owned land.
In Henricksen, this Court applied the principles of premises liability to a claim arising
from a child’s fall from a balcony in the library at Montana State University. See also
Bonilla v. Univ. of Mont., 2005 MT 183, 328 Mont. 41, 116 P.3d 823 (University had
duty to its patrons to maintain safety in arena during ZZ Top concert).
¶19 None of these cases applied the public duty doctrine, even though each involved a
claim against a governmental entity arising from premises open to use by the public. It is
clear that in each case there was no need to invoke the public duty doctrine because the
governmental entity had a specific duty, such as premises liability, that was sufficient to
support a tort claim. This is consistent with the principles established in the Montana
Tort Claims Act. Montana law provides that every governmental entity in Montana “is
subject to liability for its torts and those of its employees acting within the scope of their
employment or duties whether arising out of a governmental or proprietary function
except as specifically provided by the legislature under Article II, section 18, of the
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Constitution of the State of Montana.” Section 2-9-102, MCA. Section 2-9-101(1),
MCA, defines “claim” in the context of governmental tort liability as arising from an act
or omission “under circumstances where the governmental entity, if a private person,
would be liable to the claimant for the damages under the laws of the state.” State v.
District Court, 170 Mont. 15, 20, 550 P.2d 382, 384 (1976) (under the Constitution and
implementing statute, local governmental entities are “responsible and liable for the
negligence of their employees”).
¶20 Here the District Court determined that the public duty doctrine applied because
the playground was open to use by members of the public. It is clear, however, that
numerous public lands and facilities are regularly open to use by members of the public,
including public buildings, schools, parks, fairgrounds, recreation areas and public lands
in general. The fact that members of the public are allowed to enter or use these facilities
does not mean that the public duty doctrine applies to any negligence claim arising from
that entry or use, or that liability for negligence can only be found if the plaintiff
establishes that there is a special relationship with the public entity or person. It is
therefore error to conclude, as the District Court did here, that the public duty doctrine
applies to any tort claim made against any public body. Because clear and established
rules of premises liability apply to this case the District Court erred in applying the public
duty doctrine and erred in granting summary judgment to the City.
¶21 In the absence of foreseeability there is no legal duty, and in the absence of duty
there is no negligence. Lopez, ¶ 26; Nelson v. Driscoll, ¶ 39. In analyzing foreseeability
in this case, there are several pertinent considerations. First, upon defining the potentially
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negligent conduct here as failing to maintain a safe fall zone under the playground
equipment, it is clear that children who fall while using the equipment are in the zone of
potential plaintiffs. Second, based upon information presented by Gatlin, it is clear that
the City appreciated the fall zone issue, and that the City recognized the potential of
serious injury if fall zones were not adequately maintained. Third, the City expressly
adopted standards on safe fall zones as City policy, thereby expressly undertaking a
responsibility for following those standards. See Lopez, ¶ 18 (prerelease center contract
imposed actionable duties on the center); and Ecklund, ¶ 42 (police pursuit policy was a
factor in determining foreseeability). Here, the City, by choosing to establish a
playground and to install the equipment assumed the duty of acting with reasonable care
in doing so.
¶22 As to the remaining foreseeability analysis factors noted above, Fisher, ¶ 28, the
moral blame that can be attached to conduct that causes or allows serious injury to
children is self evident. Requiring public entities who install playground equipment to
provide fall zones that meet recognized standards will clearly work to prevent future
injury. The burden upon the City here to provide fall zones that meet standards is no
different than the burden that the City itself adopted in its own policies. The consequence
to the public of imposing a duty to provide safe playgrounds should be fewer serious
injuries to children. Last, while there is little information on the availability of insurance
coverage in the record, the City evidently had insurance at least at the time its insurer
inspected the City parks and made recommendations.
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¶23 Based upon this analysis of foreseeability, it is reasonable and proper to hold the
City to a duty to exercise reasonable care in maintaining its public parks. The public duty
doctrine does not apply.
¶24 Both parties agree that the Montana “recreational use statute” applies to this case.
Section 70-16-302(1), MCA, provides in part:
A person who uses property, including property owned or leased by a
public entity, for recreational purposes, with or without permission, does so
without any assurance from the landowner that the property is safe for any
purpose if the person does not give a valuable consideration to the
landowner in exchange for the recreational use of the property. The
landowner owes the person no duty of care with respect to the condition of
the property, except that the landowner is liable to the person for any injury
to person or property for an act or omission that constitutes willful or
wanton misconduct.
Gatlin argues that the statute imposes a duty of care on the City to refrain from willful or
wanton misconduct. The City argues that the statute is designed to limit the liability of
landowners and to raise the standard of care to willful or wanton misconduct. The
District Court considered this statute only in the context of whether or not it created a
special relationship exception to the public duty doctrine. It is clear that the recreational
use statute is designed to limit the liability of landowners, including public landowners,
in certain situations. However, it is also clear that the statute does not eliminate
landowner liability to recreational users, and that landowners may be “liable to the person
for any injury to person or property for an act or omission that constitutes willful or
wanton misconduct.” Section 70-16-302(1), MCA.
¶25 Since both parties agree that the recreational use statute applies to this case, we
assume without deciding, that an 8-year-old girl playing in a city park constitutes a
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“recreational purpose” under the broad definition in § 70-16-301, MCA, and as referred
to in § 70-16-302(1), MCA. Gatlin asserts that she is ready and able to prove willful and
wanton misconduct by the City in maintaining the park and the playground area, and that
she can therefore establish a liability claim as allowed by § 70-16-302(1), MCA. While
proof of willful or wanton misconduct can be difficult, Jobe v. City of Polson, 2004 MT
183, ¶¶ 17-20, 322 Mont. 157, 94 P.3d 743, Gatlin is entitled to present her case. Based
upon the reasonable inferences that could be drawn from the evidence submitted on
summary judgment, the trier of fact could conclude that the City had knowledge of the
danger of children falling on hard surfaces in the park and knowledge of the steps that
could be taken to reduce that risk. The determination of whether that rises to the level of
willful or wanton misconduct should be decided at trial. Jobe, ¶ 20.
¶26 The District Court’s summary judgment order is reversed and this matter is
remanded for further proceedings consistent with this opinion.
/S/ MIKE McGRATH
We concur:
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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Justice Jim Rice, concurring.
¶27 I concur with the Court’s effort to define more clearly the boundaries of the public
duty doctrine and in the decision to reverse. I would note that the Court’s analysis
includes some post-hoc rationalizing and categorizing of our earlier decisions that was
not necessarily contemplated at the time those cases were decided. For instance, in ¶ 17
of the Opinion, Dobrocke, Hendricksen, Kaiser, Richardson, and Bonilla are categorized
as cases where the Court did not apply the public duty doctrine to government
defendants, but it is noteworthy that the public duty doctrine was not raised as an issue in
any of those cases. Had the doctrine been raised and argued, the result, and more
certainly the analysis, could have been different. See Prindel v. Ravalli Co., 2006 MT
62, ¶¶ 25, 26, 331 Mont. 338, 133 P.3d 165 (declining to address the doctrine’s
applicability where the County did not “explicitly raise the public duty doctrine as a
defense” and will take up the question “[i]n the future, when the issue has been properly
briefed.”). The Court states that “there was no need to invoke the public duty doctrine”
in these cases, Opinion, ¶ 17, but, again, that was not a conclusion reached at the time
after an analysis was performed. In the future, it will be necessary to further refine the
“generally applicable principles of law” governing governmental duty to which the
doctrine does not apply, Opinion, ¶ 17, in cases where the doctrine is properly raised and
argued, even, potentially, cases involving premises liability. In Dobrocke, for example,
the claim was brought by an individual who traversed onto City property not intended by
the City to invite pedestrians. Dobrocke, ¶ 33. Although a duty to the claimant was
found to be owed in that case, premises liability cases raising uniquely atypical facts
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could require a broader analysis of duty and thereby implicate the doctrine, which is the
analytical approach this Court employs to determine governmental duty.
¶28 I concur.
/S/ JIM RICE
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