Irion v. Peterson , 247 Mont. 459 ( 1991 )


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  •                             No.    90-445
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1991
    CARLA IRION and RUSSELL IRION,
    Plaintiffs and Appellants,
    JOSHUA PETERSON, CITY OF BILLINGS,
    a municipal corporation, SCHOOL
    DISTRICT NO. 2 OF BILLINGS, MONTANA,
    a/k/a BILLINGS PUBLIC SCHOOLS and
    CHRISTIAN, SPRING, SIELBACH &
    ASSOCIATES, a corporation,
    Defendants and Respondents.
    APPEAL FROM:   District Court of the Thirteenth Judicial District,
    In and for the County of Yellowstone,
    The Honorable William J. Speare, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Robert C. Kelleher, Sr.; Kelleher Law Office; Butte,
    Montana
    For Respondent:
    Ramona Heupel Stevens; Moulton, Bellingham, Longo
    & Mather; Billings, Montana (City of Billings)
    Guy W. Rogers; Anderson, Brown, Gerbase, Cebull,
    Fulton, Harman & Ross; Billings, Montana (Billings
    Public Schools)
    Submitted on Briefs:       January 17, 1991
    Decided:   March 19, 1991
    Filed:
    Clerk
    Justice R. C. McDonough delivered the Opinion of the Court.
    Plaintiffs Carla and Russell Irion appeal from an order of
    summary judgment granted by the District Court of the Thirteenth
    Judicial District, Yellowstone County in favor of defendants City
    of Billings and the Billings School ~istrict. The District Court
    granted summary judgment on the grounds that immunity pursuant to
    §   2-9-111, MCA, and the absence of a compensable claim under 42
    U.S.C. 5 1983 barred the Irions' complaint.   We affirm in part and
    reverse in part.
    We restate the issues, submitted by Irions, as follows:
    1) Whether the District Court properly determined that the
    City of Billings is immune from the allegations of the present
    lawsuit pursuant to 5 2-9-111, MCA, and;
    2) Whether the District Court properly held that Irions failed
    to assert a compensable claim pursuant to 42. U.S.C.   §   1983.
    In 1985, the City of Billings was constructing Skyview High
    School.    While the school was under construction, the former
    Lincoln Junior High Building was utilized as a temporary location
    for the high school.    Lincoln Junior High is located in downtown
    Billings at the intersection of North 30th Street and 4th Avenue
    North.
    Apparently, school bus traffic associated with the loading and
    unloading of students created a traffic problem in the area.       In
    order to remedy this problem, School District and City officials
    decided to close one lane of travel on North 30th Street from 4th
    Avenue North to 5th Avenue North.    This task was accomplished by
    2
    using a chain link fence and several barricades allowing the school
    buses to proceed in the same direction and facilitate the safe
    loading and unloading of students.       This remedy was considered a
    temporary solution which was undertaken in order to avoid an
    "extremely dangerousw situation existing at the high school.
    Unfortunately, on September 22, 1986, Carla Irion was struck
    by a motor vehicle being driven by Joshua Peterson as she was
    utilizing the crosswalk at the intersection of 4th Avenue North and
    North 30th Street.     Joshua Peterson was a student at Skyview High
    School.
    Carla Irion and her husband brought a lawsuit against Peterson
    on March 3, 1989. The Irions later amended their complaint to name
    the   School    District, the City      and the engineering firm of
    Christian, Spring, Sielbach and Associates as defendants.         The
    engineering firm designed and erected the bus lane for the School
    District.      It was never sewed, however, and is not part of this
    lawsuit.
    The Irions settled their claims against Peterson for the sum
    of $45,000.00.     Their allegations against the School District and
    the City of Billings were not settled and on July 17, 1990 the
    District Court dismissed the Irionst complaint against the        two
    defendants.     It held that all claims of negligence were barred by
    immunity pursuant to 5 2-9-111, MCA.        It further ruled that the
    Irionst b 1983      claims were   not    compensable because   neither
    defendant acted with the intention to cause Carla Irion injury of
    life, liberty or property.     This appeal followed.
    The District Court ruled that the Irionsl allegations of
    negligence against the School ~istrictand the City were barred by
    §   2-9-111, MCA.   According to the statement of issues submitted by
    Irions this ruling, as it applies to the School District, was not
    appealed.     Therefore, we need only review the District Court's
    determination that the immunity provisions of the statute bar the
    Irions' claims against the City.
    Section 2-9-111, MCA, states:
    2-9-111.   Immunity from suit for legislative acts
    and omissions.   (1) As used in this section:
    (a) the term llgovernmentalentity" includes the
    state, counties, municipalities, and school districts;
    (b) the term ttlegislative body" includes the
    legislature vested with legislative power by Article V
    of The Constitution of the State of Montana and any local
    governmental entity given legislative powers by statute,
    including school boards.
    (2) A governmental entity is immune from suit for
    an act or omission of its legislative body or a member,
    officer, or agent thereof.
    (3) A member, officer, or agent of a legislative
    body is immune from suit for damages arising from the
    lawful discharge of an official duty associated with the
    introduction or consideration of legislation or action
    by the legislative body.
    (4) The immunity provided for in this section does
    not extend to any tort committed by the use of a motor
    vehicle, aircraft, or other means of transportation.
    According to subsection 2 of this statute, a governmental
    entity is immune from suit for the negligence of its legislative
    body    or   *la member,   officer or   agent   thereof."   The    term
    governmental entity is defined to include municipalities. Section
    2-9-111( 1 (b), MCA.       Therefore in order to resolve the issue
    regarding the City's possible liability, we must determine whether
    the alleged negligent acts were undertaken by members or agents of
    its legislative body.          If they were not, the      immunity provisions
    of   §   2-9-111, MCA, are inapplicable and therefore will not bar the
    Irionst lawsuit against the City.
    Section   7-3-153,     MCA,    provides   that   charters   of   city
    governments are required to be filed with the Department of
    Commerce. The statute further provides that all such charters are
    subject to judicial notice.            Under the authority of this statute,
    we have reviewed the Billings City Charter to determine whether the
    City Administrator and Director of Public Works are agents of the
    City's legislative body.           We have also reviewed the Charter to
    determine whether it provides for Separation of Power between the
    Legislative and Executive branches.
    Article I11 of the charter provides as follows:
    ARTICLE 111--Legislation
    Section 3.01. Legislative Branch. The legislative branch
    shall consist of the City Council and the Mayor.
    The Mayor, under Section 3.04 is charged with the duty of presiding
    over council meetings and performing as the ceremonial head of city
    government.        In Section 3.08, the charter provides that "the
    Council, its members and the Mayor shall deal with the city
    officers and employees who are subject to the direction and
    supervision of the City Administrator solely through the City
    Administrator.        Neither the Council, its members, nor the Mayor
    shall give orders to any city officer publicly or privately."
    The Charter also provides:
    Article IV   -   Executive.
    Section    4.01.   City    Administrator:  Employment,
    Compensation, Qualifications. The Council shall employ
    a City Administrator on the basis of merit for an
    indefinite term.   The ~dministrator shall not be the
    Mayor or a Councilmember at the time of employment and
    need not be a resident of the city or state at the time
    of employment.
    Further, in section 4.03, it provides:
    Section 4.03.   City Administrator: Powers and Duties.
    The Administrator shall:
    carry out policies established by the City
    Council ;
    perform the duties required by law, ordinance,
    resolution, or this charter;
    enforce laws, ordinances, and resolutions;
    administer the affairs of the city;
    direct, organize, establish, supervise, and
    administer all departments, agencies, and
    offices of the city;
    appoint, suspend, and remove all employees of
    the local government;
    prepare and present the city budget to the
    Council for its approval and administer the
    budget adopted by the Council;
    report publicly to the Council at least
    quarterly on the financial conditions of the
    city;
    recommend measures to the Council;
    report to the Council as the Council may
    require;
    attend Council meetings and take part in the
    discussion, but shall have no vote;
    appoint with the approval of the City Council
    a qualified acting administrator to exercise
    the powers and perform the duties of the
    Administrator during temporary absences.
    As these sections indicate there are distinct Legislative and
    Executive Branches of the City government.      Each has different
    duties and responsibilities.    The City Administrator has been
    granted, by the charter the powers of the executive in a government
    of separated powers.     These powers include, inter alia, the
    oversight and regulation of traffic.      See   §   24-103 Billings,
    Montana, City Code.    In order to carry out the duty, the City
    Administrator has established the Department of Public Works, and
    specifically, the Director of Public Works to assist him.
    It is clear that the alleged negligent acts which resulted in
    Ms. Irion's injury, were not carried out by the legislative body
    of the City.     Nor were they performed by any member, officer or
    agent of the legislative body.              The City Council may retain
    ultimate authority to regulate street traffic; however this does
    not lead to the conclusion that the executive is its agent.           This
    system of city government established by the charter is merely a
    reflection of the separation of powers form of government, which
    controls our nation and this state.                Therefore, the immunity
    provisions of 5 2-9-111, MCA, do not apply to the actions of the
    City Administrator and the District Court's grant of summary
    judgment in favor of the City must be reversed.
    11.     Section 1983   Claims.
    In a rather convoluted argument, the Irions have attempted to
    convert this action, which              is based   on negligence, into a
    constitutional claim by invoking the protections of 
    42 U.S. C
    .           §
    1983.     Congress passed this statute in order to provide legal
    redress for persons deprived of legal rights or privileges through
    state action.     The United States Supreme Court has held, however,
    that in order to set forth a valid cause of action under this
    statute, a plaintiff must allege a breach of a duty that is greater
    than mere negligence. Davidson v. Cannon (1986), 
    474 U.S. 344
    , 
    106 S. Ct. 668
    , 
    88 L. Ed. 2d 677
    .     The   Irions maintain   that the
    defendants' actions were greater than negligent and that they
    amounted to deliberate indifference to Carla Irion's welfare.
    We reject this argument. The bus lane was set up in an effort
    to protect the students of Sky View High School from injury. There
    is no evidence that either the City or the District acted in
    "disregard of a known or obvious risk that was very likely" [words
    of plaintiff ] to result in Carla Irion's injuries. At the absolute
    maximum the Irions8 claims support a possible negligence action.
    Such allegations do not support an action under 5 1983.         The
    District Court's order of summary judgment on this issue is
    affirmed.
    n
    

Document Info

Docket Number: 90-445

Citation Numbers: 247 Mont. 459, 807 P.2d 714

Judges: Harrison, Hunt, McDONOUGH, Turnage, Weber

Filed Date: 3/19/1991

Precedential Status: Precedential

Modified Date: 8/6/2023