                                           No. 04-764

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 157


HELEN EVES, individually and as personal
representative of the Estate of Zachary Eves Bear
Don’t Walk, Deceased, and for the heirs of said Estate,

               Plaintiff and Appellant,

         v.

ANACONDA-DEER LODGE COUNTY,
and John Does 1 through 10,

               Defendants and Respondents.



APPEAL FROM:          The District Court of the Third Judicial District,
                      In and For the County of Deer Lodge, Cause No. DV 2003-12,
                      Honorable Ted L. Mizner, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Edward Moriarity and Shandor Badaruddin, Moriarity, Gooch,
                      Badaruddin & Booke, Missoula, Montana

                      Ann Moderie & James Manley, Manley Law Firm, Polson, Montana

               For Respondents:

                      Thomas M. Welsch, Poore, Roth & Robinson, Butte, Montana



                                                          Submitted on Briefs: May 11, 2005

                                                                    Decided: June 21, 2005
Filed:


                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Helen Eves, on behalf of her deceased son Zachary Eves Bear Don’t Walk (Zachary),

appeals from the grant of summary judgment to Anaconda-Deer Lodge County (County).

We affirm.

¶2     We address the following issue on appeal:

¶3     Whether a special relationship existed between the County and Zachary such that the

County had a duty to protect him from harm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     Zachary voluntarily committed himself to the Montana State Hospital (Hospital) at

Warm Springs in late 1996. On March 3, 1997, Zachary, without telling anyone, left the

hospital grounds and walked into the countryside. The temperature that day was approxi-

mately 37 degrees, and snow was on the ground. Once the Hospital’s staff discovered

Zachary had left, the nursing supervisor telephoned local law enforcement to report his

disappearance. She reported to the dispatcher that she was concerned with Zachary’s ability

to care for himself and asked if county police could locate him. The dispatcher told the

nursing supervisor that, because Zachary was a voluntarily committed patient, the police had

no legal basis to stop and detain him. County police officer Daniel Blume was notified of

Zachary’s disappearance, but he did not initiate a search. Instead, Blume kept lookout for

Zachary during his routine patrol of the general area where Zachary was believed to be.

Blume did not see any signs of Zachary. The nursing supervisor did not ask for a search and




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rescue operation, nor is there any indication that the dispatcher advised against such a

request.

¶5     Zachary’s body was found several weeks later in a field approximately six miles from

the Hospital. An autopsy report stated that he died of exposure one to three days after he left

the Hospital.

¶6     Helen Eves brought this suit against the County asserting wrongful death and

survivorship claims against the County. She argued that the County owed a duty to try to

find Zachary and that it breached that duty. The County moved for summary judgment, and

the District Court granted its motion. Eves now appeals.

                                STANDARD OF REVIEW

¶7     We review a grant of summary judgment de novo. We apply the same criteria as the

district court according to Rule 56, M.R.Civ.P. Gullett v. Van Dyke Const. Co., 2005 MT

105, ¶ 11, 327 Mont. 30, ¶ 11, 111 P.3d 220, ¶ 11. Summary judgment shall be granted if

the evidence filed with the court “show[s] that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c),

M.R.Civ.P.

                                       DISCUSSION

¶8     Whether a special relationship existed between the County and Zachary such that the

County had a duty to protect him from harm.

¶9     Generally, government officials do not owe a duty to specific members of the public,

but only to the public as a whole. This rule of law is known as the “public duty doctrine.”

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Nelson v. Driscoll, 1999 MT 193, ¶ 21, 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21. Ordinarily

the County would not have owed Zachary a duty, such as searching for him and making sure

no harm came to him. However, this Court has recognized exceptions to the doctrine.

Specifically, an exception “arises when there exists a special relationship between the police

officer and an individual giving rise to a special duty that is more particular than the duty

owed to the public at large.” Nelson, ¶ 22 (citations omitted). We have recognized four

circumstances where a “special relationship” may arise. Nelson, ¶ 22.

¶10    Eves argues that County officials established such a relationship under two of these

circumstances, namely “when a government agent undertakes specific action to protect a

person or property,” and “by governmental actions that reasonably induce detrimental

reliance by a member of the public . . . .” Nelson, ¶ 22 (citations omitted). Nelson v.

Driscoll informs our decision regarding both of these claims.

¶11    In Nelson, an officer stopped a motorist and sought to administer a sobriety test, but

due to inclement weather conditions was unable to do so. Nelson, ¶¶ 8-10. Although the

officer did not believe he had probable cause to arrest the driver, Trina, he advised her that,

given the weather and that she had been drinking, he did not think it safe for her to drive

home. Nelson, ¶ 10. Trina and her husband then exited the car and stated that they would

call a friend for a ride. The officer then drove around the block three times to check on them

before leaving the couple for good. Soon afterwards a motorist struck and killed Trina as she

walked between lanes of traffic on the highway. Nelson, ¶¶ 12-13.




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¶12    We concluded that, in pulling Trina over and directing how she and her husband could

go home, the officer assumed a duty to protect her from harm. Nelson, ¶ 40. The County’s

actions in this case, however, were qualitatively different. Officer Blume did undertake to

look for Zachary during his routine patrol. However, since Blume did not see or have any

contact with Zachary, his actions did not influence how Zachary behaved, as in Nelson, nor

did Zachary rely, to his detriment, on Blume’s actions. The same is true for the actions of

the dispatcher.

¶13    Eves additionally argues that the dispatcher misinformed the Hospital in stating that

the County had no authority to detain Zachary if an officer found him. She contends that

under § 53-21-129, MCA (1995), in an emergency “a peace officer may take any person who

appears to be seriously mentally ill and as a result of serious mental illness to be a danger to

others” and briefly detain them to assess their mental health. Without ruling on whether this

provision could have applied if a County peace officer had found Zachary, we note that, even

if a peace officer could have detained Zachary under this statute, the statement by the

dispatcher to the nursing supervisor would still not have created a special relationship

between the County and Zachary because Zachary was in no way involved in this exchange.

The reliance exception to the public duty doctrine quoted above would not apply because it

would have been the Hospital which relied on the statement, not Zachary.

¶14    Therefore, we conclude that there was no special relationship that arose out of the

actions of County officials such that those officials owed a duty to Zachary.




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                                   CONCLUSION

¶15   The judgment of the District Court is affirmed.



                                               /S/ W. WILLIAM LEAPHART


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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