INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

DOUGLAS D. SOLBERG, asPersonal Representative of the Estate of Darrel B. Solberg, Deceased, Plaintiff and Appellant,

VS. COUNTY OF YELLOWSTONE, MONTANA, and SIDNEY J. HAYES, JR., M.D., Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Sandal1 & Cavan, Billings, Montana For Respondents: Anderson, Brown, Gerbase, Cebull & Jones, Billings,

Montana

Submitted on briefs: September 9, 1982 Decided: March 1,1983Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is a wrongful death action on appeal from the District Court of the Thirteenth Judicial District in and for the County of Yellowstone. The jury found for the defendant, Yellowstone County. From that adverse verdict and judgment, the plaintiff appeals. Solberg had been incarcerated in the Yellowstone County jail since mid-day on November 19. On that day he was involved in a single-car accident. His car left the road, went through a fence, and came to rest in a field. Solberg was in the carwhen the deputy sheriff arrived. According to the deputy, Solberg 

### was "quite intoxicated" and "he could barely walk." He was then taken to jail and charged with driving while intoxicated and driving without a valid driver's license. On the following day, November 20, 1974, he pled guilty to the two offenses in justice court. He 

### was unable topay the fine imposed and as a result he

was ordered to serve time injail. On November 22, 1974, at approximately 7:30 

### a.m., Darrel Solberg was found lying face down on the floor of a padded cell intheYellowstone Countyjail. He was immediately rushed to the hospital and was pronounced dead on arrival. Atthe emergency

room his temperature was recorded at 107.8 degrees. Later that morning an autopsy was performed. The cause of death was determined to be hyperpyrexia; the greatly elevated temperature related to delirium tremens and alcohol withdrawal. The complaint alleged that the defendant, Yellowstone County, "negligently and carelesslyfailed topromptly secure, or demand, adequate and proper medical attention. 

# . ." The jury held for the defendant. The plaintiff then brought thisappeal. Several issues

### were raised on appeal: 1. whether the jury was selected inaccordance with the law; 2. whether or not the District Court erred in refusing to give an offered instructionon negligence as a matter of law; and3. whether or not there is substantial evidence 

### to support theverdict? The first issue relating to the selection of the jury necessitates a reversal and remand for new trial; however, 

### we willconsider the other issues inview of the fact the case must be retried. The trial in this cause took place during October 1980. During that same 

### timeperiod, within weeks of the Solberg trial, another trial was held in the ThirteenthJudicial District. The other 

### case was entitled Dvorak v. Huntley Project Irrigation District. In that 

### case a jury rendered a verdict which 

### was appealed to this Court. We reversed, because the jury had not been selected in accordance with 

### law. Dvorak v. Huntley Project Irrigation District (1981) -----. - Mont

# . r 639 P.2d 62, 38 St.Rep. 2176. Specifically, 

### we found violations of sections 25-7-202 and 25-7-204, MCA. Upon review of the supplemental transcript of proceedings in Dvorak, which have become part of the record in this 

### case, we find the following testimony of Charmaine Fisher, a Deputy Clerk of Court fortheThirteenthJudicialDistrict: "Q. Have you sat on other 

### cases where juries 

### were selected inthe 

### same procedure? A. Yes.

"Q. Was there a case called Solberg? A. Yes.

"Q. And 

### was the jury selected inthatcase in the 

### same manner? A. Yes

# ."

Alsothe testimony indicates thattheprocedure had been used inthe districtformany years. "Q. And is that [the jury selection procedure

### 1 commonly used in Yellows tone County? A. Yes, has been for, 

### well I can't imagine how many years I know at least twenty. 

# .

# ." Here, appellant's argument 

### is simply: -- Dvorak and this 

### case
were tried in the 

### same judicial district, both having juries selected with the 

### same procedures and sinceDvorak was reversed ---because of such procedures, this case should 

### also be reversed. Weagree. Respondent strenuously argues that appellant's objection is not timely. In - Dvorak -- the appellant made his objection known a week afterthe verdict had been entered but before hismotion for

a new trial. In thiscase, appellant firstobjected to the jury selection process in his initial brief; 

### more than one year since the trial. The respondent in Dvorak - argued that objections to the jury selectionprocess had come too late. Weheld otherwise, stating: 

### "[tjhe basic flaw in this contention is that counsel for the [appellant] did not discover the discrepancies in the jury selection process until a week after the trial. Further, counsel had no reason, prior

### to his inquiries, to suspect that the statutoryprocedures 

### were not being followed. In other words, the 'means of knowledge1 were not available for counsel to objectbefore 

### or during the trial. "InLedger 

### v. McKenzie (1938), 107Mont. 335, 85 P.2d 352, this Court discussed the necessity of objecting to the impaneling of a jury ina timelymanner. This Court held:

I' I

# . . . that if counsel does not have the knowledge, 

### or means of knowledge, of the 

### irregularity in the drawing of the jury or the panel from which it 

### is selected until after the verdict, the question may be raised for the first time on motion for new trial.I 85 P.2d 353." Dvorak, Mont. at - -- - 639 P.2d at64, 3mT~ep-r 

# at 2179. Respondent asserts that since the issue was not raised on motion for a new trial, any objection

### was lost. The rule cannot be so construed. The rule simply 

### states that if counsel was withoutknowledge ormeans of knowledge during trial he may, upon gainingknowledge of selection irregularities, make hisobjection known in a motion for new trial. The rule does not limit the time period for making the objection, rather it defines a particular point as being timely. In this case 

### we merely define anotherpoint asbeing timely. Respondent also argues that appellant's counsel is a veteran trial attorney and must have been aware of the preselection process, thus counsel must have had knowledge ormeans of knowledgeof selection irregularities. Although appellant's counsel knew thatthejurywas preselected, itdoes not followthathe knew 

### or should have known that the proper procedures 

### were not followed. As

### we said in Dvorak, Mont. at- -. 639 P.2d at65, 38 St.Rep. at 2179, "counsel had 

### a right to relyon the judge and clerkto followtheir statutoryduties

# ." Next, appellant contends 

### error for failure of the District Court 

### to give his offered jury instruction number 28, which reads: "You 

### are instructed that this Court has found 

### as a 

### matter of 

### lawthatYellowstoneCounty was negligent in its care and treatment of Darrel Solberg and therefore no finding on this question is required of you. The only remaining issue with respect to Yellowstone County is foryou to findwhat damages, if any 

### were proximately caused by Yellowstone County s negligence." In support of the above instruction

### we 

### are cited to Azure v. City of Billings (1979), 182Mont. 234, 596 P.2d 460. In that

case we upheld the District Court's ruling that the City of Billings was negligent 

### as a matter of 

### law in view of section 53-24-303(2), MCA. Appellant would have this Court declare the statute applicable in this case, however, 

### we cannot do so. The statutereads: "A person who appears 

### to be incapacitated by alcohol shallbe taken into protective custody by the police and forthwith brought to an approved public treatment facility for emergency treatment. If no approved public treatment facility 

### is readily available, he shallbe taken toan emergencymedical service customarily used for incapacitated persons. The police, in detaining the person and in taking him 

### to an approved public treatment facility, are taking him into protective custodyand shallmake everyreasonable effort to protect his health and safety. In taking the person into protective custody, the detaining officermay take reasonable stepsto protecthimself. No entryorotherrecord may bemade 

### to indicate thatthe person taken into custody under this section has been arrested 

### or charged with a crime." Appellant's argument is simply this, the statuteestablished

a dutyonYellowstone County to takeSolberg toa treatment facility 

### or emergency medical service, and since this 

### was not donethedefendantwas negligent as a

### matter of 

### law. As

### we said inAzure, 

### to uphold negligence per 

### se through statute, "theplaintiff must be a member of the class inwhose favor

a duty

### was imposed by the statute

# .

# . .and the defendantmustbe


### a member of the class against whom a duty is imposed

# ." Azure, 182Mont. at 240-241, 596 P.2d at464. We hold that the plaintiff 

### was not a member of the protected class. We do not reach the question of whether Yellowstone County 

### was a member of the classon whom the duty

### was imposed. The underlying focus of section 53-24-303 (2), MCA, is 

### set forth ina legislativestatementof policy: "It is the policy of the stateof Montana to recognize alcoholism as an illness and that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society." Section53-24-102, MCA. Inotherwords, the legislaturehad inmind the protection of those individuals whose only fault is an affinity for alcohol. Consequently, the police 

### are obligated to furtherthatpurpose by placing in protective custody those who appear 

### to be incapacitated by alcohol, and 

### "[n]oentry

### or otherrecord may be made to indicate that the person taken into custody 

# . . . has been arrested 

### or charged with 

### a crime

# ." Too often in the past, intoxicated 

### or incapacitated persons

### were thrown injail to sleep it off and invariably 

### were charged with 

### some criminal offense indicating the community's displeasure. This is what happened in Azure. Solberg was not in the protected class. He was arrested for driving under the influence of alcohol and fordriving without a valid license. He pled guilty to both of these offenses. The statuteis not intended to protect incapacitated persons who have committed 

### or are suspected of criminal 

### acts; only those who by

reason 

### of their incapacitation, 

### are in need of protective custody. Azure 

### was in the protected 

### class. After beingassaulted, police found him ina seemingly intoxicated condition. He showed obvious signsof injury; two black eyes, a largebruise

on his forehead, and dried blood on his lips and teeth. He was injail for sixteenhours before being taken to the hospital. He had committed no 

### crime. Police had responded to what seemed to be an attempted burglary. He was charged with public intoxication and trespass. Clearly, --- Azure was among the protected class. The foregoing does not preclude a common law duty. InPretty

onTop v. Cityof Hardin (1979), 182Mont. 311, 315, 597 P.2d 58, 60-61, we stated: "A jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. Reasonable and ordinary care must be 

### exercise~forthell~and-hxth of the prisoner. (Citations omitted.) 'A sheriff 

### owes a prisoner placed in his custody a duty 

### to keep the prisoner safely and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him.'" We again cited the rule inAzure, that "lawenforcementofficials have a duty to obtainmedical care when necessary forpersons in their care or in their custody." Azure, 182 Mont. at 243, 596 P.2d at465. Appellant claims that even under common law principles the defendant 

### was negligent as a matter of law, thus, apart from the statute discussed above, the trial court should have given his proposed instruction. However, 

### we hold that while there 

### was a duty owed, it became a factual question for the jury whether 

### or not that duty was breached: "Ordinarily it is for the jury 

### to decide, under appropriate instructions, the issue of whether therehas been a negligentbreach of a legal duty. (Citations omitted.) Negligence and breach of duty are forthe court todetermine only if the evidence 

### is undisputed or susceptible of but one conclusion by reasonablemen." Suhr v. Sears Roebuck Co. (1969), 152Mont. 344, 348, 450 P.2d 87, 89. See also Lawlor v. County of Flathead (1978), 177Mont. 508, 582 P.2d W. 

## 75\ We find that the issue of breach of duty 

### was properly a jury issue. Reasonable men could reach different conclusions, thus negligence 

### as a

### matter of lawdid not exist. 

### We now reach the third issue, whether or not there issubstantial evidence to support the verdict. "In considering the sufficiencyof evidence 

### we apply a limited standard of review. Where a fact issue 

### is presented before a court sitting with a jury, and there is substantialevidence to support the jury verdict, the verdict 

### will stand

# .

"Evidence may be inherently weak and still be deemed substantial, and substantial evidence may conflictwith otherevidence." Gunnels v. Hoyt (19811, Mont

# . I 

## , 633 P.2d 1187, 1191, 38 ~x.~ep. 1492-,- 1493.---- Voluminous evidence was presented by both parties concerning Solberg'sconditionprior

### to hisdeath. Medical experts differed

on the precise nature of delirium tremens and whether or not Solberg may have crossed the fine line between alcoholic withdrawal, which is not life-threatening

### ,and true delirium

### tremens, which is. There is no doubt that Solberg was completely disoriented at 

### times, however, it 

### was vigorously disputed as to what thissymptom meant interms of how a reasonable 

### jailer would act. Appellant contended that Solberg's behavior 

### was clearly indicativeof DT1s. However, respondent presented testimony idicating that the kind of symptoms that Solberg exhibited could

occur while a person was going through alcohol withdrawal. In other words, these symptoms do not necessarilymean a person 

### is inthe lifethreatening condition of DT's. Appellant relies heavilyon hisexhibitnumber two which is a training manual used in Yellowstone County 

### to educate jailers concerning the problems of special prisoners. A pertinent part of thatmanual reads: "Probably the specialprisoner seenmost often by thejailer 

### is the 'drunk.' And sincethese people 

### are frequently put in jail, officers oftentend tobecome casual in their treatment of them, assuming that they only need to 'sleep it off.' This may be true of some alcoholics, but there are many others who might become seriously ill or even die if merely leftalone 

### to 'sleep it off

# .

"While checking the intoxicated prisoners, you should ask yourself: ARE ANY OF THE PRISONERS TREMBLING AND SHOWING SIGNS OF EXPERIENCING STRANGE HALLUCINATIONS?"If a prisoner trembles infearthinking he is being attacked by such things as spiders, snakes, insects, 

### etc.

## , his condition--far from being silly 

### or amusing--is extremely serious. He may be slipping into a condition commonly known asDT

### 's (deliriumtremens)

# . "If you recognize the above symptoms: CALL A PHYSICIAN IMMEDIATELY AND DESCRIBE THE PRISONER'S CONDITION TO HIM. THEN: FOLLOW HIS INSTRUCTIONS CAREFULLY.

### " Appellant argues that the 

### jailers, allof whom were required to pass a course which used the manual, should have recognized the danger to Solberg, and since they did not, they did not act reasonably. However, there 

### was evidence 

### to establish that Solberg didnot exhibit any symptoms of being fearful. Amedical expert testified that the element of uncontrollable fear 

### is a prerequisite tobeing inlife-threatening DT's

# . This case is factually difficult. With hindsight it is tempting to say that the jailers should have recognized the seriousnessof Solberg's condition. However, inviewof the evidence a jury could have logically concluded that the jailers actedreasonablyand without negligence. 

### "[Olnlywhen there is a complete absence of probative facts to support the verdict does

erroroccur." Strongv. State(1979), Mont

# . ----I I 600 P.2d 191, 194, 36 St.Rep. 1665, 1669. For the foregoing reasons, we reverse and direct the court 

### to

### Mr. Justice DanielJ. Shea, concurring:

I 

### join in the opinion and simply point out that in holding that a party can challenge the selection of a iury panel by raising the issue for the first time on appeal, we have impliedly overruled our holding in Statev. Fitzpatrick

(1977),178Mont. 530, 536, 569 P.2d 383, 387-388. Although

we reversed defendant's conviction and the conviction of a co-defendant on other grounds and sent the case back for retrial, we held in Fitzpatrick that "defendants cannot challenge the jury for the first time on appealon the ground that the District Court failed to select and draw panels in accordance with applicable Montana law." In reaching our decision here this Court should have addressed Fitzpatrick and the two other cases relied on in Fitzpatrick for the propositionwhichwe are impliedly overrulingtoday.