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 SU;>A:?~E cOU~ 

SERVICES, an agency of the state of STATE OF MONTANA 

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 Off ices, 

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 

Filed: 

Decided: August 29, 1994 

,"' -\, .3 

i i! . . 

.p ' . 

. .> I? $ ,&.d . .. . . .. .,': w,'Lm. :I :., - '7% 

" .-Clerk 
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 

f orm? 

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 

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

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 newlyinflicted 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 Rax 

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 pocketfr defendants 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 pocketur defendants 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~li~d to the . . . subdivision and the 

Slaters' ~lan, we hold that Article V lacks sufficient 

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 Ifany other 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 is so vague as to make its meaning impossible 

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^^ 

%.-. + LICJ 1 .. . .. +limw+c fr".,, 11&111ty r't c1X.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 

2 6 
& 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 

2 8 
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 twoyear-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 

I Kimes that although the medical experts of both parties indicated 

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 (1993), 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~artment of 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 causett to 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 

3 5 
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 Itwe must 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 trier of fact -- civil 

actions. In any action for personal injury, property 

damage, or wrongful death where liability is found after 

trial and in which $100,000 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. 

ISSUE VI: 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 55 41-3-201 or 41-3-202, MCA. 

This Court has addressed and clarified the concept of quasijudicial 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. 

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

22. 

Thus, unlike the Board of Medical 

State Bd. of Dentistry v. Kandarian (1991) 

Examiners in Komen, in 

, 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 quasijudicial immunity, but that the "exercise of judgment and 

discretiongt required 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 GWts 

application as prescribed by statute, and because simply 

performing this duty does not involve the use of quasijudicial 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 quasijudicial board. Great Western Suqar, 805 P. 2d at 1277-78, provides 

that immunity is not confined to entities which are statutorilydesignated 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 quasijudicial functions. For example, in Gerber, the Insurance 

Commissionerts method 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, thirdparty 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 of 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).