No. 92-310 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

JEANNINE NEWVILLE and DAMON GANNETT, Co-Guardians ad litem forR.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 theEighteenthJudicialDistrict, In and for the County of Gallatin, The Honorable JohnWarner, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Monte D. Beck,JohnJ. Richardson, Beck LawOff 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 LawyersAssociation) L. Randall Bishop, Jarussi & Bishop, Billings, Montana; DonaldW. 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!

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# - '7% " .-ClerkJustice 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 inflicteduponR.M. by her foster father while in his care pending an adoption. The jury attributed negligenceunder 

### 5 27-1-703, MCA, Montana's comparativenegligence statute, to the State of Montana Department of Family Services (30%), the foster mother (35%)and aprofessional counselorwho had treated the fostermother 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 (theDepartment),presenting the Court with numerous issues, as does the Department in its Cross-Appeal, which we have restated as follows: I. Do theplaintiffs have standingto assert the rights of unrepresented third persons included on the verdict f

orm? 11. IsMontana'scomparative negligencestatute,

### 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 apercentage of negligence to Edna Goodwin,who settled with the plaintiffs prior to trial, when noevidencehad been introducedto establishthestandardof 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. IstheDepartment immune fromtort liability for its failure to protect R.M.? VII. Who is tobe includedon 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 couldnotbe locatedwhen R.M.

was subsequently removed fromher grandmother'shome by thepolice 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,givingtheDepartment permanent custodyofR.M. in October 1987. After obtaining custody of R.M., the Departmentplaced her in

a series of fosterhomes. By the time shewas four years old, she had been in seven foster homes, including the home of Dennis andMartha 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, shewas not an easy child toplace 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. Thisplacement was referred to by the Department as a "fos/adoptWplacement. Dennis Kuipers is of American Indian ancestry and thusbetter 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 afterbeing abused,neglected and abandoned. He wanted to adopt R.M. because of the positive experience ofhis own adoption. TheKuiperswere foster parentsat all times during this action as the adoption was never completed. Testimony was presented at trial which indicated that the Departmentdid not conduct a proper investigationprior toplacingR.M. in the Kuiperslhome. For example, in response to a request for recommendation for adoption, the Kuipers' counselor, Edna Goodwin, wrote that Dennis Kuipers was I1workingon his issues of rageEg and that "therewaspreviously an issue of abuseby Dennisto hiswife and to one of their two children.!' TheDepartment 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 Kuiperslhome, witnesses stated that Dennis Kuipers beat R.M. outside theRax restaurant in Bozeman,Montana,partly in view of restaurantpatrons and partly concealed within the family

van. Dennis Kuipers became upset with R.M. because shehad wether 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, JoyProvenzano, 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 sameweek. Two officers responded to Salvatore Provenzanopsreport and

came to the restaurant to investigate. Officer Linda Sanem took Martha Kuipers asideand askedher numerous questions. Duringthat interview, Martha KuiperswasholdingR.M. Martha Kuipersbelieved 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 Kuiperslplea agreement when he admitted tohitting R.M. outside the restaurant,shebelieved 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 rednessmay havedisappearedby the time the officers arrived and any subsequent bruising may nothave been present yet. Officer Sanem testified thatR.M. had bruises onher facebut they looked like they were not newly-inflicted. She further testified that since none of the witnesses actually saw DennisKuipers hit R.M.--they only saw his open hand and then his fist goingup and down inside the van--and there were no apparentnewlyinflicted 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 officersdid not have the written reports from the Provenzanosand the Stewarts and had only briefly spoken to Salvatore Provenzano over thephone when he reported the incident. Sanem further testified: Unless there's obvious signs of violence,you know, physical injuries,wehave to relyonwhat 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 testifiedthatshebelieved Martha Kuipers' statement that the childhad bruises from fallingdown a lot lately and that the Department was aware of that. Nonetheless, Officer Sanem told Martha Kuipers that the incident would be referred to theDepartment. 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 itwas an incident that obviously needed tobe furtherinvestigated." 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 shehad 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 15-20minutes. Officer Sanem did not call the Department that day and was off duty the followingday; she left that duty of reporting the incident to the Department to Officer Paul Erickson, the other officerwho was also at the Rax restaurantto 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 rathermay 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 investigatedby them. Officer Erickson testified that he had been "fooleduby Dennis Kuipers. However, the matter was referred to the Department for investigation prior to the close of thepolice 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 thatafternoon 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. Thepolice report actually states that R.M. was injured and an investigationwas pending. The Department did investigatethe incidentbut trial testimony demonstrated that the Department's investigationwasvery 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 Departmentdid not report thematter to theCounty Attorney aswill be subsequently discussed. Onemonth later,onNovember 1, 1988,DennisKuipers severely beat R.M. As a result of thisbeating, R.M. had bruises overmost 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. Theplaintiffs initially sued Dennis Kuipers, Martha Kuipers, Edna Goodwin (the Kuipers' counselor), and both the Department andits employee,Ed Neuman. The claim againstNeuman was dismissedby the court. Both Dennis Kuipers and Edna Goodwin settled with the plaintiffs prior to trial and were dismissed pursuant to their respective agreements with theplaintiffs following the settlement conference. Thetrialproceeded against theremaining 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 formbecause theDistrict Court ruled that his intentional conduct made him jointly and severally liable for all damages and that 

### 5 27-1-703(4)

### ,MCA, does notpermit apportionment of liability for intentional conduct. The jury awarded total damages of $637,480, apportioning negligence comparatively--30 percent to the Department, 35percent to Martha Kuipers and 35 percent to Edna Goodwin. Subsequent to the trial,Martha Kuipers settledwith theplaintiffs 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 ofunrepresented third parties such as settling parties and unsued tortfeasors. Although this opinion does not address the 10rights 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. Plaintiffscorrectly argued that their own potential economic loss gives them standing to assert the rights of third parties. They argued thatunrepresented parties included on theverdict 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 tounrepresented tortfeasors, thereby reducing thepotential 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 asR.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 Belthv. 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. TheCourt also concluded thatbecause therewas 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, inMontana HumanRights 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 injurymay assert the constitutional rights of others. We conclude the plaintiffs here have established they could suffer economic loss if apercentage of negligencewere attributed to unrepresented parties. We further conclude theplaintiffs 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. IsMontana'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 guaranteesof procedural and substantivedueprocess and equal protectionand thus a new trial is required in this case. As discussed below, the Court concludes that fi 27-1-703(4)

### , MCA, violates substantivedue 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 inanactionbased uponnegligence. 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 itspredecessor, 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 inWashington state. Thatbill was drafted

asanattempt to changeWashington's comparative negligence statute andwas intended tomatch liability fordamages 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 WorkersrCompensationAct. 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 juriesbut nonetheless required to pay large judgments under joint and several liabilityprinciples. 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 lawdoctrine of joint and several liability: Inthemid-1980rs,a significant number of stateschanged the joint liability rule, in part, because of growing awards against "deeppocketur defendantswhomight be only peripherally responsible forplaintiff's injuries. A few 13states 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, orproducts liability. A numberofother 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). Themajor changes in 5 27-1-703, MCA (1987), related to joint and several liabilityand 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 thepercentage of liabilityamong all suchpersons. Section 27-1- 703(4), MCA (1987), provides in pertinent part: (4) 

# . . . For purposes of determining the percentage of liability attributableto eachparty whose action contributedtothe injurycomplainedof,the trier of fact shall consider the negligence of the claimant, injured person, defendants, third-party defendants, persons released from liabilityby 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 contributedasa proximate cause to the injury complained of, the trier of fact shall apportionthedegree 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 theprocedures used to implement them, and serves asa check on oppressive governmentalaction. Even though aplaintiff 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 determinewhether restrictions, such as thoseplaced on both remedies and procedures in this case, are unreasonable or arbitrarywhen 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 (2ded. 1992). In addressing a substantivedueprocess 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 imposereasonableprocedural requirements onthe availableremedies

so long as those requirements have a rational basis.'1 Although the LinderCourt held there was no substantivedueprocess violation on the basis of the issues as raised by the parties, it did excise a portion of the statute on substantivedueprocessgrounds, 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 attentionduringthehearing inthis 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 thisprovision was enacted to aid the fact-findingby the panel and to preserve the confidentiality of the proceedings. But we cannot say that a litigant will receive a full and fairhearing 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, "Substantivedueprocess 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 capriciousactionagainst an individual. Raisler, 717 P.2d at 541. Therefore, in order to satisfy guarantees of substantivedue process, a statute enacted by the legislaturemust 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),210Mont. 184,

InMontana Milk Control Bd. v. Rehberg (1962), 141Mont. 149, 158-59, 376 P.2d 508, 514, this Court determined that substantivedueprocesswasnotviolated by legislationwhich allowed the State to control the retail price of milk and determined that the legislationwas 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 objectiveto 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 tothese objectives,because itsoperationresults in the elimination of existing water rights. (Citations omitted.) InMatter ofYellowstone River, 832 P.2d at 1217,we ruled that the challenged statutedid not violate substantivedueprocess 

### 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 requirementwas "neitherburdensome, unreasonable

norunrelated tothe legitimateandproper legislativeobje~tives.~~ Matter of Yellowstone River, 832 P.2d at 1217. We further noted that neither the Supreme Court nor other states addressing theconstitutionality of statutesrequiring filinghad foundthe 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 onlywhen 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 characteristicsbeing a 2400 square foot sizeminimum and a shake roof. Town & Countrv Estates, 740 P.2d at 671. The Court stated: If the subdivision itself lacks consonance, the Slatersvplan cannot lack harmony. In the context of [Town and Country Estates] and Slaterstplan, the term "harmony of external design" lacks the mutuality of obligation central to the purpose of a restrictive covenant. Inview of thewidevariety ofdesigns,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 designstandard. Without aquantifiable standardtoguide 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.) Inthe casebefore us,plaintiffs contendthat 5 27-1-703,MCA (1987), arbitrarily prejudices plaintiffs by requiring them to exonerate nonparties. They contend there isno reasonablebasis to require any plaintiff to prepare a defense at the last minute for nonparties whom defendants seek to blame for the injury, but who havenot been joined asdefendants;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. Theseprocedural 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 themerits 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 19unreasonable 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 onlywhen notice has been given by the defendant within 90days 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 aspart of an answer filedmore than 45daysprior 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 theburden ofbringing in other parties, includingthose who have settled,on the defendant. Glennv. Fleming (Kan. 1987), 732 P.2d 750, 756. Although Kansas has abolished joint and several liability altogether, it doesnot 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 Indianahas broughtmany questions about the definition of "nonpartyu and the procedural mechanisms for bringing in additional defendants. Schwartz,ComuarativeNeuliclence 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 ofnegligence 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)

# . NewMexico allows settlingdefendantsto 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 jurisdictionsdoes not providemuch help in thepresent case,however. Nearly every statehas 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. CodeAnn. 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 innocentplaintiffs--like R.M. inthis case--with thoseplaintiffs 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 otherpersons whomay be included on theverdict 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 standardofcareof 

### aprofessional counselor. Goodwinwas included

on theverdict 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 theverdict 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 attributedtohim. As a result, under the verdict given, if anyparty isunable topay the full amountof the judgment against that party, therewill thenbe an inabilityon 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 liabilityprior 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 proceduralaspects whichprovide for notice toplaintiffs, specific burdens of proof, and otherprocedures 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 negligencetortreform legislationarevalidgovernmental purposes,

we conclude that theMontana Legislaturehas 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 otherpersons who have a defense against the claimant.



# . . . While we hold that the naming of Ifanyother persons who have

a defense against the claimantNviolates substantive due process where such persons are not parties, we further emphasize that the reference in the statute to "any otherpersons who have a defense 23against the claimanttt is sovague astomake itsmeaning 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. Ifa 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. Asstnv. Greeley (1981), 193 Mont. 378, 399, 632P.2d 300, 311, if the invalidpart of a statute is severable fromthe rest, theportionwhich isconstitutionalmay 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 accordancewith 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 24executed inaccordancewith the legislative intent. As a result of our holding of unconstitutionality,wehave eliminatedthatportion 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 orproperty, any other personwhosenegligencemay have contributed as a proximate cause to the injury complained ofmay be joined asanadditionalparty 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 suchpersons. 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 federalgovernment. 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 foraprofessional 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 toGoodwinbased on an ordinary standardof

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 amental 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 factmay find suchprofessional negligent. In Carlson v. Morton (1987), 229 Mont. 234, 239, 745 P.2d 1133, 1136, the Court statedthat 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 manufacturersand distributorsof pharmaceuticals inHillv. 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 Zimmermanv. 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 incompetentto 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 forMs. Goodwin as aprofessional 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 27counselor 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 touse the ordinary standardof care to apportion negligence to counselorGoodwin. 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 inpermitting Goodwin's

name to be listed on the special verdict formwhen 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 inLimineto exclude all of defendants' highlyprejudicial evidence concerningR.M.'s natural parents. Although plaintiffs themselves introducedevidencethatR.M.'s naturalparentsboth 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 anymental or physical defects 28

### 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 thenatural parentsand 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. Theyclaimthatwithout any connectiontoR.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 shewent through that, but that's nothing that any of us cando 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.

### TheDepartment contendsthe evidence wasproperly 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)

### defendantsproperly inquired about R.M.'s parents to impeach the plaintiffs1 experts and since the evidence was not complete,defendantshad to cross-examine the experts in this area because the expertsbased their opinionson incomplete information; and (3) 

### the evidence about R.M. 'sparents 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 problemsprovided themedical link requiredby 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. Severalyears 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 causedby the appellant's environment and not the collision.

### We stated that the evidence about her family environmentwas 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 substantiallyoutweighed by the danger 

### of unfair prejudice. Thedecision whether ornot to exclude such evidence will not be reversed by this Court unless the district courthas abused its discretion. Kimes, 705 

### P.2d at 110. 

### We stated: We hold that the District Court abused its discretion in allowingthistestimony. TheDistrict 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 environmentmay 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. 

### Inthis case,theDepartment never made thecausalconnection. 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 ofR.M. Isbiological parents and any condition whichR.M. hadprior 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 Kimes that although themedical experts of bothparties indicated I that genetic factors and other information about the biological parents could contribute to R.M.'s present condition, no evidence

was presented tomake 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 Departmentto comment on such evidence during its closingargument. ISSUE V: 

### Jury Instructions. Did the District Court err in instructing the jury? Plaintiffscontend that the District Courtmade severalerrors involving jury instructionswhich 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 Servicestduty 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 orhave reasonable cause to suspect, as a result of information they receive in their professionalorofficial capacity,thata child isabused or neglected, they shall report the matter promptly to thedepartment of family servicesor its localaffiliate, which then shallnotify thecountyattorney of the county where the child resides. (2) Professionalsand 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 shownby the evidence, is erroneous. The fact issue here, according to the Department, was whether "reasonable causettto 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 33report 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 Departmentcontendsthatthe instructionwasproperly refused as it did not apply to the evidence in this case because police had no reasonable cause to suspectabuse at theRax restaurant. Thisdoes not agree with the record. The record indicates police believed there was reasonable

cause to suspectabuse,but determined there was no probable cause to arrest DennisKuipers. The officerwho observed the child also testified that she was new on the job and could not readily identify certain signs which she later learned shouldhave 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 thepolice 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 countywhere the child resides. Plaintiffs' proposed InstructionNo. 30

### was a correct statement of the law and was improperly refused. One of the theories of plaintiffs' case was that the County Attorneywas deprivedof the opportunity toprotectR.M. because of the Department's failure to complywith 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 statethecorrect lawof the case. We hold the District Court erred in refusing to give the plaintiffs1offered 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 futureeconomicdamagesat $1,400,000 

### andtestified about the present value of that amount. Plaintiffs' expert prepared his evaluation by using projected future medical costs based upon figures given tohimby theMissoula CommunityHospital head injury 35clinic. The economist then testified indetail abouthismethod in reducingthedamages topresentvalue. Plaintiffscontend that the instruction givenby thecourtallowedR.M. 'sdamagestobe reduced twice--first by the expert's testimony and then by the jury. Plaintiffscontend thatalthoughtheDistrict Court instructed the jury on the proper law, there was no information given to the jury fromwhich they couldbase their own calculationstoreduce to presentvalue any amount they arrived at asan appropriateaward if different fromthe amount asked forby theplaintiffs. Plaintiffs' estimate of future damages through the economistwas 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 theydid not accept the expert'smeasure of damages. TheDepartment countersthat the law of Montana allows the jurytodisregard the experts entirely indetermining the level of damages. Although the plaintiffst estimate of $1,400,000 in future medical expenses alonewasuncontested and theplaintiffs 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 Itwemust 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 givencarte 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. InstructionNo. 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 ofmoneywhich,together with what that money may reasonably be expected to earn in the future, when invested at a reasonable rate of return,will produce thedollar equivalent of such future damages. In arriving at present cash value you may also considerthe effect that inflationand increases inwages willhave on offsetting the amounts thatmoneywill 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 futuremedical 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 instructionsin their entiretycorrectly 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 InstructionNo. 35 and failing to includetheprovision that the only amounts to be so adjusted to present cash value are "future earnings and futuremedical 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, orwrongful deathwhere liability is found after trial and inwhich $100,000 ormore in futuredamages is awarded to the claimant, the trier of fact shall make a separate finding as to the amount of any future damages soawardedand state whether theamountof futuredamaaes hasbeen reduced topresentvalue. (Emphasissupplied.) While the special verdict form used in this case provided for findings on future damages, there was no separate statementby the jury as towhether the amount of futuredamageshad 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 whichthe 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. InKoppenv. Board ofMedical 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 thenature of itsvested discretiontodeterminewhether

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 decisionswere 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 soholding,we cited Butz v. Economou (1978), 438U.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 logicaldescendant 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. Butz 438 U.S. at 511-16, 98 S.Ct. at 291 I22. Thus, unlike the Board of Medical StateBd. ofDentistryv. Kandarian (1991) Examiners in Komen, in



## , 248Mont. 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 capacityas an executive agency seeking an injunction in the district court, thereby putting itself in the role of litigantoradvocate,not adjudicator. Kandarian, 813 P.2d at 412. TheBoard of Dentistry argued for immunity similartoprosecutorial immunity. We emphasized that there were procedural safeguards inherent in theprosecutorial systemwhich acted as a check on the prosecutor's independenceand whichwere not present in that case. Kandarian, 813 P.2d at 412. InKowen, 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 Justicev. District Court

(1977), 172 Mont. 88, 560 P.2d 1328, as follows: [They] stand for the proposition that entities called upon to function judicially shouldbe 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 entitymay be immune fromtort liabiliby if it committed a tortwhileperforming a quasi-judicial functionevenwhen the governmentalunit is not characterized as a quasi-judicial entity. We addressed this issue at some length in State ex rel. Workers' Compensation Divisionv. DistrictCourt (hereinafterGreat Western Suqar) (1990), 246 Mont. 225, 805 P.2d 1272. We said that the coredetermination for immunitytoapply to the function of the agency there was that it be quasi-judicial rather than administrative or ministerial, noting that our prior decisionshad cloudedthedistinction. Section 2-15-102(9), MCA, of MAPA 

### defines "quasi-judicial function" as: "Quasi-judicial function"means anadjudicatory function exercised by an agency, involving the exercise of judgment and discretion in making determinations in controversies. 

# . . . InGreatWestern Suqar, 805 P.2d at 1277,we further clarified this

as follows:



# . . . Here, the statutory schememandates 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 thiscase theDivision neverexercised this discretionto determineGW's eligibilityto 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 functionwas entirelvministerial: (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 asministerial 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 necessitymay exist for the ascertainment, frompersonal knowledge or from informationderived fromother sources, of those facts or conditions, upon the existence or fulfillment ofwhich, theperformance 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.) Thediscretionaffordedby the statutesand 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, inagiven case,theemployee didnot rendera considered decision. 

# ..." (Citations omitted.) We then noted that our analysis was limited to common-law quasijudicial immunity, but that the "exercise of judgment and discretiongtrequired by 3 2-15-102(9), MCA, of MAPA to invoke immunitywas 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 functionsof a federal agency,regardlessof whether thediscretion 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 "permissibleexercise ofpolicy 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 thediscretionary function exception to protect. Both in GreatWestern Susar and as recognizedby 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 asprescribed 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 Divisionhas simply not functioned as such under these facts. GreatWestern Susar, 805 P.2d at 1278. 

### The Department is required by statute to license and train foster care providers and to investigate adoptivehomes. 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 attachtoa quasi-judicial bodywhich is carryingoutthe 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. 

# . . . TheDepartment in this case was nota statutorily-designatedquasijudicialboard. GreatWestern Suqar, 805P.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 asthe 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 conductingan investigationwasprotected by quasi-judicial immunity because the applicable statutes expressly designated investigationsasdiscretionaryacts. 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 immunitymay apply to the exercise of a quasi-judicial function where there is no statutorily-designated quasi-judicialboard involvedin theaction. However, like the WorkerstCompensation Division in Great Western Suaar,the Department here was not carrying on an investigation of the sortwhich is granted immunity such as one that is a part of a contested casehearing; it is not entitled to immunity when it is not a quasi-judicial body carrying out a quasi-judicial function.We conclude the Departmentwas 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 isgranted statutory immunityby 5 41-3-203,MCA, whichprovides immunity for persons required to report and investigatechild abuse under the provisions of $5 41-3-201 and 41-3-202, MCA. This immunity is not intended for theDepartment; rather, it is intended toprotect individuals suchasteachers, doctors,andpsychologists 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. ISSUEVII: 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 considerthenegligence of the followingparties tothe action: claimant,injuredperson, defendantand third party defendants. In the absence of a record and briefing comprehensively addressing it, 45we conclude it is not appropriate to further address this issue. Affirmed in part, reversed in part and remanded.

we concur: -0-



### chief JusticeAPPENDIX 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 tothe claimantbut has the rightof 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 lessof the combined negligenceofallpersonsdescribed in subsection (4) is severally liable only and is responsible only for the amount of negligence attributable tohim, 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 forall damagescaused 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 indeath or injurytoperson 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 oftheclaimant,injuredperson, 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. Thetrierof fact shall apportionthepercentage ofnegligence ofall suchpersons. However, inattributing negligence among persons, the trier of factmay 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 WorkersgCompensation Act or the Occupational Disease Act of this state, of any other state,orofthe federalgovernment. Contributionshall 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 andmay obtain judgment in a pending or subsequent action for contribution fromthenoncontributingparty. Aparty foundto 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 thenegligence of any party in any action is an issue, each party against whom recoverymay 

### be allowed is jointly and severally liable for the amount thatmay 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 indeath or injurytoperson or property, any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additionalparty to the action. Whenever more than one person is found to have contributed as a proximate causetothe injurycomplained of, thetrier 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 shallmake any party indispensablepursuantto Rule 19, M.R.Civ.P. (3) If for any reason all or part of the contribution from a party liable for contribution cannotbe obtained,each of the other parties against whom recovery is allowed is liableto contribute a proportionalpart of theunpaid portion of the noncontributingparty'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. Percentageof 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 injuryor incurring propertydamage, 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 tothe claimant orhave prevailed onany other individual defense against the claimant in an amountwhich 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)

### Aparty 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 jointlyand 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 interferencewith contracts or business relations. (c) Nothing in this section shall affect any cause of actionarising fromthemanufacture ormarketing of a fungible product in a generic form which contains no clearly identifiable shape, color, ormarking. Wash. Rev. Code Ann. 

### 5 4.22.070 (1988).