No. 90-445 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CARLA IRION and RUSSELL IRION, 

Plaintiffs and Appellants, 

JOSHUA PETERSON, CITY OF BILLINGS, 

a municipal corporation, SCHOOL 

DISTRICT NO. 2 OF BILLINGS, MONTANA, 

a/k/a BILLINGS PUBLIC SCHOOLS and 

CHRISTIAN, SPRING, SIELBACH & 

ASSOCIATES, a corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert C. Kelleher, Sr.; Kelleher Law Office; Butte, 

Montana 

For Respondent: 

Ramona Heupel Stevens; Moulton, Bellingham, Longo 

& Mather; Billings, Montana (City of Billings) 

Guy W. Rogers; Anderson, Brown, Gerbase, Cebull, 

Fulton, Harman & Ross; Billings, Montana (Billings 

Public Schools) 

Submitted on Briefs: January 17, 1991 

Decided: March 19, 1991 

Filed: 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

Plaintiffs Carla and Russell Irion appeal from an order of 

summary judgment granted by the District Court of the Thirteenth 

Judicial District, Yellowstone County in favor of defendants City 

of Billings and the Billings School ~istrict. The District Court 

granted summary judgment on the grounds that immunity pursuant to 

§ 2-9-111, MCA, and the absence of a compensable claim under 42 

U.S.C. 5 1983 barred the Irions' complaint. We affirm in part and 

reverse in part. 

We restate the issues, submitted by Irions, as follows: 

1) Whether the District Court properly determined that the 

City of Billings is immune from the allegations of the present 

lawsuit pursuant to 5 2-9-111, MCA, and; 

2) Whether the District Court properly held that Irions failed 

to assert a compensable claim pursuant to 42. U.S.C. § 1983. 

In 1985, the City of Billings was constructing Skyview High 

School. While the school was under construction, the former 

Lincoln Junior High Building was utilized as a temporary location 

for the high school. Lincoln Junior High is located in downtown 

Billings at the intersection of North 30th Street and 4th Avenue 

North. 

Apparently, school bus traffic associated with the loading and 

unloading of students created a traffic problem in the area. In 

order to remedy this problem, School District and City officials 

decided to close one lane of travel on North 30th Street from 4th 

Avenue North to 5th Avenue North. This task was accomplished by 

2 
using a chain link fence and several barricades allowing the school 

buses to proceed in the same direction and facilitate the safe 

loading and unloading of students. This remedy was considered a 

temporary solution which was undertaken in order to avoid an 

"extremely dangerousw situation existing at the high school. 

Unfortunately, on September 22, 1986, Carla Irion was struck 

by a motor vehicle being driven by Joshua Peterson as she was 

utilizing the crosswalk at the intersection of 4th Avenue North and 

North 30th Street. Joshua Peterson was a student at Skyview High 

School. 

Carla Irion and her husband brought a lawsuit against Peterson 

on March 3, 1989. The Irions later amended their complaint to name 

the School District, the City and the engineering firm of 

Christian, Spring, Sielbach and Associates as defendants. The 

engineering firm designed and erected the bus lane for the School 

District. It was never sewed, however, and is not part of this 

lawsuit. 

The Irions settled their claims against Peterson for the sum 

of $45,000.00. Their allegations against the School District and 

the City of Billings were not settled and on July 17, 1990 the 

District Court dismissed the Irionst complaint against the two 

defendants. It held that all claims of negligence were barred by 

immunity pursuant to 5 2-9-111, MCA. It further ruled that the 

Irionst b 1983 claims were not compensable because neither 

defendant acted with the intention to cause Carla Irion injury of 

life, liberty or property. This appeal followed. 
The District Court ruled that the Irionsl allegations of 

negligence against the School ~istrict and the City were barred by 

§ 2-9-111, MCA. According to the statement of issues submitted by 

Irions this ruling, as it applies to the School District, was not 

appealed. Therefore, we need only review the District Court's 

determination that the immunity provisions of the statute bar the 

Irions' claims against the City. 

Section 2-9-111, MCA, states: 

2-9-111. Immunity from suit for legislative acts 

and omissions. (1) As used in this section: 

(a) the term llgovernmental entity" includes the 

state, counties, municipalities, and school districts; 

(b) the term ttlegislative body" includes the 

legislature vested with legislative power by Article V 

of The Constitution of the State of Montana and any local 

governmental entity given legislative powers by statute, 

including school boards. 

(2) A governmental entity is immune from suit for 

an act or omission of its legislative body or a member, 

officer, or agent thereof. 

(3) A member, officer, or agent of a legislative 

body is immune from suit for damages arising from the 

lawful discharge of an official duty associated with the 

introduction or consideration of legislation or action 

by the legislative body. 

(4) The immunity provided for in this section does 

not extend to any tort committed by the use of a motor 

vehicle, aircraft, or other means of transportation. 

According to subsection 2 of this statute, a governmental 

entity is immune from suit for the negligence of its legislative 

body or *la member, officer or agent thereof." The term 

governmental entity is defined to include municipalities. Section 

2-9-111 (1 (b) , MCA. Therefore in order to resolve the issue 

regarding the City's possible liability, we must determine whether 

the alleged negligent acts were undertaken by members or agents of 
its legislative body. If they were not, the immunity provisions 

of § 2-9-111, MCA, are inapplicable and therefore will not bar the 

Irionst lawsuit against the City. 

Section 7-3-153, MCA, provides that charters of city 

governments are required to be filed with the Department of 

Commerce. The statute further provides that all such charters are 

subject to judicial notice. Under the authority of this statute, 

we have reviewed the Billings City Charter to determine whether the 

City Administrator and Director of Public Works are agents of the 

City's legislative body. We have also reviewed the Charter to 

determine whether it provides for Separation of Power between the 

Legislative and Executive branches. 

Article I11 of the charter provides as follows: 

ARTICLE 111--Legislation 

Section 3.01. Legislative Branch. The legislative branch 

shall consist of the City Council and the Mayor. 

The Mayor, under Section 3.04 is charged with the duty of presiding 

over council meetings and performing as the ceremonial head of city 

government. In Section 3.08, the charter provides that "the 

Council, its members and the Mayor shall deal with the city 

officers and employees who are subject to the direction and 

supervision of the City Administrator solely through the City 

Administrator. Neither the Council, its members, nor the Mayor 

shall give orders to any city officer publicly or privately." 

The Charter also provides: 

Article IV - Executive. 

Section 4.01. City Administrator: Employment, 

Compensation, Qualifications. The Council shall employ 
a City Administrator on the basis of merit for an 

indefinite term. The ~dministrator shall not be the 

Mayor or a Councilmember at the time of employment and 

need not be a resident of the city or state at the time 

of employment. 

Further, in section 4.03, it provides: 

Section 4.03. City Administrator: Powers and Duties. 

The Administrator shall: 

carry out policies established by the City 

Council ; 

perform the duties required by law, ordinance, 

resolution, or this charter; 

enforce laws, ordinances, and resolutions; 

administer the affairs of the city; 

direct, organize, establish, supervise, and 

administer all departments, agencies, and 

offices of the city; 

appoint, suspend, and remove all employees of 

the local government; 

prepare and present the city budget to the 

Council for its approval and administer the 

budget adopted by the Council; 

report publicly to the Council at least 

quarterly on the financial conditions of the 

city; 

recommend measures to the Council; 

report to the Council as the Council may 

require; 

attend Council meetings and take part in the 

discussion, but shall have no vote; 

appoint with the approval of the City Council 

a qualified acting administrator to exercise 

the powers and perform the duties of the 

Administrator during temporary absences. 

As these sections indicate there are distinct Legislative and 

Executive Branches of the City government. Each has different 

duties and responsibilities. The City Administrator has been 

granted, by the charter the powers of the executive in a government 

of separated powers. These powers include, inter alia, the 

oversight and regulation of traffic. See § 24-103 Billings, 

Montana, City Code. In order to carry out the duty, the City 
Administrator has established the Department of Public Works, and 

specifically, the Director of Public Works to assist him. 

It is clear that the alleged negligent acts which resulted in 

Ms. Irion's injury, were not carried out by the legislative body 

of the City. Nor were they performed by any member, officer or 

agent of the legislative body. The City Council may retain 

ultimate authority to regulate street traffic; however this does 

not lead to the conclusion that the executive is its agent. This 

system of city government established by the charter is merely a 

reflection of the separation of powers form of government, which 

controls our nation and this state. Therefore, the immunity 

provisions of 5 2-9-111, MCA, do not apply to the actions of the 

City Administrator and the District Court's grant of summary 

judgment in favor of the City must be reversed. 

11. Section 1983 Claims. 

In a rather convoluted argument, the Irions have attempted to 

convert this action, which is based on negligence, into a 

constitutional claim by invoking the protections of 42 U.S. C. § 

1983. Congress passed this statute in order to provide legal 

redress for persons deprived of legal rights or privileges through 

state action. The United States Supreme Court has held, however, 

that in order to set forth a valid cause of action under this 

statute, a plaintiff must allege a breach of a duty that is greater 

than mere negligence. Davidson v. Cannon (1986), 474 U.S. 344, 106 

S.Ct. 668, 88 L.Ed.2d 677. The Irions maintain that the 

defendants' actions were greater than negligent and that they 
amounted to deliberate indifference to Carla Irion's welfare. 

We reject this argument. The bus lane was set up in an effort 

to protect the students of Sky View High School from injury. There 

is no evidence that either the City or the District acted in 

"disregard of a known or obvious risk that was very likely" [words 

of plaintiff ] to result in Carla Irion's injuries. At the absolute 

maximum the Irions8 claims support a possible negligence action. 

Such allegations do not support an action under 5 1983. The 

District Court's order of summary judgment on this issue is 

affirmed. n