No. 85-350 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

LINDA J. MILLER, 

Plaintiff and Appellant, 

FALLON COUNTY, CECIL P. MILLER, 

DAVIS TRANSPORT, INC., and PREFAB 

TRANSIT CO., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lucas & Monaghan; A. Lance Tonn argued, Miles City, 

Montana 

For Respondent: 

Anderson, Edwards & Molloy; Donald W. Molloy argued 

for Miller, Billings, Montana 

Anderson, Brown Law Firm; Steven J. Harman argued for 

Davis Transport, Billings, Montana 

Moulton Law Firm; Sidney R. Thomas argued for Prefab 

Transit, Billings, Montana 

Denzil R. Young, Baker, Montana 

Calvin J. Stacey, Billings, Montana 

For Amicus Curiae: 

Rossbach & Whiston for Rosina Woodhouse, Missoula, 

Montana 

Sandall, Cavan, Smith, Howard & Grubbs; W. Corbin 

Howard for Audrey D. Noone, Billings, Montana 

Submitted: March 14, 1986 

Decided: June 26, 1986 

Filed: JUfl 2 6 5986 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Linda J. Miller appeals judgment of the Sixteenth 

Judicial District Court, County of Fallon, which granted 

summary judgment to defendants, Cecil P. Miller (Miller) , 

Davis Transport, Inc. (Davis) , and PreFab Transit Co. 

(PreFab) . We reverse. 

Linda Miller (appellant) was injured in a one vehicle 

truck accident. Her husband, Cecil Miller, an independent 

truck driver, was the driver of the truck. Miller had 

entered into a contract for services with PreFab on August 3, 

1982. As part of that contract, Miller delivered a load of 

mobile home frames from Elkhart, Indiana, to Belgrade, 

Montana. The delivery was made November 2, 1982. 

Appellant accompanied her husband on the trip. They 

stayed in Belgrade, Montana, the night of November 2. The 

next day, Miller, on behalf of PreFab, entered into a 

contract with Davis whereby Miller agreed to haul a load of 

lumber from Townsend, Montana, to Minnesota for Davis. The 

accident occurred November 3, 1-982, while the Millers were 

traveling to Minnesota. Appellant was thrown from the truck 

and is now a paraplegic. 

She filed an action March 22, 1984, against Fallon 

County, alleging negligent design of a roadway; Miller, 

alleging negligent, careless and unlawful operation of a 

vehicle; Davis, alleging vicarious liability for Miller's 

negligence; and PreFab, alleging vicarious liability for 

Miller's negligence. The vicarious liability actions are 

premised on allegations that Miller was the employee of Davis 

and/or PreFab at the time of the accident. 

Miller, Davis and PreFab filed motions for summary 

judgment on the basis of interspousal tort immunity. PreFab 
additionally sought summary judgment on the basis of the 

following pre-injury release form signed by appellant on 

September 12, 1981: 

Application to travel with my husband. 

Furthermore, in the event of an accident or other 

manner wherein I may lose my life, be injured, or 

in any way contribute to the injury or loss of life 

to another, I hereby waive any rights whatsoever 

against Pre-Fab Transit Co. for what otherwise 

might be its liability and agree that Pre-Fab 

Transit Co., its agents, employees and contractors 

are to be held harmless in all respects by virtue 

of my being a passenger in said vehicle. 

The motions were briefed and argued. Thereafter, the 

District Court granted the motions for summary judgment on 

the basis of interspousal tort immunity. The pre-injury 

release was also held to support PreFab's motion. Following 

Rule 54(b), M.R.Civ.P., certification, a notice of appeal was 

timely filed. The following issues are raised: 

1. Whether the District Court committed reversible 

error in granting summary judgment in favor of Miller on the 

basis of the defense of interspousal tort immunity? 

2. Whether the District Court committed reversible 

error in granting summary judgment in favor of Davis and 

PreFab on the basis of its finding that the defense of 

interspousal tort immunity is available to a spouse's 

employer? 

3. Whether the District Court committed reversible 

error by granting summary judgment to PreFab on the basis of 

a waiver given to PreFab by appellant. 

- THE DOCTRINE - OF INTERSPOUSAL TORT IMMUNITY 

The doctrine of interspousal tort immunity derives from 

the common law. When Montana became a state, it adopted the 

common law of England as "the rule of decision in all the 

courts of this state." Section 1-1-109, MCA. The doctrine 
of interspousal tort immunity is a creature of court decision 

and subject to change by the courts. Fernandez v. Romo 

(Ariz. 1982), 646 P.2d 878, 880. Brooks v. Robinson (1nd. 

1972) , 284 N.E. 2d 794, 797. 

This Court has previously refused to abolish the 

doctrine of interspousal tort immunity. Conley v. Conley 

(1932) , 92 Mont. 425, 15 P.2d 922; Kelly v. ~illiams (1933) , 

94 Mont. 19, 21 P.2d 58; State ex rel. Angvall v. District 

Court (1968), 151 Mont. 483, 444 P.2d 370; and State Farm 

Mutual Automobile Ins. Co. v. Leary (1975) , 168 Mont. 482, 

544 P.2d 444. However, judicial modification of the common 

law is sometimes required to prevent great injustice or to 

insure that the common law is consonant with the changing 

needs of society. Digby v. Digby (R.I. 1978), 388 A.2d 1. 

In fact, "[tlhe strength and genius of the common law lies in 

its ability to adapt to the changing needs of the society it 

governs." Brooks v. Robinson, 284 N.E.2d at 797. 

The doctrine of stare decisis is not an impenetrable bar 

to conforming common law to the needs of a dynamic and 

evolving culture: 

This Court recognizes that courts may have 

previously fashioned a rule of immunity from wrongdoing, having adopted a posture at an earlier date 

in response to what appeared to be desirable then 

as a matter of policy; yet when it later appears to 

be unsound within a given context, especially when 

the reasons upon which the immunity is based no 

longer exist, it remains within the domain of the 

judiciary to reject the applicability of such a 

rule. 

Luna v. Clayton (Tenn. 1983), 655 S.W.2d 893, 897. 

The historical reasons for retention of immunity are: 

1) unity--the common law concept that husband and wife are 

one person; 2) family harmony; and 3) the possibility of 

fraud and collusion. These reasons no longer dictate such a 
harsh and absolute result. See Tobias, Interspousal Tort 

Immunity in Montana, 47 Mont.L.Rev. 23 (1986). 

The concept of unity originated at a time when a woman 

relinquished her rights as an individual when she married. 

The "supposed unity" of husband and wife, which 

serves as the traditional basis of interspousal 

disability, is not a reference to the common nature 

or loving oneness achieved in a marriage of two 

free individuals. Rather, this traditional premise 

had reference to a situation, coming on from 

antiquity, in which a woman's marriage for most 

purposes rendered her a chattel of her husband. 

Freehe v. Freehe (Wash. 1972), 500 P.2d 771, 773. The 

concept of unity is outmoded and has been significantly 

eroded by both statutory and case law. 

Family harmony will not be destroyed by the filing of a 

lawsuit. If a family is sound, it will most likely survive 

the legal action. A weak family bond cannot be strengthened 

by our judicial system. 

[Ilt is difficult to perceive how any law barring 

access to the courts for personal injuries will 

promote harmony. If this were a valid sociological 

consideration, the Legislature could orchestrate 

even greater harmony by abolishing the statute 

giving the right to divorce. 

Coffindaffer v. Coffindaffer (W.Va. 1978), 244 S.E.2d 338, 

The destruction of family harmony is even less of a 

concern because of insurance. A spouse is normally not 

seeking redress against the other spouse, but rather spouse's 

insurance carrier. See Fernandez, 646 P.2d at 881-882. In 

Transamerica Insurance Co. v. Royle (Mont. 1983), 656 ~.2d 

820, 40 St.Rep. 12, we recognized the effect of insurance on 

suits against parents by their minor children. The same 

rationale applies here. "The existence of liability 

insurance prevents family discord and depletion of family 

assets in automobile negligence cases . . . (citations 

omitted)." Royle, 656 P.2d at 823, 40 St.Rep. at 16. 
Our decision in Royle, 656 P.2d at 823-824, 40 St.Rep at 

16, is also instructive concerning the problems of fraud and 

collusion. The possibility of fraud and collusion exists 

throughout all litigation. One of the many functions of a 

judge or jury is to determine the facts of the case, 

including the potentially collusive aspect of the 

parent-child or interspousal relationship. Thus, the 

possibility of fraud or collusion is not sufficient reason to 

warrant continued reliance on interspousal tort immunity. 

The defense is abolished in Montana. Previous decisions to 

the contrary, cited above, are overruled. 

The abolition of the doctrine of interspousal tort 

immunity renders unnecessary consideration of whether the 

doctrine is available to the allegedly-negligent spouse's 

employer. 

THE EFFECTS -- OF THE PRE-RELEASE FORM 

More than a yea-r prior to the accident, appellant 

requested and received permission from PreFab to ride with 

her husband on interstate trips. In return, PreFab insisted 

that she sign a document entitled "Application to Travel with 

My Husband" which states in pertinent part: 

Furthermore in the event of an accident or other 

manner wherein I may lose my life, be injured, or 

in any way contribute to the injury or loss of life 

to another, I hereby waive any rights whatsoever 

aqainst re-Fab Transit --- Co. for what otherwise 

might - be - its liability - and agree that Pre-Fab 

Transit -- Co., its agents, employees and contractors 

- are &g be held harmless -- in all respects virtue 

- of % being - a passenger -- in said vehicle. (Emphasis 

supplied. ) 

The trial judge held that this waiver absolves PreFab 

from any liability with respect to appellant. On appeal, 

appellant contends the waiver is unenforceable because it is 

against public policy. 
The waiver constitutes a private contract between 

private individuals. Generally, private parties are allowed 

to contract away liability for negligent acts if the interest 

of the public is not involved and the contracting parties 

stand on equal footing. Checkley v. Illinois Central 

Railroad Co. (Ill. 1913), 100 N.E. 942; Haynes v. County of 

Missoula (1973), 163 Mont. 270, 279-280, 517 P.2d 370, 376- 

See also Speiser, Krause and Gans, The American Law of Torts, 

A different result has obtained where a facility or 

service is offered as a matter of convenience-- 

rather than one of necessity. In such instances, 

if the user assumes a risk of loss, there appears 

to be no basis for holding the exculpatory 

provision invalid on the ground that the parties 

were in an unequal bargaining position inasmuch as 

the user is under no compulsion to accept the offer 

of service or its terms. 

However, the fact that the waiver is a private contract 

is not determinative in this case. We must also decide 

whether the waiver is in violation of § 28-2-702, MCA, which 

states: 

Contracts which violate policy of the law - 

exemption from responsibility. A11 contracts which 

have for their object, directly or indirectly, to 

exempt anyone from responsibility for his own 

fraud, for willful injury to the person or property 

of another, or for violation of law, whether 

willful or negligent, are against the policy of the 

law. 

This Court has never before had occasion to interpret 

the statute. It was adopted verbatim from California in 

Montana follows the rule of statutory construction 

that where a statute is adopted from a sister 

state, it is ordinarily presumed that the 

legislature borrows the construction placed upon it 

by the highest court of the state from which it is 

borrowed, although such construction is not binding 

upon this Court. (Citations omitted.) 

Lawrence v. Harvey (1980), 186 Mont. 314, 321, 607 P.2d 551, 

556. We therefore find the interpretation of the statute by 
the California Supreme Court in Tunkl v. Regents of 

University of California (Cal. 1963), 383 P.2d 441, 32 

Cal.Rptr. 33, to be persuasive. Consistent with that 

decision, we hold that the words "his own" qualify the term 

"fraud", as well as the terms "willful injury to the person 

or property of another" and "violation of law, whether 

willful or negligent". 

Next we must determine whether "his own" includes the 

employer as well as the employee. In Tunkl, supra, the 

California court held that its equivalent statute applies 

equally to a "corporation's 'own1 liability and vicarious 

liability resulting from negligence of agents." 383 P.2d at 

448, 32 Cal.Rptr. at 40. Likewise, we hold that our statute 

applies to a corporation's vicarious liability. 

To summarize, S 28-2-702, MCA, is interpreted to mean 

that no person or corporation may contract to exempt himself 

or itself from responsibility for his, its or its employee's: 

(1) fraud; (2) willful injury to the property or person of 

another; (3) negligent or willful violation of law. 

But, what is meant by the term "violation of law, 

whether willful or negligent?" The California Supreme Court 

has not resolved this question. However, the legal meaning 

of the terms contained in the phrase is undisputed. Law 

consists of constitutions, Wickham v. Grand River Dam 

Authority (Okl. 1941), 118 P.2d 640, 643; statutes and case 

law, Erie Railroad Co. v. Tompkins (1938), 304 U.S. 64, 78, 

58 S.Ct. 817, 822, 82 L.Ed. 1188, 1194; as well as common 

law, Fenn v. Holme (1859), 62 U.S. 481, 486, 21 How. 481, 

486, 16 L.Ed. 198, 200. Thus, pursuant to the clear and 

unambiguous language of S 28-2-702, MCA, an entity cannot 

contractually exculpate itself from liability for willful or 

negligent violations of legal duties, whether they be rooted 
in statutes or case law. We therefore determine the statute 

has application in this setting. 

The dissent contends that S 28-2-702, MCA, invalidates 

only those waivers which affect the public. This contention 

is contrary to the specific words of the statute. The 

statute itself states that any contract which exempts anyone 

from responsibility for fraud, willful injury or the willful 

or negligent violation of law, is against the policy of the 

law. Nothing in the statute limits its application to 

contracts which involve the public interest. Thus, even a 

waiver which constitutes a private contract between private 

individuals is invalid, and in violation of public policy, if 

it seeks to exempt one from liability for those actions 

specified in the statute. 

Contrary to PreFab's allegations, Congress has not 

preempted this area of law by enacting the Interstate 

Commerce Act. The relevant statute is 49 U.S.C. 

S 10722 (d) (2) (1982), which states in pertinent part: 

A common carrier providing transportation subject 

to the jurisdiction of the Commission . . . may 

provide transportation without charge for officers 

and employees (and their families) of that carrier, 

another carrier (by exchange of passes or tickets), 

or a telegraph, telephone, or cable company. 

This section allows PreFab to provide free transportation to 

certain specified individuals, including appellant. It does 

not regulate the liability which potentially accompanies the 

provision. Therefore, Montana is free to legislate with 

respect to the liability incurred. Eisenman Seed Co. v. 

Chicago, Milwaukee, St. Paul and Pacific Railroad (1973) , 161 

Mont. 197, 203, 505 P.2d 81, 84. 

Finally, again contrary to PreFab's allegation, Illinois 

law should not control. We recognize that the contract 

between PreFab and Miller originated in Illinois. However, 
S 28-2-702, MCA, delineates the types of contracts Montana 

will refuse to recognize regardless of their origin. 

We remand this cause to the trial court. If liability 

is found based upon a willful or negligent violation of law, 

the waiver as it pertains to PreFab, Davis and Miller 

violates S 28-2-702, MCA, and may not be relied on by any of 

the three defendants. 

Reversed and remanded. 

We Concur: 

d 

Justices 
Mr. Justice Fred J. Weber dissents as follows: 

I concur with the majority opinion and its abolition of 

the doctrine of interspousal tort immunity. I dissent from 

its conclusion with regard to the pre-release form. 

I disagree with the majority conclusion that a negligent 

violation of law by PreFab, Davis or Miller constitutes a 

violation of 5 28-2-702, MCA, so that the waiver may not be 

relied on. 

The majority opinion points out that this Court has 

never had occasion to interpret 5 28-2-702, MCA, and further 

points out that the statute was adopted verbatim from California in 1895. The majority then concludes that the interpretation of the statute by the California Supreme Court in 

Tunkl is persuasive. Unfortunately the rationale of the 

majority opinion actually is strikingly different from the 

rationale in Tunkl. The majority concludes that under 5 

28-2-702, MCA, an entity cannot contractually exculpate 

itself from liability for negligent violations of legal 

duties whether they are rooted in statutes or case law. 

Tunkl approached the same code section with an entirely 

different rationale. 

Tunkl emphasized that the code section had been interpreted in various ways by California cases, some strictly, 

some very liberally so that the authority for Tunkl under 

California cases was limited. Tunkl did emphasize that all 

of the California cases consistently held that the 

exculpatory provision of the code section would stand only if 

the public interest was involved. Tunkl then set forth a 

number of factors to be considered in determining whether or 

not the public interest was effected by the release agreement. Included are such factors as whether it is a business 
which is suitable for public regulation; whether a party is 

performing a service of great importance to the public which 

is practically necessary to the public; whether a party is 

willing to perform this for any member of the public; whether 

there is an essential nature of services being performed and 

a decisive advantage in bargaining strength; whether there is 

superior bargaining power and a standardized adhesion contract; and whether a party is placed under the control of the 

party to be exculpated. Clearly the present case does not 

set forth facts justifying the application of the public 

interest rule under Tunkl. In other words, if the rationale 

of Tunkl were applied in the present case, the holding would 

be contrary to the majority opinion here. 

In Tunkl the California court distinguished private 

voluntary transactions from public interest cases and stated: 

While obviously no public policy opposes private, 

voluntary transactions in which one party, for a 

consideration, agrees to shoulder a risk which the 

law would otherwise have placed upon the other 

party, the above circumstances pose a different 

situation. 

Tunkl, 383 P.2d at 446. This Court applied the rationale of 

Tunkl in Haynes v. County of Missoula (1973), 163 Mont. 270, 

517 P.2d 370. Even though this Court was interpreting 

5 28-2-702, MCA, it followed the public interest rationale of 

Tunkl and quoted extensively from Tunkl. In addition, this 

Court in Haynes referred to the provision in Restatement, 

Contracts, 5 575 making an exemption from liability illegal 

if a party is charged with the duty of public service, and 

the bargain relates to negligence in the performance of any 

part of its duty to the public, for which it has received or 

been promised compensation. Without going into Haynes in any 

more detail, it is clear that this Court adopted the public 

interest rationale of Tunkl. I therefore conclude 
that neither Tunkl nor Haynes is authority for the position 

taken in the present majority opinion. 

I dissent from the primary conclusion of the majority 

opinion that an entity cannot contractually exculpate itself 

from liability for either willful or negligent violations of 

legal duties whether they are rooted in statutes or in case 

law, under the provision of 5 28-2-702, MCA. As I look at 

this statute which was enacted by our Montana Legislature in 

1895, I note that it addresses contracts which are against 

the policy of the law of this state. Section 28-2-702, MCA, 

states that all of the following contracts are against the 

policy of Montana: contracts which exempt anyone from responsibility for fraud, willful injury to person or property, 

or violation of law, whether willful or negligent. It is 

clear that in order to discourage anyone exempting himself 

for his own fraud, such a provision is appropriate. In a 

similar manner, it is appropriate to eliminate an exemption 

for willful injury to person or property. This leaves the 

last portion which is the violation of law, whether willful 

or negligent. Again there is a clear policy apparent in a 

prohibition which applies to willful violation of law. That 

element is not present in this case. This leaves only the 

question of the negligent violation of law. I conclude that 

negligent torts were not contemplated by this section. 

I invite the attention of our Montana Legislature to the 

majority opinion in order that it may determine if it approves of the interpretation of 5 28-2-702, MCA. 
Mr. Justice L. C. Gulbrandson joins in the foregoing 

dissent of Mr. Justice Fred. J. Weber. 

Justice j