NO. 92-545 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CLARENCE KING and MIS FAY KING, 

on their own behalf and as 

Personal Representatives of the 

Estate of DAVID R. KING, 

Plaintiffs and Appellants, 

THE STATE OF MONTANA, THE STATE 

HOSPITAL, and THE DEPARTMENT OF 

INSTITUTIONS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorabie Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Howard C. Greenwood, Hamilton, Montana 

For Respondents: 

Norman C. Peterson, Agency Legal Services Bureau, 

Helena, Montana; WilliamGianoulias, RiskManagement 

and Tort Defense Division, Department of 

Administration, Helena, Montana 

Submitted on Briefs: July 1, 1993 
JUS~~C~ James C. Nelson delivered the Opinion of the Court. 

This is an appeal from an Opinion and Order of the TwentyFirst Judicial District Court granting Defendants' motion to 

dismiss the Plaintiffs' complaint for its failure to state a claim 

upon which relief may be granted. We affirm. 

We restate the issues on appeal as follows: 

1. Did the District Court err in dismissing the Plaintiffsr 

negligence claim against the Defendants? 

2. Did the District Court err in dismissing the Plaintiffs' 

intentional tort and 42 U.S.C. 5 1983 claims against the Defendants 

without addressing those claims in its Opinion and Order? 

On May 23, 1989, Victor Buddell (Buddell) was involuntarily 

committed to the Montana State Hospital for a three-month term and 

examination. On July 28, 1989, an evidentiary recommitment hearing 

was held before District Judge Ted L. Elizner, At the conclusion of 

this hearing, Judge Mizner found that Buddell was a danger to 

himself but that the least restrictive environment for Buddell was 

a conditional release to the community. On August 24, 1989, Buddell 

was released from the Montana State Hospital pursuant to Judge 

Mizner's Order. The State of Montana did not appeal that release 

order. On September 13, 1989, Buddell murdered David R. King, the 

son of the Plaintiffs, Clarence and Lois King (Kings). 

The Kings filed an action against the Defendants (collectively 

referred to as State) alleging negligence, intentional acts, and 

violations of David R. King's civil rights under 42 U.S.C. 5 1983. 

The State filed a motion to dismiss under Rule 12(b) (6), M.R.Civ.P. 

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District Judge Ed McLean dismissed the Kingsf complaint on 

September 9, 1992, holding that the Kings had failed to establish 

a prima facie case of negligence because the State had no duty to 

appeal Judge Mizner's decision. Without referring to the Kings' 

claims based on intentional acts and an alleged violation of 42 

U.S.C. !j 1983, the District Court dismissed those claims as well. 

From the dismissal of the Kings' complaint, this appeal follows. 

In reviewing a Rule 12 motion to dismiss, we will construe the 

complaint in the light most favorable to the plaintiffs and take 

the allegations of the complaint as true. Willson v. Taylor, 

(1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182. The dismissal 

will be affirmed only if this Court finds that the plaintiffs are 

not entitled to relief under any set of facts which could be proven 

in support of the claim. Proto v. Missoula County (1988), 230 

Mont. 351, 352-53, 749 P.2d 1094, 1095-96. When a case is 

dismissed pursuant to a pretrial motion and the credibility of 

witnesses is not an issue, the scope of review is broad and this 

Court may make its own examination of the entire case and make a 

determination in accordance with its findings. Shimsky v. Valley 

Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310. 

The Court will uphold the result reached by the district court if 

its decision was correct, regardless of the reasons given by the 

district court for its conclusion. Shimsky, 676 P.2d at 1310. 

I - NEGLIGENCE CLAIM 

The Kings' negligence action fails on two grounds. First, the 

State had no duty to appeal the District Court's decision not to 

recommit Buddell to the Montana State Hospital. Second, the Kings 
could not establish that the acts of the State were the proximate 

cause of their son's death. 

A. DUTY TO APPEAL 

The Kings contend that the State was negligent in not 

appealing the District Court's decision to conditionally release 

Buddell to the community. In order to sustain a negligence action, 

the plaintiff must establish a legal duty, breach of that duty, and 

damages caused by that breach. Whitfield v. Therriault Corp. 

(1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127. The Kings' 

argument necessarily requires that the State owed the Kings a duty 

to appeal the District Court's decision. We disagree. 

The recommitment proceedings involving Buddell originated 

under Title 53, Chapter 21, MCA. The State petitioned for an 

extension of the commitment period pursuant to S 53-21-128, MCA, 

and the District Court entered an order consistent with the 

statutory authority therein. These mental health statutes provide 

for appellate review of the district court's order. Section 53-21- 

131, MCA, states: 

Appellate review of any order of short-term evaluation 

and treatment or long-term commitment mav be had by 

appeal to the supreme court of Montana in the manner as 

other civil cases. . . . (emphasis added) 

The word "mayn is to be given its ordinary meaning unless there is 

a specific reason to treat it otherwise. County of Chouteau v. 

City of Fort Benton (1979), 181 Mont. 123, 128, 592 P.2d 504, 507. 

The ordinary meaning of "may" is that of permissiveness. If a 

statute is permissive, "there is no 'clear mandatory duty' to 

perform the function enumerated by the statute." Platz v. Hamilton 
(1982), 201 Rant. 184, 189, 653 P.2d 144, 145. In this case, the 

determination to appeal the District Court's decision regarding 

Buddell's release was discretionary. There was no mandatory duty 

on the State to appeal this decision. 

In addition, the Kings' contention that the State had a duty 

to appeal this decision raises serious policy concerns. For 

example, if the State had appealed this decision, there is no 

guarantee the appeal would have been successful. To impose a duty 

to appeal district court decisions would encourage attorneys to 

appeal every unfavorable decision to avoid being second-guessed at 

a later date. As the State points out in its brief, "[tlhis Court 

would find itself the arbiter not only of whether a judge had made 

a correct decision based on the evidence, but also whether the 

attorney who did not appeal was or was not reasonably prudent and 

should have appealed because it was a close decision." The 

exercise of the right to appeal, by its very nature, must remain 

discretionary. Therefore, because the State had no duty to appeal 

the District Court decision, no action for negligence may lie. 

B. PROXIMATE CAUSE 

The State also contends that the Kings could not prove the 

proximate cause element necessary to establish negligence. We 

agree. 

To satisfy the third element of a negligence action, 

causation, the Kings must prove both cause in fact and proximate 

(or legal) cause. In this case, cause in fact is established 

through the "but for" test, where the injury would not have 

occurred but for the State's negligence. Kitchen Krafters, Inc. v. 

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~astside Bank of Montana j1990), 242 Mont. 155, 167, 789 P.2d 567, 

574. Proximate cause is established by applying a foreseeability 

test. Kitchen Krafters, 789 P.2d at 575. If the consequences of 

an act are not reasonably foreseeable, there is no proximate cause. 

Kitchen Krafters, 789 P.2d at 575. In addition, if a plaintiff's 

injury is caused by the intervening act of a third-party, the 

defendant's actions cannot be viewed as the proximate cause of that 

injury. Graham v. Montana State Univ., (1988) , 235 Mont. 284, 289- 

90, 767 P.2d 301, 304. 

In this case, the Kings could not establish proximate cause 

against the State, as the Kings' injury was clearly caused by the 

acts of Buddell. The Kings have attempted to distinguish our 

decisions in VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 

932; Kiger v. State Dep't. of Inst. j1990), 245 Mont. 457, 802 P.2d 

1248; and United States Fidelity & Guar. Co. v. Camp (1992), 49 St. 

Rep. 372, P.2d . However, these three cases clearly 

control in this case. 

In VanLuchene, an inmate at the Montana State Prison was 

released after serving the entire term of his sentence. After his 

release, he killed a young child. VanLuchene, 797 P.2d at 933. 

The parents and siblings of the child sued the State, alleging the 

State was negligent in releasing the inmate prior to his completing 

the sexual offender treatment program and for failing to warn the 

public of his release from prison. VanLuchene, 797 P.2d at 934. 

The district court dismissed the case, holding that the plaintiffs' 

theories of proximate cause were speculative and that the State's 

acts were not the proximate cause of the plaintiffs' injuries. 
VanLuchene, 797 P.2d at 934. The district court's dismissal was 

affirmed by this Court. VanLuchene, 797 P.2d at 936. 

In m, a paroled inmate from the Montana State Prison shot 

a woman while attempting to steal her car, -, 802 P.2d at 

1249. The victim filed an action against the State, alleging the 

State was negligent during the parole process of the inmate. 

w, 802 P.2d at 1249. The district court dismissed this action 

on the basis that the plaintiff could not establish proximate 

cause. -, 802 P.2d at 1249. This court affirmed, stating that 

the inmate's actions could not have been reasonably foreseen by the 

State. Kiqer, 802 P.2d at 1251. 

In Camp, a prisoner on work release became intoxicated, passed 

out, and started a Eire when his lighted cigarette fell on a couch. 

Camp, 49 St.Rep. at 373. The district court entered summary 

judgment against the plaintiff, finding that the plaintiff could 

not establish proximate cause. Caml>, 49 St-Rep. at 373. This 

Court affirmed that dismissal, holding that the prisoner's 

intervening acts were not reasonably foreseeable. m, 49 St. 

Rep. at 374. 

These three cases are analogous to the case at bar. The acts 

of Buddell were not reasonably foreseeable and, therefore, the 

Kings cannot establish proximate cause against the State. 

I1 - INTENTIONAL TORT AND 42 U.S.C. 5 1983 CLAIMS 

The Kings contend that the District Court erred in dismissing 

the entire complaint, because the District Court's Opinion and 

Order only addressed the negligence action. We agree with the 

District Court's decision to dismiss the intentional tort and 42 
U.S.C. 5 1983 claims. 

The Kings did not allege any specific intentional tort action 

in their complaint. Rather, the Kings alleged that the State 

"intentionally adopted and carried out a considered and deliberate 

practice . . . of routinely not appealing the rulings of the 

District Court at recommitment hearings." As we previously held, 

the State has no mandatory duty or obligation to appeal the ruling 

of a district court at a recommitment hearing. Thus, the Kings 

have failed to allege any intentional act committed by the State 

upon which relief could be granted. 

The action based on 42 U.S.C. 5 1983 also must be dismissed. 

The Kings filed this action against the State of Montana, the State 

Hospital, and the Department of Institutions. These parties are 

not "persons" subject to liability under this federal civil rights 

statute. Holladay v. Montana (D.C. Mont., 1981), 506 F.Supp. 1317, 

1321. See also Will v. Michigan, 491 U.S. 58, 64, 109 S.Ct. 2304, 

2308, 105 L.Ed.2d 45, 53. ("[Aj state is not a person within the 

meaning of 5 1983.") 

In Holladay, the plaintiff was suspended from his job as 

superintendent of the Pine Hills School for Boys, a division of the 

Montana Department of Institutions. The plaintiff filed an action 

against the State of Montana and the Department of Institutions, 

among others, alleging violations of 42 U.S.C. 5 1983. Holladay, 

506 F.Supp. at 1320. The State of Montana and the Department of 

Institutions filed a motion to dismiss the action. Calling the 

Department an "alter ego" of the State, the court found that 

neither party could be considered a "person" under the federal 
civil rights statute and dismissed the action against them. 

Xolladay, 506 F.Supp. at 1320-21. 

~ollowing the reasoning in Holladav, we hold that the State of 

Montana, the State Hospital, and the Department of Institutions are 

not "persons" under 42 U.S.C. 5 1983 and thus the action against 

these parties was properly dismissed by the District Court. 

nf f inned. 
July 20, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Howard C. Greenwood 

Attorney at Law 

P.O. Box 1567 

Hamilton, MT 59840 

Norman C. Peterson 

Agency Lxgal Services Bureau 

Justice Bldg., 215 N. Sanders 

Helena. MT 59620 

XXJ;ll:,.- P.: --,... I:,.,. IV1111Uttl UlLLllUULLLLJ 

Risk Management and Tort Defense Div. 

Dept. of Admin., Rm. 11 1, Mitchell Bldg. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA