No. 92-014 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MELISSA HEDGES, A minor by and through 

PATRICIA HEDGES, her Guardian ad Litem, 

Plaintiff and Appellant, 

-vsSWAN LAKE AND SALMON PRAIRIE SCHOOL DISTRICT 

NO. 73, CAROL FIELD, and DOES 1 through 10, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. James Oleson; Oleson Law Firm, Kalispell, Montana 

For Respondent: 

Todd A. Hammer; Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana 

. ,/ 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff, Melissa Hedges, appeals from the order of the 

District Court for the Twentieth Judicial District, Lake County, 

granting summary judgment to the defendants. We reverse and 

remand. 

The issues for our review are: 

1. Did the District Court err in holding that the defendants 

were immune from suit for negligence under 5 2-9-111, MCA (1991)? 

2. Did the District Court err in denying Ms. Hedge's motion 

for reconsideration? 

This case was previously before this Court on appeal from an 

order granting summary judgment on February 28, 1990. Hedges v. 

Swan Lake and Salmon Prairie School Dist. No. 73 (1991), 248 Mont. 

365, 812 P.2d 334 (Hedses I). As stated in Hedses I, plaintiff, 

Melissa Hedges (Ms. Hedges) was a student at the Swan Lake 

Elementary School in Lake County, Montana. Defendant, Carol Field 

(Ms. Field) , a teacher, was supervising the playground and had 

instructed Ms. Hedges to mark where shot puts landed. Ms. Hedges 

was marking a previous shot put when she was struck by another shot 

put which had been thrown by Ms. Field. Ms. Hedges was injured and 

filed a complaint against Ms. Field and the Swan Lake and Salmon 

Prairie School District, No. 73 (School District). 

Defendants moved for summary judgment on the grounds of 

immunity under 5 2-9-111, MCA (1989). The parties also argued the 

issue of whether immunity had been waived by the defendants' 

purchase of liability insurance which the School District had 

2 
purchased. The District Court granted defendants1 motion for 

summary judgment and held the defendants were immune under 5 2-9- 

111, MCA (1989), and that the purchase of liability insurance did 

not waive immunity. Ms. Hedges appealed. Hedses I. 

This Court held that the case of Crowell v. School Dist. No. 

7 (1991), 247 Mont. 38, 805 P.2d 522, was controlling, and thus, 

the School District was immune from suit for an act or omission of 

its llagentm, Ms. Field. Quoting Crowell, we stated: 

any negligence on the part of the teacher was associated 

with action by the School District in that it was the 

District which established programs and curriculum, 

including the specific course of instruction and which 

offered physical education classes as a part of such 

instruction. We agree with the conclusion of the 

District Court that the claim for damages arose from the 

lawful discharge by Mr. Allen of an official duty 

associated with actions of the School District and its 

legislative body. We hold that Mr. Allen, the physical 

education teacher, is immune from suit under 5 2-9-111, 

MCA. 

Crowell, 805 P.2d at 524. We find no factual or 

legal distinction between Crowell and the present case. 

(Emphasis in original). 

Hedses I, 812 P.2d at 335. Thus, in Hedses I, we held that the 

School District and teacher were immune from suit under 5 2-9-111, 

MCA (1989). However, based on our holding in Crowell, we also held 

that the purchase by the School District of liability insurance 

waived its immunity to the extent of the coverage granted by 

pertinent insurance policies. In Hedses I we reversed and remanded 

to the District Court. 

On May 24, 1991, the day after the decision in Hedses I was 

issued, the Governor of Montana signed into law Senate Bill 154, 

significantly amending 9 2-9-111, MCA. The amended statute was 
given a retroactive applicability date to all cases not reduced to 

final judgment on or before May 24, 1991. 

On remand, following the amendment of the statute, the 

defendants again moved for summary judgment. The District Court 

considered the amended statute, but again granted summary judgment 

for the defendants, this time stating: 

In granting Defendants' summary judgment motion, 

this Court holds that the law of this case as established 

by [Hedcres I] has been modified by the legislative 

enactment signed into law May 24, 1991. The Defendants 

are immune from the claims stated in Plaintiff's suit 

because of Sec. 2-9-111, MCA, and that said immunity has 

not been waived by the liability insurance because of the 

retroactive amendment to said statute enacted by the 

legislature before this cause was reduced to final 

judgment . 

In so holding, this Court rejects the argument of 

Plaintiff that the legislative amendments to Sec. 2-9- 

111, MCA changed the immunity provided to Defendants. 

This Court concludes that the rationale of the Supreme 

Court in applying the facts of this case to the 

controlling law as set forth in Crowell . . . would 

result in the same holding of immunity for all of the 

Defendants herein regardless of whether Sec. 2-9-111, MCA 

is construed either before or after the May 24, 1991 

amendments thereto. This court holds that the 

lesislative chancres to the first three sections of said 

statute did not remove or limit the immunity which 

resulted from the ~urchase of liabilitv insurance. The 

Defendants are therefore now entitled to Summarv Judament 

as a matter of law on all claims in piaintiffts 

Complaint. (Citations omitted). (Emphasis added). 

Ms. Hedges appeals. 

Did the Dist,rict Court err in holding that the defendants were 

immune from suit for negligence under § 2-9-111, MCA (1991)? 

Ms. Hedges maintains that the District Court was wrong in 

holding that defendants were immune for negligence under the 
amended immunity statute, 5 2-9-111, MCA (1991). She contends that 

the immunity that existed under Hedses I no longer exists under the 

amended statute, and the defendants are liable for their negligent 

acts. She maintains that subsection (3) of 9 2-9-111, MCA, has 

been significantly revised and thus, a teacher is no longer immune 

for her negligent acts. She maintains that under the old 5 2-9- 

111(3), MCA, a "member, staff or ac(entu (emphasis added) of a 

legislative body was immune under certain conditions, and that the 

newly amended statute limited that immunity to only a "member or 

staff", and excluded agents. She points out that under Hedqes I 

this Court held that Ms. Field was an agent of the School District 

and was thus, immune under the statute as it then existed, as well 

as under Crowell. Thus, she maintains that since Ms. Field is an 

agent she does not fall under the cloak of immunity granted under 

9 2-9-111(3), MCA (1991). 

The defendants maintain that the District Court correctly 

interpreted 5 2-9-111, MCA (1991). They maintain that a teacher 

performing official duties "associated with" the legislative acts 

of her school board is immune. Defendants point out that the old 

law, 5 2-9-111(3), MCA (1989), stated that the lawful discharge of 

one's duty had to be "associated with" the introduction or 

consideration of legislation or action by the legislative body. 

They further point out that the new law states that the lawful 

discharge of an official duty must be "associated withu legislative 

acts of the legislative body. 5 2-9-(3, MCA (1991). 

Therefore, defendants contend that the legislature's retention of 
the words "associated with" indicates the intention to retain the 

immunity as it was granted and has been interpreted under 5 2-9- 

111(3), MCA (1989). Defendants contend that one's actions need 

only be associated with legislative acts. 

Finally, defendants acknowledge that Ms. Field was considered 

an I1agentlu by the parties as well as the courts in Hedcres I. 

However, they also contend in this appeal that Ms. Field was 

"staff" of the legislative body, and thus, she fits under the 

purview of 5 2--() MCA (1991). 

Section 2-9-111, MCA (1991) provides: 

(1) As used in this section: 

(a) the term "governmental entityu1 means only the 

state, counties, municipalities, school districts, and 

any other local government entity or local political 

subdivision vested with legislative power by statute; 

(b) the term "legislative body" means only the 

legislature vested with legislative power by Article V of 

The Constitution of the State of Montana and that branch 

or portion of any other local governmental entity or 

local political subdivision empowered by law to consider 

and enact statutes, charters, ordinances, orders, rules, 

policies, resolutions, or resolves; 

(c) (i) the term lllegislative actt1 means: 

(A) actions by a legislative body that result in 

creation of law or declaration of public policy; 

(B) other actions of the legislature authorized by 

Article V of The Constitution of the State of Montana; or 

(C) actions by a school board that result in 

adoption of school board policies pursuant to 20-3- 

323 (1) ; 

(ii) the term legislative act does not include 

administrative actions undertaken in the execution of a 

law or public policy. 

(2) A governmental entity is immune from suit for 
a legislative act or omission by its legislative body, or 

any member or staff of the legislative body, engaged in 

legislative acts. 

(3) Any member or staff of a legislative body is 

immune from suit for damages arising from the lawful 

discharge of an official duty associated with legislative 

acts of the legislative body. 

(4) The acquisition of insurance coverage, including self-insurance or group self-insurance, by a 

governmental entity does not waive the immunity provided 

by this section. 

(Emphasis added). 

Defendants are incorrect in their contention that the immunity 

granted in the old statute was retained by the amended statute. 

The legislature stated the purpose of the act as follows: 

AN ACT CLARIFYING THAT STATUTORY LEGISLATIVE IMMUNITY 

EXTENDS ONLY TO LEGISLATIVE BODIES OF GOVERNMENTAL 

ENTITIES AND ONLY TO LEGISLATIVE ACTIONS TAKEN BY THOSE 

BODIES; CLARIFYING THAT GOVERNMENTAL ENTITIES ARE NOT 

IMMUNE UNDER THE LEGISLATIVE IMMUNITY STATUTE FOR 

NONLEGISLATIVE ACTIONS; CLARIFYING THAT THE ACQUISITION 

OF INSURANCE DOES NOT WAIVE IMMUNITY; AMENDING SECTION 2- 

9-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND 

A RETROACTIVE APPLICABILITY DATE. (Emphasis added). 

This Court has recently addressed the statutory amendment in 

Dagel v. City of Great Falls (Mont. 1991), 819 P.2d 186, 191, 48 

St.Rep. 919, 921-922. Dasel was a constructive discharge case in 

which the plaintiff alleged that harassment by her supervisor, an 

employee of the City of Great Falls, led to her constructive 

discharge. The City of Great Falls and the supervisor claimed 

immunity under § 2-9-111, MCA (1989). In holding the defendants 

were not immune, this Court stated: 

Section 2-9-111, MCA (1991), significantly changed 

the statute and therefore modifiedthe theories expressed 

in the various immunity cases as well as in Crowell with 

regard to insurance. First. under the new statute, a 
leaislative bodv is not immune from the neqliqent acts of 

its em~lovees. 5 2-9-lll(1) (c) , MCA (1991). Second, the 

purchase of insurance does not waive immunity. 5 2-9- 

222 (4), MCA (1991) . (Emphasis added) . Daqel, 819 P.2d at 191. 

In this case, the "governmental entity" is the School 

District, g 2-9-111(l) (a), MCA (1991), and the "legislative bodyv1 

is the school board, 5 2-9-lll(l)(b), MCA (1991). With respect to 

school boards, a "legislative actn has been defined as: 

actions by a school board that result in adoption of 

school board policies pursuant to g 20-3-323(1); 

§ ll(l) (c) () (C) , MCA (1991). Section 20-3-323 (I), MCA, 

provides : 

(1) The trustees of each district shall prescribe 

and enforce policies for the government of the district. 

In order to provide a comprehensive system of governing 

the district, the trustees shall: 

(a) adopt the policies required by this title; and 

(b) adopt policies to implement or administer the 

requirements of the general law, this title, the policies 

of the board of public education, and the rules of the 

superintendent of public instruction. 

In the materials submitted to the District Court on the 

summary judgment motion there are no facts which demonstrate a 

relationship between the alleged negligence of Ms. Field in 

throwing the shot put, and the adoption by the trustees of the 

School District of policies as defined in 5 20-3-323(1), MCA. We 

conclude there were no actions by the School Board which resulted 

in the adoption of School Board policy under the facts of this 

case. As a result, there was no legislative act as defined in 5 2- 

9-(1 (c) (i) (C), MCA (1991). We conclude that the alleged 
negligence of Ms. Field did not arise from the lawful discharge of 

an official duty associated with legislative acts as provided in 

the amended immunity statute. We further conclude that under the 

immunity statute, there is no immunity for the School District or 

any member or staff of the School District under the facts of this 

case. We hold that the District Court erred in its holding that 

the defendants were immune from suit for negligence under 5 2-9- 

111, MCA (1991). 

Ms. Hedges has also raised an issue as to whether the District 

Court erred in denying her motion for reconsideration. In light of 

our holding on the first issue, we will not address this question. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

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c Chief Justice 

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Justices