No. 91-464 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

KEVIN A. SAUTER, Guardian ad Litem 

for BRAD SAUTER, and KEVIN SAUTER, 

individually, 

Plaintiffs and Appellants, 

-vsSCHOOL DISTRICT NO. 2; JUDY EVANS; AND 

JANE DOE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David R. Paoli; Edwards & Paoli, Billings, Montana 

For Respondent : 

Michael W. Tolstedt; Brown, Gerbase, Cebull, Fulton, 

Harman & Ross, Billings, Montana 

Submitted on Briefs: February 27, 1992 

Decided: March 31, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a negligence action brought against 

Billings School District No. 2 for injuries suffered by Brad 

Sauter, an elementary school student in that district. The 

District Court of the Thirteenth Judicial District, Yellowstone 

County, granted a motion to dismiss on the basis of the legislative 

immunity provisions of 5 2-9-111, MCA (1989). This motion was 

granted prior to the 1991 legislative amendment to said section. 

We reverse. 

The only issue requiring our review is whether, in the case at 

bar, § 2-9-111, MCA, provides immunity to the School District. An 

additional issue regarding the timeliness of the filing of this 

appeal is raised by the respondents. However, that issue was 

resolved by order of this Court, October 22, 1991, whereby we 

determined this appeal to be timely filed. 

Appellant, Brad Sauter (Sauter), was injured when his fingers 

were caught in and crushed by the door at Ponderosa Elementary 

School, School District No. 2, Billings, Montana. At the time, 

Sauter was a second grade student at the school. Sauter alleges 

that the injuries are the result of negligent supervision by the 

defendants. The action was dismissed on the basis of legislative 

immunity as provided under 5 2-9-111, MCA (1989). 

Section 2-9-111, MCA, was amended by the 1991 Legislature. 

Under the newly amended statute, a governmental entity is only 

immune from its legislative acts and is no longer immune for its 
administrative acts. section 2-9-111, MCA. The District Court 

relied on our decisions in Peterson and Eccleston and found the 

School District to be immune from suit for allegations of failing 

to provide a safe environment. Peterson v. Great Falls School 

District (1989), 237 Mont. 376, 773 P.2d 316; State of Montana Ex 

Rel. Eccleston v. Montana Third Judicial District Court (1989), 240 

Mont. 44, 783 P.2d 363. However, 5 2-9-111, MCA, as amended, no 

longer provides school districts immunity from claims such as 

Sauter makes in the instant action. 

Generally, an appellate court must apply the law in effect at 

the time it renders its decision. Lee v. Flathead County (1985), 

217 Mont. 370, 704 P.2d 1060; Thorpe v. Housing Authority of the 

City of Durham (1969), 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474. 

When subsequent to judgment and prior to our decision on appeal, 

the legislature amends an applicable statute, the amended version 

of the statute is controlling to the case. Paulson v. Lee (1987), 

229 Mont. 164, 745 P.2d 359. 

We conclude that 2-9-111, MCA, as amended in 1991, and 

effective May 24, 1991, is controlling of the instant case. 

Furthermore, we conclude, under 5 2-9-111, MCA (1991) , Billings 

School District No. 2 is not immune from suit for the alleged 

negligent supervision of children at school. The District Court is 

reversed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 
precedent and shall be by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

- 
March 31, 1992 

CERTIFICATE OF SERVICE 

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

named: 

David R. Paoli 

Edwards & Paoli 

P.O. Box 20039 

Billings, MT 59104-0039 

Michael W. Tolstedt 

Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross 

P.O. Drawer 849 

Billings, MT 59103-0849 

ED SMITH 

CLERK OF THE SUPREME COURT