No. 92-061 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 94 

ALLEN BUHR, Personal Representative of the 

Estate of JOSHUA LLOYD, and on behalf of 

the heirs, TOM LLOYD, and MICHELE LLOYD, 

Plaintiffs and Appellants, 

VS . 

FLATHEAD COUNTY, a political subdivision of 

the State of Montana: WALLACE S. WILDER, M.D.; 

KALISPELL REGIONAL HOSPITAL; WESTERN MONTANA 

REGIONAL MENTAL HEALTH CENTER, CI 3miti CLERK OF 

STA'EE; Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Edward P. Moriarity (argued); Spence, Moriarity & Schuster, 

Jackson, Wyoming 

James A. Manley; Manley Law Offices, Polson, Montana 

Thomas J. Beers; Connell & Beers, Missoula, Montana 

Mary C. Downey; Vuong, Downey & Louie, coronado, California 

For Respondents: 

Dolphy 0. Pohlman (argued); Corette, Pohlman, Allen, 

Black & Carlson, Butte, Montana (for Mental Health Center) 

Larry E. Riley (argued); Garlington, Lohn & Robinson, 

Missoula, Montana (For Wallace S. Wilder, M.D.) 

Todd A. Hammer (argued); Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana (for Flathead County) 

James E. Vidal (argued); Murray & Kaufman, Kalispell, Montana 

(for Kalispell Regional Hospital) 

James A. Haynes, Attorney at Law, Hamilton, Montana 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court 

Allen Buhr appeals from judgments in favor of all defendants 

and from an order of the Eleventh Judicial District Court, Flathead 

County, denying his motion for a new trial. We affirm. 

Buhr presents the following issues: 

1. Did the District Court properly instruct the jury 

regarding negligence per se? 

a. Did the District Court err in instructing 

the jury on the statutory duties of Flathead 

County and Mental Health by quoting statutory 

language? 

b. Did the District Court err by failing to 

instruct on each element of Buhr's negligence 

per se claims? 

c. Did the District Court fail to instruct 

the jury on the full theory of Buhr's 

negligence claims by refusing his instruction 

quoting § 53-21-146, MCA? 

2. Did the District Court err in granting defendants' 

motion for a directed verdict on Buhr's civil rights 

claims against Flathead County and Sheriff Rhodes? 

a. Did the District Court err in applying the 

deliberate indifference standard to Buhr's 

civil rights claims? 

b. Did the District Court err in directing a 

verdict on Buhr's civil rights claims against 

Flathead County and Rhodes for their denial of 

medical treatment under the deliberate 

indifference standard? 

c. Did the District Court err in directing a 

verdict on Buhr's civil rights claims 

involving alleged use of excessive force 

against Joshua under the deliberate 

indifference standard? 

d. Did the District Court err in granting 
Rhodes immunity from Buhr's civil rights 

claims? 

3. Was the jury's verdict that Flathead County, Wilder, 

and Mental Health were not negligent supported by 

substantial evidence and not the result of passion or 

prejudice? 

a. With regard to Flathead County allegedly 

denying Harris access to the soft cell and 

Mental Health failing to enter the soft cell 

for purposes of evaluating Joshua, was the 

jury' s verdict finding neither Flathead County 

nor Mental Health negligent supported by 

substantial credible evidence? 

b. Was the jury's verdict finding Wilder not 

negligent supported by substantial credible 

evidence? 

c. With regard to Buhr's negligence se 

claim against Mental Health on the basis of an 

alleged violation of § 53-21-129 (2) , MCA, was 

the jury's finding that Mental Health was not 

negligent supported by substantial credible 

evidence? 

4. Did the District Court err in denying Buhr's motion 

for a new trial based on surprise and improper judicial 

comments? 

a. Did Sheriff Rhodes' trial testimony 

concerning Flathead County's policies and 

procedures contradict his deposition testimony 

to Buhr's detriment? 

b. Did the District Court's allegedly 

improper and prejudicial remarks provide a 

sufficient basis for Buhr's motion for a new 

trial? 

5. Did Wilder's attorney prejudice the jury by making 

improper remarks while questioning witnesses and during 

closing argument? 

6. Did the cumulative effect of the asserted errors 

prejudice Buhr to the extent that he was unable to 

receive a fair trial? 

Joshua Lloyd (Joshua) was the son of Michele Lloyd (~icheie) 
and Tom Lloyd. He had undergone two surgical procedures while 

living in Utah: the first, at age four, removed a brain tumor and 

the second, aC age thirteen, removed scar tissue which had 

developed as a result of radiation and chemotherapy treatment. The 

second operation damaged Joshua's hypothalamus and resulted in 

severe short-term memory loss, elevated temperatures, abnormal 

appetite control and liquid intake, and an occasional rage 

reaction. 

Michele moved to Kalispell, Montana, with Joshua and his 

sister Mary in September, 1987. Within a short time thereafter, 

Michele took Joshua to the Kalispell Regional Hospital (Kalispell 

Regional) emergency room on three occasions with high fevers. On 

the third visit, Joshua met Dr. Wallace S. Wilder (Wilder), a 

pediatrician who subsequently became Joshua's primary treating 

physician. 

On referral from her daughter's school counselor, Michele also 

began seeing Sally Cameron-Russell (Russell), a counselor and 

therapist with Western Montana Regional Community Mental Health 

Center (Mental ~ealth) . She sought counseling for emotional issues 

arising from Joshua1 s condition and, on one occasion, to discuss 

the possibility of institutionalizing Joshua because of his violent 

outbursts. 

The frequency of Joshua's violent outbursts was increasing by 

January, 1988. Joshua directed his rage at Michele and his sister, 

occasionally causing injuries to both of them. Wilder and Michele 

discussed a plan using the KalispeLl police to control Joshua's 
outbursts. They hoped that, when Joshua became violent, the 

appearance of the police would result in improvements in Joshua's 

behavior. If not, Michele would progress to having Joshua placed 

in the police car, taken to the police station and, if necessary, 

placed in juvenile detention. 

On January 17, 1988, Joshua had a violent outburst. He broke 

a window in his bedroom around 5:00 a.m., and Michele punished him 

and put him back to bed. He awoke three hours later and began to 

beat down the door of his room with a baseball bat. When he 

refused to stop, Michele called the police. Three officers 

responded shortly thereafter and took Joshua to the Kalispell 

police station. 

Juvenile detention personnel stated that Joshua could not be 

placed in juvenile detention and recommended consulting with mental 

health personnel; Russell, Mental Health's therapist on call, came 

to the station at 11:30 a.m. and evaluated Joshua for approximately 

one-half hour. Joshua was calm during RusseLlfs initial 

evaluation. While Russell discussed placement options with 

Michele, however, Joshua again became violent, throwing objects and 

threatening the police. At that point, Russell informed Michele 

that Joshua could be held for a few days under the Montana Mental 

Health Act. 

Following calls to the County Attorney, Sheriff Charles Rhodes 

(Rhodes), and District Judge Michael Keedy, Joshua was transferred 

at approximately 3:00 p.m. to the Flathead County Sheriff's 

Department by order of Judge Keedy, and remanded to the custody of 
the Flathead County detention center under a mental health hold. 

Russell contacted her supervisor, Bill Harris (Harris), and 

discussed Joshua's condition and placement options. Harris 

concurred with Russell's evaluation that Joshua could not return 

home and that placement in the detention center's "soft cell" was 

appropriate. 

Joshua remained in the soft cell overnight and was monitored 

by sheriff's department personnel. Observations were conducted 

every fifteen to thirty minutes both in person and via visual and 

audio monitor. 

Harris went to the detention center at approximately 7 : 30 a.m. 

the next morning to observe Joshua and follow up on the previous 

day's evaluation for the mental health hold. Harris observed 

Joshua through a window and attempted to talk to him. Be received 

only It huhH responses, which he believed indicated Joshua was 

sleeping and did not want to be disturbed. AfLer determining that 

no medical emergency existed, Harris returned to Mental Health and 

discussed Joshua's condition with Russell. They agreed that Joshua 

should not remain in the soft cell, but should be transferred to 

Kalispell Regional. Russell contacted Wilder, who made 

arrangements to have Joshua placed in Kalispell Regional's security 

room, a sparsely furnished room with padded walls, and assigned 

one-on-one nursing care, on his transfer to the hospital. 

Approximately two hours later, Joshua was transferred to 

Kalispell Regional and taken to Che security room. He had a major 

motor seizure forty-five minutes later and died when resuscitation 
efforts failed. 

Allen Buhr (Buhr), personal representative of Joshua's estate, 

brought a personal injury action on behalf of Joshua's estate and 

wrongful death actions on behalf of Michele, Tom, and Mary Lloyd. 

The actions alleged negligence against Wilder, Kalispell Regional, 

Mental Health, and Flathead County and civil rights claims against 

Flathead County and Rhodes. The District Court directed a verdict 

on the civil rights claims during trial. Following trial, the jury 

returned a special verdict finding each of the defendants not 

negligent. The District Court denied Buhr's motion for a new trial 

and Buhr appeals. Additional facts are included in our discussion 

of the issues. 

1. Did the District Court properly instruct the jury 

regarding negligence per se? 

Jury Instructions 26 through 32, as given, related to Buhr's 

claims of negligence per se against Mental Health and Flathead 

County for their involvement in Joshua's evaluation, detention, and 

restraint. This series of instructions began with a broad 

definition of negligence per se. The next instruction quoted the 

statutorily-stated purpose of the Montana Mental Health Act; it was 

followed by two instructions setting out statutory definitions of 

various terms as contained in § 53-21-102, MCA. 

The statutory duties of Mental Health and Flathead County were 

set forth in Instructions 30 and 31. Instruction 30, quoting § 53- 

21-129(1) and (2), MCA, read as follows: 

INSTRUCTION NO. 30 

The Montana Mental Health Act provides: 
(1) When an emergency situation exists, a peace 

officer may take any person who appears to be seriously 

mentally ill and as a result of serious mental illness to 

be a danger to others or to himself into custody only for 

sufficient time to contact a professional person for 

emergency evaluation. If possible, a professional person 

should be called prior to taking the person into custody. 

(2) If the professional person agrees that the 

person detained appears to be seriously mentally ill and 

that an emergency situation exists, then the person may 

be detained and treated until the next regular business 

day. At that time, the professional person shall release 

the detained person or file his findings with the county 

attorney who, if he determines probable cause to exist, 

shall file the petition provided for under the Act in the 

county of the respondent's residence. In either case, 

the professional person shall file a report with the 

court explaining his actions. 

Instruction 31, quoting from § 53-21-120, MCA, read as follows: 

INSTRUCTION NO. 31 

The Montana Mental Health Act provides: 

1. A person detained shall be detained in the least 

restrictive environment required to protect the life and 

physical safety of the person detained or members of the 

public; in this respect, prevention of significant injury 

to property may be considered; 

2. Whenever possible, a person detained shall be 

detained in a mental health facility and in the county of 

residence. 

3. A person may be detained in a jail or other 

correctional facility only if no mental health facility 

is available or if the available mental health facilities 

are inadequate to protect the person detained and the 

public. As soon as a mental health facility becomes 

available or the situation has changed sufficiently that 

an available mental health facility is adequate for the 

protection of the person detained and the public, then 

the detained person shall be transferred from the jail or 

correctional facility to the mental health facility. 

Finally, Instruction 32 set out the privileges of full mental 

health certification, including the ability to concur in the 

emergency detention of a person believed to be seriously mentally 

ill and to authorize restraint and isolation. The instruction was 

derived from the language of §§ 20.14.509 (b-e) and 20.14.511 (c) , 
ARM. 

a. Did the District Court err in instructing the jury on 

the statutory duties of Flathead County and Mental Health 

by quoting statutory language? 

Relying on this Court's decision in Azure v. City of Billings 

(1979), 182 Mont. 234, 596 P.2d 460, Buhr contends that: these 

instructions were erroneous because they contained irrelevant 

language and forced the jury to interpret the statutes and 

determine the appropriate standard of care contained therein. His 

reliance on Azure is misplaced. 

The jury instruction at issue in Azure quoted a statute in its 

entirety, informed the jury that: the court had determined that 

defendant was negligent as a matter of law, and directed the jury 

to determine whether defendant's negligence was the proximate cause 

of plaintiff's injuries. Appellant argued that the jury should not 

have been instructed via the verbatim statutory language because 

doing so allowed the jury to consider again the issue already 

determined by the district court; namely, whether defendant was 

negligent. Azure, 596 P.2d at 472-73. We clarified in Azure chat 

where statutes may require an interpretation, the interpretation 

must be supplied by the court, not the jury; we also clarified 

counsel's obligation to frame appropriate instructions containing 

both the substance and the meaning of the statute. Azure, 596 P. 2d 

at 473. While we did note that, in the ordinary case, the jury 

should not be instructed "in the precise words of the statute," we 

saw no reversible error. Azure, 596 P.2d at 473. 

Here, several of the court's negligence gg instructions 
quoted statutes verbatim. While we agree that instructing the jury 

on negligence per se via verbatim statutory quotes may not have 

been the preferable method, our review of the record reveals that 

the instructions proposed by Buhr as alternatives to those given 

also were direct statutory quotes from the Mental Health Act. As 

we noted in Azure, counsel for the parties are responsible for 

assisting the court to frame instructions which set forth the 

substance and meaning of the statutes. Given that Buhr's proposed 

instructions also quoted statutory material, we refuse to put the 

District Court in error for giving instructions framed in this 

manner. On the basis of the record before us, we conclude that the 

District Court did not err in instructing on statutory duties by 

quoting statutory language. 

b. Did the District Court err by failing to instruct on 

each element of Buhr's negligence per se claim? 

Buhr makes a passing assertion in his brief that the jury 

instructions failed to set out each element of his negligence 

- se claim. During oral argument, however, Buhr's counsel conceded 

that the given instructions contained all the elements of the 

negligence claim. He argued instead that the given 

instructions were lengthy and confusing to the jury. The general 

rule in Montana is that "[ilf the given instructions, when viewed 

in their entirety, state the correct law applicable to the case, 

there is no reversible error." Walden v. State (19911, 250 Mont. 

132, 137, 818 P.2d 1190, 1193. Except as discussed below, Buhr 

does not contend that the instructions failed to state the law 

applicable to his case. Therefore, we conclude that the District 

10 
Court did not err in giving instructions which, although lengthy, 

instructed the jury on the correct law applicable to Buhrls 

negligence a se claims. 

c. Did the District Court fail to instruct the jury on 

the full theory of Buhr's negligence claims by refusing 

his instruction quoting § 53-21-146, MCA? 

Buhr next asserts that the District Court erred by not 

instructing the jury on the full theory of his case. Part of 

Buhr's theory was that § 53-21-146, MCA, imposed a statutory duty 

on defendants Flathead County and Mental Health to keep Joshua free 

of physical restraint and isolation and, to that end, to monitor 

his physical and psychiatric condition and provide for his physical 

needs and comfort. On that basis, Buhr contends that he was 

entitled to have the District Court give his proposed instruction 

27(C), which quoted 5 53-21-146, MCA. We disagree. 

It is true that it is reversible error for a district court to 

refuse to instruct the jury on an important part of a party's 

theory of the case. Whitehawk v. Clark (1989), 238 Mont. 14, 20, 

776 P.2d 484, 487. The existence of a legal duty owed by one party 

to another, however, "is a question of law for the court. 

Nautilus Ins. v. First National Ins., Inc. (1992), 254 Mont. 296, 

299, 837 P.2d 409, 411 (citation omitted) . "When examining whether 

certain jury instructions were properly given or refused, we must 

consider the jury instructions in their entirety and in connection 

with other instructions given and the evidence introduced at 

trial." Story v. City of Bozeman (1993), 259 Mont. 207, 222, 856 

P.2d 202, 211 (citation omitted). Thus, the question before us is 
whether § 53-21-146, MCA, imposed a duty on Flathead County and 

Mental Health to keep a person detained under the emergency 

provisions of the Mental Health Act free from physical restraint 

and isolation. 

Section 53-21-146, MCA, provides in pertinent part: 

Patients have a right to be free from physical restraint 

and isolation. Except for emergency situations in which 

it is likely that patients could harm themselves or 

others and in which less restrictive means of restraint 

are not feasible, patients may be physically restrained 

or placed in isolation only on a professional person's 

written order which explains the rationale for such 

action. . . . Whenever a patient is subject to restraint 

or isolation, adequate care shall be taken to monitor his 

physical and psychiatric condition and to provide for his 

physical needs and comfort. 

We previously have determined that the intent of § 53-21-146, MCA, 

is to protect patients, specifically defined as "people who are 

'committed by the court for treatment for any period of time 

.'" See Reiser v. Prunty (1986), 224 Mont. 1, 12-13, 727 P.2d 538, 

546; citing § 53-21-102 (8), MCA (1985). Here, Joshua was not 

committed to the detention center for treatment as a patient, 

thereby bringing § 53-21-146, MCA, into play. Rather, the evidence 

that Joshua was raging out of control and that Michele feared for 

her and her daughter's safety demonstrated that Joshua was placed 

in the detention center's soft cell pursuant to § 53-21-129, MCA, 

the emergency detention statute. 

We also reject Buhr's contention that the detention center's 

soft cell qualifies as a mental health facility. The definition of 

"mental health facility" in § 53-21-102(7), MCA, specifically 

excludes correctional institutions or facilities and jails. 
Pursuant to that definition, the detention center's facilities are 

not a mental health facility to which S 53-21-146, MCA, applies. 

The evidence established that Joshua was detained in the soft 

cell under the emergency provisions of the Mental Health Act and no 

error is asserted in the District Court's instruction to the jury 

on the duties owed by Flathead County and Mental Health under those 

provisions. We conclude that the legal duties contained in S 53- 

21-146, MCA, were not applicable as a matter of law and, therefore, 

that the District Court did not err by refusing to instruct the 

jury on those duties. 

2. Did the District Court err in granting defendantsr 

motion for a directed verdict on Buhr's civil rights 

claims against Flathead County and Sheriff Rhodes? 

Buhr's civil rights claims under 42 U.S.C. § 1983 asserted 

that Flathead County and Rhodes denied Joshua a broad range of 

constitutional rights. In essence, the civil rights claims alleged 

that Flathead County and Rhodes failed to provide Joshua with 

appropriate medical care during his detention and that excessive 

force was used against him. 

At the close of Buhr's case-in-chief, Flathead County and 

Rhodes moved for a directed verdict on the civil rights claims. 

The District Court granted the motion. It concluded thar. Buhr 

established the existence of the detention center's policy for 

providing medical care, but failed to offer any evidence that 

either Flathead County or Rhodes was lldeliberately indifferent" to 

Joshua's medical needs. The court also concluded that no evidence 

supported Buhr's excessive force claim under the deliberate 
indifference standard. 

a. Did the District Court err in applying the deliberate 

indifference standard to Buhrrs civil rights claims? 

Buhr first argues that the District Court erred in applying 

the deliberate indifference standard to his civil rights claims. 

Relying on Youngberg v. Romeo (1982) , 457 U.S. 307, 102 S.Ct. 2452, 

73 L.Ed.2d 28, he argues that the professional judgment standard is 

the correct standard and the standard which the District Court 

should have applied to his civil rights claims. 

The general rule in Montzana is that this Court will not 

consider on appeal a theory which was not raised in the trial 

court. Sherrodd v. Morrison-Knudsen (1991), 249 Mont. 282, 285, 

815 P.2d 1135, 1137. Our review of the record before us reveals 

that, in his brief in the District Court on the civil rights 

claims, Buhr affirmatively stated that he had "an obligation to 

prove deliberate indifference." Furthermore, Buhr's proposed jury 

instructions on the civil rights claims required proof of 

deliberate indifference rather than the professional judgment 

standard he now advocates. Apparently recognizing these 

difficulties with his contention that the District Court applied 

the wrong standard, Buhr argues that we should utilize the plain 

error doctrine to reverse the District Court's directed verdicts on 

his civil rights claims, 

The plain error doctrine "allows this Court to review errors 

that were not objected to at trial, but result in substantial 

injustice to a party by denying that party a fair trial." Geiger 

v. Sherrodd (l993), 262 Mont. 505, 508, 866 P.2d 1106, 1108. The 

14 
doctrine is "used in exceptional cases and should not be relied 

upon by counsel." Commission Comments, Rule 103(d), M.R.Evid. 

Here, Buhr himself failed to present the Diskrict Court with what 

he now contends is the appropriate standard for adjudication of his 

civil rights claims. He also conceded during oral argument that 

upon discovering his alleged error during the trial court 

proceedings, he hinted at the that deliberate 

indifference was the wrong standard but failed to propose any 

alternative standard to the District Court. 

We decline to apply the plain error doctrine under such 

circumstances or to address the merits of Buhrls argument, raised 

for the first time on appeal, that the professional judgment 

standard applies. In doing so, we emphasize that in reviewing the 

District Court's application of the deliberate indifference 

standard, we express no opinion vis-a-vis whether that standard or 

the professional judgment standard properly governs claims of the 

nature made in this case. 

b. Did the District Court err in directing a verdict on 

Buhr's civil rights claims against Flathead County and 

Rhodes for their denial of medical treatment under the 

deliberate indifference standard? 

Buhr also argues that the District Court improperly applied 

the deliberate indifference standard. He contends that the 

evidence established that Flathead County and Rhodes were 

deliberately indifferent to Joshua's constitutional rights in terms 

of the medical treatment Joshua received; on that basis, he urges 

that the trial court erred in directing a verdict on his civil 

rights claims related to that medical treatment. 

15 
Buhr first addresses the District Court's grant of Flathead 

County's motion for a directed verdict on the civil rights claims 

regarding Joshua's medical treatment while detained in the soft 

cell, He argues that the detention center's "hands-offu policy 

toward mental health detainees, abbreviated booking procedures, and 

the fact that detention center personnel ' s only medical background 

consisted of first-aid training, prevented detention center 

personnel from adequately monitoring Joshua's medical needs and 

providing him the medical treatment he required. 

Relying on the Supreme Court's decision in Younqberq, Buhr 

contends in this regard that Flathead County was required to ensure 

that decisions regarding Joshua's medical care were made by medical 

professionals exercising professional judgment. Under this 

standard, liability could be imposed for decisions regarding 

medical treatment "when the decision [regarding medical treatment] 

. . . is such a substantial departure from accepted professional 

judgment, practice, or standards as to demonstrate that the person 

responsible actually did not base the decision on such a judgment. " 

Younsberq, 457 U.S. at 323. 

Buhr argues that Flathead County's policies regarding medical 

treatment of detainees held under § 53-21-129, MCA, prevented 

qualified medical professionals from making determinations 

regarding Joshua's medical treatment and exhibited udeliberate 

indifferencew to Joshua's medical needs. In large part, this 

argument is an attempt to weave the Younsberq "professional 

judgment" standard advocated above into the deliberate indifference 
standard which is properly before us. We reject such an approach. 

Buhr brought his civil rights claims pursuant to 42 U.S.C. S 

1983, which states in pertinent part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of 

the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws, shall be 

liable to the party injured in an action at law, suit in 

equity, or other proper proceeding for redress. . . . 

Liability cannot be imposed on a local government entity for a 

constitutional tort pursuant to 42 U.S.C. § 1983 unless a plaintiff 

establishes: 

(1) that he possessed a constitutional right of which he 

was deprived; (2) that the municipality had a policy; (3) 

that this policy "amounts to deliberate indifferencen to 

the plaint iff ' s constitutional right ; and (4) that the 

policy is the "moving force behind the constitutional 

violation. " 

Oviatt By and Through Waugh v. Pearce (9th ~ir. l992), 954 F.2d 

A district court "may grant a directed verdict only when it 

appears as a matter of law that the nonmoving party could not 

recover upon any view of the evidence, including the legitimate 

inferences to be drawn from the evidence." King v, Zimmerman 

(Mont. 2994), 878 P.2d 895, 899, 51 St.Rep. 659, 660-61 (citation 

omitted). "A motion for a directed verdict should only be granted 

when there is a complete absence of any evidence to warrant 

submission [of the case] to the jury and all factual inferences 

must be viewed in the light most favorable to the nonmoving party. 

Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287, 
1289. We review a district court's decision regarding a motion 

for a directed verdict to determine if the court abused its 

discretion. See Nelson v. Flathead Valley Transit (1992), 251 

Mont. 269, 274, 824 P.2d 263, 267. 

Buhr was required to offer evidence on each of the four 

elements necessary to impose liability pursuant to 42 U.S.C. 5 

1983, in order to withstand a motion for a directed verdict. We 

focus on the second and third elements. 

Under Pearce, the second element of Buhr's § 1983 action 

against Flathead County is the existence of a county policy 

regarding medical treatment for individuals detained in the 

detention center. Buhr introduced evidence regarding the detention 

center's medical policies for mental health detainees. His 

evidence confirmed that the detention center admitted mental health 

detainees such as Joshua under an abbreviated booking procedure 

which did not mandate questions related to medications and that 

asking questions about medications was within the discretion of 

detention center personnel, who dispensed medications only when 

necessary for the physical health of the detainee. After a 

detainee was admitted, the detention center followed a "hands-off" 

policy whereby no one would enter the soft cell. Regarding medical 

treatment, Buhr's evidence confirmed that detention center 

personnel, who were trained in first-aid, were authorized to 

arrange either visits with doctors to provide medical treatment for 

detainees or, in instances where they determined a medical problem 

was more serious, transportation of the detainee to the hospital. 
The record, therefore, is clear that Buhr offered evidence on the 

second element. 

Buhr's evidence regarding existence of a policy, however, is 

insufficient to trigger liability for Flathead County and Rhodes 

under 42 U.S.C. § 1983, or to withstand a motion for a directed 

verdict. See Pearce, 954 F.2d at 1477. A plaintiff such as Buhr 

must also offex evidence on the third element and that evidence, or 

legitimate inferences therefrom, must be sufficient to allow him to 

recover on the claim that the county's policy exhibited a 

deliberate indifference to Joshua's constitutional rights. Pearce, 

954 F.2d at 1477. "This occurs when the need for more or different 

action 'is so obvious, and the inadequacy [of the current 

procedure] so likely to result in the violation of constitutional 

rights, that the policymakers . . . can reasonably be said to have 

been deliberately indifferent to the need."' Pearce, 954 F.2d at 

1477-78; citing City of Canton v. Harris (l989), 489 U.S. 378, 390, 

109 S.Ct. 1197, 1205, 103 L.Ed.2d 412, 427. 

Citv of Canton involved a claimant, Harris, who was brought to 

a police station in an incoherent state and, after being taken 

inside, slumped to the floor where the police allowed her to remain 

without any medical attention. One hour later, Harris was released 

and taken to a hospital via an ambulance provided by her family. 

She was diagnosed with severe emotional ailments and hospitalized. 

Citv of Canton, 489 U.S. at 381. Harris subsequently brought an 

action pursuant to 42 U.S.C. S 1983, claiming the city was liable 

for violation of her right to receive necessary medical attention 
while in police custody. 

Harris claimed that Canton provided police shift commanders 

sole discretion, without any special training beyond first-aid, to 

determine when to I1summon medical care for an injured detainee. 

Citv of Canton, 489 U.S. at 381-82. Her case went to the jury 

under a reckless, intentional or with gross negligence standard and 

the jury found in her favor. the Sixth Circuit Court of 

Appeals affirmed the imposition of municipal liability under § 1983 

where a plaintiff proves that a municipality, acting recklessly, 

intentionally or with gross negligence, failed to train its police 

force, and where that failure resulted in a deprivation of 

constitutional rights that was substantially likely to result. 

City of Canton, 489 U.S. at 385. 

The United States Supreme Court rejected the Circuit Court's 

"overly broad ruleu for imposing a municipal liability under § 1983 

and adopted the "deliberate indifferenceH standard. Citv of 

Canton, 489 U.S. at 388. It determined that "only where a failure 

to train reflects a 'deliberate' or 'conscious1 choice by a 

municipality . . . can a city be liable for such a failure under § 

1983.'' City of Canton, 489 U.S. at 389. The focus of the inquiry 

"must be on the adequacy of the training program in relation to the 

tasks the particular officers must perform." City of Canton, 489 

U.S. at 390. The Court then stated: 

[nleither will it suffice to prove that an injury or 

accident could have been avoided if an officer had had 

better or more training, sufficient to equip him to avoid 

the particular injury-causing conduct. Such a claim 

could be made about almost any encounter resulting in 

injury, yet not condemn the adeauacv of the proqram to 
enable officers to respond ~roperly to the usual and 

recurrinq situations with which they must deal. 

Citv of Canton, 489 U.S. at 391 (emphasis added). 

Following the City of Canton, the Ninth Circuit Court of 

Appeals addressed the question of when a policy exhibits deliberate 

indifference in Pearce. In Pearce, an arrestee who remained 

incarcerated for 114 days before being arraigned, sued the county 

and the sheriff alleging violations under § 1983. Pearce, 954 F.2d 

at 1472. The arrestee's name was dropped from the booking sheet 

through an error by the court clerk who prepared the docket sheet. 

Pearce, 954 F. 2d at 1473. While the sheriff was aware that inmates 

were not arraigned because of mistakes similar to this, the 

sheriff s department failed to develop internal procedures to guard 

against mistakes and chose to rely on the inmates, their attorneys, 

or family members. Peaxce, 954 F.2d at 1473. The evidence 

demonstrated, however, that some inmates were unable to communicate 

with their lawyers or family members and that the sheriff knew of 

nineteen incidents where inmates missed arraignments due to 

mistakes by jail and court personnel. Pearce, 954 F.2d at 1478. 

The federal district court refused defendant county's and 

sheriff's motion for judgment notwithstanding the verdict and 

defendants appealed. The Ninth Circuit determined that it was 

reasonably certain, given the lack of procedures to relieve the 

known problem, that inmates would be erroneously deprived of their 

liberty and that the need for different procedures was so obvious 

that the sheriff' s refusal to institute procedures to guard against 

known and repeated mistakes amounted to deliberate indifference. 

21 
Pearce, 954 F.2d at 1478. 

Here, the District Court concluded that Buhr' s evidence 

regarding Flathead County's medical policies was insufficient to go 

to the jury under the deliberate indifference standard. Buhr' s 

evidence established that Joshua was visually monitored every five 

to fifteen minutes and physically observed every fifteen to thirty 

minutes while he was detained in the soft cell. He further 

established that the detention personnel, had they detected a 

medical emergency, would not have hesitated to summon medical help 

for Joshua. 

Unlike the situation in Pearce, Buhr's evidence did not 

establish--or tend to establish by inference--any awareness by 

Rhodes or detention center personnel that existing medical policies 

regarding mental health detainees were causing or likely to cause 

denial of adequate medical treatment to such detainees. Indeed, 

Harris testified during Buhrts case in chief that the "hands-off1' 

policy is the preferred approach in dealing with violently mentally 

ill detainees placed in a soft cell. in his view, having people 

enter the soft cell might further the detainee's agitation or 

combativeness and the preferred treatment is to try not to do so. 

Furthermore, there is a complete absence of evidence under the City 

of Canton guidelines demonstrating that the detention center's need 

for different medical procedures was so obvious, and the procedures 

so deficient when compared to the usual medical situation 

confronting detention personnel, that Flathead County and Rhodes 

were deliberately indifferent to that need. 
Buhr's failure to offer evidence which would be sufficient to 

allow him to recover under the deliberate indifference standard 

defeats his 5 1983 claim regarding inadequate medical treatment. 

Thus, the District Court did not abuse its discretion in directing 

a verdict on the civil rights claims relating to lack of medical 

treatment for Joshua under that standard. 

c. Did the District Court err in directing a verdict on 

Buhr's civil rights claims involving alleged use of 

excessive force against Joshua under the deliberate 

indifference standard? 

Buhr also asserts error in the District Court's directed 

verdict on his civil rights claim against Flathead County based on 

an alleged use of excessive force against Joshua by Officer Mike 

Cooper (Cooper). This claim was premised on nurses noticing, when 

Joshua was admitted to the hospital on January 18, that he had 

several areas of bruising and possibly a dislocated shoulder. 

Joshua did not display any noticeable bruises when he was brought 

to the detention center. Buhr attributed the bruises and possible 

shoulder dislocation to the treatment Joshua received from Cooper 

when Cooper placed Joshua in the soft cell. 

Here, as above, Buhr was required to introduce evidence on 

each of the four elements required to establish a local government 

entity's liability pursuant to 5 1983, including that the county 

had a policy and that the policy amounted to deliberate 

indifference. Pearce, 954 F.2d at 1474. Buhr established the 

existence of the detention center's policy regarding use of 

excessive force. That policy required an officer who employed 

excessive force to file an incident report setting forth the 
circumstances surrounding the use of force by the conclusion of the 

officer's next shift. 

Buhr also introduced evidence that the policy did not define 

the term "excessive force.I1 Instead, the policy left both the 

definition of the term and the determination of whether excessive 

force requiring submission of an incident report has been used to 

the discretion of detention center personnel. Thus, Buhr presented 

sufficient evidence on the existence of a policy to meet the second 

element for imposing liability under § 1983. 

According to Buhr, it was this policy which led to the alleged 

use of excessive force resulting in injury to Joshua. Buhr asserts 

that leaving decisions on whether excessive force was used and 

whether an incident needed to be reported to the discretion of 

detention center personnel led to a deprivation of Joshua's right 

to be free from such force. The District Court directed a verdict 

in favor of Flathead County and Rhodes regarding this claim 

determining that, pursuant to the United States Supreme Court's 

decision in Oklahoma City v. Tuttle (l985), 471 U. S. 808, 105 S. Ct . 

2427, 85 L.Ed.2d 791, one alleged instance of excessive force, even 

if proved, was insufficient to support a claim under 42 U.S.C. § 

1983. 

Buhr was required to introduce evidence that the policy 

implemented by Flathead County and Rhodes demonstrated deliberate 

indifference to Joshua's constitutional rights. Pearce, 754 P.2d 

at 1474. Buhr, however, Failed to introduce any evidence on this 

element. Buhr's evidence focused on such things as Cooper's 
nickname, "Gestapo Mike;" his performance evaluations noting that 

he adhered strictly to rules and suggesting that he take a more 

diplomatic approach with inmates; and a psychological profile of 

Cooper stating that, while he was characteristically gentle and 

non-violent, he was aggressive at deeper levels and expressed anger 

in indirect ways. 

In Tuttle, the Supreme Court stated that where the policy 

relied on is not unconstitutional, "considerably more proof than 

the single incident will be necessary in every case to establish 

both the requisite fault on the part of the municipality, and the 

causal connection between the 'policyf and the constitutional 

deprivation." Tuttle, 471 U.S. at 824. In this case, there was no 

allegation or argument that Flathead County's policy regarding use 

of excessive force was, in and of itself, unconstitutional. 

Furthermore, while Buhr has cited relevant portions of the trial 

record to support his assertions regarding Cooper's disciplinary 

style, our review establishes that Buhr failed to produce any 

evidence relating to more than the single incident alleged here to 

support his claim under 42 U.S.C. 5 1983. 

Buhr failed to offer any evidence establishing that Flathead 

County and Rhodes were deliberately indifferent to Joshua's 

constitutional rights through the detention center's policies with 

regard to use of excessive force. We conclude, therefore, that the 

District Court did not err by directing a verdict on Buhr's civil 

rights claims against Flathead County and Rhodes based on alleged 

use of excessive force by Cooper. 
d. Did the District Court err in granting Rhodes 

immunity from Buhr's civil rights claims? 

Buhr also asserts that the District Court erred in granting 

Rhodes immunity against Buhr's civil rights claims. Because we 

have concluded above that the District Court properly granted 

Flathead County's and Rhodes' motion for a directed verdict on the 

civil rights claims, we need not address the separate issue of 

Rhodes' immunity from those claims. 

3. Was the jury's verdict that Flathead County, Wilder, 

and Mental Health were not negligent supported by 

substantial evidence and not the result of passion or 

prejudice? 

Buhr raises three issues regarding the jury's verdicts in 

favor of the defendants on his negligence claims. He contends 

that, regardless of the jury's interpretation of the evidence, the 

verdicts were contrary to the evidence and obviously the result of 

prejudice or passion. His argument regarding passion or prejudice 

which may have influenced the jury's verdict focuses on comments 

made by Wilder's counsel; we address those comments below in issue 

5. 

Our role in reviewing a jury's verdict is limited. Weber v. 

State (1992)' 253 Mont. 148, 156, 831 P.2d 1359, 1364. We review 

the evidence in a light most favorable to the prevailing party and 

determine whether the jury's verdict is supported by substantial 

evidence. Weber, 831 P.2d at 1364. This Court will not retry a 

case because the jury believed one party' s evidence over another1 s ; 

it is within the jury's province to adopt testimony presented on 
behalf of one party to the exclusion of testimony presented by the 

other party. Silvis v. Hobbs (1992) , 251 Mont . 407, 412, 824 P. 2d 

1013, 1016. 

a. With regard to Flathead County allegedly denying 

Harris access to the soft cell and Mental Health failing 

to enter the soft cell for purposes of evaluating Joshua, 

was the jury's verdict finding neither Flathead County 

nor Mental Health negligent supported by substantial 

credible evidence? 

Harris arrived at the detention center at 7 : 30 a.m. on January 

18, to further evaluate Joshua. He looked through the observation 

window in the door of the soft cell but did not enter the cell to 

conduct a closer evaluation. Harris testified he did not enter the 

soft cell because he was given an official order by Deputy Theodore 

Stollfuss (Stollfuss) denying him entry into the cell. Harris' 

testimony regarding the reason he did not enter the soft cell 

differed with Stollfuss' testimony that he informed Harris that 

Joshua could be unpredictably violent but had not denied Harris 

access to the soft cell. 

Buhr contends, that at the time Harris and Stollfuss made 

their observations, Joshua was exhibiting symptoms indicative of a 

serious medical crisis. He argues that after observing these 

symptoms, it was unreasonable for Harris and Stollfuss to conclude 

that a medical emergency did not exist. On that basis, he asserts 

that Harris should have entered the soft cell to conduct a closer 

evaluation and that either Mental Health was negligent for his 

failure to do so or Flathead County was negligent in denying him 

access to the soft cell. 

Buhrl s expert, Doctor George Schwartz (Schwartz) , testified 
that Joshua's physical condition, which Harris and Stollfuss 

observed the morning of January 18, was the result of events which 

began the night before. He testified that, because Joshua did not 

receive appropriate amounts of liquid during the night, he 

dehydrated and contracted hyperthermia. Schwartz stated that 

Joshua was rendered immobile and unable to speak except for 

grunting, and that he later experienced metabolic crisis. In 

Schwartz's opinion, anyone observing Joshua lying in a pool of 

bodily fluids, unable to speak and not moving, would conclude there 

was a serious medical emergency. 

Stollfuss and Harris provided testimony significantly 

different from that of Schwartz as to whether Joshua experienced a 

medical emergency that morning. Stollfuss testified that, when 

Harris arrived, Joshua appeared to be sleeping and nothing he 

observed led him to conclude Joshua was experiencing a medical 

emergency. Had Stollfuss detected such an emergency, he testified 

that he would not have hesitated to summon medical assistance. 

Harris also testified that Joshua's actions were consistent with 

someone sleeping, that he did not perceive a medical emergency and 

that he would have contacted medical personnel had he concluded a 

medical emergency existed. While both Harris and Stollfuss 

testified that excrement was present in the soft cell, neither 

concurred with Schwartz's description that Joshua was lying in a 

pool of bodily fluids. 

Stollfuss also provided additional information about Joshua's 

condition during that morning. He testified that at 6:00 a.m., 
Joshua was standing in the soft cell and calling out for his 

mother. Again, at approximately 9:30 a.m., Joshua was standing in 

the soft cell, staring toward the ceiling and calling for his 

mother to let him out. 

In essence, Buhr firs& suggests that the jury should not have 

believed Harrisf and Stollfuss' testimony that Joshua was not 

experiencing a medical emergency. As discussed above, it is within 

the province of the jury to adopt the testimony of one party to the 

exclusion of the other's. The jury apparently adopted Flathead 

County's and Mental Health's testimony regarding the absence of a 

medical emergency. 

Buhr next argues that, regardless of whether Harris or 

Stollfuss detected a medical emergency, Harris would have 

determined that a medical emergency existed and summoned medical 

assistance had he entered the soft cell and conducted a thorough 

evaluation of Joshua's condition, Based on Harris1 and Stollfuss' 

allegedly conflicting testimony regarding why Harris did not enter 

the soft cell, Buhr contends that either Flathead County was 

negligent in refusing Harris admission or Mental Health was 

negligent as a result of Harris' failure to enter, but the jury's 

verdict finding neither negligent is not supported by the evidence. 

We disagree. 

Stollfuss testified he had arrived at work early that morning 

and was briefed about Joshua's condition. He was told that Joshua 

"had been pacing most of the night, been awake; that he was 

irritable and could be belligerent; and handle the situation 
carefully;I1 Stollfuss relayed this information to Harris when 

Harris arrived for the evaluation. Stollfuss then advised Harris 

that he was concerned about opening the door and upsetting Joshua 

again because Joshua had been agitated earlier in the morning. 

Stollfuss also testified that Harris remained at the soft cell 

for approximately fifteen minutes. He stated that, normally, 

mencal health professionals had full access to mental health 

detainees and that he did not deny Harris entry into the soft cell. 

On cross-examination, Stollfuss admitted it was possible that 

Harris misunderstood him to mean that Harris could not enter the 

soft cell. 

It was within the jury's province to believe StolLfussl 

testimony that he did not deny Harris access to the soft cell, We 

conclude, therefore, that substantial evidence supports the juryf s 

finding that Flathead County was not negligent in denying Harris 

access to evaluate Joshua. 

Harris' testimony established that he did not go into the 

cell. He testified that when he asked if he could enter the cell, 

Stollfuss indicated that Joshua was violent and that Stollfuss did 

not believe it would be safe to allow anyone to enter; Harris 

interpreted Stollfuss' reply as an official denial of his request 

for access. 

Regarding his ability to evaluate Joshua's physical condition, 

Harris testified that he was able to observe Joshua through a 

window in the door of the soft cell. Joshua was lying at a fortyfive degree angle to, and approximately three feet away from, the 
door; facing away from the window. Harris observed breathing 

motions and asked Joshua questions, but received no intelligible 

response. He added that he could have obtained access to the soft 

cell by requesting additional officers or contacting the Sheriff 

had he observed anything leading him to conclude that a medical 

emergency existed, but that he observed no such indications of an 

emergency. Harris' testimony constitutes substantial credible 

evidence supporting the jury's verdict that Mental Health was not 

negligent in failing to enter the soft cell for purposes of 

evaluating Joshua. 

The jury was free to adopt Stollfuss' and Harris' account of 

the events which took place the morning of January 18 regarding the 

lack of a medical emergency and their respective testimonies 

relating to Harris' failure to enter the soft cell. We conclude 

that substantial credible evidence supports the jury's verdict. 

b. Was the jury's verdict finding Wilder not negligent 

supported by substantial credible evidence? 

Buhr's claim of professional negligence against Wilder 

contained two components: Wilder's recommendation that the 

Kalispell police be used to control Joshua's behavior and his 

alleged failure--after talking to Russell and agreeing to arrange 

Joshua's admission to the hospital--to follow up and ensure that 

Joshua was transferred from the detention center to the hospital. 

The jury rejected these claims by finding Wilder not negligent. 

Buhr argues that, although the testimony relating to the use 

of the police and Joshua's transfer conflicts, the jury was 

compelled to find Wilder negligent. The standard, however, is 
whether, when viewed in a light favorable to Wilder, substantial 

evidence supports the jury's verdict. Weber, 831 P.2d at 1364. We 

also reiterate that it is within the jury's province to adopt one 

party's evidence over that of the other. Silvis, 824 P.2d at 1016. 

With regard to the use of the police, Wilder testified that he 

believed Joshua's behavior was controllable to some extent. He had 

talked to Michele and a home health nurse assisting her about the 

possibility of involving the Kalispell police when Joshua's rages 

became uncontrollable. Wilder's suggested approach was that, if 

the police arrived and Joshua' s behavior improved, the behaviorcontrol process need go no further. If the behavior did not 

improve, then the police would progress to placing Joshua in a 

squad car, taking him to the jail and, as a last alternative, 

placing Joshua in juvenile detention. In Wilder's opinion, this 

was the only way, short of institutionalization, to deal with 

Joshua's violent behavior. 

Dr. Marion Walker, Joshua's former pediatrician in Salt Lake 

City, Utah, testified that the process Wilder recommended involving 

the police was reasonable and that he would not fault Wilder for 

advising that type of action. Walker testified that recommending 

this approach did not constitute professional negligence. 

Regardingwilder's recommendedbehaviormodification approach, 

the jury's finding that Wilder was not negligent was supported by 

substantial credible evidence. Although Wilder's testimony and 

that introduced on his behalf conflicted with testimony of other 

witnesses, it was the jury's decision which evidence to accept. 
Buhr's claim that Wilder was negligent for failing to follow 

through and ensure that Joshua actually was transferred to the 

hospital rests on Buhr' s view that Wilder undertook to do so during 

the course of his telephone conversation with Russell. Buhr 

alleged that had Wilder made the appropriate arrangements when he 

was informed Joshua was in the detention center, Joshua would have 

been transferred earlier and his life might have been saved. 

Wilder testified that after Michele's phone call at 10 :00 a.m. 

on January 17, he did not receive another telephone call regarding 

Joshua until approximately 9:30 a.m. the next day, when Russell 

informed him that Joshua was in the detention center's soft cell on 

a mental health hold. Both Wilder and Russell testified that 

Russell asked for permission to have either Mental Health or 

Flathead County move Joshua to the hospital and whether Wilder 

would admit him. Wilder recalled asking Russell about Joshua's 

level of functioning and that Russell's response did not indicate 

the existence of any medical emergency. Russell did relay Harris' 

observations of Joshua to Wilder, who agreed that Joshua should 

come to the hospital and that he would arrange for admission. 

The next telephone call Wilder received concerning Joshua came 

from the County Attorney's office at approximately 12:OO p.m., 

asking if Joshua could be transferred. Wilder testified that he 

had assumed the transfer had already taken place and, therefore, 

nodded to his receptionist who conveyed the answer that Joshua 

could be transferred. When asked if he had called anyone to advise 

that the arrangements for Joshua's admission had been made, Wilder 
responded that he had undertaken simply to call the hospital and 

make arrangements for Joshua' s admission on arrival there. The 

record contains substantial evidence supporting the jury's verdict 

on this component of Buhrls negligence claim against Wilder. 

We reiterate that it is within the jury's province to resolve 

conflicting testimony and that our review verdicts 

limited to ascertaining whether they are supported by substantial 

credible evidence. Weber, 831 P .2d at 1364. Regarding Wilder' s 

recommendation that Michele control Joshua's behavior by using the 

Kalispell police and his acts relating to Joshua's admission to the 

hospital on January 18, we conclude that substantial credible 

evidence supports the jury's determination that Wilder was not 

negligent. 

c, With regard to Buhrls negligence per se claim against 

Mental Health on the basis of an alleged violation of § 

53-21-129(2), MCA, was the jury's finding that Mental 

Health was not negligent supported by substantial 

credible evidence? 

As a final issue regarding the jury's verdict, Buhr argues 

that, with regard to the emergency evaluation of Joshua on January 

17, the finding that Mental Health was not negligent was entirely 

contrary to the evidence. This argument is based on Mental 

Health's acknowledgement that Russell was not a "professional 

person'f as defined in § 53-21-102 (12) (b) , MCA. Buhr contends that 

Mental Health's procedure of having Russell evaluate Joshua and 

then report to Harris violated the requiremenrs of § 53-21-129(2), 

MCA, and, as a result, constituted negligence per se by Mental 

Health. 
The District Court instructed the jury that if it found that 

Mental Health violated § 53-21-129, MCA, Mental Health would be 

negligent and the jury should then proceed to determine the 

causation question. The instruction was in accord with our cases 

on statutory violations. See, m, VanLuchene v. State (1990), 

244 Mont. 397, 797 P.2d 932. In order to establish negligence 

a, a plaintiff must first prove that the defendant neglected or 

violated a duty imposed on it by statute. See Gunnels v. Hoyt 

(1981), 194 Mont. 265, 271, 633 P.2d 1187, 1192. 

Here, Buhr's negligence per se claim against Mental Health was 

premised on an alleged violation of 5 53-21-129, MCA. Section 53- 

21-129 (2) , MCA, provides that I' [i] f a professional person agrees 

that the person detained appears to be seriously mentally ill and 

that an emergency situation exists, then the person may be detained 

and treated until the next regular business day." It is undisputed 

that § 53-21-129 (2), MCA, applies to Mental Health's evaluation of 

Joshua. The issue is whether Mental Health violated that statute 

in conducting Joshua's evaluation. 

Russell testified that she first evaluated Joshua at 

approximately 11 :30 a.m. on January 17, when she arrived at the 

Flathead County detention center; she found him calm and able to 

communicate. Russell then talked to Michele. 

During her conversation with Michele, Russell was called back 

to the area in the detention center where Joshua was held. At that 

time, Joshua had become very combative, throwing objects around the 

waiting area and threatening the police officers with his fists. 
When Joshua reached for a telephone book, an officer restrained him 

and placed him on the floor. This episode lasted approximately 

fifteen minutes. 

Russell discussed the placement options with Michele and told 

her that Joshua could be placed in the soft cell. Michele 

concurred with the placement and the arrangements to have Joshua 

detained were made. 

Russell then contacted her supervisor, Harris, who is a 

professional person under the Mental Health Act and who was 

responsible for assisting Russell in the evaluation of any mental 

health holds for that weekend. Harris testified that he discussed 

Russell's evaluation of Joshua in detail with Russell at 

approximately 4:00 p.m. on January 17, and agreed with Russell's 

evaluation that Joshua appeared to be seriously mentally ill and 

that an emergency situation existed; he concurred in the 

determination that placement in the soft cell was appropriate. He 

further testified that he and Russell had fully discussed the 

requirements of a mental health hold and that any further 

observation by himself would have been redundant. He elected not 

to make an in-person evaluation of Joshua himself because he 

trusted Russell's observations. He undertook to evaluate Joshua 

again the next morning. 

Dr. Jay Palmatier, then a clinical psychologist for defendant 

Mental Health and regional clinical director for the western 

Montana region, testified on Mental Health's behalf. He testified 

that he was a certified professional person under the Mental Health 
Act and had considerable experience in conducting emergency mental 

health holds under the Act. Be was aware that Russell was not a 

certified professional and Harris was. It was his opinion that the 

procedure followed by Russell and Harris in evaluating Joshua was 

a reasonable and appropriate means of complying with the duty and 

standard of care set forth in the statute. Buhr presented 

conflicting evidence to the effect that Mental Health's procedure 

violated § 53-21-129, MCA. 

It is clear that conflicting evidence was presented on whether 

the cooperative evaluation procedure violated the statute. The 

issue was submitted to the jury for its determination under an 

appropriate instruction to which no objection was made; indeed, 

Buhrls proposed instruction on the negligence per se claim against 

Mental Health submitted the issue of a statutory violation to the 

jury as a factual question. The jury, free to accept or reject 

conflicting testimony, determined that Mental Health did not 

violate the statute and was not negligent. We conclude that the 

jury's finding is supported by substantial credible evidence. 

4. Did the District Court err in denying Buhr's motion 

for a new trial based on surprise and improper judicial 

comments? 

Buhr filed an amended motion for a new trial on a variety of 

grounds, including unfair surprise with respect to Rhodes' 

testimony and improper comments by the court. The District Court 

denied the motion by order dated September 24, 1991. We review a 

district court's denial of a motion for a new trial for abuse of 

discretion. See Brockie v. OM0 Construction (1992) , 255 Mont. 495, 
a. Did Sheriff Rhodes' trial testimony concerning 

Flathead County's policies and procedures contradict his 

deposition testimony to Buhr's detriment? 

Buhr submitted interrogatories to Flathead County requesting, 

among other things, information about its policies and procedures 

pertaining to "Health Intake Screening and Administration of 

Medicine" at the time Joshua was detained in the soft cell. In 

response, the County referenced a policy manual written after the 

events at issue, but containing the policies routinely used by 

Sheriff's Department personnel at the time those events occurred. 

Rhodes referred to the same manual during his later deposition. 

Among other things, Rhodes stated that the manual was the result of 

successive drafts. 

At trial, Buhr examined Rhodes about the health screening and 

medication policies. Rhodes responded by stating that, at the time 

Joshua was detained, his department did not have any written 

policies. He further responded that the manual used in his 

deposition contained current policies and that the earlier 

interrogatory answer identifying the manual as containing the 

policies in effect when Joshua was detained was not quite accurate. 

Buhr moved for admission of the written policies and procedures. 

Rhodes' counsel objected on the basis of relevancy and lack of 

foundation and the District Court sustained the objection. Buhr 

continued his examination of Rhodes. 

On appeal, Buhr argues that the change in Rhodes' testimony 

relating to medical policies prejudiced his case and entitles him 
to a new trial on his claims against Flathead County. We disagree. 

Section 25-11-102(3), MCA, provides that a new trial may be 

granted on the application of a party aggrieved by "accident or 

surprise which ordinary prudence could not have guarded against." 

We previously have determined that a party moving for a new trial 

under this subsection must show that: 

1) the moving party was actually surprised; 2) the facts 

causing the surprise had a material bearing on the case; 

3) the verdict or decision resulted mainly from these 

facts; 4) the surprise did not result from the moving 

party's inattention or negligence; 5) the moving party 

acted promptly and claimed relief at the earliest 

opportunity; 6) the moving party used every means 

reasonably available at the time of the surprise to 

remedy it; and 7) the result of a new trial without the 

surprise would probably be different. 

Donovan v. Graff (1988), 231 Mont. 456, 459, 753 P.2d 878, 880. 

Each of these criteria must be met before a party is entitled to a 

new trial on the basis of surprise. Boyd v. State Medical Oxygen 

& Supply, Inc. (1990), 246 Mont. 247, 254, 805 P.2d 1282, 1287 

It is apparent from the interrogatory answers and Rhodes' 

deposition and trial testimony that the fact which surprised Buhr 

was that the detention center's written manual did not contain the 

identical medical policies used at the time Joshua was detained. 

Buhr offers no argument regarding how this fact had a material 

bearing on his case. Indeed, after reviewing Buhr's thorough 

questioning of Rhodes about the intake procedures and 

administration of medications in the detention center when Joshua 

was detained, we cannot conclude that this "surprise" had a 

material bearing on Buhr's case, that the verdict in favor of 

Flathead County resulted from it, or that the result of a new trial 
would have been different. 

Our review of the record also reveals that Buhr did not 

satisfy the fifth criterion. At the point when the alleged 

surprise occurred, Buhr neither objected to Rhodes' testimony nor 

claimed that the change in Rhodes' testimony detrimentally impacted 

his ability to present his case. It was only after the jury 

returned a verdict adverse to Buhr that he claimed surprise based 

on the change in Rhodes' testimony. We conclude, therefore, that 

Buhr failed to act promptly and claim relief from the surprise at 

the earliest opportunity. 

Furthermore, we agree with Rhodes that Buhr could have taken 

steps to remedy any effect of the alleged surprise, including a 

motion for a continuance or a request for a court order making a 

transcript of Rhodes' testimony available for Buhr's witnesses. 

The record does not establish any effort by Buhr to remedy the 

surprise; thus, the sixth criterion was not satisfied. 

Buhr clearly did not meet the criteria required for 

entitlement to a new trial under § 25-11-102 (3) , MCA. We conclude, 

therefore, that the District Court did not err in denying Buhr's 

motion for a new trial based on surprise. 

b. Did the District Court's allegedly improper and 

prejudicial remarks provide a sufficient basis for Buhr' s 

motion for a new trial? 

Buhr asserts that the District Court erred by making several 

comments on the length of the trial to the jury and, on one 

occasion, by questioning Wilder in a manner favorable to Wilder's 

defense. The primary assertion of error relates to a comment by 

40 
the court after counsel for Kalispell Regional thanked the jury for 

its attention "during this lost summer of 1991." The judge stated 

as follows: 

Somebody noted the wasted summer of '91. I hope it 

hasn't been entirely wasted for you. I hope you find it 

an interesting and challenge [sic] task. As you are 

citizens of this state and nation, I think you recognize 

the importance of what you're doing, and there's still, 

after all, a good part of August left. 

Buhr also refers to eight instances over the course of trial where 

the judge made comments such as "I'll remind you once again, we'll 

reconvene Monday . . . and we'll try and get this case tried" and 

"I've been at this way too long, this trial." Regarding the 

District Court's questioning of Wilder, the judge simply asked if 

Michele had provided information that Joshua was allergic to Valium 

and if Wilder knew whether or not Joshua was allergic to Valium. 

We have examined the record regarding each of the statements 

Buhr asserts to be improper and prejudicial. With the single 

exception of the "wasted summer comment," Buhr did not object to 

the court's comments or questions. "Failure to object to alleged 

error at trial precludes an appellant from raising that issue on 

appeal." Barrett v. ASARCO, Inc. (1990), 245 Mont. 196, 205, 799 

P.2d 1078, 1083 (citation omitted). Therefore, we decline to 

address Buhr's assertions of error involving these comments and 

questions. 

Regarding the "wasted summer" comment, Buhr contends that it 

implied that the jury had wasted its time with this case and 

suggested that the jury was expected to return a defense verdict, 

thereby violating his right to a fair trial. We disagree. 

4 1 
We previously have cautioned that trial judges must take care 

to ensure that they do not abandon their role as impartial judges 

in favor of that of advocates. State v. Stafford (1984) , 208 Mont. 

324, 331, 678 P.2d 644, 648. Here, the District Court's comment 

contains no implication that the court was directing a defense 

verdict or in any way abandoning its proper role. Indeed, this 

comment was a salutary one which merely urged the jury to recognize 

the importance of its role and its decision. We conclude, 

therefore, that the District Court did not abuse its discretion by 

denying Buhr's motion for a new trial on the basis of this comment. 

5. Did Wilder's attorney prejudice the jury by making 

improper remarks while questioning witnesses and during 

closing argument? 

Buhr offers numerous examples of allegedly prejudicial 

comments by Wilder's counsel. Many of the examples involve 

counsel's introducing questions with comments such as "I am sure 

after three days of deposition and all this questioning, you are 

probably getting tired of lawyers questioning you" and "Doctor, you 

can characterize it any way you want, but I want to talk about the 

facts." Others involve comments Buhr contends were arguments 

directed "to the jury's hometown feelings of loyalty," the jury's 

resentment of the length of the trial, and the attorney's use of a 

deposition. 

Buhr asserts that the cumulative effect of these comments 

impaired his right to a fair trial and, as a result, that the 

District Court erred in denying his motion for a new trial. Again, 

we disagree. 
"Improper argument requires reversal only when prejudice has 

resulted which prevented a fair trial." Moralli, 839 P.2d at 1292 

(citation omitted). "Unless a level of prejudice can be shown that 

manifestly precludes a fair trial, then there is no reversible 

error." Whiting v. State (1991), 248 Mont. 207, 220-21, 810 P.2d 

1177, 1186 (citation omitted). 

The trial judge is in the best position to determine the 

prejudicial effect of an attorney's conduct. Kuhnke v. Fisher 

(1987), 227 Mont. 62, 68, 740 P.2d 625, 628. Here, Buhr advances 

a number of comments made by Wilder's counsel over the course of a 

six-week trial. Buhr objected to many of the comments and, in some 

cases, succeeded in having the question or comment rephrased or 

stricken. In other instances, he did not object. Moreover, the 

jury was instructed that, regarding "any question to which an 

objection was sustained, you must not conjecture as to what the 

answer might have been or as to the reason for the objection; nor 

must you draw any inference from the question itself." Given this 

instruction, the length of the trial, and the limited number of 

allegedly improper comments made, we conclude that these comments 

made by Wilder's attorney did not prejudice the jury or impair 

Buhr's right to a fair trial. 

6. Did the cumulative effect of the asserted errors 

prejudice Buhr to the extent that he was unable to 

receive a fair trial? 

Buhr contends that the cumulative effect of the errors which 

occurred during trial was prevention of a fair trial on the merits 

of his claims. Given our resolution of issues 1 through 5, we 

43 
conclude that this argument is without merit. 

A£ f irmed . 

i 

We concur: n 

Justices 
Justice James C. Nelson dissenting. 

I concur with our opinion except as to our discussion of Issue 

3c, and as to that issue, I respectfully dissent. I conclude that 

the jury's finding that Mental Health was not negligent was 

contrary to the law. 

Section 53-21-102, MCA (1987), defines a "professional person" 

as either a medical doctor or a person who has been certified, as 

provided for in § 53-21-106, MCA, by the department of 

institutions. Moreover, § 53-21-105, MCA (1987), provides that 

"[nlo person may act in a professional capacity as provided for in 

[Title 53, Chapter 21, Part 11 unless he is a professional person 

as defined in 53-21-102." 

Section 53-21-129, MCA (1987), which authorizes, under certain 

limited, defined circumstances, the emergency detention of a person 

who is seriously mentally ill, is absolutely clear and unambiguous 

in its mandate that the required evaluation prior to or at the time 

of detention be conducted by a professional person. 

In that regard, it is undisputed that Russell was not a 

professional person, because she was not certified by the 

department of institutions and, yet, she was the one who did the 

only evaluation of Joshua that was ever conducted. The 

professional person, Harris, did not even see Joshua until the day 

following his detention, and, then, contrary to our opinion, Harris 

did not evaluate him; he only observed Joshua through the window of 

the locked door of the soft cell. Harris' conclusions that Joshua 

was seriously mentally ill were based, not on his evaluation, but 

45 
on Russell's. There is no question that, on the undisputed 

evidence presented to the jury, at least §§ 53-21-105, MCA (1987), 

and 53-21-129(1) and (21, MCA (1987), were violated by Mental 

Health's procedure in this case. 

Furthermore, no authority is cited for the proposition that, 

as in this case, che evaluation required to be accomplished by the 

professional person can, instead, be conducted by a non-certified 

person who consults by telephone with the professional person. 

Mental Health's arguments in favor of that procedure are merely an 

after-the-fact justification for irs failure to comply with the 

statute, Worse, our sanctioning that procedure sets a very 

dangerous precedent, indeed, and encourages mental health care 

providers to ignore those legislative mandates designed to insure 

that emergency detention is authorized by a person to whom the 

State has, by its certification process, entrusted the 

responsibility for making such important decisions. 

Presumably, a person is not certified because he/she does not 

have the knowledge, training, experience or expertise to make the 

same decisions and conclusions as a certified person. Presumably, 

a certified person is required to make critical judgment calls 

because of his/her greater knowledge, training, experience and 

expertise. Presumably, if the procedure used in this case for the 

emergency evaluation and detention of this seriously mentally ill 

juvenile were acceptable, the legislature would have written the 

statutes at issue to so provide. 

Unfortunately, our decision on this issue stands in stark 
contrast to our previous cases which have strictly construed the 

requirements of 5 53-21-129, MCA, in favor of the detained person. 

See, Matter of Shennum (1984)~ 210 Mont. 442, 684 P.2d 1073, 

(record did not evidence the existence of an emergency justifying 

commitment under B 53-21-129) ; Matter of M.C. (l986), 220 Mont. 

437, 716 P.2d 203, (under 5 53-21-129, MCA, it is the professional 

person, not the police officer who takes the person into custody, 

who determines whether the person is seriously mentally ill and 

should be placed into emergency detention) ; Matter of E. P. (1990) , 

241 Mont. 316, 787 P.2d 322, (failure to release involuntarily 

confined patient on the day after she was committed under 5 53-21- 

129, MCA, or to file findings with the county attorney as required 

by the statute, deprived the person of due process). 

Mental ~ealth clearly violated duties and the standard of 

care imposed by the statutes at issue and, in my view, was 

negligent as a matter of law. Perhaps if Mental Health had simply 

followed the law, this whole tragic set of circumstances would not 

have been set in motion. 

Accordingly, I respectfully dissent from our decision on Issue 

3c. 

7 

Justice William E. Hunt, Sr., joins in the foregoing dissent. 
Justice William E. Hunt, Sr., dissenting. 

In addition to concurring in the dissenting opinion of Justice 

Nelson, I want to state that I cannot agree with the result reached 

by the majority on the remaining issues in this case because it 

requires one to conclude that, in this whole tragic event, a 

juvenile in the custody of the State can be allowed to die in his 

own vomit and no one is responsible. Therefore, I dissent to the 

rest of the opinion.