No. 85-131 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

W. D. CONSTRUCTION, INC., ROYAL VILLAGE, 

INC., W. E. DITEMAN and LANORA DITEMAN, 

VALLEY RANK OF BELGRADE, a Montana banking 

corporation, MIKE N. STEINER, ELIZABETH M. 

STEINER, PATRICIA M. STEINER, MARK STEINER 

and MONTANA WILLIAMS DOUBLE DIAMOND CORPORATION, 

a Montana corporation, LILLIAN E. WILLIAMS, its 

president, 

Defendants, Plaintiffs, Third Party 

Plaintiffs and Appellants, 

THE BOARD OF COUNTY COMMISSIONERS OF GALLATIN 

COUNTY, MONTANA, 

Defendant, Third Party Defendant 

and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nash, Wellcome, Frost, Guenther & Zimmer; Page 

Wellcome, Bozeman, Montana (W.D. Contruction, Royal 

Village, W.E. Diteman, Lanora Diteman, Valley Bank of 

Belgrade) 

McKinley Anderson argued for Mike Steiner, Elizabeth 

Steiner, Patricia Steiner & Mark Steiner, Bozeman, 

Montana 

Goetz, Madden & Dunn; William L. Madden, Bozeman, 

Montana (Mont. P7il liams Double Diamond Corp. , Lillian 

E. Williams, President) 

For Respondent: 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

I,andoe, Brown, Planalp, Komrners & Johnstone; Calvin 

Braaksma argued, Bozeman, Montana 

Joseph Sabol, Bozeman, Montana 

Submitted: September 19, 1985 

Decided: October 31, 1985 

Filed: 

oc I- 3 1 ./$I85 

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

Plaintiff, Mark Steiner (Steiner) , brought a negligence 

action against Gallatin County (County) and the Board of 

County Commissioners of Gallatin County (Commissioners) for 

damages a llegedly arising when the Commissioners granted 

final approval of the plat of Royal Village Subdivision 

without requiring subdivision improvements or a bond guaranteeing such improvements. The Gal-latin County District Court 

concluded that the County and Commissioners were immune from 

suit under S 2-9-111, MCA, and dismissed them from the case 

on the grounds Steiner had failed to state a cause of action 

upon which relief could be granted. All other parties to the 

suit appeal. We affirm. 

The issue on appeal is: 

Are Gallatin County and the Commissioners immune from 

suit for negligence in the administration of state statutes 

or subdivision regulations in connection with the approval of 

the plat of Royal Village Subdivision in Gallatin County? 

Steiner's complaint alleged the following facts: 

That on the 26th day of February, 1975 . . . Commissioners adopted the regulations known as the "Gallatin County 

Subdivision Regulation1' . . . 

That said regulations were designed for 

the purpose of insuring that all improvements required by the Gallatin County 

Subdivision Regulation would be in place 

or necessary escrow deposits or bonds 

would be furnished before the developers 

of the subdivision would be able to file 

their subdivision plat and sell lots to 

the general pub1 ic; that said regulations 

were specifically intended for the protections of the buyers of the subdivision 

lots in order to insure that the utilities would be in place, and that said 

buyers could use said lots for building 

purposes; . . . 

That . . . Cornmi.ssioners . . . have 

violated the . . . regulation . . . by 

granting final approval of the plat of 

Royal Village Subdivision . . . without 

requiring the subdivider, Royal Village, 

Inc., Wallace E. Diteman and LaNora 

Diteman, to have first installed all of 

the required improvements, . . . or, in 

the alternative, to have first entered 
into a writ.ten subdivision improvement 

agreement with . . . Commissioners . . . posting a bond guaranteeing the construction and installation of all required 

improvements . . . 

That as a direct and proximate result of 

the carelessness, negligence, failure, 

omission or refusal of the . . . Commissioners . . . to, follow and abide by 

Gallatin County Subdivision regulations 

pertaining to approval of the subdivision 

plat for Royal Village Subdivision, the 

Plaintiff . . . has sustained damages in 

a sum that is at this time undetermined . . . 

A Commissioner stated by deposition that at the time the 

plat was approved a good share of the utilities were already 

in place. The roads were partially complete and some of the 

water and sewer lines were in. The Commissioner further 

stated that the Board did not require Diteman to complete the 

improvements or post a bond because everything was in 

progress and looked like it was going to be finished. 

Steiner contends that the Commissioners' failure to 

comply with its own subdivision regulations is negligence 

governed by 5 2-9-102, MCA: 

Governmental entities liable for torts 

except as specifically provided & legis1 ature. Every governmental entity is 

subject to liability for its torts and 

those of its employees acting within the 

scope of their employment or duties 

whether arising out of a governmental or 

proprietary function except as specifically provided by the legislature under 

Article 11, section 18, of The Constitution of the State of Montana. 

Commissioners contend that a legislative body and its 

members are immune from suit for damages arising from 

legislative acts or omissions under 2-9-111, MCA. That 

section provides: 

Immunity --- from suit for legislative acts 

and omissions. 

(1) As used in this section: 

(a) the term "governmental entity" 

includes the state, counties, municipalities, and school districts; 

(b) the term "legislative body" includes 

the legislature vested with legislative 
power by Article V of The Constitution of 

the State of Montana and any local governmental entity given legislative powers 

by statute, including school boards. 

(2) A governmental entity is immune from 

suit for an act or omission of its legislative body or a member, officer, or 

agent thereof. 

(3) A member, officer, or agent of a 

legislative body is immune from suit for 

damages arising from the lawful discharge 

of an official duty associated with the 

introduction or consideration of legislation or action by the legislative body. 

(4) The immunity provided for in this 

section does not extend to any tort 

committed by the use of a motor vehicle, 

aircraft, or other means of 

transportation. 

Steiner argues that under § 2-9-102, MCA, the County and 

Commissioners are responsible in tort for the failure of the 

Commissioners to comply with their own subdivision 

regulations. In particular, Steiner argues that B.M. v. 

State of Montana (Mont. 1982), 649 P.2d 425, 39 St.Rep. 1285, 

is dispositive of this issue. In B.M. v. State a minor child 

brought a claim against the State and other school 

authorities for damages arising from placement in a special 

education program. The issue of immunity under § 2-9-111, 

MCA, was neither raised nor discussed in B.M. v. State and 

therefore that case is not dispositive of the issue before 

us. 

Section 2-9-111, MCA, was enacted in 1977. In 

determining the legislative intent, this Court looks first to 

the plain meaning of the words used in the statute. Dorn v. 

Bd. of Trust. of Billings Sch. Dist. (Mont. 1983), 661 P.2d 

426, 430, 40 St.Rep. 348, 352. By its terms, this code 

section answers the issue presented. 

Subsection (2) of B 2-9-111, MCA, declares that a 

governmental entity is immune from suit for an omission of 

its legislative body. In this instance, the claimed 

negl-igent act was the failure of the Commissioners to require 

compliance with subdivision regulations prior to approval of 
the plat. That comes expressly within the plain language of 

subsection (2) . In substance, that paragraph provides that 

Gallatin County is immune from suit for an act of its 

legislative body, the Board of County Commissioners. 

In a similar manner, subsection (3) of § 2-9-111 

provides that a member of a legislative body is immune from 

suit for damages arising from the lawful discharge of an 

official duty. Again, by the express terms of the statute, 

the members of the Board of County Commissioners are immune 

from suit for damages arising from a discharge of their 

official duty, that being the approval of a plat. 

We therefore hold that Gallatin County and the Board of 

County Commissioners of Gallatin County are immune from suit 

for negligence in the administration of state statutes and 

subdivision regulations in connection with the approval of 

the plat of Royal Village Subdivision. 

We affirm the judgment of the District Court. 

We concur: