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 andMONTANA WILLIAMS DOUBLE DIAMOND CORPORATION, a Montana corporation, LILLIAN E. WILLIAMS, its president, Defendants, Plaintiffs, Third Party Plaintiffsand Appellants,

THE BOARD OF COUNTY COMMISSIONERS OF GALLATIN COUNTY, MONTANA, Defendant, Third PartyDefendant and Respondent.

APPEAL FROM: DistrictCourt of the EighteenthJudicial District, In and for the Countyof Gallatin, The Honorable Byron Robb, Judge presiding. COUNSEL OF RECORD: ForAppellant: Nash, Wellcome, Frost, Guenther & Zimmer; Page Wellcome, Bozeman, Montana (W.D. Contruction, Royal Village, W.E. Diteman, Lanora Diteman, ValleyBank of Belgrade) McKinley Anderson argued forMike Steiner, Elizabeth Steiner, Patricia Steiner & Mark Steiner, Bozeman, Montana Goetz, Madden & Dunn; WilliamL. Madden, Bozeman, Montana (Mont. P7illiams DoubleDiamond Corp.

### ,Lillian E. Williams, President) ForRespondent: A. Michael Salvagni, CountyAttorney, 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:

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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 SubdivisionRegulation1'

# . . . That said regulations were designed for thepurpose 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 subdivisionwould be able to file their subdivision plat and sell lots to the general pub1ic; 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 

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# .. have violated the 

# .

# .. regulation 

# . .. by granting final approval of the plat of Royal Village Subdivision 

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# . . 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

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# .. That as a direct and proximate result of the carelessness, negligence, failure, omission or refusal of the 

# . . . Commissioners 

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# . . to, follow and abide by Gallatin County Subdivision regulations pertaining to approvalof the subdivision plat for Royal Village Subdivision, the Plaintiff

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# . has sustained damages in a sum that is at this time undetermined



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# . A Commissioner stated by deposition that at the time the plat was approved a 

### good share of the utilitieswere 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 itwas 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 specificallyprovided 

## & 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 ofMontana. 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 sectionprovides: 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 "legislativebody" includes the legislature vested with legislativepower by ArticleV of The Constitution of the State of Montana and any local governmental entitygiven legislativepowers by statute, including school boards. (2) A governmental entityisimmune from suitforan actoromission of its legislative body or a member, officer, or agentthereof. (3) A member, officer, or agent of a legislative body is immune from suit for damages arisingfrom the lawful discharge of an official duty associated with the introductionorconsideration 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 thatunder § 2-9-102, MCA, theCounty and Commissioners are responsible intort for the failure of the Commissioners to comply with their own subdivision regulations. In particular, Steiner argues that B.M. v. Stateof Montana (Mont. 1982), 649 P.2d 425, 39 St.Rep. 1285, isdispositiveof thisissue. In B.M. v. Statea 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, thisCourt looks firstto the plain meaning of thewords 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 issuepresented. 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-igentactwas the failureof theCommissioners torequire compliance with subdivision regulations prior toapproval ofthe 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 legislativebody, 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, thatbeing 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 DistrictCourt.

We concur: