No. 14519 IN THE SUPREME COURT OF THE STATE OF MONTANA

REGINA. PRETTY ON TOP, as surviving spouse,and DOROTHY MARCHINGTON, Administratrix of the Estate of MELVIN PRETTY ON TOP,Deceased, Plaintiffs and Appellants,

CITY OF HARDIN,MONTANA and ROBERT HAMILTON, chief of police of the City of Hardin, Montana Defendants and Respondents.

Appeal from: DistrictCourt of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Lynaugh, Fitzgerald, Schoppert, Skaggs,and Essman,

Billings,Montana Thomas

### J. Lynaugh argued,Billings,Montana For Respondents: Keefer and Roybal, Billings, Montana J. Dwaine Roybal argued, Billings,Montana

Submitted: February 13, 1979 Decided: 

### APE

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# '1979

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- Filed: --- : .fig 2Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court.

On the afternoon of September 18, 1973, Hardin Citypatrolman Harvey Kern observed threemen sitting ina truck behind the Big Horn Bar inHardin, Montana. They were passing a bottle from one person toanother. Patrolman Kern watched themen for approximately fifteen minutes before one of themen got out of the truck and leftthe scene. The patrolman then approached thevehicle and informed the occupants of the cityordinancewhich prohibited public possession of an open bottle containing

an alcoholicbeverage. After informing the men of their rights, patrolman Kern arrested them and took them to the Hardin City Jailwhere theywere searched and incarcerated. One of themen was Melvin Pretty On Top, a Native American. Hehad been arrested numerous times inthepast for alcohol-use offenses. On this occasion it appeared to the patrolman that Pretty On Top had been drinking, but thathe was incontrolof hisbody. He didnot stagger and he was coherent. On themorning afterhis arrest, Pretty On Top pleaded guilty tothe open-bottle charge. The Police Court imposed a $100 fine. Because Pretty On Top was unable to pay the fine, he was returned tothejail toservetime ata rateof $10 per day. The Hardin City Jailisused almost entirely for detoxification. Of the 300 persons incarcerated inthe jail fora twelve month period immediately preceding September 1973, 98 percent were jailed on alcohol-useoffenses. Of these offenders,95percent of those jailed

were Native Americans. The jail is inspected,but not searched,numerous times each day by the police chief and the officers on duty. Visiting hours are from 8:00

a.m. until 4:00 p.m. Visitors are permitted to go back to the cell and talk to prisoners through the bars. Before doing so, the visitor is asked to remove his coat and leave behind packages, but a search of the visitor is not made. Overall, the securitymaintained by the authorities depends on the jail population. Since the jail is used primarily for detoxification,minimum security is usually maintained. On September 22, at 6:03 p.m., fourdays after his arrest,Melvin Pretty On Top committed suicide by stabbing himself in the throat, neck and chest with a wooden paring knife. None of the authorities knew how Pretty On Top obtained the knife or how long he possessed it prior to his death. However, one of the trusties (aprisoner who receives $5.00 credit each day for doing janitorial work in the cell and reporting anything unusual to the officer

on duty) knew that Pretty On Top had the knife in his possession, but failed to inform anyone. Pretty On Top's wife, Regina,had asked to see her husband approximately one hour before his death, but her request was denied because visiting hours had ended. This

was the only record of anyone attempting to visit Pretty On Top. Hardin City Police Chief Robert Hamilton observed Pretty On Top each day before his death during inspections. His general demeanor, attitude and activitieswere normal. Pretty On Top did not have a history of mental disease or emotional disturbances,nor had he attempted suicide previously. -3-

### On January 2, 1974,Regina Pretty On Top and the administratrix of Pretty On Top's estate (plaintiffs) filed a complaint in District Court, Big Horn County, alleging that Pretty On Top'sdeath was caused by the negligence of defendants City of Hardin and Police Chief Robert Hamilton in failing to exercise due care in the maintenance and supervision of the jail facility. On October 28, 1975, defendantsmoved for summary judgment, stating: "TheCity of Hardin and Robert Hamilton submit that the undisputed factsdo not support any theory of liability and therefore they are entitled to judgment as amatter of law. Three independent and equally supportable reasons are here presented in support of notion for summary judgment.

"1. The defendants breached no duty owed to the deceased. "2. The suicideofMelvin Pretty On Top was not foreseeableby any defendant. "3. 

### The suicide ofMelvin Pretty On Top was his own volitional act and as such was a sufficient superceding and intervening act to cut off responsibility for any negligence of the defendant." An order granting defendants' motion for sumary judgmentwas entered by the District Court on September 20, 1978,and this appeal followed. The ultimate issue to be decided in this case is whether the surriiary judgment isproper. A party againstwhom a claim is asserted may, at any time,move for suxnary judgment in his favor. Rule 56(b), M0nt.R.Civ.P. The judgnent sought shallbe rendered forthwith if the pleadings, depositions,answers to interrogatories, and admissions on file, togetherwith any affidavits,shcw that there isno genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), M0nt.R.Civ.P.The party moving for summary judgment has the burden of establishing the absence of any genuine issue ofmaterial fact and the party opposing the motion must

come forward with evidence supporting the existence of a genuine fact issue. Hollinger v. McMichael (1978), Mont

# . , 580 P.2d 927, 35 St.Rep. 856. In the case before us, the District Court considered the pleadings, depositions, answers to interrogatories, and the parties' briefs before granting defendants' motion for summary judgment. For purposes of testing the propriety of the summary judgment, defendantsdo not dispute thematerial facts found in the court's file. Thosematerial facts are set forth above. Actionable negligence arises only from a breach of legal duty, and tc sustain an action for damages resulting from negligence, the complaint must allege the duty, its breach, the damages, and that the breach of duty was the proximate cause of the injury. Ritchie v. Northern Pac. Ry. Cc. (1954), 128Mont. 218, 272 P.2d 728. Related to these basic rules of negligence law is the rule that a defendant who could not reasonably foresee any danger of direct injury resulting from his conduct or any risk from an intervening force is not negligent. Mang v. Eliasson

(1969),153 Mont. 431, 458 P.2d 777. A jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. Reasonable and ordinary caremust be exercised for the life and health of the prisoner. Porter v. County of Cook (1976), 42 Ill. App.3d 287, 355N.E.2d 561; see also: 79 A.L.R.3d 1210; 60Arn.Jur.2d, Penal and Correctional Institutions,S17, p. 821. As stated in Kendrick v. Adamson (1935),51 Ga.App

### 402, 180 S.E. 647, "A sheriff owes to a prisoner placed in his custody a duty to keep the prisoner safely and free from harm, to render himmedical aid when necessary, and to treat him humanely and refrain from oppressing him." However,

# ".

.

# . a jailer is not liable to a prisoner in his keeping for injuries resulting from the prisoner's

own intentional conduct [citationomitted.] Absent some possible special circumstances a jailer isunder no duty to prevent the latter from taking his own life." Lucas

### v. City of Long Beach (1976),60 Cal.App.3d 341, 131Cal.Rptr. 470. "Specialcircumstances"form the basis of virtually every decision involving a jailer's liability for a prisoner's acts of self-destruction. In Porter v. County of Cook, supra, the plaintiff had been incarcerated in the Cook County House of Correction for threatening to harm his wife. He was physically examined by a county-employed psychiatrist who recommended "that he be admitted to a hospital immediately as an emergency for the protection from physical harm of himself or others." The plaintiffwas then placed in an isolated cellwhere he began hearing voices that threatened him. He yelled for the guards to come to his aid and formedication. None

came. The voices kept gettingworse and worse. In an attempt to drive thevoices away, the plaintiff set his mattress on fire. Soonhis hair caught on fire and he started screaming. A guard from two tiers above his cell rescuedhim, but not before he had suffered severe burns

on his face and hands. TheAppellate Court of Illinois upheld the trial court's factual determination that the county,which was obligated to provide reasonable care for -6-

### its prisoners, did not do sowhen its employees failed to strip the defendant, take away his personal effects, and protect him fromharming himself. In the above-discussed case the defendantknew or should have known that the prisoner was suicidal, thereby satisfying the requirement that "special circumstances" exist before liability will attach. But liability is not limited to cases involving prisonerswith suicidal histories. For example, numerous courts have held the jailer responsible for the prisoner's actionswhen theprisoner injures himself because he is in a state of helpless intoxication. Decisions stating that a greater duty is owed when a person is so 

### intoxicated as tc be incapacitated forphysical or mental effort are: Thomasv. Williams (1962), 105Ga.App. 321, 124 S.E.2d 409; Barlow

### v. City of New Orleans (1970), 257 La. 91, 241 So.2d 501;and Shuff v. Zurich-American Ins. Co. (1965La.App.)

### , 173 So.2d 392. Finally, a case arising in the neighboring state of North Dakotaprovides a clear insight into the problem. In Falkenstein v. City of Bismarck (N.D. 1978), 268N.W. 2d 787, the decedentwas placed in a cell known as "the hole" following an incident inwhich he "foulmouthed" a police officer. The nextmorning the decedentwas found dead,hanging from the cell door bars. The North Dakota Supreme Court,noting the Lucas case,held that substantial evidence existed in the record to support a 

### conclusion that the decedent's suicide was the result of a

### morbid state of mind proximately caused by his incarceration in "thehole" for an extended period of time. TheNorth Dakota Supreme Court noted that, "[Iln most situations a death by suicide is not an actionable -7-eventbecause, even though theremay have been tortious conduct preceding the suicide,the suicide is ordinarily considered as an intentional act and not the result of the tort. This relieves the original actor of liability." Therefore, a plaintiff does not have a cause against a jailer for negligently causing the suicideof a prisoner unless "specialcircumstances" are offeredwhich elevate the jailer's duty of care and tend to prove that the jailer's acts or omissions constituted theproximate cause of the suicide, rather than the prisoner's own intentional conduct. The jailer is not an insurer of the safety of itsprisoners. However, once the jailer knows or should know of the suicidal tendencies of a prisoner, a duty arises to provide reasonable carenecessary to prevent the prisoner from committing suicide. The rule applies whether the prisoner ismentally anguished, helplessly intoxicated,

or temporarily insane because of conditions forced upon him by the jailer. Melvin Pretty On Top committed suicide fourdays after being incarcerated in the Hardin City Jail. He did not have a history of mental disease or emotional disturbances, nor had he attempted suicidepreviously. His conduct and general demeanor while in jail was normal. There is no evidence in the District Court file that Pretty On Top was suffering fromdelerium tremens. Plaintiffs contend the defendants were negligent in the supervision and maintenance of the jail facility, thereby permitting the paring knife to be accessible to Pretty On Top. A similar attempt to impose liability was made in Maricopa County v. Cowart (1970),106Ariz. 69, 471 P.2d 265, an action to recover for the suicide of a boy confined in a reformatory. Responding to the allegation that the



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### physical plant was negligently constructed, the Supreme Court of Arizona said: 

# ".

. . [Ulnderthe general theory of negligence, in order to show liability, the plaintiff must prove a causal connection between the alleged breach of duty and the resulting injury. Here again, the proof is nil that any breach of the detention home's duty to provide a reasonably safe building, if in fact such a breach was shown, was the proximate cause of the resulting suicide of the deceased. There was absolutely no testimony that the structureproduced or contributed to amorbid state ofmind of the deceased precipitating his suicide." Under plaintiffs' theory, it would be necessary to prove that the jail's security policy caused Pretty On Top to commit suicide. Plaintiffs' contention that the securitypolicymade it possible for Pretty On Top to take his own life is insufficient. Defendants were required to exercise reasonableand ordinary care for Pretty On Top's life and health. There was nothing before the District Court that tended to prove that the proximate cause of the suicide was anything but the intentional act ofMelvin Pretty On Top. Without a showing of "special circumstances" whichwould elevate the defendants' duty of care and thereby create the possibility that defendants' actswere the proximate cause of the death, the District Court was required to follow the general rule that suicide is an intentional act and grantdefendants' motion for sumary judgment. Affirmed

# .

Justice 

# vWe Concur:

-----------,----------------- Justices

Justice Daniel J. Sheawill file a dissent.No. 14519

REGINA PRETTY ON TOP, Administratrix of Estate of Melvin Pretty on Top,

CITY OF HARDIN, and the Chief of Police.

Dissent of Justice Daniel J. Sfiea.

### Mr. Justice Daniel J. Sheadissenting:

Iwould reverse the summary judgment and send the

caseback for trial. There are genuine factual issues involved whichmust be tried by a jury. This case, contrary to the conclusion of themajority, is controlled by the "special circumstances" which created a higher duty of care than merely that of an ordinary jailer. The City

was openly and avowedly running its jail as a de facto detoxification center, and that is the focal point from whichwe must measure duty, foreseeability,and efficient intervening cause. The nature of the duty owed to the deceased depends, of course,on thenature of his incarceration. Here the purported legal reasonwhy the city judge ordered the deceased to jail isbecause he had violated the open container law and could not pay the fine imposed. Consequently,he was ordered towork off the $100 fine in jail,with credit allowed at a rate of $10per day. The actual reason,however, for the deceased's incarcerationwas that he was a chronic abuser of alcohol and in the wisdom of the City, he needed detoxification. As themajority has recognized, the deceased

was no stranger to the City jail,having been there many, many timesbefore forprimary alcohol-related offenses. Themajority expressed the true nature of the City jail in the followingmanner: "TheHardin City Jail is used almost entirely ---- 

### for detoxification. Of the 300 persons incarcerated in the jail for a twelve month period immediately preceding September 1973, 98 -

### percentwere jiiied on alcohol-use offenses. Of these offenders, 95percent of those jailed 

### - were Native Americans. 

# . ." (Emphasisadded.) 

### Based on these disclosures, I

### do not understand why the majority refuses to attach special significance to these facts in analyzing the duty which the City owed to the deceased.By imposing the $100 fine which the deceased was unable to pay, and then requiring the deceased topay off the fine at the rate of $10per day for each day spent in jail, the City starts off with a strike against it. The record before this Court indicates that the deceased

was ordered to spend time in jail solely because he did not have the $100 with which topay the fine. Almost two years before this incident, the United States Supreme Court squarely condemned this practice as a violation of equal protection of the law. Tate v. Short (1971),401U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130. Therefore, from the very moment he was sentenced,the deceased was being held illegally. 

### It appears however, that the actual reason for placing the deceased in jailwas that the City in its wisdom, determined that he needed detoxification due to his chronic abuse of alcohol. As themajority has noted, for at least a year immediatelypreceding the deceased's suicide, the City was using the jail almost exclusively as a detoxification center. This is a far cry from the normal uses to which a City jail is put, and it is for this reason that the normal duty owed by the jailer to the inmates of the jail does not apply. When the City changed the general nature of the

use of the jail, it also changed the nature of its duties owed to the occupantsof the jail. The deceased was in essence being treated (however ineptly) as one of many persons with a chronic alcohol abuse problem. It is therefore of no consequence that the City did not knowof the deceased's particular propensities to attempt suicide. The City is charged with the general knowledgethat chronic alcohol abusers do not act like ordinary prisoners, particularly when they are involuntarily committed. The process of detoxification is a painful

### physical and mental process. One going through this processmay develop extreme psychosis, delirium tremens, and is certainlymore likely to attempt suicide than the prisoner without thisproblem. The City is charged with this knowledgebecause it openly and avowedly ran the jail as a detoxification center. Itwas not therefore required that the City have specific knowledge that the deceasedwas a potential candidate for suicide. Given this general duty imposed upon the City, it is

a foreseeable event that a prisoner held as a chronic abuser of alcoholmay attempt suicide. Itwas the duty of the City to take appropriate preventative steps, not simply to prevent the deceased from attempting or committing suicide, but to prevent all occupants from attempting or committing suicide. Absent thesepreventativemeasures, the City could not prevent an inmate from either harming another or harming himself. The factshere indicate the City did absolutely nothing to prevent the occupants from harming others or from harming themselves. The City took no steps to determine if weapons or other dangerous instrumentswere coming into the jail. This ishardly theway to run a detoxification center. Themajority opinion recited the essential facts concerning the lack of jail inspection. Anyone could have slipped a weapon to the occupants of the jail. It is not at allunreasonable to conclude that aweapon finding its way into a 

### jail is either for the purpose of effectuating

an escape, harming another,or harming oneself. That a chronic alcoholicmay attempt suicide while involuntarily jailed, is a clearly foreseeable event.I do not think the status of the trustie who knew the deceased had the knife can be ignored. This knowledge, under the facts of this case, is also chargeable to the City. The trustie knew the deceased had the knifebut failed to notify anyone of this potentially dangerous situation. The trustie received a $5.00 credit each day for performing the duties of janitorialwork and reporting anything unusual to the officer on duty. If it is not unusual for a jail inmate to have an unauthorized knife, I do not knowwhat is. The trustie,working for the City, became the de facto agent of the City, and his knowledge

was properly chargeable to the City. The trustie should have foreseen that the deceased planned to either harm someone else or himself. The aid of the trustie having been enlisted and having granted him special privileges in exchange for this aid, the City cannot now disavow that he

was its agent. I stress,however, that even if the trustie did not know the deceased had possession of the knife,an attempted suicideby one undergoing involuntarydetoxification,

was a forseeable event. We next get to the question of whether the deceased

was responsible for his own act of suicide, thereby exonerating the City. If we accept theproposition that the City owed deceased a duty under the "specialcircumstances"rule and further accept that the deceased's suicidewas foreseeable while confined in a detoxification center,then it would be ludicrous to hold that the City was exonerated simply because the deceased's intentional act intervened. At thevery least, it is a question of fact as towhether the deceased

was in sufficient control of his mind and faculties such

as to absolve the City of any responsibility forhis ultimate suicide.For the foregoing reasons, I would reverse the District Court and hold that summary judgment was improperly granted.