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: District Court 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 1 ' 1979 

. - Filed: - -- 

: .fig 2 
Mr. Justice John C. Sheehy delivered the Opinion of 

the Court. 

On the afternoon of September 18, 1973, Hardin 

City patrolman Harvey Kern observed three men sitting 

in a truck behind the Big Horn Bar in Hardin, Montana. 

They were passing a bottle from one person to another. 

Patrolman Kern watched the men for approximately fifteen 

minutes before one of the men got out of the truck and 

left the scene. The patrolman then approached the vehicle 

and informed the occupants of the city ordinance which 

prohibited public possession of an open bottle containing 

an alcoholic beverage. After informing the men of their 

rights, patrolman Kern arrested them and took them to 

the Hardin City Jail where they were searched and incarcerated. 

One of the men was Melvin Pretty On Top, a Native 

American. He had been arrested numerous times in the past 

for alcohol-use offenses. On this occasion it appeared to 

the patrolman that Pretty On Top had been drinking, but 

that he was in control of his body. He did not stagger 

and he was coherent. 

On the morning after his arrest, Pretty On Top 

pleaded guilty to the open-bottle charge. The Police Court 

imposed a $100 fine. Because Pretty On Top was unable to 

pay the fine, he was returned to the jail to serve time 

at a rate of $10 per day. 

The Hardin 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 percent were jailed on alcohol-use 
offenses. Of these offenders,95 percent 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 security maintained 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., four days 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 (a prisoner 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 activities were normal. 

Pretty On Top did not have a history of mental disease or 

emotional disturbances, nor had he attempted suicide 

previously. 

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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's death 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, defendants moved for summary 

judgment, stating: 

"The City of Hardin and Robert Hamilton 

submit that the undisputed facts do 

not support any theory of liability and 

therefore they are entitled to judgment 

as a matter 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 suicide of Melvin Pretty On Top 

was not foreseeable by any defendant. 

"3. The suicide of Melvin 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 

judgment was 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 is proper. 

A party against whom 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 shall be rendered 

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any 

affidavits, shcw that there is no 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 

of material fact and the party opposing the motion must 

come forward with evidence supporting the existence of 

a genuine fact issue. Hollinger v. McMichael (1978), 

Mon t . , 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, defendants do not 

dispute the material facts found in the court's file. 

Those material 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), 128 Mont. 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 care must be exercised for the life and health of 

the prisoner. Porter v. County of Cook (1976), 42 Ill. 

App.3d 287, 355 N.E.2d 561; see also: 79 A.L.R.3d 1210; 

60 Arn.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 him medical 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 [citation omitted.] Absent some 

possible special circumstances a jailer is under no duty to 

prevent the latter from taking his own life." Lucas v. 

City of Long Beach (1976), 60 Cal.App.3d 341, 131 Cal.Rptr. 

470. 

"Special circumstances" 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 plaintiff was then placed in an isolated cell where he 

began hearing voices that threatened him. He yelled for 

the guards to come to his aid and for medication. None 

came. The voices kept getting worse and worse. In an 

attempt to drive the voices away, the plaintiff set his 

mattress on fire. Soon his hair caught on fire and he 

started screaming. A guard from two tiers above his cell 

rescued him, but not before he had suffered severe burns 

on his face and hands. The Appellate Court of Illinois 

upheld the trial court's factual determination that the 

county, which was obligated to provide reasonable care for 

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its prisoners, did not do so when its employees failed to 

strip the defendant, take away his personal effects, and 

protect him from harming himself. 

In the above-discussed case the defendant knew 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 prisoners with suicidal histories. 

For example, numerous courts have held the jailer responsible for the prisoner's actions when the prisoner 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 for physical or 

mental effort are: Thomas v. Williams (1962), 105 Ga.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. (1965 La.App. ) , 173 So.2d 392. 

Finally, a case arising in the neighboring state 

of North Dakota provides a clear insight into the problem. 

In Falkenstein v. City of Bismarck (N.D. 1978), 268 N.W. 

2d 787, the decedent was placed in a cell known as "the 

hole" following an incident in which he "foulmouthed" a 

police officer. The next morning the decedent was 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 

"the hole" for an extended period of time. 

The North Dakota Supreme Court noted that, "[Iln 

most situations a death by suicide is not an actionable 

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event because, even though there may 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 suicide of a prisoner 

unless "special circumstances" are offered which elevate 

the jailer's duty of care and tend to prove that the 

jailer's acts or omissions constituted the proximate cause 

of the suicide, rather than the prisoner's own intentional 

conduct. The jailer is not an insurer of the safety of 

its prisoners. However, once the jailer knows or should 

know of the suicidal tendencies of a prisoner, a duty arises 

to provide reasonable care necessary to prevent the prisoner 

from committing suicide. The rule applies whether the 

prisoner is mentally anguished, helplessly intoxicated, 

or temporarily insane because of conditions forced upon 

him by the jailer. 

Melvin Pretty On Top committed suicide four days 

after being incarcerated in the Hardin City Jail. He 

did not have a history of mental disease or emotional 

disturbances, nor had he attempted suicide previously. 

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 from delerium 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), 106 Ariz. 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: 

". . . [Ulnder the 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 structure produced 

or contributed to a morbid state of mind 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 

security policy made it possible for Pretty On Top to take 

his own life is insufficient. Defendants were required to 

exercise reasonable and 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 of Melvin 

Pretty On Top. Without a showing of "special circumstances" 

which would elevate the defendants' duty of care and thereby 

create the possibility that defendants' acts were the 

proximate cause of the death, the District Court was required 

to follow the general rule that suicide is an intentional 

act and grant defendants' motion for sumary judgment. 

Affirmed . 

Justice v 
We Concur: 

-----------,--------------

Justices 

Justice Daniel J. Shea will 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. Shea dissenting: 

I would reverse the summary judgment and send the 

case back for trial. There are genuine factual issues 

involved which must be tried by a jury. This case, contrary to the conclusion of the majority, 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 

which we must measure duty, foreseeability, and efficient 

intervening cause. 

The nature of the duty owed to the deceased depends, 

of course, on the nature of his incarceration. Here the 

purported legal reason why the city judge ordered the deceased 

to jail is because he had violated the open container law 

and could not pay the fine imposed. Consequently, he was 

ordered to work off the $100 fine in jail, with credit 

allowed at a rate of $10 per day. The actual reason, however, 

for the deceased's incarceration was that he was a chronic 

abuser of alcohol and in the wisdom of the City, he needed 

detoxification. As the majority has recognized, the deceased 

was no stranger to the City jail, having been there many, 

many times before for primary alcohol-related offenses. 

The majority expressed the true nature of the City jail in 

the following manner: 

"The Hardin ---- 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 - percent were jiiied on alcohol-use offenses. 

Of these offenders, 95 percent - of those jailed 

were Native Americans. . . " (Emphasis added. ) 

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 to pay 

off the fine at the rate of $10 per 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 to pay 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), 401 U.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 jail was that the City in its wisdom, 

determined that he needed detoxification due to his chronic 

abuse of alcohol. As the majority has noted, for at least 

a year immediately preceding 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 occupants of 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 know of the deceased's particular propensities 

to attempt suicide. The City is charged with the general 

knowledge that 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 

process may develop extreme psychosis, delirium tremens, 

and is certainly more likely to attempt suicide than the 

prisoner without this problem. The City is charged with 

this knowledge because it openly and avowedly ran the 

jail as a detoxification center. It was not therefore 

required that the City have specific knowledge that the 

deceased was 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 alcohol may attempt suicide. It was 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 these preventative measures, the City could 

not prevent an inmate from either harming another or harming 

himself. The facts here 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 instruments were coming into the 

jail. This is hardly the way to run a detoxification 

center. 

The majority 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 all unreasonable to conclude that a weapon finding its 

way into a jail is either for the purpose of effectuating 

an escape, harming another, or harming oneself. That a 

chronic alcoholic may 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 knife but 

failed to notify anyone of this potentially dangerous 

situation. The trustie received a $5.00 credit each day 

for performing the duties of janitorial work 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 know what 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 suicide by one undergoing involuntary detoxification, 

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 the proposition that the City owed 

deceased a duty under the "special circumstances" rule and 

further accept that the deceased's suicide was 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 the very 

least, it is a question of fact as to whether the deceased 

was in sufficient control of his mind and faculties such 

as to absolve the City of any responsibility for his ultimate 

suicide. 
For the foregoing reasons, I would reverse the 

District Court and hold that summary judgment was improperly 

granted.