No. 92-057 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

RHONDA DRUGGE, Individually, 

and as Personal Representative 

of the ESTATE OF TED E. DRUGGE, 

Plaintiff and Appellant, 

THE STATE OF MONTANA, and THE CITY 

OF HAVRE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James M. Regnier, Attorney at Law, Missoula, Montana 

For Respondents: 

Ann Brodsky, Special Assistant Attorney General, 

Risk Management & Tort Defense Division, Dept. of 

Administration, Helena, Montana (State) 

I. James Heckathorn, Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana (State) 

Allen Page Lanning, Conklin, Nybo, LeVeque & Murphy, 

Great Falls, Montana (City of Havre) 

Submitted on Briefs: July 23, 1992 

Decided: September 1, 1992 

Filed: 

- 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the First Judicial District Court, 

Lewis and Clark County. Appellant Rhonda Drugge (Drugge) filed a 

complaint against the State of Montana (the State) in her 

individual capacity and as personal representative of the estate of 

her deceased husband, Ted E. Drugge, who died June 24, 1986, in a 

boating accident on the Milk River near Havre, Montana. 

Ted Drugge and his brother Don drowned when their craft went 

over a weir west of the city of Havre, Montana. After discovery, 

the State filed a motion for summary judgment, and on April 3, 

1991, the District Court granted its motion in part, holding that 

the State owed no duty to warn the decedent, Ted Drugge, of the 

hazard which caused his death. The court's order provided that 

there remained an issue of fact regarding the navigability of the 

Milk River, and if it was determined that the Milk River was 

navigable, then the State would own the stream bed and consequently 

the weir itself. In that instance, the State would have the duties 

associated with the ownership of the real property. However, this 

issue was ultimately decided in the State's favor and a final 

judgment was entered on December 16, 1991. 

Drugge appeals only that part of the District Court's order of 

April 3, 1991, which held that the State owed no duty to her 

decedent as a matter of law. Drugge is not appealing the court's 

order concerning the issue of navigability. 

We review the following dispositive issue: Whether the 

District Court properly held, as a matter of law, that the State of 

2 
Montana owed no duty based on tort law principles to warn Ted 

Drugge of the dangers posed by the Havre City weir when floating 

the Milk River. 

We note prior to our discussion of this case against the State 

of Montana that the City of Havre, Montana, upon whose property the 

weir is located, settled the suit with Drugge prior to this action 

against the State. 

A summary of the facts indicates that on June 24, 1986, Ted 

and Donald Drugge and Glenda Erickson began a boat trip down the 

Milk River commencing just below the Fresno Dam. After 

approximately eight hours of floating, the party approached the 

Havre City weir, located nearly eighteen river miles downstream 

from the Fresno Dam. The Havre City weir is a diversion dam owned 

and operated by the City of Havre and located entirely on City 

property. The floating party went over the weir; Glenda Erickson 

survived while Ted and Donald Drugge drowned. 

The Havre City weir was not navigable, as the party found out, 

and would have required a portage to get around. According to the 

record, at the time of the accident there had been no prior 

drownings caused by the Havre City weir, nor had the State or the 

City of Havre posted warning signs along the river denoting the 

dangers of going over the weir. 

During the course of the trial, Drugge set forth selective 

portions of the depositions of certain employees of the Montana 

Department of Fish, Wildlife and Parks (FW&P) containing opinion 

testimony as to the State's duty to warn in this case. 
Drugge argued that the State of Montana owed a duty to 

floaters, In the course of the trial, as previously noted, some of 

the State's employees, through depositions, indicated that the weir 

in question was very dangerous and many of those persons recognized 

that it would have been a good idea for someone to erect warning 

signs concerning the weir. Additionally, Drugge noted that the 

State of Montana had adopted a uniform state waterways marking 

system. Further, Drugge cites 5 23-2-501, MCA, which declared that 

it is the policy of the State of Montana to promote safety for the 

persons operating vessels in Montana waters. 

In response to this argument the State noted that Drugge did 

not cite to the Court any case imposing a duty an a government 

entity for failure to warn of the existence of a dangerous 

condition such as the Havre weir. Further, the District Court 

found that 8 23-2-501, MCA, did not give rise to any duty on the 

part of the State of Montana. In addition, the court found no 

case law for the proposition that under 5 23-2-501, MCA, a duty 

arose on the part of the State to post warning signs as suggested 

by Drugge. 

Under 5 2-9-101 (1) , MCA, state liability attaches under the 

Tort Claims Act only where a private person similarly would be 

liable. Here the property where the weir is located was owned by 

the City of Havre, not the State of Montana. 

Drugge seeks to impose tort Liability on the State based upon 

the State's ownership of the waters within the state. We find no 

authority for the proposition under Article IX, Section 3 (3) of the 
Montana Constitution, vesting the State with ownership of the 

waters within state boundaries, that creates a duty on the part of 

the State based on liability or other tort law to warn of hazards 

on rivers. 

While the FW&P is authorized to regulate the waters to ensure 

boating safety, here the question is whether, under its statutory 

power to regulate the State waters for boating, a legal duty in 

tort arose to warn or to close rivers to boating where a hazard 

might exist. 

After examining this issue, the court found that notwithstanding the existence of § 23-2-501, MCA, expressing the ll. . . 

policy of the state to promote safety . . . connected with the use 

. . . of vessels . . . " the State owed no duty to ensure safety on 

State water courses. Section 23-2-501, MCA, the statute relied 

upon by the appellant, has little to do with requiring the State to 

warn of river hazards. This statute is directed toward boating 

safety and specific boating requirements under Title 23, Chapter 2, 

Part 5, MCA, which covers Licensing, display of decals, equipment, 

discharge of waste from vessels, boating while under the influence 

of alcohol or drugs, overloading boats, and water skiing, 

This is not to say that as to recreationalists who are injured 

by an obstruction placed across a waterway by a landowner, the 

landowner may not be liable under a Montana stream access law for 

willful or wanton misconduct. See 8 23-2-321, MCA. The remedy, as 

Drugge properly found, is to bring suit against the landowner. She 
did that when she sued the City of Havre and settled with the City 

prior to filing her complaint against the State of Montana. 

The court granted summary judgment to the effect that the 

State of Montana had no duty under the facts of this case to warn 

the Drugge brothers about the Havre weir. 

We affirm the granting of summary judgment and the court's 

finding of no duty to warn of the existence of the weir. 

Justices 
September 1, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

JAMES M. REGNIER 

Attorney at Law 

P.O. Box 9108 

Missoula, MT 59807 

Ann Brodsky 

Special Assistant Attorney General 

Risk Management ant Tort Defense Division 

Mitchell Bldg., Rm. 111 

Helena, MT 59620 

Allen Page Lanning 

CONKLIN, NYBO, LeVEQUE & MURPHEY, P.C. 

P.O. Box 2049 

Great Falls, MT 59403 

I. JAMES HECKATHORN 

Attorney at Law 

P.O. Box 759 

Kalispell, MT 59903-0759 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF-;MONTANA , .