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 JeffreyM. Sherlock,Judgepresiding.

COUNSEL OF RECORD: For Appellant: JamesM. Regnier,Attorney atLaw,Missoula,Montana For Respondents: Ann Brodsky, Special Assistant Attorney General, Risk Management & Tort Defense Division, Dept. of Administration, Helena, Montana (State) I. JamesHeckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Montana (State) Allen PageLanning, 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 capacityand aspersonal 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 Statewould own the streambed and consequently the weir itself. In that instance, the Statewould have the duties associatedwith 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 appealsonly that part of the DistrictCourt'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 Courtproperly held, as a matter of law, that the Stateof 2Montana 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 noteprior to our discussionof this case against the State of Montana that the City of Havre,Montana, upon whose property the weir is located, settled the suitwith 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. TheHavre City weir wasnot navigable,as theparty 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,aspreviously noted, some of theState'semployees, through depositions,indicated thattheweir in question was very dangerous andmany 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 theproposition underArticle IX,Section 3(3) of theMontana Constitution, vesting the State with ownership of the waters within stateboundaries, 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&Pis 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 topromote 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 dowith requiring the State to

warn of river hazards. This statute is directed toward boating safety and specificboating requirementsunder Title 23, Chapter 2, Part 5,MCA, which 

### covers Licensing,display of decals, equipment, discharge 

### of waste 

### fromvessels, boating while under the influence of alcohol or drugs, overloading boats, and water skiing, This is not to say that as to recreationalistswho are injured by an obstruction placed across a waterway by a landowner, the landownermay not be liable under a Montana stream access law for willful 

### or wantonmisconduct. See 8 23-2-321, MCA. The remedy, as Druggeproperly found, is to bring suit against the landowner. Shedid 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.

JusticesSeptember 1, 1992 CERTIFICATEOFSERVICE I herebycertifythat the followingorderwas sentby United Statesmail,prepaid, to the followingnamed:

JAMESM.REGNIER AttorneyatLaw P.O. Box9108 Missoula, MT 59807 Ann Brodsky Special AssistantAttorneyGeneral RiskManagementantTortDefenseDivision MitchellBldg., Rm. 111 Helena,MT 59620 AllenPageLanning CONKLIN,NYBO,LeVEQUE &MURPHEY,P.C. P.O. Box2049 GreatFalls, 

### MT 59403 

### I.JAMES HECKATHORN AttorneyatLaw P.O. Box759 Kalispell,MT59903-0759 EDSMITH CLERKOFTHESUPREME COURT STATEOF-;MONTANA 

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