No. 90-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

FRANCES WOODS, 

Plaintiff and Appellant, 

VS. 

CITY OF BILLINGS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael G. Eiselein, Lynaugh, Firzgerald, 

Eiselein & Eakin, Billings, Montana 

For Respondent: 

Martha Sheehy, Moulton, Bellingham, Longo 

& Mather, Billings, Montana 

Submitted: January 31, 1991 

Decided: May, 8, 1991 

Filed: 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the 

Court. 

Plaintiff and appellant, Frances Woods, appeals from an order 

of the District Court of the Thirteenth Judicial District, 

Yellowstone County, granting summary judgment to defendant and 

respondent, City of Billings. We reverse. 

The dispositive issue on appeal is whether the City of 

Billings is immune from suits arising out of the alleged negligent 

omissions of employees of the City's executive branch under the 

charter form of government. 

On August 4, 1989, plaintiff filed a negligence action against 

the city, alleging that she sustained injuries when she tripped on 

a cracked, crumbled, and partially eroded sidewalk located at 709 

North 23d Street in Billings. She contended that the City had a 

duty to maintain the sidewalk in a reasonably safe condition and 

that the City's failure to do so caused her injuries. 

The City moved to dismiss the complaint, or, in the 

alternative, for summary judgment, asserting that it was immune 

from suit. The District Court granted the summary judgment motion. 

Plaintiff appeals. 

A governmental entity is immune from suits for acts or 

omissions of (1) its legislative body; or (2) a member, officer, 

or agent of the legislative body. Section 2-9-111, MCA, which 

governs immunity, provides: 

(1) As used in this section: 
(a) the term I1governmental entity1' includes the state, 

counties, municipalities, and school districts; 

(b) the term I1legislative bodyn includes the legislature 

vested with legislative power by Article V of The 

Constitution of the State of Montana and any local 

governmental entity given legislative powers by statute, 

including school boards. 

(2) A governmental entity is immune from suit for an 

act or omission of its legislative body or a member, 

officer, or agent thereof. 

(3) A member, officer, or agent of a legislative body 

is immune from suit for damages arising from the lawful 

discharge of an official duty associated with the 

introduction or consideration 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. 

Municipalities are included in the definition of I1governmental 

entityH in subsection (I) (a) of the statute. Therefore, neither 

disputes that the City of Billings, a municipality, 

governmental entity. Plaintiff argues, however, that the immunity 

granted the City under !j 2-9-111, MCA, does not apply in this case 

because the City Charter establishes distinct branches of City 

government and the acts that caused her damages do not implicate 

the City's legislative body or legislative powers. For the reasons 

stated below, we agree. 

The power to maintain and repair sidewalks is given to city 

councils by statute. Section 7-14-4122, MCA, provides in pertinent 

part : 

(1) The city or town council has power to regulate and 

provide for the construction or repair of sidewalks, foot 

pavements, curbs, gutters, or any combination thereof. 
(2) If the owner of any lot fails to comply with the 

provisions of the ordinance within such time as may be 

prescribed thereby, the council may contract for the 

construction and repair of such sidewalks, pavements, 

curbs, gutters, or any combination thereof and the city 

or town may pay for the same. 

This statute was enacted prior to the adoption of the 1972 

Constitution of the State of Montana. The 1972 constitution 

authorized the city charter form of government. Mont. Const. art. 

XI, 5 5(1). Pursuant to this constitutional authorization, the 

legislature enacted $5 7-3-701 through -709, MCA, which outline 

the framework for charter forms of government. The statutes 

provide that a local government unit with the charter form of 

government possesses self-governing powers. Section 7-3-702, MCA. 

They further provide that provisions in the charter "establishing 

executive, legislative, and administrative structure and 

organization are superior to statutory provisions." Section 7-3- 

701(2), MCA (emphasis added). 

In 1976, the City of Billings adopted a governmental charter. 

As we noted in Irion v. Peterson, - P.2d. -1 , 48 St.Rep. 

258, 260 (Mont. 1991) , the Charter creates distinct legislative and 

executive branches of the City government. It establishes an 

elected legislative branch consisting of the City Council and the 

Mayor. city of Billings Charter art. 111, 5 3.01. It also 

establishes a separate executive branch headed by the City 

Administrator, who is appointed by the City Council. Charter 

art. IV, 5 4.01. 
The executive branch possesses no legislative authority. 

Instead, the City Administrator, among other things, enforces 

ordinances and manages City agencies and departments. 

Specifically, the Administrator retains the following powers and 

duties: 

A. carry out policies established by the City Council; 

B. perform the duties required bv law, ordinance, 

resolution, or this charter; 

C. enforce laws, ordinances, and resolutions; 

D. administer the affairs of the city; 

E. direct, orqanize, establish, supervise, and 

administer all departments, aqencies, and offices of the 

city; 

F. appoint, suspend, and remove all emplovees of the 

local qovernment; 

G. prepare and present the city budget to the Council 

for its approval and administer the budget adopted by the 

Council ; 

H. report publicly to the Council at least quarterly on 

the financial conditions of the city; 

I. recommend measures to the Council; 

J. report to the Council as the Council may require; 

K. attend Council meetings and take part in the 

discussion, but shall have no vote; 

L. appoint with the approval of the City Council a 

qualified acting administrator to exercise the powers and 

perform the duties of the Administrator during temporary 

absences. 

Charter art. IV, 5 4.03 (emphasis added). 
The city has enacted an ordinance that requires it to cause 

sidewalk repairs to be made or to repair defective sidewalks 

itself: 

Whenever the public's convenience or safety requires any 

sidewalk, in case of injury or defect, to be repaired by 

the owner or her agent, the City shall, if the same is 

not immediately repaired by the owner or his agent after 

three (3) days notice, served upon such owner or agent, . . . proceed to repair the same. 

Billings Code 5 13.08.140. 

Although 5 7-14-4122(2), MCA, gives the City Council the 

authority to repair sidewalks, the Charter vests the City 

Administrator with the power to enforce ordinances. Charter art. 

IV, § 4.03 (C) . The Charter also compels the City Administrator to 

direct the appropriate department, agency, or office to perform the 

duties required by the ordinance. Charter art. IV, 4.03(B) 

and (E). The Charter's delegation of the responsibility for 

sidewalk repairs to the City Administrator is superior to the 

statute's ability to grant the power for such repairs to the City 

Council. Section 7-3-701(2), MCA. Consequently, the responsibility for sidewalk repair lies with the executive branch and does 

not implicate any act or omission of the City's legislative body. 

The City Administrator, as head of the executive branch, is 

not an agent of the City Council. Irion, - P.2d at - I 48 

St.Rep. at 260. Furthermore, the City Administrator, rather than 

the City Council, possesses the power to supervise and administer 

all departments, agencies, and offices of the City, and to appoint, 

suspend, and remove all City employees. Charter art. IV, 3 4.03 (E) 
and (F). The Charter explicitly prohibits the legislative branch 

from interfering in the City's administrative affairs: 

Except for the purposes of inquiries and investigations, 

the Council, its members and the Mayor shall deal with 

the city officers and employees who are subject to the 

direction and supervision of the City Administrator 

solely through the City Administrator. Neither the 

Council, its members, nor the Mayor shall give orders to 

any city officer or employee either publicly or 

privately. 

Charter art 111, 5 3.08. 

Thus, the City employees are agents of the executive branch 

of government and any acts or omissions of these employees do not 

involve the City's legislative branch. 

In conclusion, although 5 7-14-4122, MCA, gives city councils 

the power to regulate and repair sidewalks, the statute is 

inapplicable where, as here, the city has adopted a charter that 

provides for separate branches of government and delegates 

different responsibilities to each branch. The Charter of the City 

of Billings vests the executive branch with the power to enforce 

the ordinance pertaining to sidewalk repair. Charter art. IV, 

5 4.03 (C) . Any negligent acts or omissions connected with the 

maintenance of sidewalks therefore must be attributed to the 

executive branch of the City government. Neither the City's 

legislative body nor its agents are implicated by the executive's 

failure to repair the sidewalks. Accordingly, the City is not 

immune from suit for the negligent maintenance of the city sidewalk 

as alleged in this case. 
Reversed and remanded for further proceedings consistent with 

this Opinion. 

&&&A& 

Justice