No. 96-026 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

JAMES B. TRANKEL. 

Plaintiff and Appellant, 

v. 

STATE OF MONTANA, DEPARTMENT OF 

MILITARY AFFAIRS, MONTANA ARMY 

NATIONAL GUARD, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Erik B. Thueson and James T. Towe (argued); 

Thueson & Lamb; Helena, Montana 

For Respondents: 

Hon. Joseph P. Mazurek; Attorney General; James M. Scheier and 

Thomas G. Bowe (argued); Assistant Attorneys General; 

Agency Legal Services; Helena, Montana 

William Gianoulias; Risk Management and Tort Division; 

State of Montana; Helena, Montana 

LTC Mike T. McCabe; Staff Judge Advocate; 

Helena, Montana (for Montana National Guard) 

Filed: 

Submitted: October 22, 1996 

Decided: April 30, 1997 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiff, James B. Trankel, commenced this action in the District Court for the 

First Judicial District in Lewis and Clark County to recover damages for personal injuries 

sustained while working on property owned and controlled by the defendant, State of 

Montana, through its Department of Military Affairs. The State moved to dismiss Trankel’s 

complaint pursuant to Rule 12(b)(6), M.R.Civ.P. After considering the arguments of the 

parties, the District Court concluded that Trankel’s claim was barred by the U.S. Supreme 

Court’s decision in Feres v. United States (1950), 340 U.S. 135, and our prior decision in 

Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. The District 

Court granted the State’s motion to dismiss. Trankel appeals from the District Court’s order 

granting the State’s motion. We reverse the judgment of the District Court. 

Trankel raises the following issues on appeal: 

1. Can a person who is allegedly injured by the negligence of the State of 

Montana, acting through its Department of Military Affairs, while in the course of his 

employment with the United States Army, sue the State of Montana to recover damages for 

those injuries? 

2. Did the District Court err when it concluded that the plaintiffs allegations of 

statutory violations failed to state a claim? 

2 
STANDARD OF REVIEW 

The District Court dismissed Trankel’s claim pursuant to Rule 12(b)(6), M.R.Civ.P., 

based on the court’s conclusion that it failed to state a claim for which relief could be granted. 

A complaint should not be dismissed for failure to state a claim unless 

it appears beyond doubt that the plaintiff can prove no set of facts in support 

of his claim which would entitle him to relief. Lockwood v. W.R. Grace & Co. 

(1995), 272 Mont. 202, 207, 900 P.2d 314, 317. 

A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the 

effect of admitting all well-pleaded allegations in the complaint. 

In considering the motion, the complaint is construed in the light 

most favorable to the plaintiff, and all allegations of fact 

contained therein are taken as true. 

Lockwood, [272 Mont. at 207,] 900 P.2d at 3 17 (quoting Boreen v. Christensen 

(1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a 

complaint fails to state a claim upon which relief can be granted is a 

conclusion of law. We review a district court’s conclusions of law to 

determine whether the court’s interpretation of the law is correct. Lockwood, 

[272 Mont. at 207,] 900 P.2d at 3 17. 

Common Cause ofMontana v. Argenbright (1996), 276 Mont. 382,386,917 P.2d 425,427. 

FACTUAL BACKGROUND 

The following facts were alleged in the plaintiffs complaint. For the reasons set forth 

above, we assume that they are true for the purpose of reviewing the plaintiffs appeal. 

The Army National Guard of the State of Montana operates under the supervision and 

direction of the Department of Military Affairs for the State of Montana which is established 

pursuant to Titles 2 and 10 of the Montana Code Annotated. 

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James B. Trankel enlisted in the Montana Army National Guard on March 28, 199 1. 

However, in 1992, after assuming full-time employment in the Guard, he was called to active 

duty in the United States Army pursuant to Title 10 of the United States Code. 

In early 1992, the Guard began a program known as Southwest Asia Vehicle Rebuild 

Program (SWAREB), the function of which was to repair and rebuild vehicles that had been 

damaged in the Gulf War and then distribute them for use to National Guard units, including 

Montana’s unit. That program was based out of facilities at Fort Harrison in Montana. In 

October 1992, while still in full-time service to the United States Army, Trankel was 

assigned to that section of the SWAREB program responsible for body repair and 

undercoating of vehicles. He performed his duties in a building located at Fort Harrison and 

designated as the paint and body shop. 

During the course of his duties, Trankel was required to work with and around toxic 

and hazardous materials and stand in a pit below the ground surface while spraying these 

materials on the undersides of vehicles. However, the facilities were not properly vented and 

he was not provided with adequate equipment, including respirators and proper clothing. 

Trankel became drenched with toxic chemicals and inhaled dangerous levels of toxic 

substances because the State failed to implement and enforce safe operating procedures. 

As a result of his exposure to toxic materials, Trankel has been treated for bronchitis 

and sinusitis, and has suffered permanent physical injuries, including injury to his brain and 

internal organs. He contended that his injuries were a result of the State’s negligent failure 

4 
to implement safe operating procedures for the SWARBB activities that were performed on 

its premises. 

Trankel also contended, in Counts II, III, and IV of his complaint, that the State 

violated the Occupational Health Act of Montana found at $5 50-70-l 01 to -118, MCA; the 

Montana Safety Act found at $5 50-71-101 to -334, MCA; and the Employee and 

Community Hazardous Chemical Information Act found at §$ 50-78-101 to -402, MCA. 

The State moved to dismiss Trankel’s complaint pursuant to Rule 12(b)(6), 

M.R.Civ.P., based on its contention that his claim was barred as a matter of law by the U.S. 

Supreme Court’s decision in Feres v. United Stutex (1950), 340 U.S. 135, and our prior 

decision in Evans v. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160. It was 

and is the State’s position that the Feves doctrine bars claims which arise from activities 

“incident to military service” regardless of the substantive law upon which the claim is based, 

the status of the plaintiff at the time he is injured, or the status of the party against whom the 

claim is made. In addition, it is the defendant’s contention that the acts upon which Counts 

II, III, and IV were based do not provide private causes of action, but can be enforced only 

by means of the administrative remedies provided for in those Acts. 

The District Court agreed with the State. It held that because Trankel’s injuries were 

incident to his service in the National Guard, it is immaterial whether he was serving in a 

state or federal status at the time of his injuries, and therefore, that his claims were barred by 

the prior decisions in Feres and Evans. It also concluded that the Acts relied on in Counts II, 

III, and IV do not create private causes of action for recovery of damages, but instead must 

5 
be enforced by the various agencies to whom responsibility is given within the Acts. 

Trankel’s complaint was, therefore, dismissed with prejudice and judgment was entered for 

the State of Montana. 

ISSUE 1 

Can a person who is allegedly injured by the negligence of the State of Montana, 

acting through its Department of Military Affairs, while in the course of his employment 

with the United States Army, sue the State of Montana to recover damages for those injuries? 

Essential to an understanding of Trankel’s employment status at the time of his injury 

is an understanding of the statutory framework pursuant to which members of the United 

States Army Reserve forces are required to serve. 

The “Army National Guard” refers to the organized militia of the several states. 

32 U.S.C. 3 lOl(4) (1994). The “Army National Guard of the United States” is a reserve 

component of the United States Army. However, its members are required to be members 

ofthe “Army National Guard.” 32 U.S.C. 5 lOl(5) (1994). 

The President of the United States may call into “Federal service” members of the 

Army National Guard of any state when he deems it necessary and it is appropriate, based 

on circumstances provided by law. 10 U.S.C. 5 12406 (1994). 

However, when a member of the “Army National Guard” is ordered to active federal 

duty, he or she is relieved from duty in the National Guard of his or her state, from the 

effective date of the order to active duty in the federal military. 32 U.S.C. § 325 (1994). 

Members of the “Army National Guard of the United States” who have been ordered to 

6 
active duty become reserves of the Army, 10 U.S.C. 5 12403 (1994), and are, thereafter, 

subject to the laws and regulations governing the United States Army. 10 U.S.C. 5 12405 

(1994). 

The practical effect of this statutory framework was explained by the U.S. Supreme 

Court in Perpich v. Department of Defense (1990), 496 U.S. 334. There, the Court stated 

that: 

Thus, under the “dual enlistment” provisions of the statute that have been in 

effect since 1933, a member of the Guard who is ordered to active duty in the 

federal service is thereby relieved of his or her status in the State Guard for the 

entire period of federal service. 

The unchallenged validity of the dual enlistment system means that 

members of the National Guard of Minnesota who are ordered into federal 

service with the National Guard of the United States lose their status as 

members of the state militia during their period of active duty. If that duty is 

a training mission, the training is performed by the Army in which the trainee 

is serving, not by the militia from which the member has been temporarily 

disassociated. “Each member of the Army National Guard of the United States 

or the Air National Guard of the United States who is ordered to active duty 

is relieved from duty in the National Guard of his State or Territory, or of 

Puerto Rico or the District Columbia, as the case may be, from the effective 

date of his order to active duty until he is relieved from that duty.” 32 U.S.C. 

3 325(a). 

[T]he state affiliation is suspended in favor of an entirely federal 

affiliation during the period of active duty. 

Perpich, 496 U.S. at 346-49. 
We acknowledged the decision in Perpich and the distinction between federal and 

state status of National Guard members in Grove v. Montana Amy National Guard (1994), 

264 Mont. 498,501-02,872 P.2d 791,793, and Evans v. Montana National Guard (1986), 

223 Mont. 482,483-84,726 P.2d 1160, 1161. 

Therefore, based on the facts assumed to be true in this case, Trankel, at the times 

relevant to his claim, had no formal affiliation with the Army National Guard for the State 

of Montana. He was employed by and acting entirely within the scope of his duties for the 

United States Army. It is, therefore, in that status that we must review the authorities relied 

upon by the parties and the District Court. 

The State contends that members of the federal military cannot bring suit against other 

soldiers or military organizations for service-related injuries, based on Feres, 340 U.S. 135. 

It contends that this rule applies regardless of the identity of the tort-feasor, pursuant to 

United States v. Johnson (1987), 48 1 U.S. 68 1; that it applies even though the claim may be 

based on state law, pursuant to Stauber v, Cline (9th Cir. 1988), 837 F.2d 395, cert. denied 

(1988), 488 U.S. 817; and that we have held that the Fel-es doctrine bars claims against the 

National Guard for injuries incident to military service in Evans, 223 Mont. 482, 726 P.2d 

1160. The District Court agreed. 

Trankel, on the other hand, contends that Feres and Johnson are not applicable to this 

case because they are based on claims made pursuant to the Federal Tort Claims Act at 

28 U.S.C. $3 1346(b), 2671 - 80 (1994); St au b ey is not applicable because it was not based 

on and did not include an analysis of Montana law; and Evans was wrongly decided and 

8 
should be reversed. Trankel further contends that sovereign immunity was abolished in 

Montana in 1972 pursuant to Article II, Section 16, of the Montana Constitution, and that the 

Legislature has not seen tit to extend immunity under these circumstances. Trankel further 

contends that § 10-l-104, MCA, which makes federal laws and regulations applicable to 

Guard members, provides an exception where those laws or regulations are inconsistent with 

Montana’s Constitution. 

For purposes of oral argument, and consideration on appeal by this Court, this case 

was combined with Dorothy J Lake, et al. v. State of Montana, Supreme Court Cause 

No. 96-095, which involves the same issue and the same defendant acting in the same 

capacity. The plaintiff in that case also contends that to bar a claim against the State for 

injuries sustained during the course of employment by a person who was not, at the time of 

injury, employed by the State, would violate Article II, Section 16, of the Montana 

Constitution. 

We first consider the applicability of the federal authorities relied on by the State. All 

other federal authorities are affirming of Feres. In Feres, the plaintiffs decedent was on 

active duty in the military service of the United States when he died from injuries caused by 

fire in his barracks. The plaintiff alleged, pursuant to the Federal Tort Claims Act found at 

28 U.S.C. $5 2671 to 2680, that the Army had negligently quartered Feres in barracks which 

it knew or should have known were unsafe. The U.S. Supreme Court framed the issue in 

Feves as follows: “The only issue of law raised is whether the Tort Claims Act extends its 

9 
remedy to one sustaining ‘incident to the service’ what under other circumstances would be 

an actionable wrong.” Feres, 340 U.S. at 138 

The Court in Feres referred to its task as one of “statutory construction” and 

ultimately concluded that since the Federal Tort Claims Act extended liability to the United 

States in the same manner that a private individual would be liable, and since there was no 

historical basis for imposing liability on a private individual for injuries to a member of the 

military, there could be no liability pursuant to the Tort Claims Act for injuries incident to 

military service. Feres, 340 U.S. at 141-42. In arriving at its conclusion, that Court took into 

consideration enactments of Congress which provided no-fault systems of compensation for 

members of the military who are injured or killed during the course of their service. The 

Court concluded: 

If Congress had contemplated that this Tort Act would be held to apply in 

cases of this kind, it is difficult to see why it should have omitted any 

provision to adjust these two types of remedy to each other. The absence of 

any such adjustment is persuasive that there was no awareness that the Act 

might be interpreted to permit recovery for injuries incident to military service. 

Feres, 340 U.S. at 144. 

We find the Feres decision inapplicable to the facts of this case for several reasons: 

(1) Trankel is not suing the United States for his injuries; (2) Trankel’s claim is not brought 

pursuant to the Federal Tort Claims Act; (3) the type of action brought by Trankel against 

the National Guard is the kind traditionally recognized by the common law in the State of 

Montana; and (4) although this case does not involve state workers’ compensation benefits, 

the Montana Legislature has specifically recognized that third-party claims may be made by 

10 
those who receive statutory benefits for injuries sustained during the course of their 

employment, and has enacted laws to adjust the two types of remedy to each other. See 

35 39-71-412 and -414, MCA. 

The State contends that the Feres doctrine applies to all claims made for injuries 

which are incidental to military service because the U.S. Supreme Court extended the 

doctrine to claims for subx’ogation by nonmilitary personnel in Stencel Aero Engineering 

Corp. v. United States (1977), 43 1 U.S. 666; to claims by military personnel who are off-duty 

at the time oftheir injury in United States v. Shearer (1985) 473 U.S. 52; and to claims by 

military servicemen against nonmilitary federal employees in United States v. Johnson 

(1987), 48 1 U.S. 68 1. However, regardless of the variation in the circumstances presented 

by each of the cited cases, each case was brought pursuant to the Federal Tort Claims Act 

and is part of the federal case law interpreting the scope of remedies provided for by that Act. 

None of the cited cases is relevant to this Court’s interpretation of the remedies provided for 

by state statutory and case law, and guaranteed by our state Constitution. 

Neither is the State’s reliance on Chappell v. Wallace (1983), 462 U.S. 296, and 

United States v. Stanley (1987), 483 U.S. 669, persuasive. Although the Feres doctrine was 

applied by the Supreme Court in those cases to claims which were not based on the Federal 

Tort Claims Act, they did involve claims by members of the United States military who 

alleged that their superiors had violated their constitutional rights and 42 U.S.C. 55 1985 and 

1983, respectively. It is the fnnction of the U.S. Supreme Court to define and limit the scope 

of rights afforded pursuant to those constitutional causes of action. However, those decisions 

11 
have little bearing on the scope of rights afforded under state law and guaranteed by our state 

Constitution. 

The State also relies on the Ninth Circuit in Stauber v. Cline (9th Cir. 1988) 837 F.2d 

395, cert. denied (1988), 488 U.S. 817. In that case, the plaintiff was employed by the 

federal government as a mechanic-technician, but like the plaintiff in this case, was also 

required to be a member of the National Guard as a condition of his employment pursuant 

to 32 U.S.C. $5 709(b), 709(e)(l) and (2) (1994). The individual defendants were members 

of the Army National Guard of Alaska who were superior in rank to the plaintiff. The 

defendants were sued for intentional infliction of emotional distress and libel. Stuuber, 837 

F.2d at 396. 

Stauber filed his action in state court. but it was removed to federal district court 

where it was tried before a jury which returned an award of damages in his favor. Following 

that verdict, pursuant to post-trial motions, the district court concluded that all of the parties 

were National Guardsmen under the direct command of the same U.S. Army lieutenant 

colonel; that plaintiffs work was incident to military service; and therefore, that his claim 

was barred by the Feres doctrine. Stuuber, 837 F.2d at 397. The Ninth Circuit affirmed, 

relying primarily on those federal decisions previously discussed which were based on 

federal statutory or common law. There is no mention in the Stauber case whether state or 

federal substantive law applied, and if the former, what was the substantive law in Alaska 

upon which the claim was based. Neither is there any analysis in the Stauber case regarding 

the applicability of the aforementioned federal authorities to a situation in which a party’s 

12 
claim is made against a non-federal party and based on state law. Therefore, we conclude 

that Stauber is not persuasive regarding Trankel’s rights which are asserted pursuant to 

Montana law and the Montana Constitution. 

Finally, the State contends, and the District Court agreed, that Trankel’s claim is 

barred as a matter of law pursuant to our prior decision in Evans v. Montana National Guard 

(1986), 223 Mont. 482,726 P.2d 1160. In Evans, the plaintiff was a member of the Montana 

Army National Guard who was injured while in State service while attempting to move a 

Coke machine from one part of a building to another. He sued the Guard for negligence, and 

his claim was dismissed by summary judgment. Evans, 223 Mont. at 483, 726 P.2d at 1161. 

We affirmed the District Court. However, our decision was based on our conclusion that 

5 2-9-102, MCA, of the State Tort Claims Act, did not authorize suits against the National 

Guard. Evans, 223 Mont. at 484, 726 P.2d at 1161. We held that that section authorized 

suits against “governmental entities” which were defined at $2-9-101(3), MCA, as “the state 

and political subdivisions as herein defined,” and that the National Guard was not included 

in the definition ofpolitical subdivisions found at 5 2-9-101(5), MCA. Evans, 223 Mont. at 

484, 726 P.2d at 116 1. We did not address why the National Guard or the Department of 

Military Affairs for the State of Montana, which was also named as a defendant, were not 

subject to liability pursuant to that part of 9 2-9-101(3), MCA, which defines “governmental 

entity” to include “the state.” 

The state is defined at § 2-9-101(7), MCA, as follows: “‘State’ means the state of 

Montana or any office, department, agency, authority, or other instrumentality thereof.” 

13 
“Agency” is defined at 5 2-15-102(2), MCA, to include any “department” or 

“instrumentality of the executive branch of state government,” and § 2-15-104(l)(b), MCA, 

lists the Department of Military Affairs as one of the constitutionally established departments 

or entities of the executive branch of government. Therefore, it is beyond question that the 

National Guard and Department of Military Affairs are governmental entities within the 

meaning of 5 2-9-101(3), MCA, and our conclusion to the contrary in Evans was erroneous. 

Therefore, to that extent, our decision in Evans is overruled. 

The State also cites Evans for the proposition that “[tlraditionally, the federal 

government and state governments have not been held liable in tort for injuries that rise ‘in 

the course of activity incident to service.“’ Evans, 223 Mont. at 485, 726 P.2d at 1161. 

However, that language from Evans is not precedent for the facts which gave rise to this case 

for several reasons. First, it was dicta following the actual basis for our decision which was 

that the National Guard was not covered by our State Tort Claims Act. Second, it was 

applied to the facts of that case which involved a member of the National Guard on active 

state duty suing his employer, in effect, for injuries he sustained during the course of his 

employment. Third, the constitutional basis on which we decide this case was neither raised 

in that case nor would it be applicable to the facts of that case. For these reasons, we 

conclude that Evans does not resolve the issue raised by this appeal. 

Trankel cites decisions from the State of Washington in Emsley v. Army National 

Guard (Wash. 1986), 722 P.2d 1299, and Kirtley v. State (Wash. Ct. App. 1987), 748 P.2d 

1128, in support of his right to maintain his cause of action in this case. While those cases 

14 
do appear on point, it is not necessary that we rely on authority from another jurisdiction for 

our decision. 

Trankel’s claim is brought in state court pursuant to the State Tort Claims Act and 

names the State of Montana as a defendant. The question with which we are presented is 

whether based on state law we would apply the Feves doctrine to Trankel’s claim simply 

because his injury was incident to military service, or whether we are precluded from doing 

so based on state law, and specifically, our state Constitution. We conclude that Article II, 

Section 16, of the Montana Constitution, precludes application of the Feves doctrine to the 

factors in this case. Article II, Section 16, provides as follows: 

Courts of justice shall be open to every person, and speedy remedy 

afforded for every injury of person, property, or character. No person shall be 

deprived of this full legal redress for iniurv incurred in employment for which 

another uerson mav be liable exceot as to fellow emulovees and his immediate 

emplover who hired him if such immediate emulover urovides coverage under 

the Workmen’s Comuensation Laws of this state. Right and justice shall be 

administered without sale, denial, or delay. 

(Emphasis added.) 

It is clear from the minutes of the Constitutional Convention that the second sentence 

of Section 16 was in response to our decision in Ashcruft v. Montana Power Co. (1971), 156 

Mont. 368,480 P.2d 812. In that case, the plaintiff was injured while working on behalf of 

his employer on property owned by the Montana Power Company. He sued the power 

company based on his allegation that its negligence caused his injury. Ashcmft, 156 Mont. 

at 369,480 P.2d 812-13. On appeal, this Court held that pursuant to 5 92-438, RCM (1947), 

the power company could not be sued because it had required the plaintiffs employer to 

15 
carry workers’ compensation coverage. Ashcraft, 156 Mont. at 371,480 P.2d at 813. The 

second sentence of Article II, Section 16, was a response to that decision based on the 

delegates’ intent that employees not be barred from third-party suits for injuries sustained 

during the course of their employment. The following minutes from the Constitutional 

Convention illustrate that point. 

In his report to the Convention as a whole, Delegate Murray, representing the Bill of 

Rights Committee which drafted Section 16, gave the following explanation for the second 

sentence of that section: 

Under Montana law, as announced in the recent decision of Ash&aft VEYSUS 

Montana Power Company, the employee has no redress against third parties 

for injuries caused by them if his immediate employer is covered under the 

Workmen’s Compensation law. The committee feels that this violates the 

spirit of the guarantee of a speedy remedy for all injuries of person, property 

or character. It is this specific denial, and this one only, that the committee 

intends to alter with the following additional wording: “No person shall be 

deprived of his full legal redress for injury incurred in employment for which 

another person may be liable except as to fellow employees and his immediate 

employer who hired him if such immediate employer provides coverage under 

the Workmen’s Compensation laws of this state.” In other words, the 

committee wants to insure that the Workmen’s Compensation laws of the state 

will be used for their original purpose--to provide compensation to injured 

workmen--rather than to deprive an injured worker of redress against negligent 

third parties, beyond his employer and fellow employees, because his 

immediate employer is covered by Workmen’s Compensation. . To permit 

no remedy against third parties in cases where they employer is covered by 

Workmen’s Compensation is to encourage persons with rundown premises to 

contract out work without improving the quality of the premises. The 

committee urges that this is an abuse of the Workmen’s Compensation law and 

constitutes a misapplication of that law to protect persons who are negligent. 

The committee commends this provision to the Convention with the belief that 

it is an important, if technical, aspect of the administration ofjustice. Those 

are the remarks which are contained in the booklet. Let me amplify them by 

saying basically this: we feel that the right to third-uartv action is a right which 

16 
we should establish in our Constitution. It is a right which working men and 

women who are unfortunate enough to be iniured have had for nearlv 80 years 

in this state. We feel that it was wrongly taken awav from these aeoule bv the 

Suweme Court decision which was mentioned. We feel that we aerhaus are 

legislating in asking that this be written into our Constitution. but we of the 

committee reallv believe that we are acting in a iudicial manner in asking that 

it be written in the Constitution for we feel that this Convention. oerhaus. is the 

court of last resort for iniured working men and women in Montana with 

resuect to the third-uartv lawsuit. and we recommend that the section be 

adouted. 

Montana Constitutional Convention, Vol. V at 1754, March 8, 1972 (emphasis added). 

The second sentence of Section 16 was extensively debated. Delegate Habedank 

moved that it be deleted. That motion was defeated by a vote of 76-14 (Montana 

Constitutional Convention, Vol. V at 1759, March 8, 1972), and Section 16 was ultimately 

approved by a vote of 76-21 (Montana Constitutional Convention, Vol. VII at 2644, 

March 18, 1972). 

It is clear from these Convention Minutes that while the United States Supreme Court 

used statutory benefits as a basis for denying a service member’s claims for damages based 

on negligence, our constitutional delegates felt that the opposite result was appropriate. 

We have considered the impact of Article II, Section 16, on numerous occasions and, 

without exception, have held that it precludes limitations on claims by injured employees 

against persons other than the employee’s employer or fellow employee. See Fruncetich v. 

State Camp. Mut. Ins. Fund (1992), 252 Mont 2 15,827 P.2d 1279; Meech v. Hillhaven West, 

Inc. (1989), 238 Mont. 21,776 P.2d 488; Webb v. Montana Masonry Constr. Co. (1988), 233 

17 
Mont. 198,761 P.2d 343; and Hayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 609 

P.2d 257. 

In Webb, 233 Mont. at 204, 761 P.2d at 346, we stated that: 

The second sentence of Section 16 speaks loudly and clearly for itself. 

If there could be any question about what the members intended the sentence 

to mean, the question can be answered by reference to the transcript of the 

convention. Delegate Marshall Murray, a Kalispell attorney, moved, on behalf 

of a unanimous Bill of Rights Committee, for the adoption of Section 16, 

which amended the 1889 Constitution by adding the workmen’s compensation 

provision of the second sentence. 

We then referred to the same comments by Murray, which are previously cited in this 

opinion, Webb, 233 Mont. at 204-05, 761 P.2d at 346-47, and then concluded that: 

[TJhe Ashcraj? holding was expressly and specifically overruled by the people 

of the state with their approval of Article II, Section 16, of the 1972 

Constitution, in which they directed that immunity would be restricted to an 

“immediate employer who hired” the workmen and who had provided 

coverage. 

Webb, 233 Mont. at 207,761 P.2d at 349. 

In Meech, we noted that: 

The narrow purpose the delegates ascribed to the change in the remedy 

guarantee is further reflected in the Proposed 1972 Constitution for the State 

of Montana, Official Text with Explanation, circulated to the voters prior to 

the vote on adopting the 1972 Constitution. According to the explanation in 

the voters’ information pamphlet, the amendment 

“Adds to 1889 constitution by specifically granting to a 

person injured in employment the right to sue a third party 

causing the injury, except his employer or fellow employee 

when his employer provides coverage under workmens [sic] 

compensation laws.” 

Meech, 238 Mont. at 40, 776 P.2d at 500 (alteration in original). 

18 
Finally, in Fmncetich we held that limitations on an injured employee’s right to be 

fully compensated for his injuries in a claim against a third party by allowing subrogation 

prior to full recovery was precluded by Article II, Section 16. Francetich, 252 Mont. at 224, 

827 P.2d at 1285. In language relevant to the issue before us, we stated that: 

Section 39-71-414(6)(a), MCA, restricts an injured worker’s right to 

obtain a full legal redress against third-party tortfeasors. The second sentence 

of Article II, Section 16, states this cannot be done. The record of the debate 

at the Convention is clear that this was the delegates’ intent in amending the 

provision. The second sentence is mandatory. prohibitive. and self-executing 

and it urohibits deorivine an emulovee of his full legal redress. recoverable 

under general tort law. against third aarties. Finally, as noted above, we 

recognized and explained this very idea in Meech. 

Fvancetich, 252 Mont at 224, 827 P.2d at 1285 (emphasis added). 

We reaffirm that pursuant to the second sentence in Article II, Section 16, of the 

Montana Constitution, any statute or court decision which deprives an employee of his right 

to full legal redress, as defined by the general tort law of this state against third parties, is 

absolutely prohibited. That sentence is mandatory and self-executing, and leaves no room 

for erosion based on what federal courts or the courts of other states would do pursuant to 

federal laws or the laws of other states. 

For these reasons, we conclude that because James B. Trankel was not employed by 

the Army National Guard of the State of Montana or the Department of Military Affairs for 

the State of Montana at the time complained of, his claim against the State of Montana, 

pursuant to the State Tort Claims Act found at §§ 2-9-101 to -805, MCA, is neither barred 

19 
by the Feres doctrine, nor our prior decision in Evans. The District Court erred when it 

concluded otherwise. That part of the District Court’s judgment is reversed. 

ISSUE 2 

Did the District Court err when it concluded that the plaintiffs allegations of statutory 

violations failed to state a claim? 

The District Court held that Counts II, III, and IV of the plaintiffs complaint, based 

on the Occupational Health Act, @ 50-70-101 to -118, MCA; the Montana Safety Act found 

at 3s 50-71-101 to -334, MCA; and the Employee and Community Hazardous Chemical 

Information Act found at $4 50-78-101 to -402, MCA, respectively, do not provide separate 

statutory bases on which to recover damages for personal injury. The District Court held that 

these acts define various duties of employers which may be relevant in a negligence action, 

but that since Trankel’s negligence action was barred pursuant to Feres and Evans, Counts II, 

III, and IV were also barred. 

We review a district court’s conclusions of law to determine whether the court’s 

interpretation of the law is correct. Common Cause ofMontana v. Argenbright (1996), 276 

Mont. 382, 386, 917 P.2d 425,427. 

Trankel contends that we have previously held that the Safety Act provides an 

independent basis for a cause of action to recover damages in Cain v. Stevenson (1985), 2 18 

Mont. 101,706 P.2d 128, andShannon v. HowardS. Wright Construction Co. (1979), 181 

Mont. 269, 593 P.2d 438, and that there is no basis for holding otherwise regarding the other 

two acts which have the same purpose and provide similar protections. 

20 
The State contends that enforcement of the several acts in question is delegated to 

various state agencies and that when interpreting similar statutory provisions, the U.S. 

Supreme Court has held that federal statutes did not authorize private causes of action. See 

Middlesex County Sewerage Auth. v. National Sea Clammevs Assk (1981) 453 U.S. 1. The 

State concedes, however, that the statutes may establish a duty for the purpose of proving 

negligence per se. 

In Shannon, the plaintiff was employed by a subcontractor who had subcontracted 

with the general contractor and defendant, Howard S. Wright Construction Co., to perform 

plumbing and mechanical work at the Big Sky Resort. Shannon, 18 1 Mont. at 27 1, 593 P.2d 

at 439. Plaintiff was injured when he fell from a ladder while trying to gain access to the 

second level of a condominium that was under construction. He sued both Wright 

Construction and Big Sky Resort. During the jury trial, the district court instructed the jury 

pursuant to 5 50-71-201, MCA (the Montana Safety Act), that an employer, including the 

prime contractor, has a duty to provide employees with a safe place to work. Shannon, 181 

Mont. at 281,593 P.2d at 445. On appeal, the defendants contended that neither of them was 

an “employer,” as defined by the Safety Act. We held that the “safe place to work” provision 

of the Safety Act did establish a duty from the prime contractor to employees of 

subcontractors. Shannon, 181 Mont. at 283, 593 P.2d at 445-46. However, we did not 

distinguish between the duty which forms the basis for a claim of negligence and a duty 

which gives rise to an independent statutory cause of action. 

21 
In Cutn, the plaintiff subcontracted to do electrical work for the defendant during the 

construction of an apartment building. The defendant was the owner of the building and the 

general contractor. The plaintiff fell and injured himself while trying to exit the building 

without the benefit of steps or a ladder and sued the defendant based on allegations of 

negligence. Cain, 218 Mont. at 102-03, 706 P.2d at 129. From a jury verdict in favor of the 

plaintiff, the defendant appealed the district court’s conclusion that the safe place to work 

statute imposed a duty running from the defendant to the plaintiff. The defendant argued that 

pursuant to the Shannon decision, the statutes only applied in situations where the claim is 

presented by an employee of a subcontractor and the general contractor had control over the 

workplace. He contended that it did not apply in this situation where the plaintiff was, 

himself, the subcontractor. Cain, 218 Mont. at 103,706 P.2d at 130. We held that the duty 

established by 5 50-71-201, MCA, did apply to the subcontractor in that case while working 

for the general contractor. Cain, 218 Mont. at 104-05, 706 P.2d at 131. However, once 

again, we did not discuss whether the duty created simply served as a basis for a claim of 

negligence, or gave rise to a separate statutory cause of action. 

More recently, in Stratemeyev v. Lincoln County (1996), 276 Mont. 67, 79-80, 915 

P.2d 175, 182, we held that the Montana Safety Act establishes a duty to provide a workplace 

which is safe from mental injury, as well as physical injury. It is not clear from the reported 

opinion whether Stratemeyer alleged failure to comply with 5 50-7 l-20 1, MCA, as a basis 

for his negligence claim, or whether he alleged a separate statutory cause of action. 

However, we stated that: 

22 
Stratemeyer contends that his claim is based on Lincoln County’s failure 

to train, supervise, treat and debrief him following the incident. According to 

Stratemeyer, the traumatic nature and consequences of responding to the 

suicide were foreseeable, and post-traumatic stress disorder is a common 

injury for law enforcement personnel, emergency medical technicians and 

disaster and emergency services personnel. 

Stratemeyer, 276 Mont. at 79,915 P.2d at 182. A reasonable inference from the facts which 

are reported in the Stratemeyer decision is that the duty alleged in that case formed the basis 

for Stratemeyer’s claim of negligence. 

We conclude that there is no prior authority for the position that statutory acts, such 

as those in question, create independent causes of action aside from their relationship to 

proof of negligence, and also conclude, based on our prior decision in Pollard v. Todd 

(1966) 148 Mont. 171,418 P.2d 869, that statutory acts, like those included in Counts II, III, 

and IV of the plaintiffs complaint, establish duties, the violation of which is negligence 

per se. 

In Pollard, the plaintiff fell from a make-shift scaffolding constructed to the 

specifications of his employer, the defendant. Pollard, 148 Mont. at 175,418 P.2d at 871. 

The defendants were exempt from coverage of the Workers’ Compensation Act, and the 

plaintiff did not make a claim pursuant to that Act. We held that because of the duties 

imposed by the “Scaffolding Act,” which was then found at Title 69, Chapter 14, RCM 

(1947), but is now found at Title 50, Chapter 77, MCA, the Legislature intended an absolute 

statutory duty upon owners of real estate to protect workmen and others from extraordinary 

hazards associated with scaffolds, and therefore, that plaintiff was entitled to an instruction 

23 
that breach of the statutorily-created duty was negligence per se. Pollard, 148 Mont. at 180, 

418 P.2d at 873. The acts, which plaintiff alleges in Counts, II, III, and IV of his complaint 

were violated by the State, provide similar duties which were enacted for similar purposes. 

We therefore conclude that the violation of those statutes is also negligence per se, and that 

in the appropriate situation the jury should be so instructed. However, we also conclude, as 

did the District Court, that the Acts in question do not give rise to causes of action 

independent from a claim of negligence. 

For these reasons, we affirm the District Court’s conclusion that the Occupational 

Health Act, the Montana Safety Act, and the Employee and Community Hazardous Chemical 

Information Act did not give rise to independent causes of action. However, we reverse the 

District Court’s conclusion that claims of negligence, based on violations of these Acts, are 

barred by the Feres doctrine, or our decision in Evans, and we furthermore reverse the 

District Court’s conclusion that the sole means of enforcement of the duties imposed by these 

Acts are the administrative remedies provided therein. 

The judgment ofthe District Court is reversed and this case is remanded to the District 

Court for further proceedings consistent with this opinion. 

24 
We Concur: 

25 
April 30, 1997 

CERTIFICATE OF SERVICE 

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

following named: 

Erik B. Thueson 

Thueson & Lamb 

Box 535 

Helena MT 59624-0535 

William Gianoulias 

Risk Mgmt. & Tort Div. 

Box 200124 

Helena MT 59620-0124 

Hon. Joseph P. Mazurek, Attorney General 

James M. Scheier & Thomas G. Bowe, 

Assistant Attorneys General 

215 N. Sanders 

Helena MT 59620-1401 

LTC Mike T. McCabe 

Staff Judge Advocate 

Box 202101 

Helena MT 59620-2101 

(Attorney for N.G.) 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: OB: 

Deputy