No. 53-172 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

WILLIAM OWENS, 

Plaintiff and Appellant, 

-vsPARKER DRILLING CO., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County Richland, 

The Honorable , Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lucas & Monaghan; Thomas M. Monaghan argued, 

Miles City, Montana 

For Respondent : 

Habedank, Cumming & Best; Jacque W. Best argued, 

Sidney, Montana 

Submitted: November 3, 1983 

Decided: January 12, 1984 

Filed: QWf\li;? 1984 

P 

-. &a &, c$L2&&-.d Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

Plaintiff William Owens (Owens) appeals the order of the 

District Court, Richland County, granting partial summary 

judgment on the issue of punitive damages in an action 

alleging discriminatory firing of Owens by defendant Parker 

Drilling Company (Parker) . 

Owens is missing his right arm from three inches below 

the elbow. He lost that part of his arm when he was six 

years old. Owens has worked as a "roughneck" and drill. 

"hand" since 1958 or 1959. 

Owens worked for Parker from April 4, 1978 through April 

8, 1978. He was discharged from Parker by Roger Hystad at 

the direction of his supervisors for the given reason that he 

only had one arm. No investigation was made to determine the 

ability of Owens to safely and satisfactorily complete all 

duties of his employment. The decision to fire was 

apparently made on the basis that a one-armed worker is 

unsafe per se on a drilling operation. 

Parker has a safety manual setting forth minimum 

physical requirements for employees prohibiting employment of 

persons with "severe disabilities or impairments to arms, 

hands, fingers, legs, feet and toes." 

Owens was out of work for approximately three days, and 

then was hired on by another drilling company. There is 

considerable evidence that Owens has at all times been an 

able and safe worker on the drilling rigs both before and 

after his employment with Parker. 

Owens brought this action seeking compensatory damages 

for unlawful discharge in violation of sections 49-4-101 and 

102, MCA. He also seeks punitive damages for "wrongful, 
willful, intentional, malicj.ous, and reckless act of 

Defendant in firing Plaintiff." 

Parker moved for partial summary judgment on the issue 

of punitive damages. The District Court granted the motion, 

ruling that plaintiff had failed to establish a genuine 

factual issue as to whether the vi-olation of statute was 

criminal or wanton, or whether the acts of defendant were 

done with sufficiently culpable mental state to justify award 

of punitive damages under section 27-1-221, MCA. 

The following issues are raised on appeal: 

1. Is plaintiff entitled to a trial on the question of 

punitive damages where he has established a genuine factual 

issue of whether his discharge constituted unlawful 

discrimination as defined in sections 49-4-101, 102, MCA? 

2. Has plaintiff produced sufficient evidence to 

establish a genuine factual issue of whether defendant acted 

with "oppression, fraud or malice, actual or presumed," 

entitling him to a recovery of punitive damages? 

Owens argues that breach of the statutory duty imposed 

by sections 49-4-101, 102, MCA is so culpable, that such a 

breach necessarily raises a genuine issue of punitive 

damages. We disagree. 

The mere fact that the conduct on which the lawsuit is 

based is unlawful should not in and of itself authorize a 

recovery of punitive damages. Fahrenberg v. Tengel (Flris . 

1980), 291 N.W.2d 516; Graham v. Turner (Tex. 1971), 472 

S.W. 2d 831, 839; Graham v. Clarks Fork National Bank (Mont. 

1981), 631 P.2d 718, 721, 38 St.Rep. 1140, 1143-44. Luther 

v. Lee (1922), 62 Mont. 174, 179, 204 P. 365, 367. For 

example, exceeding the 55 m.p.h. speed limit is unlawful and 

may even be intended, but does not rise to the level of 
culpability warranting punitive damages unless there is a 

high degree of probability that serious harm wil.1 result. 

Section 27-1-221, MCA provides for punitive awards in 

cases of "actual" malice and "presumed" malice. Thus, where 

a statute specifically proscribes conduct which is actually 

mal.icious such as theft or a.ssault, punitive damages may be 

sought for violation of such a statute. Violation of other 

statutes warrants an issue of punitive damages only where 

malice may be presumed from the particular facts. 

Consideration of recent decisions of this Court will 

demonstrate when malice may be presumed from violation of 

statute. 

In First Security Bank v. Goddard (1-979), 181 Mont. 407, 

422, 593 P.2d 1040, 1048-1049, we held that malice could be 

implied, where the defendant insurance company breached its 

duty to settle as soon as possible with its insured in 

violation of the insurance code, because the defendant 

engaged in a course of conduct "knowing it to be harmful and 

unlawful," and its actions were "unjustifiable." Acc. 

Ramsbacher v. Hohman (1927) , 80 Mont. 480, 487-488, 261 P. 

273, 276. Again in Dvorak v. Huntley Project Irrig. Dist. 

(1981), 196 Mont. 167, 639 P.2d 62, an intentional failure to 

provide water to the rightful claimant in violation of 

statute was held to support an award of punitive damages 

because the conduct of the defendant was "unjustifiable". 

Another discussion of the concept of malice-in-law is 

found in Butcher v. Petranek (1979), 181 Blont. 358, 593 P.2d 

743. In that case we approved a "recklessness" standard for 

presumed malice. 

"The jury may also take into account whether the 

acts complained of are 'of such a character as to 

indicate a reckless disregard of the rights of the 

plaintiff' in awarding a 'reasonable amount' of 
punitive damages. Mosback v. Smith Brothers Sheep 

Co. (1922), 65 Mont. 42, 46-47, 210 P. 910, 912. 

"Elaborating further on the concept of malice, we 

stated in 1927 tha.t: 

" . . . 'The term "malice," as applied to torts, 

does not necessarily mean that which must proceed 

from a spiteful, malignant or revengeful 

disposition but a conduct injurious to another, 

though proceeding from an ill-regulated mind, not 

sufficiently cautious before it occasions an injury 

to another.. . . I " Ramsbacher v. Hohman (1927) , 80 

Mont. 480, 487-88, 261 P. 273, 276. Id. at 362. 

This recklessness standard is the same punitive damages 

standard used by this Court in evaluating conduct of 

defendants which was not specifically proscribed by statute. 

See e.g. Graham v. Clarks Fork National Rank (Mont. 1981), 

631 P.2d 718, 721, 38 St.Rep. 1140, 1144, "recklessness"; 

Shahrokhfar v. State Farm (Mont. 1981), 634 P.2d 653, 657, 38 

St.Rep. 1669, 1673, "recklessly"; Derenberger v. Lutey, 

(Mont. 1983) , P.2d , 40 St.Rep. 902, 907, "willful 

or wanton misconduct"; Ferguson v. Town Pump, Inc. (1978), 

177 Mont. 122, 132, 580 P.2d 915, 921, "willful disregard of 

duty"; and Cashin v. Northern Pac. Ry. CO. (1934) I 96 Monte 

92, 112, 28 P.2d 862, 870, "willful or wanton disregard of 

the rights of others." 

The use of words like "unjustifiable" and "reckless" 

represent attempts of this Court to describe that level of 

conduct, whether specifically proscribed by statute or not, 

which is so culpable as to warrant an award of punitive 

damages. 

Much confusion has been generated by inconsistent use of 

loosely defined terms such as willfulness, wantonness, 

recklessness, gross negligence, and unjustifiable conduct. 

To avoid future confusion it is necessary to adopt a 
carefully defined standard of conduct and prescribe its legal 

significance. We adopt this standard for presumed malice: 

When a person knows or has reason to know of facts which 

create a high degree of risk of harm to the substantial 

interests of another, and either deliberately proceeds to act 

in conscious disregard of or indifference to that risk, or 

recklessly proceeds in unreasonable disregard of or 

indifference to that risk, his conduct meets the standard of 

willful, wanton, and/or reckless to which the 1a.w of this 

State will allow imposition of punitive damaqes on the basis 

of presumed malice. 

This standard is more definitive and perhaps more 

stringent than those of the past. Certainly the "unjustified 

conduct" measure was extremely broad and difficult to apply. 

We also emphasize that substantial interests must be 

implicated so that an intentional or reckless disregard of 

duties that do not protect substamtial interests, does not 

give rise to punitive damages. The standard, in substance, 

is supported by Restatement of the Law, Torts 2d. 5500, 

comment a. 

The standard is equally applicable to statutory 

violations and other wrongful conduct. Thus, where a statute 

is designed to protect the substantial interests of a person 

from a high degree of risk, and the statute is violated 

either intentionally or recklessly, a jury question of 

punitive damages is raised. Punitive damages may also he 

awarded under sections 27-1-221, MCA for fraud or oppression. 

This holding only defines a standard for "presumed malice. l1 

The present case involves a determination of whether the 

statute, section 49-4-101, MCA was designed to protect the 

substantial rights of employees such as Owens from a high 
risk of harm, and whether Parker's alleged violation of the 

statute was reckless. 

The Discrimination in Employment Statutes, sections 

49-4-101, 102, MCA, are enacted to protect the handicapped 

person's substantial right to be fairly treated in the 

employment relationship. 

Section 49-4-101, MCA, provides as follows: 

"Discrimination prohibited. It is unlawful to 

discriminate, in hiring or employment, against a 

person because of the physical handicap of such 

person. There is no discrimination where the 

nature or extent of the handicap reasonably 

precludes the performance of the particular 

employment or where the particular employment may 

subject the handicapped or his fellow employees to 

physical harm." 

Section 49-4-102, MCA, provides as follows: 

"Penalty -- and civil remedy. A person who practices 

discrimnation in violation of 49-4-101 commits a 

misdemeanor and is also liable in a district court 

action for civil damages and a-ttorney's fees by the 

person discriminated against. Should the person 

who allegedly practiced discrimination prevail in 

the civil action, he shall he entitled to recover 

reasonable attorney's fees from the person who 

alleged the discrimnation." 

These statutes were specifically designed to protect 

handicapped persons from the denial of a substantial right to 

fair treatment in the employment relationship; such denial 

would result in economic harm to such persons and their 

fa.milies, as well as damage to their sense of self esteem. 

Violation of this statute warrants a claim for punitive 

damages if such violation is shown to be intentional or 

reckless. Therefore, the final issue is whether sufficient 

evidence has been produced by way of depositions and 

interrogatories to establish a genuine issue of reckless 

conduct creating a presumption of malice which would support 

a claim for punitive damages. 
The following facts have been established prima facie by 

Owens : 

1. Owens has been missing the forearm on his right side 

since he was 6 years old. 

2. Owens has been able to fully and safely perform all 

of his duties while working on drilling rigs. 

3. Owens was fired by Roger Hystad on the sole basis 

that since he only had one arm it would not be safe to keep 

him on and that it was company policy to therefore fire him. 

4. - No investigation -- was made into the ability of Owens 

to safely and fully complete the duties of his employment. 

5. No specific facts supported the conclusion that 

Owens would be unsafe. 

6. A written company policy prohibited hiring of 

workers in Owens' condition; although it was also company 

policy to qive handicapped persons "every considera.tion. l1 

The above facts, if proven, would support a finding that 

the defendant recklessly proceeded in unreasonable disregard 

of, and in great risk to, the substantial interests of 

plaintiff. Failure to give a person a chance in employment 

is the essence of the wrong proscribed by section 49-4-101, 

MCA. Failure to even investigate plaintiff's worth could be 

found by the jury to be recklessness. 

We add that there may be a punitive damage issue on 

oppression. In Gary & Purcell v. Automatic Gas et al., No. 

82-54 (Mont. Dec. 1983) , we defined oppression to include 

acts which constitute an abuse of power. A determination of 

whether acts of oppression may be involved should await 

presentation of the evidence. 

There are those who distrust the lay person's capacity 

for reasoned and dispassionate judgment. There are those who 
tolerate the juries but feel compelled! to hold tight rein 

lest the wretched twelve break the bank. This judicial 

chauvinism will, if not checked, inevitably erode the iury 

process. 

We feel that the parties' peers are best able to define 

and measure justice. In any factual setting, where 

reasonable minds can disagree, we will vigilantly protect the 

peoples' jural function. 

The District Court is reversed and the matter is 

remanded for trial. 

We concur: 

Z?4~4,ea/,uwa~\ 

Chief ust tick 

Justices 

Hon. Robert M. Holter, 

District Judge, sitting in place of 

Mr. Justice L. C. Gulbrandson 
Mr. Justice Fred J. Weber dissents as follows: 

I do commend the author of the majority opinion for his 

attempt to prescribe a standard for presumed malice in 

punitive damage cases. I agree that our cases have not set 

forth clear guidelines for future litigation. 

I dissent because of my belief that the application of 

the standard in the present case has reached an unjust 

result. Perhaps that is a result of applying a physical 

safety standard to a discrimination case. See Restatement of 

the Law Second, Torts S500, entitled "Reckless Disregard of 

Safety. " 

The record in this case shows that the safety director 

of Parker Drilling Co. formulated guidelines for hiring and 

firing personnel and that these guidelines were posted in the 

"doghouse" on the drilling rig. The physical requirement 

guidelines for the job of "roughneck" are as follows: 

"In order to reduce the possibility of injuries 

on-the-job to an employee or injury to fellow 

employees caused by an employee's physical 

impairment, Parker Drilling Company has set out the 

following minimum physical standards for all new 

employees working in the field operations on the 

drilling rigs. 

Minimum Height - 5'6" 

Minimum Weight - 130 lbs. 

!.linimum Vision with or without corrective glasses - 

20/30 in each eye. 

Minimum Hearing - 15/20 in ea.ch ear. 

Blood Pressure - within normal limit for age of the 

individual. 

No History of Heart Condition. 

No History of Acute Diabetic Condition. 

No Congenital Deformity of the Back or Previous 

Back Surgery. 

No Hernia or Previous Hernia Surgery. 

No Severe Disabilities or Impairments to Arms, 

Hands, Fingers, Legs, Feet and Toes. 
Plaintiff's application for employment with the defendant 

company contained the following questions: 

"Do you have any cronic illnesses or known medical 

limitations? Yes No If yes, explain:" 

Plaintiff did not mark the "No" or otherwise mention in his 

application that his right hand and a portion of his arm were 

missing. 

The reasons for the discharge of the plaintiff are 

described in the deposition of the operation's manager of 

Parker Drilling. In pertinent part he stated: 

"Q. What else were you told by either one of these 

gentlemen? 

"A. I was told that he had only one arm, and that 

they felt that he was a safety hazard as far as to 

himself, the other crew members. And they wanted 

my advice as to whether or not they should fire him 

because of the possibility that he - suing us. My 

answer to that was, yes, our policy was that we had 

to let him go because of our requirements, and that 

if they felt like he was a safety hazard, by all 

means let him go. 

"Q. What are the other reasons, then, why he was 

fired? 

"A. During the conversation on the telephone with 

either Mr. Carter or Heistad [tool pushers on the 

rig], they, in addition to him having only one arm 

and then feeling that he was a safety hazard, as 

far as to himself and the other crew members, that 

he was not a good worker and was not performing his 

duties properly. 

"Q. And what specifically was he not doing with 

regard to doing his duties or doing his job? 

"A. They told me that they - he was not checking 

the engine oil and the water in the radiators, and 

that he was asked to do. And that the crew that 

was following him had found that the engines were 

several gallons low on oil after he was relieved, 

and that the - therefore he wasn't checking his 

engines properly." 

The depositions of the operation's ma.nager and one of 

the tool pushers (manager on a drilling rig) established 

that, in a combined 30 years of experience working in the oil 

fields, neither had ever seen anyone with an arm missing 

working as a roughneck or a driller on an oil rig. 
It is also significant to note that plaintiff concludes 

he is entitled to punitive damages simply because of the fact 

of his being discharged. He does not contend that there was 

any wrongful, willful or intentional contract specifically 

directed at him. A key element of the majority opinion is 

the conclusion that failure to investigate into the capacity 

of the plaintiff could be found to be recklessness. That 

conclusion is subject to factual question. 

In determining whether or not there has been 

discrimination, all of section 49-4-101, MCA must be 

considered, including the following pertinent part: 

"Discrimination prohibited. It is unlawful to 

discriminate, . . . There is no discrimination 

where the nature or extent of the handicap 

reasonably precludes the performance of their 

particular employment or where the particular 

employment may subject the handicapped or his 

fellow employees to physical harm." 

Under the specific provisions of the statute, there is 

no discrimination in this case if the nature of - the 

plaintiff's handicap, that being a missing hand and part of 

his arm, reasonably precluded the performance of his job as a 

roughneck in the oil field. In addition, there is no 

discrimination if that same handicap might subject the 

handicapped person or his fellow employees to physical harm. 

The wording of the statute allows the type of physical 

requirements which were adopted by the defendant employer for 

the hazardous work upon an oil rig. While the facts do 

demonstrate that the plaintiff has worked successfully on an 

oil rig notwithstanding his handicap, he is quite unique. 

The record does not indicate others have successfully met 

that test. Common sense tends to accept the testimony of the 

two persons, who in more than 30 years experience had never 

seen another one-armed man working on drilling rigs. 

In this instance, the handicap of the plaintiff is such 

as to present a real possibility of physical harm to either 
the plaintiff or his fellow employees. This exception is 

explicity contemplated by the statute as a basis for 

concluding there has been no discrimination. 

As I reviewed the cases cited in the majority opinion, I 

concluded that a common denominator of the Montana cases was 

some type of intentional conduct or harm on the part of the 

person charged with conduct justifying punitive damages. 

This is clearly set forth in Shahrokhfar v. State Farm (Mont. 

1981), 634 P.2d 653, 657, 38 St.Rep. 1669, 1673, where the 

Court stated: 

"Next, appellant alleges error in submission of 

punitive damages claiming insufficient evidence of 

reprehensible conduct on the part of State Farm. 

This contention is disposed of in Graham v. Clarks 

-- Fork Nat. Bank (1981), Mont., 631 P.2d-718, 38 

St.Rep. 1140. In the Graham case we found 

sufficient evidence to justify the submission of 

punitive damages from the following facts: (1) The 

defendant had seized plaintiff's cows, mistakenly 

thinking they belonged to a bank debtor; and (2) 

when the plaintiff attempted to recover his cows, 

the bank adamantly refused to divulge their 

location and thereafter returned them to the wrong 

location. We held that such facts raised an issue 

for the jury's consideration of punitive damages 

under the 'recklessness' standard enunciated in 

Klind v. Valley County Bank (1924), 69 Mont. 386, 

222 P.T~ 439. In this case State Farm sued the 

wrong person and though advised of its mistake, 

refused to make a correction. As in Graham, these 

facts are sufficient for the jury to determine that 

State Farm acted recklessly and that it be subject 

to the sanction of punitive damages." 

In the Graham case, the bank had seized cows and refused to 

divulge the location or to return them. The cows were 

branded with the brand of the person claiming ownership, - not 

the bank's alleged debtor. That is clearly a form of 

intentional conduct aimed at the plaintiff. In a similar 

manner in Shahrokhfar, the insurance company sued the wrong 

person and though advised of its mistake, refused to make a 

correction. Again there is intentional conduct specifically 

aimed at the plaintiff. This does not mean that punitive 

damages are limited to situations where a tortfeasor 

intentionally acts to harm a particular plaintiff. However, 
I would affirm the universally recognized rule that to 

warrant recovery of punitive damages, the act complained of 

must not only be unlawful, but must also be characterized by 

some circumstance of aggravation. See Allers v. Willis 

(Mont. 1982), 643 P.2d 592, 596, 39 St.Rep. 745, 750. In the 

present case, plaintiff in substance contends that the 

adoption of a written policy prohibiting hiring of workers 

who fail to meet minimum physical requirements, without 

specifically testing each applicant's individual capacity to 

perform constitutes recklessness. I do not find the cited 

cases good authority for that conclusion. 

While it may be contended that the employment 

regulations of the defendant are subject to some question, 

the record does not disclose a reckless action and. 

unreasonable disregard or indifference to a risk of harm to 

the plaintiff. 

Under the majority ' s rationale, each person not meeting 

the minimum physical qualifications for the job must be 

tested individually to determine whether he has unique 

capabilities. An employer could be liable for punitive 

damages for not investigating past review of the job 

application, even if refusal to hire reasonably protected the 

handicapped and his fellow employees from physfcal harm. 

Respondent's employment standard appears to be specifically 

sanctioned under section 49-4-401, MCA. I would therefore 

affirm the District Court in its holding that the Court was 

precluded from submitting 

I join in the above dissent: