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, 1997JusticeTerry N. Trieweiler deliveredthe opinion of the Court.

The plaintiff, JamesB. Trankel, commencedthis action in the District Court for the First Judicial District in Lewis and Clark County to recover damagesfor personal injuries sustained while working on property owned and controlled by the defendant, State of Montana, through its Department of Military Affairs. The Statemoved 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 concludedthat 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 grantedthe State’s motion to dismiss. Trankel appeals from the District Court’s order granting the State’smotion. We reversethejudgment of the District Court. Trankel raisesthe following issueson 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, suethe Stateof Montana to recover damages for those injuries? 2. Did the District Court err when it concludedthat the plaintiffs allegations of statutory violations failed to state a claim?

2STANDARD OF REVIEW

The District Court dismissed Trankel’sclaim pursuant to Rule 12(b)(6), M.R.Civ.P., basedon the court’sconclusionthat it failed to statea claim for which relief could be granted.

A complaint shouldnot be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff canprove 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-pleadedallegationsin the complaint. In considering

the motion, the complaintis construedin the light most favorable to the plaintiff, and all allegations of fact containedtherein are taken as true. Lockwood, [272 Mont. at 207,] 900 P.2dat 3 17(quoting Boreenv. 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 determinewhether the court’s interpretation of the law is correct. Lockwood, [272 Mont. at 207,] 900 P.2d at 3 17. Common CauseofMontana v. Argenbright (1996), 276 Mont. 382,386,917 P.2d 425,427. FACTUAL BACKGROUND The following facts were allegedin the plaintiffs complaint. For the reasons setforth above, we assume

that they are true for the purposeof reviewing the plaintiffs appeal. The Army National Guard of the Stateof Montana operates under the supervisionand direction of the Department of Military Affairs for the Stateof Montana which is established pursuant to Titles 2 and 10 of the Montana Code Annotated.

3JamesB. Trankel enlistedin the Montana Army National Guard on March 28, 1991.

However, in 1992,after assuming full-time employmentin the Guard, he was called to active duty in the United StatesArmy pursuant to Title 10 of the United StatesCode. In early 1992,the Guard begana program known as SouthwestAsia Vehicle Rebuild Program (SWAREB), the function of which was to repair and rebuild vehiclesthat had been damagedin the Gulf War andthen distribute them for useto National Guard units, including Montana’s unit. That program was basedout 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 undercoatingof vehicles. He performed his dutiesin a building locatedat Fort Harrison and designatedasthe paint andbody shop. During the courseof his duties,Trankel was required to work with and around toxic and hazardousmaterials and stand in a pit below the ground surface while spraying these materialson the undersides of vehicles. However, the facilities were not properly vented and he was not provided with adequateequipment, 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 exposureto toxic materials, Trankel hasbeentreated for bronchitis and sinusitis, andhas suffered permanentphysical injuries, including injury to his brain and internal organs. He contendedthat his injuries were a result of the State’snegligent failure

4to implement safe operatingprocedures 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 OccupationalHealth Act of Montana found at $5 50-70-l 01 to -118, MCA; the Montana Safety Act found at $5 50-71-101 to -334, MCA; and the Employee and Community HazardousChemical Information Act found at §$ 50-78-101 to -402, MCA. The State moved to dismiss Trankel’s complaint pursuant to Rule 12(b)(6), M.R.Civ.P., basedon its contentionthat 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 decisionin Evansv. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160. It was and is the State’sposition 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 statusof the plaintiff at the time he is injured, or the statusof the party againstwhom the claim is made. In addition, it is the defendant’scontention that the acts upon which Counts II, III, and IV were baseddo not provide private causes of action, but can be enforced only by means of the administrative remediesprovided for in thoseActs. The District Court agreedwith 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 stateor federal statusat the time of his injuries, andtherefore, that his claims were barredby the prior decisionsin Feres andEvans. It also concluded that the Acts relied on in Counts II, III, and IV do not createprivate causes of action for recovery of damages,but insteadmust 5be enforced by the various agenciesto whom responsibility is given within the Acts.

Trankel’scomplaint was, therefore, dismissed with prejudice andjudgment was enteredfor 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, suethe Stateof Montanato recover damages for thoseinjuries? Essentialto an understanding of Trankel’semployment statusat the time of his injury is an understanding of the statutory framework pursuant to which members of the United StatesArmy Reserveforces 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 StatesArmy. 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 Statesmay call into “Federal service” members of the Army National Guard of any state when he deemsit necessaryand it is appropriate, based

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

subject to the laws and regulations governing the United StatesArmy. 10 U.S.C. 5 12405 (1994). The practical effect of this statutory framework was explainedby 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 relievedof his or her statusin the StateGuard for the entire period of federal service.

The unchallengedvalidity 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 statemilitia 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.“Eachmemberof the Army National Guard of the United States or the Air National Guard of the United Stateswho is orderedto active duty is relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District Columbia, asthe casemay 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

statestatusof National Guard membersin Grove v. Montana Amy National Guard (1994), 264 Mont. 498,501-02,872 P.2d 791,793, and Evansv. Montana National Guard (1986), 223 Mont. 482,483-84,726 P.2d 1160, 1161. Therefore, basedon 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 employedby and acting entirely within the scopeof his duties for the United States

Army. It is, therefore, in that statusthat we must review the authorities relied upon by the parties and the District Court. The Statecontends

that membersof the federalmilitary cannotbring suit against other soldiers or military organizationsfor service-relatedinjuries, basedon Feres, 340 U.S. 135. It contends that this rule applies regardlessof the identity of the tort-feasor, pursuant to United Statesv. Johnson(1987), 48 1 U.S. 68 1;that it applieseventhough the claim may be basedon statelaw, 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-esdoctrine bars claims againstthe National Guard for injuries incident to military servicein Evans, 223 Mont. 482, 726 P.2d 1160. The District Court agreed. Trankel, on the other hand, contends that Feres andJohnsonare not applicableto this

case becausethey 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 beyis not applicablebecauseit was not based

on and did not include an analysis of Montana law; and Evans was wrongly decidedand 8should be reversed. Trankel further contends that sovereign immunity was abolished in

Montana in 1972pursuantto Article II, Section 16,of the Montana Constitution, and that the Legislature hasnot seen

tit to extend immunity under thesecircumstances. Trankel further contends that § 10-l-104, MCA, which makes federal laws and regulations applicable to Guardmembers, provides an exception where thoselaws or regulationsare inconsistentwith Montana’s Constitution. For purposesof oral argument, and considerationon appealby 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 casealso contendsthat to bar a claim against the State for injuries sustained

during the courseof 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 considerthe applicability of the federalauthoritiesrelied on by the State. All other federal authorities are affirming of Feres. In Feres, the plaintiffs decedentwas on active duty in the military serviceof the United Stateswhen he died from injuries caused by fire in his barracks. The plaintiff alleged,pursuant to the FederalTort Claims Act found at 28 U.S.C. $5 2671 to 2680, that the Army hadnegligently quarteredFeresin barracks which it knew or should have known were unsafe. The U.S. SupremeCourt framed the issuein Fevesasfollows: “The only issueof law raised is whether the Tort Claims Act extends its

9remedy to one sustaining‘incident to the service’what under other circumstanceswould 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 concludedthat sincethe FederalTort Claims Act extendedliability to the United Statesin the samemanner that a private individual would be liable, and sincethere was no historical basisfor 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 considerationenactments of Congress

which provided no-fault systemsof compensationfor 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 eachother. The absence of any such adjustment is persuasivethat there was no awarenessthat the Act might be interpretedto 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 casefor severalreasons: (1) Trankel is not suing the United Statesfor 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 recognizedby the common law in the Stateof Montana; and (4) althoughthis casedoesnot involve state workers’ compensationbenefits, the Montana Legislaturehasspecifically recognizedthat third-party claims may be madeby

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

employment, and has enactedlaws 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 becausethe U.S. Supreme Court extended the doctrine to claims for subx’ogation by nonmilitary personnel in StencelAero Engineering Corp. v. United States(1977), 43 1U.S. 666; to claimsby military personnel who are off-duty at the time oftheir injury in United Statesv. 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 circumstancespresented by each of the cited cases,eachcasewas brought pursuant to the FederalTort Claims Act andis part of the federalcaselaw interpreting the scopeof remedies provided for by that Act. None of the cited cases

is relevant to this Court’s interpretation of the remediesprovided for by state statutory and caselaw, and guaranteed by our state Constitution. Neither is the State’sreliance on Chappell v. Wallace (1983), 462 U.S. 296, and United Statesv. Stanley(1987), 483 U.S. 669, persuasive. Although the Feres doctrine was appliedby the SupremeCourt in thosecases to claims which were not basedon the Federal Tort Claims Act, they did involve claims by members of the United Statesmilitary who alleged that their superiorshadviolated their constitutional rights and42 U.S.C. 55 1985 and 1983,respectively. It is the fnnction of the U.S. SupremeCourt to define andlimit the scope of rights afforded pursuantto thoseconstitutionalcauses of action. However, thosedecisions

11havelittle bearing on the scope of rights afforded under statelaw andguaranteed by our state Constitution. The Statealsorelies on the Ninth Circuit in Stauberv. 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 asa condition of his employment pursuant to 32 U.S.C. $5 709(b), 709(e)(l) and (2) (1994). The individual defendantswere members of the Army National Guard of Alaska who were superior in rank to the plaintiff. The defendants

were suedfor 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 anaward of damages in his favor. Following that verdict, pursuantto post-trial motions, the district court concludedthat 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 discussedwhich were based on federal statutory or common law. There is no mention in the Stauber casewhether 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 analysisin the Stauber caseregarding the applicability of the aforementioned federal authorities to a situation in which a party’s 12claim is made against a non-federal party and basedon state law. Therefore, we conclude

that Stauber is not persuasive regarding Trankel’s rights which are assertedpursuant to Montana law and the Montana Constitution. Finally, the State contends, and the District Court agreed, that Trankel’s claim is barred asa matter of law pursuantto our prior decisionin Evansv. 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 machinefrom onepart of abuilding to another. He suedthe 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 basedon our conclusion that 5 2-9-102, MCA, of the StateTort Claims Act, did not authorize suits againstthe National Guard. Evans, 223 Mont. at 484, 726 P.2d at 1161. We held that that section authorized suits against“governmental entities” which were definedat $2-9-101(3), MCA, as “the state andpolitical subdivisionsasherein defined,” and that the National Guard was not included in the definition ofpolitical subdivisionsfound at 5 2-9-101(5), MCA. Evans, 223 Mont. at 484, 726 P.2d at 1161. We did not addresswhy the National Guard or the Department of Military Affairs for the State of Montana, which was also namedas a defendant, were not subjectto 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 executivebranch of stategovernment,” and § 2-15-104(l)(b), MCA, lists the Department of Military Affairs asoneof the constitutionally established departments

or entities of the executivebranch 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, andour conclusionto the contrary in Evanswas 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 beenheld 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 Evansis not precedentfor the facts which gaverise to this case for severalreasons. First, it was dicta following the actualbasisfor 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 casewhich involved a member of the National Guard on active state duty suing his employer, in effect, for injuries he sustainedduring the course of his employment. Third, the constitutionalbasison 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 doesnot resolve the issueraisedby this appeal. Trankel cites decisions from the State of Washington in Emsley v. Army National Guard (Wash. 1986), 722 P.2d 1299, andKirtley v. State (Wash. Ct. App. 1987), 748 P.2d 1128,in support of his right to maintain his causeof action in this case. While those cases

14do appearon 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 presentedis whether based on state law we would apply the Fevesdoctrine to Trankel’s claim simply because his injury was incident to military service,or whether we areprecluded from doing

sobasedon statelaw, and specifically, our stateConstitution. We conclude that Article II, Section 16, of the Montana Constitution, precludes application of the Fevesdoctrine 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 personshallbe deprivedof this full legalredress for iniurv incurred in employment for which anotheruersonmav be liable exceotasto fellow emulovees andhis immediate emplover who hired him if suchimmediateemulover urovides coverage under the Workmen’s ComuensationLaws 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 secondsentence of Section 16was in response to our decisionin 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 companybased

on his allegationthat its negligencecausedhis injury. Ashcmft, 156 Mont. at 369,480 P.2d 812-13. On appeal, this Court held that pursuantto 5 92-438, RCM (1947), the power company could not be suedbecauseit had required the plaintiffs employer to

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

second sentence of Article II, Section 16, was a responseto that decision based on the delegates’intent that employeesnot 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 asa whole, DelegateMurray, 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 announcedin the recent decision of Ash&aft VEYSUS Montana Power Company, the employeehas no redressagainst third parties for injuries causedby 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 speedyremedy 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 legalredressfor injury incurred in employment for which anotherpersonmay be liable exceptasto fellow employees and his immediate employer who hired him if suchimmediateemployer providescoverageunder the Workmen’s Compensation laws of this state.” In other words, the committee wants to insurethat the Workmen’s Compensation laws of the state will be used for their original purpose--to provide compensationto injured workmen--rather than to deprivean injured worker of redress againstnegligent third parties, beyond his employer and fellow employees, because his immediate employer is coveredby Workmen’s Compensation.

. To permit no remedy against third parties in cases where they employer is covered by Workmen’s Compensationis to encourage personswith rundown premises to contract out work without improving the quality of the premises. The committee urgesthat this is an abuse of the Workmen’sCompensationlaw and constitutes a misapplication of that law to protect personswho are negligent. The committee commends this provision to the Convention with the belief that it is an important, if technical, aspectof the administration ofjustice. Those are the remarks which are contained in the booklet. Let me amplify them by sayingbasicallythis: we feel that the right to third-uartv action is a right which

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

women who areunfortunate enoughto be iniured have had for nearlv 80years in this state. We feel that it was wrongly taken awav from theseaeoulebv the Suweme Court decision which was mentioned. We feel that we aerhausare legislating in asking that this be written into our Constitution. but we of the committee reallv believethat 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(emphasisadded). The second sentenceof 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 theseConvention Minutes that while the United StatesSupreme Court used statutory benefits as a basisfor denying a service member’sclaims for damages based

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

the impact of Article II, Section 16, on numerousoccasions and, without exception, have held that it precludeslimitations on claims by injured employees againstpersonsotherthan the employee’s employer or fellow employee. SeeFruncetich v. State Camp.Mut. Ins. Fund (1992), 252 Mont 2 15,827 P.2d 1279; Meechv. Hillhaven West, Inc. (1989), 238 Mont. 21,776 P.2d488; Webb v. Montana Masonry Constr. Co. (1988), 233

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

P.2d 257. In Webb,233 Mont. at 204, 761 P.2d at 346, we statedthat: The second

sentence of Section 16 speaks

loudly and clearly for itself. If there could be any questionabout what the members intendedthe sentence to mean, the question can be answeredby reference to the transcript of the convention. DelegateMarshall Murray, a Kalispell attorney, moved, on behalf of a unanimous Bill of Rights Committee, for the adoption of Section 16, which amended

the 1889Constitution by addingthe workmen’scompensation provision of the secondsentence. We then referred to the same commentsby Murray, which arepreviously cited in this opinion, Webb,233 Mont. at 204-05, 761 P.2d at 346-47, and then concluded that: [TJheAshcraj?holding was expresslyandspecifically 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 purposethe delegates ascribedto the changein the remedy guaranteeis further reflected in the Proposed 1972Constitution for the State of Montana, Official Text with Explanation, circulated to the voters prior to the vote on adopting the 1972Constitution. According to the explanation in the voters’ information pamphlet, the amendment

“Adds to 1889constitution 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] compensationlaws.” Meech, 238 Mont. at 40, 776 P.2d at 500 (alteration in original). 18Finally, in Fmncetich we held that limitations on an injured employee’sright to be

fully compensated

for his injuries in a claim againsta third party by allowing subrogation prior to full recovery was precludedby Article II, Section 16. Francetich, 252 Mont. at 224, 827 P.2d at 1285. In languagerelevant to the issuebefore us, we stated that:

Section 39-71-414(6)(a), MCA, restricts an injured worker’s right to obtain a full legalredressagainst third-party tortfeasors. The second sentence of Article II, Section 16, statesthis cannot be done. The record of the debate at the Convention is clear that this was the delegates’ intent in amendingthe provision. The secondsentence 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 ideain Meech. Fvancetich, 252 Mont at 224, 827 P.2d at 1285(emphasisadded). We reaffirm that pursuant to the secondsentencein Article II, Section 16, of the Montana Constitution, any statute or court decisionwhich deprivesan employeeof his right to full legal redress,as defined by the generaltort law of this state against third parties, is absolutely prohibited. That sentenceis mandatory and self-executing, and leavesno room for erosion basedon what federal courts or the courts of other states would do pursuant to federal laws or the laws of other states. For thesereasons,

we concludethat because JamesB. Trankel was not employedby the Army National Guard of the Stateof 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 StateTort Claims Act found at §§ 2-9-101 to -805, MCA, is neither barred

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

concluded otherwise. That part of the District Court’sjudgment is reversed. ISSUE 2 Did the District Court err when it concluded that the plaintiffs allegationsof 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, @ 50-70-101to -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 50-78-101to -402, MCA, respectively,do not provide separate statutory bases

on which to recover damages for personalinjury. The District Court held that theseacts define various duties of employerswhich may be relevant in a negligenceaction, but that sinceTrankel’snegligence actionwas barredpursuantto Feres and Evans, Counts II, III, and IV were alsobarred. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Common CauseofMontana 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

basisfor 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, andthat there is no basisfor holding otherwiseregarding the other two acts which have the samepurpose and provide similar protections.

20The State contendsthat enforcement of the several acts in question is delegatedto

various state agenciesand that when interpreting similar statutory provisions, the U.S. SupremeCourt hasheld that federal statutesdid not authorize private causes of action. See Middlesex County Sewerage Auth. v. National SeaClammevs Assk (1981) 453 U.S. 1. The State concedes,however, that the statutesmay establisha duty for the purpose of proving negligenceper se. In Shannon,the plaintiff was employed by a subcontractor who had subcontracted with the generalcontractor and defendant, Howard S. Wright Construction Co., to perform plumbing and mechanical work at the Big Sky Resort. Shannon, 181 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 thejury trial, the district court instructed thejury pursuant to 5 50-71-201, MCA (the Montana Safety Act), that an employer, including the prime contractor, hasa duty to provide employees with a safeplace 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 definedby the Safety Act. We held that the “safe placeto 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 independentstatutory causeof action.

21In Cutn, the plaintiff subcontracted to do electricalwork for the defendant during the construction of an apartmentbuilding. 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.2dat 129. From a jury verdict in favor of the plaintiff, the defendant appealed the district court’s conclusion that the safe place to work statuteimposeda duty running from the defendant to the plaintiff. The defendantarguedthat pursuant to the Shannondecision, the statutes only applied in situations where the claim is presented

by an employeeof a subcontractorandthe generalcontractor had control over the workplace. He contendedthat 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 subcontractorin 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 discusswhether the duty createdsimply served as a basis for a claim of negligence,or gave rise to a separate statutory causeof 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, aswell asphysical injury. It is not clear from the reported opinion whether Stratemeyer allegedfailure to comply with 5 50-7l-20 1, MCA, as a basis for his negligence claim, or whether he alleged a separate statutory cause of action. However, we stated that:

22Stratemeyer contends that his claim is based

on Lincoln County’sfailure to train, supervise,

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

are reported in the Stratemeyerdecisionis that the duty allegedin that caseformed the basis for Stratemeyer’sclaim of negligence. We conclude

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

as those in question, create independentcauses of action aside from their relationship to proof of negligence, and also conclude, basedon our prior decision in Pollard v. Todd (1966) 148Mont. 171,418 P.2d 869, that statutory acts,like thoseincludedin 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 becauseof 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 intendedan absolute statutory duty upon owners of real estate to protect workmen and others from extraordinary hazardsassociated

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

23that breachof the statutorily-createdduty was negligence per se. Pollard, 148 Mont. at 180, 418 P.2d at 873. The acts,which plaintiff allegesin Counts, II, III, and IV of his complaint

were violated by the State, provide similar duties which were enactedfor similar purposes. We therefore concludethat the violation of those statutesis also negligenceper se, and that in the appropriatesituation thejury shouldbe so instructed. However, we also conclude, as did the District Court, that the Acts in question do not give rise to causes of action independentfrom a claim of negligence. For these reasons,we affirm the District Court’s conclusion that the Occupational Health Act, the Montana SafetyAct, andthe EmployeeandCommunity HazardousChemical Information Act did not give rise to independent causes of action. However, we reversethe District Court’s conclusionthat claims of negligence,basedon violations of these Acts, are barred by the Feres doctrine, or our decision in Evans, and we furthermore reverse the District Court’s conclusionthat the solemeansof enforcementof the dutiesimposedby these Acts are the administrative remediesprovided therein. Thejudgment ofthe District Court is reversed andthis caseis remanded to the District Court for further proceedingsconsistentwith this opinion.

24We Concur:

25April 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 JamesM. 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