96-517

No. 96-517

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA, ex rel. MOLLY MAFFEI,

as Guardian ad Litem for RICKY W. KOSKI,

a minor,

Relator

v.

MONTANA SECOND JUDICIAL COURT, SILVER BOW

COUNTY, and the HONORABLE JUDGE JAMES PURCELL,

presiding District Judge,

Respondents.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Relator:

William P. Joyce; Burgess, Joyce, Starin

& Whelan; Butte, Montana

Frank J. Joseph; Attorney at Law;

Butte, Montana

For Respondent:

Gary L. Walton; Poore, Roth & Robinson;

Butte, Montana (for Defendant Public

Housing Authority)

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-517%20Opinion.htm (1 of 4)4/11/2007 2:42:19 PM
96-517

Submitted on Briefs: January 16, 1997

Decided: March 18, 1997

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

 On August 28, 1996, Mollie Maffei, as Guardian ad Litem for

Ricky W. Koski, filed an application with this Court for a writ of

supervisory control. In her petition, Maffei sought review of an

order of the District Court for the Second Judicial District in

Butte-Silver Bow County which allowed the defendant, Public Housing

Authority of Butte, to amend its answer and allege a nonparty

defense pursuant to 27-1-703(6), MCA. On October 17, 1996, this

Court accepted supervisory control for the purpose of determining

the constitutionality of the District Court's order. We now

reverse that portion of the District Court's order which allowed

the Public Housing Authority to assert a nonparty defense and

remand the case to the District Court for further proceedings

consistent with this opinion and order.

 FACTUAL BACKGROUND

 On July 3, 1992, Ricky Koski, then four years old, was struck

by a motor home on Arizona Street near the Silver Bow Homes housing

complex in Butte. At the time of the accident, Ricky was a tenant

of Silver Bow Homes, which is owned and operated by the defendant

Public Housing Authority of Butte.

 On February 8, 1994, Mollie Maffei, as Guardian ad Litem for

Ricky, filed a complaint in the Second Judicial District Court

against the Public Housing Authority, the driver of the motor home,

the State of Montana, and Butte-Silver Bow County. The plaintiff

settled with the driver of the motor home and the State of Montana,

and the District Court dismissed both parties. In addition, the

District Court granted Butte-Silver Bow County's motion for summary

judgment and dismissed it from the suit.

 The plaintiff filed an amended complaint against the Public

Housing Authority on March 20, 1995. The Housing Authority's

answer did not include a specific nonparty defense, and it did not

amend its pleadings to allege such a defense by the discovery

deadline set by the District Court. Nevertheless, the District

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-517%20Opinion.htm (2 of 4)4/11/2007 2:42:19 PM
96-517

Court, in a pretrial order addressing the plaintiff's motion in

limine, allowed the Housing Authority to assert a nonparty defense,

pursuant to 27-1-703(6), MCA. The plaintiff has petitioned this

Court to reverse that portion of the court's order which allowed

the Housing Authority to assert a nonparty defense.

 DISCUSSION

 On November 22, 1996, after the District Court entered its

order which allowed the Butte Public Housing Authority to assert a

nonparty defense pursuant to 27-1-703(6), MCA, this Court issued

its decision in State ex rel. Plumb v. District Court (Mont. 1996),

927 P.2d 1011, 53 St. Rep. 1187. In Plumb, we held that 27-1-

703(6), MCA, violated substantive due process to the extent that it

allowed apportionment of liability to parties who were not named in

the pleadings and did not have the opportunity to appear and defend

themselves. Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95. We

therefore held that portion of the statute unconstitutional

pursuant to Article II, Section 17, of the Montana Constitution. 

Plumb, 927 P.2d at 1021, 53 St. Rep. at 1195. Maffei now contends

that, in light of our decision in Plumb, this Court must reverse

that portion of the District Court's order which allowed the Public

Housing Authority to assert a nonparty defense pursuant to

 27-1-703(6), MCA.

 In Plumb, this Court stated:

[W]e conclude that that part of 27-1-703, MCA (1995),

which allows apportionment of liability to parties who

are not named in the lawsuit and who do not have an

opportunity to appear and defend themselves

(specifically, the quoted portion of subparagraph (4) and

all of subparagraph (6)), is not rationally related to

the legitimate government objective of fairly

apportioning liability among parties based on the degree

to which their negligence contributes to another person's

injuries . . . .

Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95 (footnote omitted).

 Notwithstanding our holding in Plumb, the Housing Authority

contends that the District Court's decision should be affirmed

because evidence of Koski's parents' negligence is admissible for

other reasons. The Housing Authority contends that Koski's parents

were negligent by failing to properly supervise their child and

that that negligence was an intervening and superseding cause of

Koski's injuries. The Housing Authority contends that the jury has

a right to consider whether the causal link between its alleged

negligence and Koski's injuries was severed by his parents'

negligent conduct.

 In light of our specific holding that subparagraph (6) of

 27-1-703, MCA, is unconstitutional pursuant to the Montana

Constitution, we now hold that the Second Judicial District Court

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-517%20Opinion.htm (3 of 4)4/11/2007 2:42:19 PM
96-517

erred when it permitted the Housing Authority to assert a nonparty

defense pursuant to that statute. We further hold that whether the

evidence of a third party's negligence is admissible on some other

basis is a matter better left in the first instance to the

discretion of the District Court and therefore, will not be

reviewed by this Court pursuant to our original writ of supervisory

control. We remand this case to the District Court for further

proceedings consistent with this opinion.

 ORDER

 Based on the foregoing opinion,

 IT IS HEREBY ORDERED that that portion of the District Court's

order which permitted the Public Housing Authority to assert a

nonparty defense, pursuant to 27-1-703(6), MCA, is REVERSED. 

This case is remanded to the District Court for further proceedings

consistent with this opinion.

 The Clerk of Court is directed to mail a true and correct copy

of this opinion order to all parties of record and to the District

Court for the Second Judicial District in Butte-Silver Bow County.

 DATED this 18th day of March, 1997.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-517%20Opinion.htm (4 of 4)4/11/2007 2:42:19 PM