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Montana Dog Bite Law
TITLE 27 CIVIL LIABILITY, REMEDIES, AND LIMITATIONS o:p> CHAPTER 1 AVAILABILITY OF REMEDIES -- LIABILITY PART 7 LIABILITY
(1) The owner of any dog which shall without provocation bite any person while such person is on or in a public place or lawfully on or in a private place, including the property of the owner of such dog, located within an incorporated city or town shall be liable for such damages as may be suffered by the person bitten regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. (2) A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America or when he is on such property as an invitee or licensee of the person lawfully in possession of the property. HISTORY: En. Sec. 1, Ch. 113, L. 1943; R.C.M. 1947, 17-409. NOTES: Part Cross-References Governmental entities -- liability exposure, Title 2, ch. 9. Governmental liability for actions resulting in surface water and ground water damage, 2-9-111. Weed management district liability restrictions, 7-22-2111. Limitation on landowner liability to recreationists, 23-2-321; Title 70, ch. 16, part 3. Responsibility and liability of snowmobile area operators, 23-2-651 through 23-2-655. Accounting review committees -- limitation for persons serving on or nonprofit corporations performing as, 37-50-403. Immunity of public personnel administering or supervising court-ordered service, 45-9-204. Emergency medical services -- liability protection for physician or nurse serving as off-line medical director, 50-6-317. Do not resuscitate orders, health care professionals' withholding of life-sustaining procedures pursuant to -- immunity, 50-10-102. Public authorities exempt for improper or unauthorized installations of utilities or underground facilities by others, 69-4-507. Liability for death or injury to railroad employees, 69-14-1006. Solid waste disposal in violation of law -- absolute liability, 75-10-212. Immunity of volunteer fire company or department and employees for hazardous or deleterious substance cleanup, 75-10-725. Cross-References Vicious dog control, 7-23-2109. Chapter Case Notes Voluntary Act Precluding False Imprisonment Claim -- Lack of Underlying Tort Precluding Civil Conspiracy Claim: A woman with breast cancer was advised by Hughes, a radiation oncologist, to undergo therapeutic radiology for the disease. Prior to radiation, an oncologist makes specific marks on the affected area to identify where to direct radiation beams. However, in addition to the marks directing radiation beams, Hughes drew a "smiley face" on the woman's breast by drawing two dime-sized "eyes" above the nipple of the breast and outlining the scar from the breast biopsy for the "mouth". The woman complained to hospital administration, and an ad hoc investigative committee recommended that Hughes receive a letter of reprimand, have a term of probation, have a chaperone while working, and be evaluated by the Montana Professional Assistance Program (MPAP). Hughes agreed to a medical, psychiatric, or chemical dependency evaluation and voluntarily enrolled in two such programs in Texas and Kansas. After release, Hughes signed an aftercare agreement. Hughes then brought suit against the individual members of the ad hoc committee and MPAP, alleging false imprisonment, civil conspiracy, breach of contract, and civil right violations related to the disciplinary actions. Summary judgment was granted to defendants in federal District Court on the civil rights claims, and the remaining charges were remanded to state District Court, where they were also summarily dismissed. Hughes appealed. The Supreme Court affirmed dismissal of the false imprisonment claim because Hughes voluntarily signed the treatment agreements and submitted to evaluation. Two elements of false imprisonment are the restraint of an individual against the individual's will and the unlawfulness of that restraint, but because no material fact existed as to the voluntariness of Hughes's action, the false imprisonment claim failed as a matter of law. Further, to sustain a civil conspiracy claim, plaintiff must allege a tort committed by one of the conspirators, but because the false imprisonment claim failed, there was no underlying tort action to form a basis for civil conspiracy, so that claim failed as well. Hughes v. Pullman, 2001 MT 216, 306 M 420, 36 P3d 339 (2001). Civil Conspiracy -- Elements -- Summary Judgment Properly Granted: David, his wife Susan, their minor child, and the parties' defunct business sued Pierce Flooring and others for civil damages, including damages resulting from a civil conspiracy, stemming from criminal acts of vandalism taken against the plaintiffs' competing business. The District Court granted the defendants' motion for summary judgment against David and the other plaintiffs on the civil conspiracy claim. Citing Duffy v. Butte Teachers' Union No. 332, 168 M 246, 541 P2d 1199 (1975), and Grenz v. Medical Management NW., Inc., 250 M 58, 817 P2d 1151 (1991), the Supreme Court stated that the elements of a cause of action for civil conspiracy are: (1) two people (and, as in this case, a person may be a corporation); (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful acts; and (5) damages as the proximate result. The Supreme Court noted that the District Court had held that there was "probably sufficient evidence of elements 1, 2, 4, and 5" but that the plaintiffs failed to prove a genuine issue of material fact as to element 3. After reviewing the record, the Supreme Court held that the District Court correctly concluded that there was no evidence of a "meeting of the minds on the object or course of action" between the defendants. Rocky Mtn. Enterprises, Inc. v. Pierce Flooring, 286 M 282, 951 P2d 1326, 54 St. Rep. 1410 (1997). Unjust Enrichment -- Misconduct by Defendant Required -- Denial of Restitution to Defaulting Purchaser: Upon default by purchasers, seller resold the property. Purchasers sought restitution, contending it was unfair to allow seller to be unjustly enriched by selling the property twice. However, restitution is normally denied to a defaulting purchaser. (See Contract Damages in Montana Part II: Reliance and Restitution, Burnham, 45 Mont. L. Rev. 1 (1984).) Further, in order for the equitable doctrine of unjust enrichment to apply, plaintiff must show some element of misconduct or fault on the part of defendant. Schweigert v. Fowler, 240 M 424, 784 P2d 405, 47 St. Rep. 1 (1990).
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