author: JUSTICE HARRISON JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. GEORGE BURNS, Defendant and Respondent.
    No. 91-516.
    Submitted on Briefs January 16, 1992.
    Decided April 17, 1992.
    49 St.Rep. 353.
    253 Mont. 37.
    830 P.2d 1320.

      For Appellant: Marc Racicot, Attorney General; Elizabeth L. Grilling, Asst. Attorney General, Helena; Thomas R. Scott, County Attorney, Dillon.
    For Respondent: John S. Warren, Schultz, Davis & Warren, Dillon.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an interlocutory appeal from an order of the Fifth Judicial District Court, Beaverhead County, Montana, denying the appellant’s request to compel discovery of the respondent’s personnel files from the Catholic Diocese. We affirm.

The issue on appeal is whether the District Court abused its discretion in refusing to grant the State’s motion to discover the Catholic Diocese’s personnel records concerning the respondent in a criminal case after the District Court conducted an in camera inspection.

Defendant and respondent, George Bums (Bums) was charged with Deviate Sexual Conduct under § 45-5-505(1), MCA (1989), and Deviate Sexual Conduct Without Consent under § 45-5-505(3), MCA (1989). Burns pled not guilty and later presented the prosecution with a list of approximately fifteen character witnesses. The prosecution applied for an investigative subpoena to obtain Bums’ personnel records from the Catholic Diocese in Helena. The State purportedly sought information regarding reports of similar instances of misconduct, disciplinary actions, transfer records, as well as witness names to use in rebutting and cross-examining Burns’ character witnesses. The Honorable Dorothy McCarter issued the subpoená which was served on Father John Robertson (Robertson), Chancellor of the Catholic Diocese of Helena. On the advice of counsel, Robertson refused to surrender the personnel records. Judge McCarter’s order dated September 27,1991, indicated that the parties agreed to an in camera review of the records in question on September 23, 1991. Accordingly, Judge McCarter ordered the in camera inspection by the presiding trial judge, the Honorable Thomas A. Olson.

Several telephone conferences ensued between Judge Olson and the parties. Due to the dispute over whether to reveal the contents of the personnel records maintained by the Catholic Diocese, the District Court conducted an in camera inspection of Burns’ personnel file on September 25, 1991. After hearing oral arguments, Judge Olson ruled that the information was not discoverable since it contained personal and private information and returned the records to the Diocese of the Catholic Church in Helena.

The State initiates this interlocutory appeal alleging that Judge Olson erred in barring discovery of the records. The State maintains that unfair prejudice attaches because the file could contain reports of other similar related acts and relevant disciplinary proceedings against Burns which would qualify as other crimes, wrongs or acts evidence. Further, the State alleges that lack of access to Bums’ personnel records is prejudicial since they may contain the names of witnesses who can rebut Bums’ character witnesses.

An in camera review is a device often used at various stages throughout discovery and trial. The purpose of the proceeding is to balance the privacy interests of the parties and the need to know. The in camera procedure can effectively offer protection to both parties by avoiding needless exposure of potentially harmful information. In State v. Thiel (1989), 236 Mont. 63, 768 P.2d 343, the in camera procedure was used to determine whether the contents of a social worker’s file should remain private. We determined that the in camera procedure protected privacy rights. Thiel, 236 Mont. at 67-68, 768 P.2d at 345-46. In State v. Mix (1989), 239 Mont. 351, 781 P.2d 751, the in camera device was used to preview potentially damaging information before it was released. In Mix, medical records were sought for proof of character evidence. The trial court refused the request for access to the medical records after an in camera inspection on the grounds that the subject matter was irrelevant and too remote to the case. Mix, 239 Mont. at 360, 781 P.2d at 756. In In re Lacy (1989), 239 Mont. 321, 780 P.2d 186, we determined that the in camera procedure should be used to decide what information could be properly discovered. Lacy, 239 Mont. at 326, 780 P.2d at 189.

Accordingly, we conclude in the case at bar, that the District Court properly utilized the in camera procedure to weigh the effects of allowing discovery of the information contained in Burns’ personnel files maintained by the Catholic Diocese.

While discovery is meant to be a broad tool in facilitating the resolution of lawsuits, it is not without restraint.

The ability to question adverse witnesses, however does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Pennsylvania v. Ritchie (1987), 408 U.S. 39, 53, 107 S.Ct. 989, 999, 94 L.Ed.2d 40, 54.

State v. Reynolds (1990), 243 Mont. 1, 8, 792 P.2d 1111, 1115.

The scope of discovery in criminal matters has been addressed by the American Bar Association as follows:

In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.

ABA Discovery and Procedure Before Trial, § 1.2 (1974).

When discovery of documents such as personnel records are at issue, privacy rights are -undoubtedly at stake. Montana adheres to one of the most stringent protection of its citizens’ right to privacy in the country. Mont. Const. Art. II, § 10. Montana’s treatment of privacy rights is more strict than that offered by the Federal Constitution. Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 439, 649 P.2d 1283, 1286. It is against this constitutional backdrop that we view the case at bar.

The privacy interest in Burns’ personnel records at the Catholic Diocese must be weighed against the State’s need to discover the same. On appeal we seek to review whether the District Court adequately weighed and balanced these competing interests. On September 25,1991, during an on the record, in camera review of the contents of Bums’ personnel records, Judge Olson said:

I find a document that is marked confidential, to be opened by the Bishop of the Diocese only. I open this with reluctance. All right. The Court has in summary fashion reviewed the documents. I will say on the record, I consider these to be highly personal documents, private documents of the Diocese. I will accord the State and the defendant the hearing if the State pursues that. And my impression here, which I state to the representative of the Diocese, that these documents will not be disclosed.

On September 27, 1991, after hearing oral arguments Judge Olson stated:

The Court has heard the arguments of counsel and I make the following ruling. The evidence seized by the investigative subpoena, or which is the subject of the investigative subpoena, is hereby returned to the Diocese of Helena intact, without disclosure to the State or the defendant. I do that upon the grounds that the Diocese has compelling rights of privacy to its personnel files and all of the documents contained therein. The file is clearly marked to be private .... We have the strongest privacy laws in this state of all of the states, and I find that the State cannot show compelling interest to crack open private church documents such as these. So, they are suppressed — returned to the Diocese — found to be off limits in this particular matter.

In Montana, we have adopted a two-prong test to determine whether issues of privacy are protected under our Constitution as follows:

1) Whether the person involved had a subjective or actual expectation of privacy; and,
2) Whether society is willing to recognize that expectation as reasonable.

State ex rel. Great Falls Tribune Co. v. Eighth Judicial Dist. Court (1989), 238 Mont. 310, 318, 777 P.2d 345, 350, citing Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287.

This test was used in Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962. In Missoulian v. Board of Regents, “the Board of Regents was required to balance the public’s right to know against the individual’s right of privacy with respect to employment evaluations. There the right of the individual privacy was held to be paramount.” Tribune, 238 Mont. at 319, 777 P.2d at 350.

While the two-prong test was not specifically set forth by Judge Olson, it is apparent from his comments in the record that the test is satisfied, barring discovery of Bums’ personnel records.

The case at bar is similar to Mix, in that the State seeks leads relating to character evidence, as well as information about prior acts of misconduct such as disciplinary proceedings. As in Mix, an in camera inspection was conducted to weigh the interests of the parties. The record indicates that Judge Olson reviewed the personnel records and concluded that the right to privacy outweighed the State’s need for any information contained in the records. Whether applying the two-prong test or the principles of Mix to the case at bar, we find that the District Court acted appropriately and did not abuse its discretion.

We note that Judge Olson’s final comment in the previous recitations on the record is particularly informative. He stated that the personnel records would be off limits “in this particular matter.” This is important since there is not blanket unavailability of personnel records nor should the outcome of this appeal point to that end. Personnel records may be discoverable given the correct set of circumstances and after appropriate balancing tests are considered which may include the in camera procedure previously discussed. For instance, in Montana Human Rights v. Billings, access to employment records was granted to the Human Rights Division to investigate possible violations of discrimination. However, when granting such access, we insisted on specific protective measures to prevent dissemination of the discovered information. Montana Human Rights v. Billings (1982), 199 Mont. 434, 446, 649 P.2d 1283, 1290. The right to know the names of disciplined employees was greater than their right to privacy in Great Falls Tribune v. Sheriff (1989), 238 Mont. 103, 775 P.2d 1267. In Tribune v. Sheriff we said:

When we balance the limited privacy interest of the law enforcement officers against the public’s right to know which officers have been disciplined for unlawful acts, we conclude that the District Court was correct. The privacy interest of the officers does not clearly exceed the public’s right to know. We note that we are not ruling that the entirety of any personnel files must be revealed.

Tribune v. Sheriff, 238 Mont. at 107, 775 P.2d at 1269.

We also mention that we fail to see how the State’s alleged prejudice is created particularly with regard to the discovery of rebuttable character witnesses. Certainly, the State may research and locate witnesses to rebut Burns’ character bolstering witnesses and while access to Bums’ personnel records maintained by the Catholic Diocese may or may not expedite this process, the file is not the only means of locating these witnesses.

Absent an abuse of discretion we will uphold the rulings of the district court. “District courts have the discretionary power to control discovery activities in cases pending before them. We will overturn a district court order affecting discovery only if it amounts to an abuse of discretion.” State of Or. ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 12, 700 P.2d 150, 152. In the case at bar, the District Court considered the possible effects of releasing the Catholic Diocese’s personnel records concerning Bums and consequently, ordered an in camera review of the file for relevant information. After the in camera review the District Court heard arguments regarding exposing the contents of the file and determined that such exposure was improper. Prohibiting discovery of materials that are not probative is one of the functions of trial judges which is within their discretionary powers. In the case at bar, Judge Olson properly utilized his discretionary powers to prohibit discovery of Burns’ personnel records. The competing interests of the parties were properly weighed by the District Court.

We affirm.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH, WEBER and TRIEWEILER concur.

JUSTICE GRAY,

dissenting.

I dissent from the opinion of the majority. I would at very least reverse and remand for entry of the legal basis for the privacy ruling and for a new in camera review and entry of findings sufficient to permit review by this Court. For reasons that are completely beyond my understanding, this Court has decided to permit a right of privacy improperly asserted by the Roman Catholic Church to override all State interest in criminal investigation and prosecution. The consequences will be vast and incalculably damaging to law enforcement and prosecution efforts in Montana and to victims of criminal sex offenses.

The majority’s statement of the facts is conveniently abbreviated; as a result, the total picture of the events which occurred in two judicial districts is not clear. For that reason, I restate at some length the facts of record which underlie the issues before this Court.

The State of Montana charged defendant and respondent George Burns (Burns) with Deviate Sexual Conduct and Deviate Sexual Conduct Without Consent in Beaverhead County Cause No. DC-91-2378. After Burns pled not guilty and furnished a list of character witnesses to the prosecution, the prosecution applied for an investigative subpoena duces tecum in the First Judicial District Court, asserting that the administration of justice required the issuance of the subpoena requiring the Catholic Diocese of Helena to produce its employee files on Bruns. The application was supported by an affidavit enumerating in detail the bases for the application.

The Honorable Dorothy McCarter issued the subpoena on September 23, 1991. In it, she found “that the administration of justice requires” the issuance of the subpoena; the subpoena went on to command the Chancellor of the Diocese to produce immediately all records of “employee files, employee records, disciplinary proceedings, [and] transfer records” regarding Bums. The secrecy and disclosure provisions relating to grand jury proceedings specifically were made applicable to the subpoena. Failure to comply with the subpoena “is punishable for contempt of court.”

The Diocese orally moved Judge McCarter to quash the subpoena, arguing church canons pertaining to confidentiality of the documents sought. After discussion with the court, counsel for the Diocese agreed that the subpoena, pursuant to an active criminal investigation and attendant compelling state interest, would reach the documents held by the Diocese. Counsel also agreed that the files would be reviewed in camera by the trial court. The First Judicial District Court denied the motion to quash the subpoena on September 27, 1991, and ordered the in camera review by the presiding trial judge, the Honorable Tom Olson. (The Honorable Frank Davis had recused himself from the case.)

Between the time of Judge McCarter’s order of September 23 issuing the subpoena and her subsequent order of September 27 denying the Diocese’s motion to quash, the Diocese produced the files in Judge Olson’s court on September 25. Notwithstanding its agreement in the First Judicial District that the subpoena would reach the files because of the State’s compelling interest, the Diocese asserted privacy rights regarding the records. The prosecution was not present. Judge Olson stated in advance that he would review the files “in a summary fashion.” He set September 27 “for the County Attorney to present whatever argument and documents he may have concerning the personnel records.”

Judge Olson reviewed the personnel file in the presence of the Chancellor of the Diocese. He stated on the record that the document was about one and one-half inches thick and that it was “marked confidential, to be opened by the Bishop of the Diocese only.” He noted that it was clear that the State was seeking “other acts” evidence in the file. He opened the file “with reluctance” and reviewed it “in a summary fashion.” He stated at that time that he considered the documents to be “highly personal documents, private documents of the Diocese.” He went on to state that he would accord the State the September 27 hearing if the State pursued it. He pronounced his “impression” that the documents “will not be disclosed ... But I guess I should not pre-judge that until the hearing has taken place. For appearances of fairness ...” he went on to require the Chancellor’s presence, with the documents, at the September 27 hearing.

The September 27 hearing took place as scheduled for the pin-pose of the State’s motion “for release of the investigative subpoena information.” The State recounted for the court the proceedings before Judge McCarter and asserted its compelling interest in obtaining the information. Judge Olson ruled that the evidence sought was to be returned to the Diocese intact, without disclosure. He did so on the grounds that “the Diocese has compelling rights of privacy to its personnel files,” but without providing any legal authority. He restated his original reluctance in reviewing the file and the fact of his summary review. He also noted the “separation of church and state in this country,” a position not argued. He specifically found “that the State cannot show a compelling interest to crack open private church documents.”

The State successfully moved for a stay of further proceedings and appealed Judge Olson’s ruling to this Court.

The majority states the issue as whether the District Court abused its discretion in refusing to grant the State’s motion to discover the Catholic Church’s personnel records concerning a defendant in a criminal case after the District Court conducted an in camera review. The majority’s refusal to even mention the fact that the First Judicial District Court, on the basis of compelling State interest, had already ordered the Diocese to immediately make the records available and denied the Diocese’s motion to quash is an early warning signal of the almost offhand manner in which the majority approaches this case. It is my view that Judge Olson had no authority to totally and completely override Judge McCarter’s finding of compelling State interest and, indeed, to conclude that the State “cannot” show a compelling State interest under the facts of this case; in addition, the court’s failure to enter detailed findings or any legal authority whatsoever essentially renders review by this Court impossible. The majority’s willingness to put its imprimatur on the events and proceedings which occurred in this case is incomprehensible to me.

The majority begins its analysis with the in camera issue and addresses the privacy issue thereafter. For ease of discussion, I will follow suit. To begin, I do not disagree with the majority’s statements concerning the purpose and value of in camera reviews. The cases on which it relies to affirm the actual in camera proceedings which occurred in this case, however, are inapposite. If anything, those cases support a remand for further and appropriate proceedings by the district court.

The majority relies primarily, and erroneously, on State v. Mix and In re Lacy to support its affirmance of the in camera proceedings which occurred in the instant case. In Mix, the trial court reviewed a homicide victim’s medical records in camera after the defendant requested admissibility of the records to show the victim’s unstable personality and violent and turbulent character. Ruling that the records would be excluded, the court “carefully detailed its findings [of remoteness and irrelevance] with counsel;” it later included those “clearly detailed” findings of remoteness and irrelevance in its order denying a new trial. This Court found no manifest abuse of discretion. Thus, while Mix can be said to involve in camera proceedings, it certainly provides no basis for the majority’s affirmance in this case. Mix supports the necessity of a trial court making detailed findings of its reasons for excluding material after an in camera review. In this case, no findings of any kind were made. Absent such findings, and with the file at issue not available to us, there is absolutely nothing for this Court to review. Yet the majority blithely ignores the specifics of Mix, concluding that the District Court properly utilized the in camera procedure and that there was no abuse of discretion.

Lacy also provides no support for the majority’s conclusions. The majority correctly states that in Lacy we determined that the in camera procedure should be used to decide what information properly could be discovered. Again, however, the majority does not focus on the specifics in Lacy and ignores its own analysis therein. The issue in Lacy was an insurer’s right to obtain police department investigation records which the insurer believed would aid it in determining whether a decedent made misrepresentations in his policy application. The insurer filed an application for production; the police department objected to a general release of the information and requested an in camera review to decide which evidence should be released. The district court denied the application altogether on the basis that the carrier was not entitled to the information under the Criminal Justice Information Act; the carrier appealed. We concluded that the insurer had met its burden of showing eligibility to receive confidential police information under the Right to Know provision of the Montana Constitution, subject only to the privacy rights of those named in the records. We remanded for an in camera review by the district court to determine what material could be released, noting that the insurer “should be accorded the widest breadth of information possible.”

Analyzing the facts, procedure and law set forth in Lacy, it is clear that in this case the State met its initial burden of showing entitlement to the file at issue in its application for the subpoena; Judge McCarter so ruled in issuing the subpoena commanding production. The appropriate procedure thereafter would have been an in camera review to determine the extent to which the information should be released. Here, the Diocese had made a motion to quash on confidentiality grounds and subsequently agreed that the State’s overriding interest controlled. Judge McCarter denied the motion to quash. As a result, all confidentiality bases for nondisclosure should have been rejected by Judge Olson. The file should have been disclosed to the State subject only to relevance determinations and to the grand jury secrecy and disclosure provisions previously made applicable by Judge McCarter.

In the event that it was in any way appropriate for the District Court to consider the privacy right asserted, it should have done so mindful of the State’s entitlement to “the widest breadth of information possible,” according to Lacy. In ruling on the privacy right, it should have done a legal analysis delineating the extent to which the right existed under these circumstances. Next, under Lacy, it should have balanced the competing interests, disclosing as much information as possible to the State. Finally, it should have made detailed findings, as required by Mix, so that this Court would have something to review.

Instead, the District Court obviously was extremely reluctant even to open the file. Why? Because it was marked “confidential” and “private.” The total irrelevance of such designations to a legal analysis of an asserted right to privacy can hardly be overstated. Barely overcoming its reluctance, the District Court reviewed the file “in summary fashion” and concluded, without any legal analysis whatsoever, that the file was a private, personal document of the Diocese. And all of this not only outside the presence of the prosecutor, but before he had had a chance to be heard. This is the in camera procedure the majority concludes was properly utilized in this case.

Finally, I am dismayed at the majority’s analysis of the privacy issue itself. The majority glosses over the fact that in this case it is the Diocese which is held to have the right of privacy. It states that the two-prong privacy test was met during the proceedings before Judge Olson and that that test bars discovery of the records at issue here, relying on Missoulian v. Board of Regents. It is a sad day for the state of the law in Montana when this Court cannot distinguish between a case in which the competing interests are the public’s right to know and an individual’s expectation of privacy in personnel evaluations, and one in which the interests are the State’s compelling interest in investigation and prosecutions of criminal sex offenses and the Helena Diocese’s interest in keeping its files safe from scrutiny.

The majority concludes its discussion of the privacy issue by suggesting that its actions and those of the District Court in this case should not be interpreted as blanket unavailability of personnel records. Given the state of the record before us, this statement is disingenuous at best. Perhaps the majority means to limit application of this case to other cases involving the Catholic Church and apply the law properly to all other employers. If so, an insupportable thing has happened in Montana: the Catholic Church has been placed both above and outside the reach of the law with regard to the investigation and prosecution of the very criminal offenses which people of values and morality find so disturbing. If not, the majority provides no analysis of how it plans to distinguish this case from one involving any other employer.

Yet, in this final section, the majority comes closest to admitting what the law requires it to do in this case. The majority discusses Montana Human Rights Division v. Billings and Great Falls Tribune v. Cascade County Sheriff with approval, suggesting that in other cases, presumably cases not involving the Church, it will apply those precedents. In Billings, access to employment records was granted to the Human Rights Division to investigate possible violations of anti-discrimination laws; protective measures were mandated to prevent dissemination of the discovered information. Those results were appropriate in Billings and they are appropriate here. Apparently the majority believes it is more important and, somehow, more legally permissible to discover violations of anti-discrimination laws than to discover and prosecute criminal acts of deviate sexual conduct. I am unwilling to subscribe to such an ordering of priorities. Billings makes it even more clear to me that the State’s interest in this case must override any right to privacy asserted by an entity — whether that entity is the City of Billings, XYZ Corporation or the Helena Diocese. Adequate protective measures are available in this case as they were in Billings; indeed, here Judge McCarter included protective measures in the subpoena when it was issued.

In Great Falls Tribune, the public’s right to know which officers had been disciplined for unlawful acts was held to override the limited privacy interest of those officers. I can conceive of no explanation, nor is one offered, for the majority’s conclusion in this case that the State’s interest in prosecuting sex offense cases and, indeed, in protecting Montanans irom perpetrators of such offenses, must give way to the privacy interests of the Helena Diocese of the Roman Catholic Church.

In its final paragraph, the majority performs its last reconstruction of the record in this case to match the result it is determined to reach. Contrary to the majority’s statement, the District Court did not order the in camera review as a result of ££consider[ing] the possible effects of releasing the Catholic Diocese’s personnel records concerning Burns ....” Judge McCarter ordered the Church to immediately produce the files after finding that the State had a compelling interest, denied the Church’s motion to quash, and ordered an in camera review. The record does not suggest why the in camera review was ordered and the majority’s statement constitutes creative speculation. If we are to base our opinions on speculation, I submit that it is more likely that the review was ordered so that irrelevant and/or remote information could be withheld, based on specific findings as required by Mix.

The majority’s next statement, that the District Court heard arguments after the review and determined that disclosure of the information was improper, is true but misleading. The facts that the review was made and a decision announced two days before the prosecution even appeared and was allowed to make argument are conveniently omitted.

Finally, the majority tosses in a non sequitur by mentioning that prohibiting discovery information which is not probative is one of the discretionary functions of trial courts. The record is clear that no review was conducted from a probity perspective and no findings regarding probity were made in this case; indeed, neither this Court nor anyone other than the Church and Judge Olson will ever know whether information probative of the offenses with which Burns is charged is contained in the files.

Law enforcement personnel will be severely hampered by this Court’s action today. More important, at least to me, Montanans will suffer. I dissent.

       Judge Olson took over the case after the presiding District Judge, the Honorable Frank M. Davis from Dillon recused himself.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE TRIEWEILER JUSTICE McDONOUGH,

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. SHANNON DAVIS, a/k/a/ SHAWN DAVIS, a/k/a/ CLEVE LAYTON VICK, Defendant and Appellant.
    No. 91-113.
    Submitted on Briefs December 12, 1991.
    Decided April 17, 1992.
    49 St.Rep. 342.
    253 Mont. 50.
    830 P.2d 1309.

      For Appellant: Marcelle C. Quist, Quist Law Office, Bozeman.
    For Respondent: Marc Racicot, Attorney General; Joseph E. Thaggard, Assistant Attorney General, Helena; Michael Salvagni, Gallatin County Attorney, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On April 19,1990, the State filed an Information in the Eighteenth Judicial District Court in Gallatin County, charging Shannon Davis with Sexual Assault. On August 20, 1990, the State amended its Information to add one count of Solicitation of Tampering with Physical Evidence. The District Court, sitting without a jury, tried the case on August 28-31,1990. The court found Davis guilty on both charges. Davis appeals. We affirm.

The issues are:

1. Did the District Court err when it permitted the placement of an opaque screen between Davis and the witness stand during the testimony of two child witnesses?

2. Did the District Court err when it admitted evidence of pending sexual assault charges in another county?

3. Did the District Court err when it allowed the victim’s counselor to testify about the victim’s statements which were made during the investigation of the case?

4. Did the District Court err when it denied Davis’ motion for acquittal which was based on the sufficiency of the proof?

In the fall of 1989, Kathleen Pollard, a kindergarten teacher at Monforton School in Bozeman, contacted the Department of Family Services about her pupil J.R. Ms. Pollard had noticed that J.R., who was then five years old, was dirty, unhealthy, and emotionally underdeveloped. She summoned social worker Gloria Edwards, who interviewed J.R. on September 5, 1989. Ms. Edwards then sought temporary investigative authority but was unsuccessful. Consequently, J.R. remained in the care of her biological mother for several more months while Ms. Pollard continued to monitor her appearance and behavior.

On April 4,1990, Ms. Pollard summoned Ms. Edwards again. Ms. Pollard told Ms. Edwards that J.R. was much more dirty and unkempt that day than she had been before, and that Ms. Edwards should come and observe for herself. Ms. Edwards interviewed J.R., who said, “I have a babysitter, and his name is Shawn, and he makes [my sister] take long naps, and he looks at my peepee for a long, long time.”

J.R. repeated this story the next day, and indicated that by “peepee” she meant her vaginal area. When Ms. Pollard asked J.R. what happened next, J.R. said “he just bodied his own and waited for some stuff to come out of his thing.” Subsequent interviews by Ms. Edwards and child psychologist Eugenia Bellante made it clear that J.R. was describing sexual activity.

On April 5, 1990, Ms. Edwards made arrangements to place J.R. in a foster home. The next day Ms. Edwards took J.R. to the Gallatin County Sheriff’s Office, where J.R. identified Davis as her babysitter in a photographic lineup. On April 19, 1990, the State charged Davis with sexually assaulting J.R. The District Court issued a bench warrant for his arrest that same day.

Davis could not provide bond and remained in jail throughout the pretrial preparation of the case. During his incarceration he placed 37 collect telephone calls to his friend John Kubichek. In one of these phone calls in late April 1990, Davis asked Kubichek to retrieve a parcel from Davis’ trailer and destroy it. Kubichek opened the package and found several photographs of a nude female juvenile later identified as L.D.

Kubichek delivered the package and its contents to the Gallatin County Sheriff’s Office. At that time, several charges were pending against Davis in Madison County for engaging in sexual activity with L.D. Subsequently, the State amended its Information to add a charge of Solicitation of Tampering with Physical Evidence.

The District Court, sitting without a jury, found Davis guilty on both counts after a trial on August 28-31, 1990. The court sentenced him to 20 years at Montana State Prison for the sexual assault and 10 years for solicitation of tampering. The court designated Davis as a dangerous offender and ordered that he complete the prison’s sexual offender treatment program prior to any future release on parole.

I

Did the District Court err when it permitted the placement of an opaque screen between Davis and the witness stand during the testimony of two child witnesses?

On August 22, 1990, the State moved the District Court for an order permitting protective screening during the testimony of J.R. and A.C., a second child witness whose testimony would tend to corroborate J.R.’s testimony by showing that Davis followed a common scheme or plan in his sexual contact with children. The court took preliminary evidence on the matter before trial, heard argument by counsel, and then decided to permit placement of the screen.

The District Court asked a newspaper photographer to photograph the screen after it was in position, and the court then appended those photographs to the record. The screen was a free-standing, hinged space partition apparently intended for use as a temporary room divider. As erected, it stood approximately six and one-half feet high and spanned about ten feet across. The screen was located directly in the line of sight from the witness stand to the counsel table at which Davis was seated and was closer to the counsel table than to the witness stand. With the screen in place, the judge, prosecuting attorney, and defense counsel could view the witnesses, but Davis could not. The screen was removed after the second child witness finished testifying.

Davis now contends that the court erred in permitting the use of this screen. He argues that this device violated his right to confront the witnesses against him as guaranteed by the United States and Montana Constitutions. In the court below, however, Davis did not object or argue on the basis of the State Constitution. By failing to object at trial on the basis of the Montana Constitution, Davis waived his right to have us review that issue on appeal. Section 46-20-104(2), MCA. Consequently, we do not express an opinion today on whether the screening procedure violated the Montana Constitution. We turn instead to the United States Constitution and its accompanying case law.

The United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” Amend. VI, U.S. Const. The United States Supreme Court considered the application of this clause to testimony by child witnesses in two recent cases, Coy v. Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, and Maryland v. Craig (1990), 497 U.S._, 110 S.Ct. 3157, 111 L.Ed.2d 666.

In Coy, the State of Iowa charged the defendant with two counts of engaging in lascivious acts with children, a felony under § 709.8, Iowa Code. The trial court permitted the state to erect a translucent screen in front of the defendant. The state legislature had authorized this procedure, § 910A.14, Iowa Code, and the trial court did not undertake any independent inquiry into the necessity for it. Lights were then thrown on the screen in a way that allowed the defendant to see the witnesses without allowing the witnesses to see him. Coy, 487 U.S. at 1014-15, 108 S.Ct. at 2799, 101 L.Ed.2d at 863.

The Iowa Supreme Court held that the “trial court had no obligation to make an independent finding of necessity,” thereby implying that the legislature’s determination of necessity in adopting the statute was sufficient. State v. Coy (Iowa 1987), 397 N.W.2d 730, 733. The United States Supreme Court then reversed.

The Court held in a 6-2 decision that the use of the screen at trial violated the defendant’s rights under the Confrontation Clause. Justice Scalia, writing for the majority, said that “the irreducible literal meaning” of the Confrontation Clause is a right to meet the state’s witnesses “face to face” at trial. Coy, 487 U.S. at 1021, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Justice Scalia declined to consider any exception to this “irreducible literal meaning,” but he suggested that if such exceptions did exist they would require a greater showing than Iowa’s general legislative finding of necessity. Coy, 487 U.S. at 1021, 108 S.Ct. at 2803, 101 L.Ed.2d at 867.

Justices O’Connor and Stevens concurred separately in order to emphasize their

view that those [Confrontation Clause] rights are not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.

Coy, 487 U.S. at 1022, 108 S.Ct. at 2803, 101 L.Ed.2d at 868 (O’Connor, J., concurring). Justice O’Connor noted that “other competing interests” might outweigh the “preference” for face-to-face confrontation in an appropriate case if the state demonstrated that it “was necessary to further an important public policy,” but that Iowa’s “generalized legislative finding of necessity’ was insufficient. Coy, 487 U.S. at 1024-25, 108 S.Ct. at 2804-05, 101 L.Ed.2d at 869 (O’Connor, J., concurring.) Justice O’Connor subsequently elaborated on this position in Maryland v. Craig.

In Craig, the State of Maryland charged the defendant with a number of sexual offenses. The trial court found that in-court testimony by the child victims would result “in each child suffering serious emotional distress ... such that each of these children cannot reasonably communicate.” Craig, 497 U.S. at_, 110 S.Ct. at 3162, 497 L.Ed.2d at 676. The court then permitted the children to testify by closed circuit television, a procedure authorized by statute in Maryland. Section 9-102, Maryland Code. This closed circuit television arrangement allowed the defendant to view the witnesses without allowing the witnesses to view the defendant.

The Maryland Court of Special Appeals ruled that this finding was sufficient, but the Maryland Court of Appeals reversed. The Court of Appeals held that the trial court’s finding lacked the specificity required by Coy. Craig v. State (Md. 1989), 560 A.2d at 1128-29. The case therefore squarely presented the Supreme Court with an opportunity to decide just how specific such findings of necessity must be.

The Supreme Court reversed, holding that the trial court’s findings were not necessarily inadequate. Justice O’Connor, writing for a 5-4 majority, elaborated on her opinion in Coy and explained that the state’s interest in protecting victims of child sex crimes from physical and psychological injury “may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Craig, 497 U.S. at_, 110 S.Ct. at 3167, 111 L.Ed.2d at 683. The Court reiterated that the key to this analysis is an “individualized” finding of necessity. Craig, 497 U.S. at_, 110 S.Ct. at 3169, 111 L.Ed.2d at 685.

The Court then set forth the following three-part test for measuring the adequacy of these case-specific findings of necessity:

[1] The trial court must hear evidence and determine whether use of [a procedure other than face to face confrontation] is necessary to protect the welfare of the particular child witness who seeks to testify.
[2] The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.

[3] Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus, i.e, more than “mere nervousness or excitement or some reluctance to testify.”

Craig, 497 U.S. at_, 110 S.Ct. at 3169, 111 L.Ed.2d at 685 (citations omitted and elements numbered for convenient reference).

In this case, the District Court relied upon Craig’s three-part test in entering the required individualized finding of necessity. The court found as follows:

There has been testimony in this case that there is the potential for these two young children that they will sustain some trauma. I think the word “trauma” was utilized by an expert witness in this case with respect to [J.R.]. The word “trauma” was not used with [A.C.] in his position as a witness, but the testimony indicates that he will be extremely frightened, extremely scared and, in the mind of the Court, with a 5 and a 6 year old, there is little difference between the technical meanings of words like “trauma” and scared. They’re one in the same. That’s essentially what we’re here to do in our capacity as acting in the interests of the child witnesses and protecting their welfare when they do testify. So there is the potential that the children could be traumatized by the mere presence of the defendant.
Likewise I think there is potential in this situation to be, as I questioned Ms. Bellante very specifically, that at least regarding [J.R.] the emotional distress suffered is more than the minimum amount of nervousness that ordinarily descends on any person that comes into a court of law on a case of importance. I think the same kind of circumstance can almost be presumed with respect to witness [A.C.], so the Court is going to grant the motion to screen the witnesses from the defendant.

Although the court did not track Justice O’Connor’s language exactly, we believe this “individualized” finding complies with all three elements of the Craig test. The District Court found that the potential for trauma existed, that it would result from the mere presence of Davis in the courtroom, and that it would be more than ordinary courtroom nervousness.

Although the defendant in this case could not personally observe the witnesses, we do not find that fact dispositive.

In analyzing the essential elements required by the Confrontation Clause, the Supreme Court, in Craig, included the following elements:

The combined effect of these elements of confron-tation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Craig, 497 U.S. at_, 110 S.Ct. at 3163, 111 L.Ed.2d at 678-79.

The Supreme Court cited hearsay evidence as an example that historically there have been many exceptions to the literal requirement of face-to-face confrontation under the Confrontation Clause. The Court stated:

We have accordingly stated that a literal reading of the Confrontation Clause would “abrogate virtually every hearsay exception, a result long rejected as -unintended and too extreme. [Ohio v.] Roberts, 448 U.S. [56] at 63, 65 L.Ed. 2d 597, 100 S.Ct. 2531.” Thus, in certain circumstances, “competing interests, if ‘closely examined,’ may warrant dispensing with confrontation at trial.” Id., at 64, 65 L.Ed. 2d 597, 100 S.Ct. 2531 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 35 L.Ed.2d 297, 93 S.Ct. 1038 (1973), and citing Mattox, supra).... Given our hearsay cases, the word ‘confront,’ as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by an absent declarant — a declarant who is undoubtedly as much a “witness against” a defendant as one who actually testifies at trial.

Craig, 497 U.S. at_, 110 S.Ct. at 3165, 111 L.Ed.2d at 680-81.

The Supreme Court went on to conclude that the well-being of children was such a competing interest that would excuse literal compliance with face-to-face confrontation at trial. It held:

We likewise conclude today that a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.

Craig, 497 U.S. at_, 110 S.Ct. at 3167, 111 L.Ed.2d at 683.

In this case, even though the defendant could not personally observe the child witnesses who testified against him, the basic elements relied upon by the Supreme Court in Craig were satisfied. The child witnesses were physically present in the court, an oath was administered, the children were cross-examined, and the jury was able to observe the demeanor of the child witnesses. Furthermore, as pointed out by the court in Craig, -under the circumstances present in this case, “these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony -under the Confrontation Clause.” Craig, 497 U.S. at_, 110 S.Ct. at 3165, 111 L.Ed.2d at 682.

We hold that the District Court’s case-specific finding complies with federal law and that, therefore, it did not err in permitting the placement of the screen between the witness stand and the defendant during the testimony of the child witnesses.

II

Did the District Court err when it admitted evidence of pending sexual assault charges in another county?

Davis argues that the District Court erred in admitting evidence of unproven sexual assault charges that were still pending against him in Madison County at the time of trial. This argument occupies just one page of his opening brief and does not specifically attack any particular exhibit or witness. In his reply brief, however, he makes it clear that this argument concerns the charges against him for engaging in sexual activity with L.D. He challenges the timeliness and specificity of the State’s notice as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

We find no merit in this argument because evidence about the charges against Davis for engaging in sexual activity with L.D. was part of the corpus delicti of the evidence tampering charge. In State v. Riley (1982), 199 Mont. 413, 426, 649 P.2d 1273,1279, we said “The State is entitled to present the entire corpus delicti of the charged offense including matters closely related to it, even when such evidence discloses crimes other than those charged.” (Emphasis added.) We elaborated on Riley in State v. Romero (1986), 224 Mont. 431, 438, 730 P.2d 1157, 1162, when we said “[ejvidence of acts which are inextricably or inseparably linked with the crime charged is admissible without regard to the rules governing “crimes” evidence. (Emphasis added.)

The statute governing evidence tampering provides that:

A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(a) alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or availability in such proceeding or investigation....

Section 45-7-207, MCA. Thus, the State had to prove that Davis was aware of the charges pending against him regarding L.D. and that he ordered Kubichek to destroy potential evidence in order to impair its availability in that investigation. We believe it was necessary and appropriate for the State to explore these charges in detail in order to prove Davis’ awareness of the Madison County charges and the evidentiary value in the Madison County investigation of the items Davis ordered Kubichek to destroy.

We hold that the District Court did not err in admitting evidence of the pending charges in Madison County.

Ill

Did the District Court err when it allowed the victim’s counselor to testify about the victim’s statements which were made during the investigation of the case?

Davis argues that the District Court admitted inadmissible hearsay by permitting Eugenia Bellante to testify about conversations she had with J.R. during the course of J.R.’s therapy. Our review of the record reveals only one objection during Bellante’s testimony. This was a foundational objection directed at the State’s hypothetical question to Bellante about the psychological impact on very young children of face-to-face testimony against the person they have accused of sex crimes. The court overruled this objection, and Davis does not predicate error on this ruling by the trial court. We are unable to construe this foundational objection as an objection to inadmissible hearsay. Thus, the defense neither objected to any questions calling for hearsay, nor moved to strike the answers that were given.

As we pointed out in Part I of this opinion, an objection at trial is essential to preserve alleged errors for our review. Section 46-20-104(2), MCA. We therefore decline to review this alleged error of the District Court in allowing Bellante to testify about her conversations with J.R.

IV

Did the District Court err when it denied Davis’ motion for acquittal which was based on the sufficiency of the proof?

In the Amended Information, the State alleged that the assault on J.R. occurred between October 1989 and April 1990. No witness at trial provided direct testimony that the assault occurred on a particular date falling within that time span. From this, Davis asserts that the State did not prove beyond a reasonable doubt that the offense occurred within the times alleged in the Amended Information.

We conclude that the State did prove that the offense occurred at least once between October 1989 and April 1990. In this regard, the District Court found as follows:

The effect of this testimony is to present the court with significant unrebutted circumstantial evidence reflecting that as of September 5, 1989, [J.R.] did not know the Defendant, but on April 4, 1990, she did know the Defendant — thus the time period alleged in the Information is covered by the evidence when we consider that the Defendant had no access to [J.R.] from September 5, 1989 until October 2, 1989. During that period he was incarcerated in the Gallatin County Detention Center. He was released on bail on October 2, 1989, and remained free on bail until April 10, 1990, when Defendant was again arrested and confined in the Gallatin County Detention Center where he has since remained.
When [J.R.] told Ms. Edwards, on April 4,1990, that she then did know Shawn, her baby sitter, and thereafter told of the significant sexual contact with the Defendant, and picked Defendant out of a photo lineup — after denying that she knew any Shawn or Shannon or September 5, 1989 in conversation with Ms. Edwards — [J.RJ’s acquisition of knowledge of Defendant, and her testimony as to his sexual contact with her had to take place during the precise period of time alleged in the Information. [Emphasis in original.]

We will not overturn judge-made findings of fact unless they are clearly erroneous. State v. Cope (Mont. 1991), [250 Mont. 387,] 819 P.2d 1280, 48 St.Rep. 949. We conclude that the circumstantial inferences the District Court drew from the evidence are not clearly erroneous.

We hold that the because the District Court did not err in finding that the offense occurred within the time alleged in the amended information, it did not err in denying Davis’ motion for acquittal.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur in the above opinion because the procedures taken by the District Court were only objected to on the basis of the United States Constitution. In applying the Confrontation Clause of the Sixth Amendment to the United States Constitution, I defer to those decisions of the United States Supreme Court, and specifically Maryland v. Craig.

However, if the procedure taken to screen the defendant from the child victim had been challenged on the basis of Article II, Section 24, of the Montana Constitution, it is clear to me that the same result could not occur. I would, therefore, encourage prosecutors who encounter a similar problem in the future to try to find some way to protect child victims which does not preclude the defendant from observing their demeanor and testimony while it is being given.

JUSTICE McDONOUGH,

dissenting.

I dissent as to the result of the majority opinion I believe there is a distinction between this case and the Coy and Maryland cases which is dispositive. Coy v. Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857; and Maryland v. Craig (1990), 497 U.S._, 110 S.Ct. 3157, 111 L.Ed.2d 666. The defendant in this case, because of the opaque screening and its placement, could not personally observe the witness while in the cited cases the defendant was able to observe the witness during testimony.

The Sixth Amendment to the United States Constitution provides two elements of protection for a criminal defendant. First, it provides “the right physically to face those who testify against him.” Second, it provides the right to cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L.Ed.2d 40, 107 S.Ct. 989. These two elements are interwoven. See Davis v. Alaska (1974), 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347. It is clear that the confrontation clause does not provide an “absolute” right to face to face encounter, i.e. hearsay exceptions. See Mancusi v. Stubbs (1972), 408 U.S. 204, 92 S.Ct. 2398, 33 L.Ed.2d 293, and the majority opinion. The hearsay exceptions are based on the unavailability of witnesses and a requisite “indicia” of inherent reliability of such testimony. The exception of Coy and Maryland is essentially an extension of the unavailable witness exception.

The right of cross-examination is not solely a function of defense counsel, it is accorded to the defense. By observing the demeanor, etc., of the witness, the defendant can assist in the cross-examination of the witness. The defendant usually is acquainted with the witness, knows his or her traits, propensities, etc., which through observation by the defendant would assist counsel in cross-examination as to recollection, veracity and communication skills of the witness. The defendant’s ability to assist counsel enhances the central concerns of the clause to ensure reliability of the evidence by subjecting it to testing in an adverse setting. Providing the defendant a right to face and observe his accuser, even though the accuser does not have to face the defendant, does not interfere with the findings of necessity of Coy and Maryland that outweigh the requirement of literal face to face meeting of the defendant and the accused.

In Kirby v. United States (1899), 174 U.S. 47, 55, 43 L.Ed. 890, 19 S.Ct. 574, the Supreme Court held that a defendant may be convicted only by:

witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules ... (Emphasis added.)

Kirby is cited with approval in both Coy and Maryland. In both Coy and Maryland the defendant was able to view the witness and thereby had an opportunity to assist counsel in cross-examination.

The defendant’s right to view the witness’ demeanor is an essential part of cross-examination. Justice O’Connor writing for the majority in Craig states:

We find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right: ... the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testified. (Emphasis added.)

Craig at 110 S.Ct. at 3166. Justice O’Connor also refers to cross-examination in a quote as the “greatest legal engine ever invented for the discovery of truth.” Craig, 110 S.Ct. at 3163, citing California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Certainly denial of this right, by not allowing defendant to view the witness either directly, by video (Coy), by use of lighting skills (Maryland), by one-way glass screens, or by other means, would hamper the right and opportunity for effective cross-examination. Not allowing the accused to view the witness unnecessarily broadens the exception carved out in Coy and Maryland, and thereby violates the Sixth Amendment of the United States Constitution.

JUSTICES GRAY and HUNT concur in the foregoing dissent.


author: JUSTICE HUNT JUSTICE TRIEWEILER,

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff and Appellant, v. MIKE CAMP, as Phillips County Sheriff, and RANDALL KIM BROADBROOKS, Defendants and Respondents.
    No. 91-281.
    Submitted on Briefs September 24, 1991.
    Decided Apr. 30, 1992.
    49 St.Rep. 372.
    253 Mont. 64.
    831 P.2d 586.

      For Appellant: Joseph M. Sullivan, Emmons & Sullivan, Great Falls.
    For Respondent: Norman H. Grosfield, Utick & Grosfield, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

Plaintiff/appellant United States Fidelity and Guaranty Company brought an action in negligence to recover moneys paid to its insured for damages resulting from a fire in an apartment building. The suit named as defendants Randall Broadbrooks, who allegedly started the fire, and Phillips County Sheriff Mike Camp. Broadbrooks was an escapee from the Phillips County Jail at the time of the fire. Broadbrooks never appeared in the action and a default judgment was entered against him. Defendant/respondent Camp moved for summary judgment which was granted by the Phillips County District Court. It is from this grant of summary judgment that USF&G appeals. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in finding that as a matter of law the USF&G negligence action must fall because the required element of proximate cause could not be proven?

2. Did the District Court err in determining that Sheriff Camp was immune from suit under the judicial immunity statute found at § 2-9-112, MCA?

3. If Sheriff Camp enjoyed judicial immunity, was it waived to the extent that there was insurance coverage for the liability?

The appellant made a number of arguments under issue two concerning the District Court’s determination that the respondent enjoyed judicial immunity for the alleged acts of negligence.

Appellant argued that a sheriff would not, under these circumstances, be entitled to rely on the immunity granted to the judiciary. Additionally, appellant contended that a finding that the sheriff had judicial immunity violated the separation of powers doctrine as set forth in Article III, Section 1, of the Montana Constitution, and that such a finding reinvoked sovereign immunity in contradiction to Article II, Section 18, of the Montana Constitution. Concerning issue three, the appellant argued that pursuant to this Court’s recent decision in Crowell v. School District No. 7 of Gallatin County (1991), 247 Mont. 38, 805 P. 2d 522, [9 Ed. Law 76,] any immunity was waived to the extent that insurance coverage existed for the liability. We will not address issues two and three in this opinion, as our decision concerning the first issue requires that we affirm the decision of the District Court.

On September 23, 1987, Randall Broadbrooks pled guilty to Driving While Under the Influence of Alcohol, Fourth Offense, and Driving While an Habitual Traffic Offender. The District Court sentenced Broadbrooks to one year in the county jail, but suspended all but three months of the sentence. The three months not suspended were to be served under a work release arrangement in which Broadbrooks would be released from the jail each week day from 8 a. m. to 5 p. m. in order to continue his employment as janitor for the Phillips County Courthouse complex.

The Phillips County Sheriff’s Department had no set procedure for work release inmates. The sheriff’s department did not attempt to monitor Broadbrooks during release time to ensure that he remained within the confines designated in the work release arrangement. The method used to keep track of the time at which Broadbrooks left in the morning and returned in the evening was not entirely accurate. In fact, not all of the law enforcement officers of the sheriff’s department were even aware of when Broadbrooks was to be released and returned, or where he could go while he was released.

On the evening of Friday, October 2, 1987, Broadbrooks did not return to the jail at 5 p. m. as required by the work release arrangement. At this point, the officer on duty called the undersheriff to inform him that the inmate had not returned. The undersheriff directed the officer on duty to try and locate the inmate and incarcerate him.

The officer on duty went to Broadbrooks’ apartment and knocked on the door, but did not find Broadbrooks. The officer then went to the home of a female friend of Broadbrooks, but he was not there. The officer checked a local bar in Malta where he learned that Broadbrooks had been in earlier and purchased a six-pack of beer and left. After supper, the officer again checked with Broadbrooks’female friend and went back to Broadbrooks’ apartment but did not locate him. A warrant to enter Broadbrooks’ apartment was not sought and no additional members of either the sheriff’s department or the city police were involved in the search.

During the early morning hours of Saturday, October 3, 1987, at approximately 2:30 a. m., a fire broke out at Broadbrooks’ apartment. The origin of the fire has not been judicially determined, but for purposes of this appeal both parties concede that the fire was started when a cigarette Broadbrooks was smoking fell and ignited a couch in the apartment. Broadbrooks awoke at some point after the fire had started and was able to escape without injury.

The officer who had been on duty the previous evening when Broadbrooks failed to return to the jail again went to the home of Broadbrooks’ female friend at about 4 a. m. on Saturday morning. She informed the officer that Broadbrooks was passed out in her apartment. The officer did not take Broadbrooks into custody at this time, but did inform the sheriff’s office of his whereabouts. Finally, around 9 a. m. on Sunday the undersheriff went to the residence of Broadbrooks’ female friend and took him into custody.

Appellant brought this action as a subrogation claim to recover amounts paid to appellant’s insureds, the owners of the apartment building damaged by the fire. Appellant named Broadbrooks as a defendant, alleging that he was negligent in starting the fire. Appellant also brought suit against Mike Camp, as Phillips County Sheriff, for negligently allowing Broadbrooks to escape and for negligently failing to apprehend Broadbrooks once the escape was discovered several hours after the fact. Broadbrooks did not appear in the action and a default judgment was entered against him on March 28, 1990. Respondent Camp moved for summary judgment on November 28, 1990, and appellant filed a cross-motion for partial summary judgment on December 28, 1990. On March 15, 1991, the District Court granted respondent’s motion for summary judgment and denied appellant’s motion for partial summary judgment. Following a motion to reconsider, which the District Court denied, a judgment in favor of the respondent was entered on April 26, 1991.

Did the District Court err in finding that as a matter of law the appellant’s negligence action must fail because the required element of proximate cause could not be proven?

Appellant contends that while the issue of proximate cause was before the District Court by way of the respondent’s motion for summary judgment, the District Court did not even reach the issue of proximate cause. It is clear from reading the memorandum, opinion, and order of the District Court that the primary basis for granting respondent’s motion for summary judgment was the District Court’s finding that the respondent enjoyed judicial immunity. However, the court also stated that based upon the reasoning in several recent decisions of this Court, the respondent was entitled to summary judgment on the grounds that appellant could not meet the required element of proximate cause necessary to maintain an action for negligence. The court did not elaborate on the issue of proximate cause as a basis for granting the summary judgment motion because the court had “already determined that Defendant’s Motion for Summary Judgment should be granted on the grounds of judicial immunity. ’’While there was no detailed discussion of the issue of proximate cause, the District Court did rule on the issue and it is properly before this Court on appeal.

In order to maintain an action in negligence, this Court has stated that a plaintiff must prove four elements:

1. Existence of a duty;

2. Breach of the duty;

3. Causation; and

4. Damages.

Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P. 2d 1126. All of these elements are necessary to successfully bring an action in negligence. In this case, the respondent has alleged that the third element, causation, cannot be proven by the appellant.

This Court has separated the element of causation into two separate components, causation in fact, and proximate or legal causation, both of which must be proven to prevail in an action for negligence. Young v. Flathead County (1988), 232 Mont. 274, 757 P. 2d 772. Prior to the Young decision, the distinction between causation in fact and proximate causation was not generally recognized in Montana. However, in Young this Court adopted a two-tier analysis to determine if a defendant’s breach of duty caused a plaintiff’s injury. We have subsequently explained this analysis stating that:

Liability for breach of duty in a negligence action attaches if the plaintiff can prove first that defendant’s act is a cause in fact of injury and second that the injury is the direct or indirect result, proximately caused by the negligent act.

Kiger v. State Dept. of Institutions (1990), 245 Mont. 457, 459, 802 P. 2d 1248, 1250. The first step in the analysis is to determine if the defendant’s breach of duty was the cause-in-fact of the plaintiff’s injury or damage. Concerning cause-in-fact we have stated that:

Causation in fact can be established in one of two ways. Normally, the “but for” test is used. Under the “but for” test, causation in fact is established simply by proving that the plaintiff’s injury would not have occurred ’but for’ the defendant’s illegal conduct. Young, 757 P. 2d at 777. Stated differently, the defendant’s conduct is a cause of an event if the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event if the event would have occurred without it. Prosser and Keeton on Torts (5th Edition) § 41.

Kitchen Krafters v. Eastside Bank of Montana (1990) 242 Mont. 155, 167, 789 P. 2d 567, 574. In some unusual circumstances, cause-in-fact may also be established by application of the “substantial factor test. ’’However, in this case cause-in-fact is clearly established through the “but-for” test.

Once cause-in-fact is established, the plaintiff must still prove that the defendant’s conduct proximately caused the plaintiff’s injury. Kitchen Krafters, 789 P. 2d at 574. This second tier of analysis in considering causation is necessary because:

Theoretically consequence for one’s acts could continue into eternity but at some point in the chain of causation the law must intervene and absolve the defendant of liability. It was this policy consideration that led to the development of “proximate” or “legal” cause.

Kiger, 802 P. 2d at 1250. Proximate cause is analyzed in terms of foreseeability. “A defendant is liable for his wrongful conduct if it is reasonably foreseeable that plaintiff’s injury may be the natural and probable consequence of that conduct. ” Thayer v. Hicks (1990), 243 Mont. 138, 155, 793 P. 2d 784, 795. In Young, we defined proximate cause stating that “proximate cause is one which in a natural and continuous sequence, unbroken by any new, independent cause, produces injury .... ” Young, 757 P. 2d at 777. However, not all intervening causes will act so as to absolve the defendant of liability. The chain of causation will only be broken, thereby cutting off the defendant’s liability, if the intervening cause is reasonably unforeseeable. Thayer, 793 P. 2d at 795. However, if the intervening cause is one that the defendant might reasonably foresee as probable, or one that the defendant might reasonably anticipate under the circumstances, then the intervening act does not absolve the defendant of liability. Nehring v. LaCounte (1986), 219 Mont. 462, 712 P. 2d 1329.

In this case, the respondent is not liable in negligence for the intervening acts of Broadbrooks and the consequences that followed such acts if, applying the ordinarily prudent person standard, they were not reasonably foreseeable by the respondent. Kiger, 802 P. 2d at 1251. In this instance, Broadbrooks escaped, apparently became intoxicated, passed out in his apartment while smoking, and then started a fire when he allowed his cigarette to fall onto the couch. We hold that such actions and their consequences were not reasonably foreseeable and act as supervening causes of appellant’s injury, thereby absolving the respondent of liability.

Appellant contends that the issue of foreseeability is one for the jury to decide. While the issue of foreseeability is generally an issue for the jury, this Court has held that when it is clear that plaintiff cannot prove by a preponderance of the evidence that the defendant proximately caused the injury in question then “the question of foreseeability may be determined as a matter of law for purposes of summary judgment.” Kiger, 802 P. 2d at 1251. The District Court did not err in granting summary judgment for the respondent in this case.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, MCDONOUGH, GRAY and WEBER concur.

JUSTICE TRIEWEILER,

specially concurring.

I concur in the result arrived at by the majority opinion. However, I do not agree with all that is said therein about the discussion of foreseeability in the context of proximate cause. I would hold that foreseeability is an element of duty and that none was established under the facts in this case.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. Dianne BULL COMING, Defendant and Appellant.
    No. 91-455.
    Submitted on Briefs April 2, 1992.
    Decided Apr. 30, 1992.
    49 St.Rep. 376.
    253 Mont. 71.
    831 P.2d 578.

      For Appellant: Diane Bull Coming, Pro se, Warm Springs
    For Respondent: Marc Racicot, Attorney General; Clay R. Smith, Solicitor, Helena; Keith D. Haker, Custer County Attorney, Miles City.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, Diane Bull Coming, appeals from an order of the District Court of the Sixteenth Judicial District, Custer County, which denied her petition for postconviction relief. We affirm.

The issues on appeal are:

1. Did the District Court err in dismissing the defendant’s petition to modify her sentence?

2. Did the District Court abuse its discretion in dismissing the defendant’s petition if the petition is viewed as requesting withdrawal of her guilty plea?

The defendant entered a guilty plea to robbery in violation of §§ 45-5-401(l)(a) and 45-2-302(3), MCA, pursuant to a plea agreement. She was sentenced on July 15,1988, to 40-years’ imprisonment at the Montana State Women’s Prison with the following conditions: (1) nondangerous offender status for parole eligibility purposes; (2) waiver of the right to seek sentence review -under § 46-18-903, MCA; and (3) evaluation for alcohol and chemical dependency and, if found dependent, participation in an appropriate treatment program prior to release from prison. The plea agreement, guilty plea and sentence arose from the defendant’s involvement in the kidnapping, robbery and homicide of John Etchemendy, Jr. on October 17, 1987. See State v. Kills on Top (1990), 241 Mont. 378, 787 P.2d 336.

The defendant filed a document pro se entitled “Petition for Amendment of Sentence” on May 22, 1991. The petition requested that her sentence be reconsidered and that the remaining period of incarceration be suspended. As grounds for her request, she alleged that the sister of her court-appointed attorney employed her at one time; that her attorney's family had social and business ties with the victim’s family; and that she had never “been involved with criminal court procedures” and “did not understand most of the proceedings held.” She also alleged that her attorney failed to explain adequately “the meaning and importance of any and all procedures” and that he became the deputy county attorney approximately one month after her incarceration at the State Prison. The defendant further alleged various facts which she claimed would have resulted in a more favorable sentence. The District Court treated the document as a petition for postconviction relief and ordered a response from the State.

In its response, the State presented the transcript of the defendant’s May 13, 1988 change-of-plea hearing. The transcript established that the defendant and the State had agreed that the defendant would testify in several other state court proceedings arising from the victim’s kidnapping, robbery and homicide, plead guilty to robbery and waive any right to sentence review. In return, the State would dismiss two aggravated kidnapping counts, secure commitments from federal and Wyoming officials not to prosecute her for crimes allegedly committed in their jurisdictions during the criminal episode and recommend 40-years’ imprisonment with non-dangerous offender status for parole eligibility purposes. The State also presented the affidavit of the defendant’s attorney which stated that he represented her between the fall of 1987 and her sentencing date in July 1988, had not known the victim and had no business relationship with the victim’s family prior to or during his representation of the defendant. He also stated that he had first discussed employment as a deputy county attorney in December 1988 and began employment in that position the following month.

The District Court dismissed the petition on July 22, 1991. Based on its review of the record, the court concluded that the defendant did not establish ineffective assistance of counsel and that “[t]he transcript of the hearing at which the guilty plea was entered clearly showed that the Defendant acknowledged her knowledge of the plea agreement and that it was voluntary.” The defendant appealed.

I.

Did the District Court err in dismissing the defendant’s petition to modify her sentence?

The defendant admits on appeal that her sole objective in filing the petition was to secure suspension of the remaining portion of her 40-year sentence. Section 46-21-101(1), MCA, sets forth the circumstances under which postconviction relief can be granted. Under this statute, the court may “vacate, set aside, or correct” a sentence which is found to be invalid in some respect.

The defendant does not dispute that her 40-year sentence falls within the statutory maximum for robbery as provided by § 45-5-401(2), MCA. In addition, the defendant does not allege that the District Court abused its discretion in imposing a 40-year sentence with no suspended period. The defendant’s only allegations are a conflict of interest and ineffective assistance of counsel on the part of her attorney. Because the defendant seeks to suspend her sentence but not to challenge its validity, the allegations do not provide a basis for postconviction relief under § 46-21-101, MCA. Accordingly, we hold that the District Court did not err in dismissing the defendant’s petition to modify her sentence.

II.

Did the District Court abuse its discretion in dismissing the defendant’s petition if the petition is viewed as requesting withdrawal of her guilty plea?

Section 46-16-105(2), MCA, provides that “[a]t any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” The determination of good cause is within the district court’s discretion; absent an abuse of that discretion, this Court will uphold the district court’s refusal to permit the withdrawal of a guilty plea. State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 310. The existence of good cause for the withdrawal of a guilty plea is determined by reference to (1) the adequacy of the court’s interrogation as to the defendant’s understanding of the plea; (2) the promptness of the defendant’s attempt to withdraw the plea; and (3) the fact that the defendant’s plea was the result of a plea bargain. State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348,1350. Applying these factors, no abuse of discretion has been established.

The transcript of the change-of-plea hearing reveals an extensive examination by defense counsel, the prosecution and the District Court concerning the defendant’s understanding of the plea agreement’s terms and consequences. In response to every inquiry, the defendant stated that she understood the substantive rights being waived and that, in exchange for the State’s promises, she would assist in the remaining state prosecutions and plead guilty to the robbery count. She was fully aware that the comb was not bound by the State’s sentencing recommendations and that no promises could be made with respect to when she would be paroled. The defendant specifically concurred in the recommended 40-year sentence and expressly waived the right to sentence review. She also testified that she had reviewed the plea agreement, had no questions concerning it and was satisfied with the services of her attorney. Nothing in the record before us establishes that the defendant was ill-advised as to the guilty plea or that she evinced any confusion over the plea’s attendant benefits and detriments. Nor does the record indicate that she was ignorant of her rights or the consequences of her act.

Finally, the defendant waited almost three years before filing her petition for postconviction relief and offered no explanation for the delay. This suggests that the petition was not the result of a bona fide claim that the defendant misapprehended the plea agreement but rather that she merely desired to alter the agreement. We hold that the District Court did not abuse its discretion in dismissing the defendant’s petition if the petition is viewed as requesting withdrawal of her guilty plea.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH and WEBER concur.


text:
    GLENN E. WELCH, Claimant and Respondent, v. AMERICAN MINE SERVICES, INC., and OLD REPUBLIC INSURANCE COMPANY, Employer, Defendant and Appellant.
    No. 91-539.
    Submitted on Briefs Jan. 16, 1992.
    Decided Apr. 30, 1992.
    49 St.Rep. 378.
    253 Mont. 76.
    831 P.2d 580.

      For Appellant: Neil S. Keefer; Keefer, Roybal, Stacey & Walen, Billings.
    For Respondent: Michael P. Sand, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Old Republic Insurance Company appeals from the judgment of the Workers’ Compensation Court that Glenn E. Welch suffered a compensable injury arising out of the course and scope of his employment on April 27, 1989. We affirm.

The sole issue is whether the Workers’ Compensation Court erred in concluding that claimant sustained a compensable injury pursuant to § 39-71-119, MCA (1987).

Glenn E. Welch (Welch) was employed as a driller by American Mine Services, Inc. at a mine near Nye, Montana. His job required using heavy power drills to bore holes for mining purposes and, during some shifts, extensive walking and standing.

State and federal regulations require mine employees such as Welch to wear either steel-toed or metatarsal safety boots. A steel-toed safety boot has a steel or fiberglass cap which covers just the toes. A metatarsal boot has a steel or fiberglass toe covering which extends over the top of the foot and leather uppers which cover the ankles.

Sometime before April 27, 1989, Welch requested a new pair of steel-toed safety boots from American Mine Services, which provides free boots to its mine workers. The boots which arrived April 27,1989, were the metatarsal type. Welch wore them to work that day. He states that the boots were a snug fit, but he expected them to loosen up with wear. Throughout his twenty-five year career working in the mines, Welch had broken in many new boots, finding that normally they loosened up within a few hours.

Toward the end of an active shift on April 27, 1989, Welch noticed that his feet were beginning to get sore and his new boots were still a snug fit. Upon removing his boots at the end of the shift, Welch noticed red sores the size of a thumbnail on both the third and fourth toes of his right foot. The sores were open and draining.

Welch had difficulty sleeping the night of April 27 because of burning and pain in his foot. He treated the sores numerous times with alcohol and later with Neosporine, an antifungal antibiotic. They continued to drain throughout the night.

Welch again attempted to wear the new boots to work the next day, but his foot was extremely sore so he wore his old work boots which were looser and roomier and did not irritate his toes. Welch worked an entire shift on April 28, and thereafter was laid off due to a reduction in force.

Welch sought medical attention for his foot on May 1, 1989 when he called his family physician, Dr. Robert Flaherty. Dr. Flaherty was unable to see him until May 5, at which time Welch explained that he had worn new boots a week previously that rubbed his toes.

During this visit, Welch informed Dr. Flaherty that he had been soaking his foot and trying to reduce the amount of time he spent on his feet. Dr. Flaherty asked Welch if he had diabetes. After Welch replied in the negative, Dr. Flaherty diagnosed Welch’s condition as an “abscess and cellulitis of the right fourth toe.” The doctor then prescribed further soakings and an antibiotic. In his deposition, Dr. Flaherty opined that Welch’s toe became infected after the new boots rubbed the skin off his toes.

Dr. Flaherty examined and treated Welch on May 8, 10, and 12, 1989; on May 15, 1989, Welch was admitted to Bozeman Deaconess Hospital. At this time, Dr. Flaherty referred Welch to Dr. Lowell Anderson, an orthopedic surgeon, because he thought the bone of Welch’s right foot might be affected. During Welch’s stay at Deaconess, his right fourth toe was amputated. Dr. Anderson’s post-surgery diagnosis was deep foot infection probably complicated by diabetes. Welch was released, but was hospitalized again in March of 1990 because of abscess and infection to the foot. Welch was hospitalized subsequently in October of 1990 and March of 1991.

Old Republic, American Mine Services’ workers’ compensation carrier, accepted Welch’s claim under the Montana Occupational Disease Act and paid him disability benefits thereunder. On May 14, 1991, the Workers’ Compensation Court considered Welch’s claim that his injury arose out of the course and scope of his employment with American Mine Services, Inc. and was not an occupational disease. In its Findings of Fact and Conclusions of Law and Judgment dated August 21, 1991, the court found Welch’s condition to be compensable under the Workers’ Compensation Act of 1987. Old Republic Insurance and American Mine Services appealed.

The sole issue on appeal is whether the Workers’ Compensation Court erred in concluding that claimant sustained a compensable injury pursuant to § 39-71-119, MCA (1987). Because this case involves an issue of law, we will review the decision of the Workers’ Compensation Court to see if it is legally correct. Stuker v. State Comp. Mutual Ins. Fund (Mont. 1991), [251 Mont. 96,] 822 P.2d 105, 48 St.Rep. 1071; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Section 39-71-119, MCA (1987), is the statute at issue:

(1) “Injury’ or “injured” means:
(a) internal or external physical harm to the body;
(b) damage to prosthetic devices or appliances, except for damage to eyeglasses, contact lenses, dentures, or hearing aids; or
(c) death.
(2) An injury is caused by an accident. An accident is:
(a) an unexpected traumatic incident or unusual strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected; and
(d) caused by a specific event on a single day or during a single work shift.
(3) “Injury” or “injured” does not mean a physical or mental condition arising from:
(a) emotional or mental stress; or
(b) a nonphysical stimulus or activity.
(4) “Injury” or “injured” does not include a disease that is not caused by an accident.
(5) A cardiovascular, pulmonary, respiratory, or other disease, cerebrovascular accident, or myocardial infection suffered by a worker is an injury only if the accident is the primary cause of the physical harm in relation to other factors contributing to the physical harm.

A compensable injury must meet all three definitional requirements contained in § 39-71-119, MCA (1987): there must be an “injury” and an “accident,” and the injury must be “caused by” the accident. Old Republic contends that these requirements are not met, asserting primarily that Welch’s deep foot infection took nineteen days to develop, was not unexpected, and was the end result of a number of factors including his diabetes. Old Republic’s approach, focusing as it does on Welch’s diabetes rather than on the initial incident which led to the deep foot infection, is misplaced.

The well-established rule in Montana is that an employer takes an employee subject to the employee’s physical condition at the time of employment. Shepard v. Midland Foods, Inc. (1983), 205 Mont. 146, 666 P.2d 758; Schumacher v. Empire Steel Manufacturing Co. and Employers Mutual Liability Insurance Co. (1977), 175 Mont. 411, 574 P.2d 987. With this principle as a starting premise, § 39-71-119, MCA (1987), can be considered in a clear and straightforward manner.

The parties agree that physical harm occurred to Welch’s foot. Old Republic contends, however, that Welch’s physical condition arose from the “nonphysical stimulus” of his diabetes; therefore, according to the appellant, § 39-71-119(3)(b), MCA (1987), prevents the condition from constituting an injury. This argument ignores the fact, undisputed on the record before us, that the sores on Welch’s foot initially arose from the physical stimulus of ill-fitting boots. The requirement for an injury under § 39-71-119(1), MCA (1987), is met.

Section 39-71-119, MCA (1987), also requires that an accident occur. Old Republic contends that three of the four statutory requirements for an accident are not met in this case.

Section 39-71-119(2)(b), MCA (1987), requires that an accident be identifiable by time and place of occurrence. Old Republic argues that Welch’s condition does not meet this requirement because it took nineteen days for the infection to develop to a point requiring hospitalization. The record reveals, however, that Dr. Flaherty and Old Republic’s expert witness agree that the infection which developed in Welch’s foot initially was caused by Welch’s new boots rubbing sores dining his work shift of April 27, 1989. We conclude that the initial incident which ultimately led to Welch’s severe infection occurred during unidentifiable time, the April 27,1989 shift, and at an identifiable place, the underground mine near Nye, Montana. Thus, § 39-71-119(2)(b), MCA (1987), is satisfied.

Similarly, Old Republic next contends that Welch’s condition was the culmination of such factors as his diabetes, vascular calcification and diabetic neuropathy. Arguing that the condition is similar to those of claimants in Wear v. Buttrey Foods, Inc. (1988), 234 Mont. 477, 764 P.2d 139; McMahon v. Anaconda Co. (1984), 208 Mont. 482, 678 P.2d 661; and Whittington v. Ramsey Construction Co. and Fabrication (1987), 229 Mont. 115, 744 P.2d 1251, Old Republic asserts that the time definiteness required by § 39-71-119(2)(d), MCA (1987), is not met.

The physical conditions in the cases relied on by Old Republic were brought about by many years of repetitious activity or exposure to pollutants; as a result, we held that they lacked the time definiteness required. The facts before us are not analogous. Here, an initial and identifiable incident of physical harm occurred on April 27, 1989, when Welch’s ill-fitting boots rubbed sores on his foot. As discussed previously, Old Republic’s focus on complications subsequent to that initial incident is misplaced. The initial incident was a “specific event ... during a single work shift” as required by § 39-71-119(2)(d), MCA (1987).

Finally, § 39-71-119(2)(a), MCA (1987), requires that an accident be an unexpected and traumatic incident or unusual strain. Old Republic argues that Welch’s deep foot infection was to be expected because he was a diabetic.

The common meaning of “unexpected” is “unlooked for, unforeseen, surprising.” Webster’s Third International Dictionary (1971). We note that the 1987 amendments to § 39-71-119, MCA, retain the word “unexpected” from the pre-1987 definition of injury. In Bremer v. Buerkle (1986), 223 Mont. 495, 727 P.2d 529, we affirmed the Workers’ Compensation Court’s decision that a worker’s allergic contact dermatitis constituted an injury because it met the “unexpected” requirement of the statute. In Bremer, the claimant had been working with the same chemicals for nine years without sustaining any allergic reaction. We concluded that, despite this ongoing contact, the chemical contact which occurred on one day unexpectedly stimulated his immune system and led to an allergic reaction. In a similar fashion, Welch had experienced no problems in breaking in new safety boots during his many years of working in mines. Despite this twenty-five year history, the new boots he wore on April 27, 1989, rubbed sores on his foot which became infected. We conclude that the incident was unexpected under § 39-71-119(2)(a), MCA (1987).

Old Republic also contends that the use of the word “traumatic” necessitates the presence of force or violence, neither of which is present under the facts of this case. Webster’s Third International Dictionary (1971) defines “trauma” as “an injury or wound to a living body caused by the application of external force or violence.” Old Republic’s expert witness, Dr. Robert Nielson, when asked during his deposition whether Welch’s blisters could be considered a trauma, responded: “Sure.” Dr. Nielsen continued to refer to the rubbing of Welch’s toes as a trauma to the foot. We conclude that the rubbing of the ill-fitting boots was a traumatic incident under § 39-71-119(2)(a), MCA (1987).

Welch sustained an injury and an accident under § 39-71-119(1) and (2), MCA (1987). The only remaining question is whether the accident “caused” the injury, as also required by § 39-71-119, MCA (1987).

Arguing against this causal link, Old Republic asserts that under § 39-71-119(4), MCA (1987), Welch’s diabetes is a disease that is not caused by an accident. Old Republic is correct; however, Welch’s diabetes is not at issue here. The diabetes predated the injury to Welch’s foot on April 27,1989. While the diabetes apparently resulted in more severe complications from the initial incident than would have been experienced by a nondiabetic, the initial incident constitutes an injury under § 39-71-119, MCA (1987).

Similarly, Old Republic presents a somewhat convoluted argument that Welch’s diabetes is an “other disease” under § 39-71-119(5), MCA(1987), which does not constitute an injury. Old Republic asserts that the initial abrasions were not the primary cause of Welch’s physical harm in relation to other factors which produced the deep foot infection. We considered the meaning of “primary cause” under § 39-71-119(5), MCA (1987), in Gaumer v. State Compensation In surance Fund (1990), 243 Mont. 414, 795 P.2d 77. In Gaumer, the claimant had a history of respiratory ailments prior to her work-related accident involving toxins in the work place. We found that claimant’s condition was compensable under the Workers’ Compensation Act:

[T]he drastic change in the claimant’s medical condition was primarily caused by the accident in the work place where she was exposed to chemical toxins or allergens, it was not merely the progressive result of her pre-existing respiratory ailments.

Gaumer, 243 Mont. at 420, 795 P.2d at 80-81. Likewise, the significant change in Welch’s physical condition was primarily caused by the injury and accident which occurred when his ill-fitting safety boots rubbed abrasions on his foot. While the diabetes may have exacerbated the ultimate severity of the original injury, Welch’s medical condition was not merely the progressive result of his pre-existing diabetes.

Old Republic makes a final argument, without supporting authority, that the 1987 amendments to the Workers’ Compensation Act were intended to substantially restrict the definitions of “injury” and “accident.” Because the plain meaning of the words used in the statute is determinative in this case, consideration of the legislative history is inappropriate. State ex rel. Roberts v. PSC (1990), 242 Mont. 242, 790 P.2d 489.

We conclude that the rubbing of sores on Welch’s toes meets the statutory requirements for an injury and an accident, and that the accident caused the injury. We hold that the Workers’ Compensation Court did not err in concluding that claimant sustained a compensable injury pursuant to § 39-71-119, MCA (1987).

Affirmed.

JUSTICES HUNT, McDONOUGH, TRIEWEILER and WEBER concur.