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Scott v. Henrich5/5/1998
Submitted on Briefs April 2, 1998.
1 Doris A. Scott (Doris) appeals from the decision of the Second Judicial District Court, Silver Bow County, granting James L. Henrich, David J. Flamand, Butte-Silver Bow Law Enforcement Agency, City of Butte and County of Silver Bow's (collectively Respondents') motion for summary judgment. Doris asserts that Respondents acted negligently during a police confrontation which occurred in 1984 and resulted in the shooting death of Doris' husband, John William Scott (John). The District Court determined that the officers acted reasonably as a matter of law, were not negligent and thus were not liable for damages as a result of John's death. As a result, the District Court found that there were no genuine issues of material fact and that the Respondents were entitled to summary judgment as a matter of law. We reverse and remand.
Factual and Procedural Background
2 The events giving rise to this action were recently reviewed by this Court in Scott v. Henrich (1997), 283 Mont. 97, 938 P.2d 1363. We review and expand the facts for purposes of this appeal.
3 In August 1984, John was landlord of an apartment building on the corner of Clark and Park Streets in Butte, Montana. He and Doris lived in apartment number one and rented one of the other apartments to Patrick Sullivan (Sullivan). Sullivan later obtained a roommate, Dean Maestas (Maestas). The record indicates that Sullivan and Maestas were disruptive tenants and were suspected of burglarizing the apartment of another tenant. As a result, John had served Sullivan and Maestas with an eviction notice.
4 On August 4, 1984, Sullivan and Maestas were in the process of moving to a new apartment. At 12:57 on that day, John called law enforcement complaining of a disturbance caused by Sullivan and Maestas at their apartment on the corner of Park and Clark. Officers Hanninen and Miller responded to the call, confirmed the disturbance and warned Sullivan and Maestas against causing further trouble. At 3:25 p.m., John again summoned law enforcement with reports of a disturbance. Officers Driscoll and Henrich arrived at the scene, but were informed by John that he had transported Sullivan away from the scene and that everything was fine.
5 Later that day, approximately 8:20 p.m., law enforcement received a report that someone had fired a gun at 623 South Colorado Street. Officers Henrich, Flamand, Maylevac and Cassidy responded to the call. Henrich and Flamand were the first to arrive at the location, which turned out to be Maestas' new apartment. Maestas indicated that someone had shot at him. The officers observed a bullet hole in the porch and retrieved an expended 30/30 cartridge. When the officers inquired as to who had shot at Maestas, Maestas said he did not know the individual's name, but produced the eviction notice he and Sullivan had received from John.
6 Within minutes of the officers responding to the call at Maestas' apartment, the officers received a second report of a man firing a gun at 701 West Park Street. The officers abandoned their investigation at Maestas' apartment and quickly responded to this second report. Officer Flamand was the first to arrive at West Park Street. He quickly questioned the manager of the City Center Motel about the alleged shooting. The manager motioned that the individual went toward an apartment building across the street. A bystander then informed Officer Flamand that the person firing the rifle was acting strangely, staggering, and had entered one of the two doors of the apartment complex. The coroner's report later indicated that John had a .26 blood alcohol
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