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David W. Harris v. State of Montana

January 29, 2013


APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DV 09-315 Honorable Brad Newman, Presiding Judge

The opinion of the court was delivered by: Justice Michael E Wheat

Submitted on Briefs: September 4, 2012

Decided: January 29, 2013



Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Plaintiff appeals from the judgment of the District Court for the Second Judicial District, Silver Bow County, granting summary judgment to Appellees. We affirm.


¶2 David Harris (Harris) has been employed by the Department of Corrections (DOC) for approximately 13 years, specifically as a correctional officer at the Montana State Prison (MSP) in Deer Lodge, Montana. Since November 16, 2000, he has served as a member of the Special Response Team (SRT) at MSP, which he continues to do today. SRT is an elite special weapons and tactical response team (SWAT) whose members are extensively trained to respond to the prison's most dangerous crises such as inmate riots, escapes, and hostage situations. Membership is voluntary. To become a member, an applicant must qualify in physical fitness and firearms proficiency, and successfully undergo an interview process. If selected to join the team, the member must agree to fulfill the rigorous training requirements, which include attending a specialized six-day, 70-hour Primary SWAT Training and monthly 8-hour training sessions at the prison. Any SRT member who does not wish to fulfill the training requirements may resign from the team at any time. As of July 1, 2005, members of the SRT received an extra 50 cents per hour for being a team member.

¶3 In 2006, Mike Mahoney (Mahoney), the Warden at MSP, decided that the prison would purchase and use X-26 tasers, manufactured by Taser International. A taser is an electric stunning device which temporarily incapacitates superficial muscles. In accordance with the manufacturer's recommendations, Mahoney issued a policy requiring all individuals who wanted to be authorized to use a taser at the prison to complete taser training, which included undergoing a five-second taser exposure. The direct experience of the voluntary exposure was meant to instill in the trainee an understanding of the effects of the taser and encourage the trainee to use the taser in a safe manner. According to Mahoney, none of the training was intended "to harm or injure any of the trainees in any way," and extensive safety precaustions were used during the training to avoid injury. No employees were required to use tasers at MSP, and none were subject to job loss if he or she refused to undergo the tasing training. However, the training was mandatory for all members of the voluntary SRT team.

¶4 On June 28, 2006, all of the MSP wardens, which included Mahoney, the deputy warden, and the associate wardens, underwent taser training and the five-second exposure at the DOC. The lead instructor of the training was Sergeant Kim Micu (Micu), who at the time was an employee of MSP and certified by Taser International. There is no allegation or evidence that any of the wardens received any injuries as a result of their five-second exposures.

¶5 Then, on July 26, 2006, a taser training was held for the SRT at the DOC Center. Micu was the lead instructor. The training was conducted according to the Taser International training standards, and consisted of a classroom component and a five-second exposure. The classroom component of the training involved a 173-page Power Point presentation based on the training materials provided by Taser International. All of the materials from the Power Point presentation, which included slides specifically addressing the risks of taser exposure, were distributed as handouts to each trainee, including Harris. The risks of undergoing taser exposure were also disclosed in a written consent form that Harris signed prior to his five-second exposure. These risks included "severe" muscle contractions that "may result in injuries to muscles, tendons, ligaments, backs, joints and stress fractures." Additionally, the form advised that the nature of tasing "involves a degree of risk that someone will get hurt or may even be killed due to physical exertion, unforeseen circumstances and individual susceptibilities." At no time did Harris or any other SRT member object to completing the training or undergoing the voluntary exposure.

¶6 Art Garrison (Garrison), a corrections officer at MSP and lieutenant in command of the SRT, in July 2006, was the first person to undergo the voluntary exposure at the July 26, 2006, training. He suffered no injury from the tasing, and afterwards he served as a spotter to the other trainees. Following Garrison's tasing, the SRT members underwent the exposure, including Harris. As a result of his five-second taser exposure, Harris claimed to have sustained injuries to his thoracic and lumbar spine. He received workers' compensation benefits.

¶7 On July 23, 2009, Harris filed a complaint against the State of Montana, the DOC and several fictitious defendants (collectively "Appellees"). He alleged that he suffered an intentional infliction of personal injury by his fellow employee when he was tased by Micu at the July 26, 2006, training. He further raised a spoliation of evidence claim for the alleged loss or destruction of the DOC's video recording of the taser training session. Appellees moved for summary judgment, arguing the suit was barred by the exclusive remedy provision of the Workers' Compensation Act (WCA) and that there was no independent cause of action for Harris's spoliation of evidence claim. On March 6, 2012, the District Court granted Appellees' motion for summary judgment, and dismissed Harris's claims with prejudice.

¶8 Harris timely appealed. We restate the issues on appeal as follows:

¶9 Issue One: Did the District Court err in granting summary judgment for Appellees on the grounds that Harris's suit is barred by the exclusive remedy provision of the Workers' Compensation Act?

ΒΆ10 Issue Two: Did the District Court err in determining that Harris does not have a cause of action ...

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