September 17, 2013
DAWN BROWN AND LORA BROWN, Petitioners,
THE MONTANA ELEVENTH JUDICIAL DISTRICT COURT, AND THE HONORABLE HEIDI J. ULBRICHT, PRESIDING JUDGE, Respondent.
Dawn Brown and Lora Brown (the Browns) ask this Court to take supervisory control over the Eleventh Judicial District Court in Flathead County Cause No. DV-12- 1294(C). In that case, the Browns seek compensation for damage to their property as a result of their home having been built too close to a steep slope that partially collapsed. Their complaint alleges negligence, professional negligence, and negligent misrepresentation; it includes claims against the developer of the subdivision in which their home is located, the surveying firm that designed the subdivision, the construction contractor, the engineering firm that designed the storm water drainage system, the home inspector, and the City of Kalispell.
The Browns ask us to take supervisory control over the District Court's order granting the City's motion to dismiss the Browns' claim against it on grounds that the public duty doctrine renders that claim legally unsupportable. The Browns assert that the public duty doctrine does not apply to this case or, if it does, the "special relationship" exception applies here. Alternatively, they ask us to declare the public duty doctrine unconstitutional. In any event, they seek an order directing the District Court to vacate its order dismissing their claim against the City.
Having reviewed the Petition and the attachments, we deem it advisable to order a response.
IT IS ORDERED that the District Court for the Eleventh Judicial District, the defendants in Flathead County Cause No. DV-12-1294(C), or any of them, shall file a summary response to the Petition in accordance with M. R. App. P. 14(7)(a) within thirty days of this Order.
The Clerk is directed to provide copies of this Order to all counsel of record and to the Honorable Heidi J. Ulbright, presiding District Judge.