THE BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Montana; and MONTANA COUNCIL, BOY SCOUTS OF AMERICA, a Montana non-profit corporation, Petitioners,
MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY and HONORABLE JAMES P. REYNOLDS, Presiding Judge, Respondents.
are six women (Plaintiffs) who were sexually abused between
1974-1975 while participating in a Kalispell co-ed Explorer
Post program operated by Defendants/Petitioners Boy Scouts of
America and Montana Council, Boy Scouts of America,
(Defendants),  Plaintiffs were between 11 and 15 years
old when they were sexually abused by William Leninger, Jr.
(Leninger), who was Defendants' Explorer Post leader.
Plaintiffs allege the abuse occurred while Leninger was
supervising Plaintiffs on Scout camping trips, during first
aid training as part of the Explorer program, or on overnight
trips related to Scout activities that Leninger supervised.
Defendants maintain the abuse took place outside the context
of scouting. Plaintiffs, with one exception, reported the
abuse in 1975, leading to Leninger's conviction in 1976
of sexual intercourse without consent. Leninger died after
serving a lengthy prison sentence. Plaintiffs allege claims
against Defendants for fraud and breach of duties Defendants
owed to female members of their Explorer Post.
27, 2017, the District Court appointed a Special Master to
rule on various motions. Defendants requested that the
District Court review certain Orders by the Special Master,
including those at issue here. The District Court adopted the
Special Master's conclusions on October 26, 2017.
seek supervisory control to reverse several Orders entered by
the District Court. The first issue pertains to the District
Court's summary denial of Defendants' claim that
Leninger's criminal actions are the superseding
intervening cause of Plaintiffs' injuries. Defendants
argue that that the District Court's Order granting
Plaintiffs' Motion for Summary Judgment on
Defendants' Intervening Cause is inconsistent with
controlling law; specifically, Maguire v. State, 254
Mont. 178, 835 P.2d 755, which provides that Defendants
cannot be vicariously liable for Leninger's criminal
acts. Defendants argue that the District Court has improperly
decided that Leninger's crimes were foreseeable as a
matter of law and that supervisory control is required to
prevent the District Court from proceeding under a mistake of
law which is causing a gross injustice. Plaintiffs maintain
that a substantial record exists which establishes that
Leninger's conduct was foreseeable by the Defendants.
Plaintiffs argue that Defendants had notice of the problem of
sexual abuse by unsuitable and unsupervised adult volunteers.
Plaintiffs argue that Defendant's enactment of mandatory
policies that sought to prevent such harm and the existence
of historical screening files (referred to as
"ineligible volunteer" or IV" files)
documenting ineligible volunteers and establishing policies
to exclude them from further Scouting activities, is evidence
of such notice.
District Court first addressed the existence of duty and
determined, as a matter of law, that "Defendants could
reasonably foresee that some injury could result to the minor
female members of Defendants' co-ed Explorer post, as a
result of allowing an inappropriate adult volunteer sole
control of a co-ed post where required co-ed policies related
to sex and alcohol policies were not being enforced."
The District Court found that Defendants owed Plaintiffs a
duty of reasonable care to take precautions to protect them
from foreseeable risks, including sexual assault. The
District Court determined, however, that whether a breach of
the duty occurred should be determined by a jury.
District Court next considered Defendants' affirmative
defense that Leninger's actions constituted a superseding
intervening cause. The District Court noted that
"[u]sually, intervening or superseding acts involve
questions of fact which are properly left to the finder of
fact." However, relying upon Estate of Strever,
278 Mont. 165, 178, 924 P.2d 666, 674, 675, the District
Court found that reasonable minds could come to only one
conclusion - that the intervening criminal act was one that
Defendants could reasonably foresee and that Leninger's
acts do not constitute an intervening cause with regard to
Plaintiffs' claims of negligence.
Rule of Appellate Procedure 14(3) sets forth three elements
which must be established before it is appropriate for this
Court to exercise the ''extraordinary remedy" of
supervisory control. The relief "is sometimes
justified" when (1) "urgency or emergency factors
exist making the normal appeal process inadequate, " (2)
the "case involves purely legal questions, " and
(3) the "other court is proceeding under a mistake of
law and is causing a gross injustice[.]" The District
Court's Order denying Defendants' affirmative defense
was based on its review of the record and the facts contained
in that record. The District Court concluded that, based on
the substantial factual record that was compiled, no
reasonable person could conclude that Leninger's criminal
acts were not foreseeable by the Defendants. Whether the
District Court was correct in making such a factual finding
and removing the issue from determination by a jury does not
constitute a purely legal question; indeed, the decision was
driven entirely by the District Court's consideration of
the facts. The propriety of the District Court's actions
must await development of the record on appeal. Here, the
District Court entered judgment on an affirmative defense
based on a factual determination. We conclude the issue is
not purely a legal question and that the normal appeal
process is adequate.
also request that we exercise supervisory control regarding
the District Court's Order denying their motion to
bifurcate trial on the merits from trial on the statute of
limitations. Defendants argue that they will be denied a fair
trial on their statute of limitations defense because there
is no practical way a jury can fairly separate and segregate
the abuse each Plaintiff suffered and resulting damages from
the question of when she discovered or reasonably should have
discovered the effects of that abuse. Plaintiffs argue that
Defendants' motion could result in numerous trials with
largely overlapping evidence.
Rules of Civil Procedure 42(b) allows bifurcation: "For
convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or
third-party claims." The question of whether to
bifurcate issues for trial is a matter committed to the broad
discretion of the trial judge. Malta Pub. Sch. Dist. A
& 14 v. Montana Seventh Judicial Dist., 283 Mont.
45, 50, 938 P.2d 1335, 1338 (1997). Here, the District Court
considered the expense of added expert witness costs, travel
of witnesses and parties multiple times for trial, and the
overlap of testimony and evidence. The District Court also
considered that bifurcation would require the Plaintiffs to
repeat publicly for a second time the traumatic experiences
they have endured. We, accordingly, decline to exercise
supervisory control over whether the District Court abused
its discretion in denying Defendants' motion to bifurcate
its statute of limitations defense. It is not a purely legal
issue and the normal appeal process is adequate.
on the foregoing, Defendants' Petition for Writ of
Supervisory Control is DENIED.
Clerk is directed to provide copies of this Order to counsel
for Petitioners, to the Cascade County Clerk of Court with
instructions to provide copies to all counsel of record in
Cascade County Cause No. DV-11-0782, and to the Honorable
James. P. Reynolds.
 This Court was advised on November 3,
2017, that three of the Plaintiffs have reached a settlement
with the Defendants regarding their claims.
 We note that the Defendants have asked
the District Court to certify this issue pursuant to M. R.
Civ. P. 54(b). We have not received any pleading indicating
the District Court has ruled on Defendants' request. Of
course, the standard of review for an appeal is different