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The Boy Scouts of America v. Montana Eighth Judicial District Court

Supreme Court of Montana

December 5, 2017

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,


         Plaintiffs 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), [1] 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.

         On June 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.

         Defendants 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.

         The 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.

         The 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.

         Montana 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.[2]

         Defendants 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.

         Montana 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.

         Based on the foregoing, Defendants' Petition for Writ of Supervisory Control is DENIED.

         The 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.



[1] This Court was advised on November 3, 2017, that three of the Plaintiffs have reached a settlement with the Defendants regarding their claims.

[2] 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 from ...

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