96-517

                                                              No. 96-517

                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                    1997




                                   STATE OF MONTANA, ex rel. MOLLY MAFFEI,
                                  as Guardian ad Litem for RICKY W. KOSKI,
                                                   a minor,

                                                                 Relator

                                                                      v.

                               MONTANA SECOND JUDICIAL COURT, SILVER BOW
                            COUNTY, and the HONORABLE JUDGE JAMES PURCELL,
                                       presiding District Judge,

                                                            Respondents.




                                                      ORIGINAL PROCEEDING



                                                       COUNSEL OF RECORD:

                                                            For Relator:

                                  William P. Joyce; Burgess, Joyce, Starin
                                          & Whelan; Butte, Montana

                                         Frank J. Joseph; Attorney at Law;
                                                   Butte, Montana

                                                         For Respondent:

                                   Gary L. Walton; Poore, Roth & Robinson;
                                     Butte, Montana (for Defendant Public
                                              Housing Authority)




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                                      Submitted on Briefs: January 16, 1997

                                                 Decided:             March 18, 1997

                                                                   Filed:



                                 __________________________________________
                                                    Clerk

             Justice Terry N. Trieweiler delivered the Opinion of the Court.

     On August 28, 1996, Mollie Maffei, as Guardian ad Litem for
Ricky W. Koski, filed an application with this Court for a writ of
supervisory control. In her petition, Maffei sought review of an
order of the District Court for the Second Judicial District in
Butte-Silver Bow County which allowed the defendant, Public Housing
Authority of Butte, to amend its answer and allege a nonparty
defense pursuant to   27-1-703(6), MCA. On October 17, 1996, this
Court accepted supervisory control for the purpose of determining
the constitutionality of the District Court's order. We now
reverse that portion of the District Court's order which allowed
the Public Housing Authority to assert a nonparty defense and
remand the case to the District Court for further proceedings
consistent with this opinion and order.
                       FACTUAL BACKGROUND
     On July 3, 1992, Ricky Koski, then four years old, was struck
by a motor home on Arizona Street near the Silver Bow Homes housing
complex in Butte. At the time of the accident, Ricky was a tenant
of Silver Bow Homes, which is owned and operated by the defendant
Public Housing Authority of Butte.
     On February 8, 1994, Mollie Maffei, as Guardian ad Litem for
Ricky, filed a complaint in the Second Judicial District Court
against the Public Housing Authority, the driver of the motor home,
the State of Montana, and Butte-Silver Bow County. The plaintiff
settled with the driver of the motor home and the State of Montana,
and the District Court dismissed both parties. In addition, the
District Court granted Butte-Silver Bow County's motion for summary
judgment and dismissed it from the suit.
     The plaintiff filed an amended complaint against the Public
Housing Authority on March 20, 1995. The Housing Authority's
answer did not include a specific nonparty defense, and it did not
amend its pleadings to allege such a defense by the discovery
deadline set by the District Court. Nevertheless, the District


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Court, in a pretrial order addressing the plaintiff's motion in
limine, allowed the Housing Authority to assert a nonparty defense,
pursuant to   27-1-703(6), MCA. The plaintiff has petitioned this
Court to reverse that portion of the court's order which allowed
the Housing Authority to assert a nonparty defense.
                           DISCUSSION
     On November 22, 1996, after the District Court entered its
order which allowed the Butte Public Housing Authority to assert a
nonparty defense pursuant to    27-1-703(6), MCA, this Court issued
its decision in State ex rel. Plumb v. District Court (Mont. 1996),
927 P.2d 1011, 53 St. Rep. 1187. In Plumb, we held that     27-1-
703(6), MCA, violated substantive due process to the extent that it
allowed apportionment of liability to parties who were not named in
the pleadings and did not have the opportunity to appear and defend
themselves. Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95. We
therefore held that portion of the statute unconstitutional
pursuant to Article II, Section 17, of the Montana Constitution.
Plumb, 927 P.2d at 1021, 53 St. Rep. at 1195. Maffei now contends
that, in light of our decision in Plumb, this Court must reverse
that portion of the District Court's order which allowed the Public
Housing Authority to assert a nonparty defense pursuant to
  27-1-703(6), MCA.
     In Plumb, this Court stated:
[W]e conclude that that part of    27-1-703, MCA (1995),
which allows apportionment of liability to parties who
are not named in the lawsuit and who do not have an
opportunity to appear and defend themselves
(specifically, the quoted portion of subparagraph (4) and
all of subparagraph (6)), is not rationally related to
the legitimate government objective of fairly
apportioning liability among parties based on the degree
to which their negligence contributes to another person's
injuries . . . .

Plumb, 927 P.2d at 1021, 53 St. Rep. at 1194-95 (footnote omitted).
     Notwithstanding our holding in Plumb, the Housing Authority
contends that the District Court's decision should be affirmed
because evidence of Koski's parents' negligence is admissible for
other reasons. The Housing Authority contends that Koski's parents
were negligent by failing to properly supervise their child and
that that negligence was an intervening and superseding cause of
Koski's injuries. The Housing Authority contends that the jury has
a right to consider whether the causal link between its alleged
negligence and Koski's injuries was severed by his parents'
negligent conduct.
     In light of our specific holding that subparagraph (6) of
  27-1-703, MCA, is unconstitutional pursuant to the Montana
Constitution, we now hold that the Second Judicial District Court


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erred when it permitted the Housing Authority to assert a nonparty
defense pursuant to that statute. We further hold that whether the
evidence of a third party's negligence is admissible on some other
basis is a matter better left in the first instance to the
discretion of the District Court and therefore, will not be
reviewed by this Court pursuant to our original writ of supervisory
control. We remand this case to the District Court for further
proceedings consistent with this opinion.
                              ORDER
     Based on the foregoing opinion,
     IT IS HEREBY ORDERED that that portion of the District Court's
order which permitted the Public Housing Authority to assert a
nonparty defense, pursuant to   27-1-703(6), MCA, is REVERSED.
This case is remanded to the District Court for further proceedings
consistent with this opinion.
     The Clerk of Court is directed to mail a true and correct copy
of this opinion order to all parties of record and to the District
Court for the Second Judicial District in Butte-Silver Bow County.
     DATED this 18th day of March, 1997.


                                                                /S/      TERRY N. TRIEWEILER

We Concur:

/S/       J. A. TURNAGE
/S/       JIM REGNIER
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART




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