                                          No.     95-026
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                1995

WEND1 BRUNER,
            Plaintiff,           Appellant,


YELLOWSTONE COUNTY. A BODY
POLITIC, YELLOWSTONE COUNTY ATTORNEY,
DENNIS PAXINOS, SR., MICHAEL S. MATTHEW,
H. ELWOOD ENGLISH, AND ITS FORMER




APPEAL   FROM:       District  Court of the Thirteenth  Judicial                          District,
                     In and for the County of Yellowstone,
                     The Honorable   William J. Speare,  Judge                         presiding.


COUNSEL OF RECORD:
            For    Appellant:
                     A. Clifford       Edwards,   Roger          W. Frickle,           Edwards         Law
                     Firm,   Billings,      Montana
            For    Respondent:
                     Carey         E.    Matovich,         Matovich,       Addy         &    Keller,
                     Billings,          Montana


                                              Submitted      on Briefs:        April        27,       1995
                                                                Decided:       August        3,       1995
Filed:
Justice            Fred             J.     Weber        delivered                the         Opinion          of        the      Court.

            This              is      an       appeal          from         grant             of      summary                 judgment            to     the

defendants                     by the          Thirteenth                 Judicial              District                Court,         Yellowstone

county.                      We affirm.

            The following                        issue         is        dispositive                 of     the         case:

            Did        the         District           Court          err        in granting                summary             judgment            on the
issues            of         negligent             retention                and sexual                 harassment?

            Plaintiff,                     Wendi         Bruner            was         employed              as     a secretary                   by     the
Yellowstone                        County        Attorney's                Office             from        August          of     1991 until              she

tendered                her          resignation                on April                 8,        1992.           In     her       resignation,

plaintiff                    claimed           that         she had been                     continually                 sexually               harassed

by then            Deputy                 County        Attorney                David         Hoefer.

            On April                      9,     1992,        County             Attorney                 Dennis              Paxinos           hired          a

private                investigator                    to      investigate                     plaintiff's                     allegations               and

pending                the          investigator's                       findings,                 suspended              Hoefer           with         pay.

The         investigator                       concluded                 that          the      charges             were         warranted               and

Paxinos            then             terminated               Hoefer             without             pay      on May 19,                1992.

            In         its         Memorandum                and Order,                 the        District              Court         pointed           out

that        Hoefer                 began         grievance                procedures                 against             the      County           and on

May         22,          1992,             the        Board          of         County             Commissioners                       conducted               a

preliminary                         hearing           and           on      that         date          negotiated                  a      compromise

settlement                     with        Hoefer.            On June 1, 1992,                        Hoefer             executed           a release

and settlement                           agreement            with         the     County            which         provided              that      Hoefer

tendered                     his         voluntary            resignation                      effective                 May       19,       1992        and

released                any and all                   claims         between             Yellowstone                     County          and himself

 in    return                for         $30,000        in     settlement.                     While          the        $30,000          settlement

                                                                                   2
was      reported               in     the          media,            the      settlement                      agreement                       contained                 a
confidentiality                       clause              and        terms           were        not         released                    to         the      public

until         after          the        County                officials               were          compelled                       to         release             the

documents.

           On September                       I,     1993,           plaintiff                   filed            a complaint                         with         the
Equal         Employment                Opportunity                     Commission,                      which            rejected                   the         claim

as untimely,                  but        issued               a right            to        sue     letter.                    On the                 same date

the      plaintiff                   filed           a        complaint               of     sexual                harassment                         with          the

Montana          Human Rights                        Commission                      (MHRC).                 In      January,                       1994,         MHRC

considered                the        length              of     delay        in       filing,                but          concluded                       that      the

statute          of       limitations                     was tolled                  on an equitable                             estoppel                   theory
and      that          plaintiff's                   claim           was      timely              made,                   MHRC dismissed                            the

plaintiff's                 complaint                 without              prejudice                but           did       not           issue            a right

to      sue     letter.
           On April              1, 1994,                plaintiff               filed           her         First          Amended                  Complaint

in      Yellowstone                  County           District               Court           charging                   the       defendants                      with

negligent               retention                  and sexual               harassment                   and charging                           Hoefer            with

battery          as well.                    Following                two motions                      for        summary                 judgment,                 the

District              Court          held          a hearing                and thereafter                            issued                  its         order       on

November              25,       1994,             granting            summary              judgment                  to       the         defendants                  on

all      counts.                Plaintiff                 appeals            this          order.

                                                              Standard           of        Review

           The standard                      of     review           for     a grant              of      summary                judgment                   is    well

settled           in      Montana.                   This        Court        will           apply            the          same evaluation                            as

the      district             court            based           upon Rule               56,       M.R.Civ.P.                         The movant                    must

demonstrate                 that        no genuine                   issues           of     material                     fact           exist.              Toombs


                                                                                 3
v.     Getter          Trucking,               Inc.            (1993),          256 Mont.            282,         846 P.Zd              265.          Once

this      has          been         accomplished,                        the        burden          then         shifts           to      the         non-
moving          party          to       prove,             by more             than        mere      denial            and        speculation,
that      a genuine                 issue           does        exist.              S.M.      v.     R.B.             (1993),            261 Mont.

522,      862 P.2d                1166.            Having          determined                that         genuine           issues            of      fact

do not            exist,            the        court            must       then         determine                whether               the      moving

party       is        entitled            to        judgment              as a matter                of        law.         Lindey's,                 Inc.

v.     Professional                     Consultants,                    Inc.         (1990),         244 Mont.                238,           797 P.2d

920.       We review                    the        legal        determinations                      made by a district                               court
as to      whether                the     court            erred.              Matter        of     Estate            of    Alcorn             (1994),

263 Mont.               353,        868 P.2d                629.

                                                                          ISSUE

          Did         the   District                 Court         err     in granting                   summary            judgment            on the

issues           of     negligent                  retention              and sexual                harassment?

          The          District               Court            concluded              that         the         exclusive               remedy           for

injury           occasioned                   by     this         type         of     conduct             is     to        be found             in      the

Montana           Human Rights                      Act        under           § 49-2-509(7),                    MCA.         Reference                was

made to               Harrison            v.        Chance             (1990),          244 Mont.                215,        797         P.2d         200,

which       so holds.                     The         court            further             concluded              that       plaintiff                  had

failed           to     bring           her        claim          in     a timely             fashion             under           the        relevant

statutes               whether            the         180        day      statute            or      the         300        day        statute           be

applied.                Plaintiff                  had failed                  to bring            a claim            for     more           than       487

days.            The District                      Court         referred             to     the      following               allegation                  in

the      verified              complaint                  of     the      plaintiff                before          the      MHRC:

          I knew that I had legal    rights available    to me to sue the
          County,   however,  I was willing  to forego    those rights  on
          condition   that Mr. Hoefer be removed from his employment
          and would never be in a position         to sexually   harass  a
                                                                                4
           secretary               again.

           Plaintiff               contends            the         defendants                   are         directly               liable           to   her
for        negligence                in          retaining              Hoefer,                      independent                     of          Hoefer's
sexually          harassing                 conduct.                Plaintiff                   argues             that        the        defendants
knew of         Hoefer's             conduct            toward             women but                   did      nothing              and that            had

the    defendants                  acted         responsibly,                       she would                not        have        been          injured
by Hoefer.

           Defendants               contend            that         plaintiff                   cannot           bring             a tort           action

for    negligent              retention                because             it       is      still        a tort            action            which       was

derived         from         Hoefer's             sexual           harassment                   and that            plaintiff's                     sexual

harassment              claim         is      barred          due to                its       untimeliness.

           As the       moving             parties           for      summary                judgment,                  the    defendants                had

to    show       a complete                  absence           of       any genuine                          issues           of      fact          deemed

material          in light             of substantive                       principles                   that           entitle           that       party

to    judgment               as     a matter             of         law.                 -,
                                                                                         S.M.          862       P.2d          at         1168.          The

defendants              contend             they        satisfied                    that           burden          by        showing             that       no

material            facts            existed            which           would                 provide              a      cause             of      action

against         the      County.                 Plaintiff             also               relies        upon the                letter            sent       by

the        County        Attorney                 to     Hoefer                 on        May         19,       1992,             following              her

resignation                   and          the         independent                         investigation.                             The           letter

contained              the        following             paragraph                   with            regard         to     Hoefer:

           Specifically         you were warned by both Chief Deputy Daniel
           Schwarz      and myself         [Paxinosl     that your expectation              that
            [Wendil     accompany you to all your court                  matters      had been
           overdone.         We further      warned you that you were alienating
            [Wendil       from     the    rest     of the      staff.       .       You were
           specifically           requested        to   attend       a seminar         dealing
           specifically          with      sexual     harassment,         which      you did.
           Chief       Deputy       Schwarz       and myself         gave     you     specific
           instructions         to neither        take breaks       nor have lunch with
            [Wendi]      alone.        You were specifically              instructed        that
                                                                                5
            there    should    always     be at least     one other    support                                                           staff
            person     or fellow     attorney      to protect    both yourself                                                              and
             [Wendi]      from      any     allegations       of     misconduct                                                                or
            inappropriate        behavior.
While        this           letter          suggests               the possibility                       that         the     County           Attorney

had         knowledge                  of         Hoefer's                conduct             prior             to      the          date         of       his

dismissal,                   such        facts             are      not       material              to       the       resolution                  of      the

summary             judgment                issue.                Summary            judgment              is        appropriate                where            a

plaintiff                   fails           to      set          forth         facts           which            would          establish                 each

element           of        the       alleged             cause          of   action.                 Dvorak           v.     Matador             (19861,

223     Mont.               98,       727         P.2d           1306.          Plaintiff                  merely            argues            that        the

defendants                   knew           before           her          resignation                 that            Hoefer            was      causing

problems.                   In itself               that         letter         fails          to establish                    the      elements                of

the     tort           of      negligent                  retention.
            The        letter               does          demonstrate                  that         the         defendants                  had         taken

steps          to           eradicate                    unprofessional                     behavior                  on       Hoefer's                 part.

Plaintiff                   failed           to          rebut       the       elements               of        the         affidavit              of      the
County            Attorney                  which            established                   that          as          soon       as       the        County

Attorney               was           notified               by     the        plaintiff               that            a problem                existed,

Hoefer         was suspended                             and investigated.                          The affidavit                       establishes

without             contradiction                          that          Hoefer           never          worked              a day          after          the

plaintiff                   resigned.                      Plaintiff                 failed           to        set          forth          any         facts

demonstrating                        actual          notification                    to the           defendants                 about         Hoefer's

behavior               until           she actually                      resigned.

            The key question                              is whether            plaintiff                could         have          recovered              for

negligent                   retention               as      a matter            of      law.          The District                    Court           relied

on Harrison                    for       the        proposition                  that         the      exclusive                 remedy           for       any

 complaint                  arising               from        sexual           harassment                  is        § 49-2-509(7),                       MCA.
                                                                                 6
Plaintiff              argued          that        her     action          against        the       County         was not        based

upon        sexual            harassment.                  Our more          recent        holding           of     Hash    v.     U.S.
West        COmmUniCatiOn                  SerViCeS              (1994),        886 P.2d            442,      at     page        445-46

held:

                      Hash asserts           that timely         filing        of a discrimination
            claim       with      the HRC is not a prerequisite                         to filing          with
            the district              court.        We previously               have resolved              this
            issue       against         Hash's      position.            In Harrison            v. Chance
             (1990),        244 Mont. 215, 797 P.2d 200, we held that the Act
            provides          the exclusive            remedy for sexual                discrimination
            claims.           We did so on the basis                  that       a 1987 legislative
            amendment made the Act the exclusive                                  remedy for sexual
            discrimination.                We held that           the "statutory               procedures
            for discrimination                 are exclusive            remedies          and cannot           be
            bypassed."                Harrison,          797 P.2d           at      203.         Like        the
            plaintiff              in     Harrison,            Hash         chose          to      file          a
            discrimination               claim       in district            court        without         first
            timely       filing        her complaint           with the HRC.
                          .
            The Legislature                clearly        intended         that      the Act be the
            exclusive           remedy for discrimination                     claims.          We adopted
            this      intent        in Harrison          and maintain             it in the instant
            case.         To permit          parties       to delay          filing        with     the HRC
            until       the HRC filing              time     ran out and then file                       their
            claims       directly        in district          court      would,       in a sense,            gut
            the Act.            We reaffirm           our decision           that      the HRC is the
            exclusive             remedv        for      Hash's         discrimination                 claim.
             (Emphasis          supplied.)

            In      Harrison,                 this         court           further          considered               claims         for
intentional                   infliction              of    emotional           distress            and      outrage        arising

from        the     charges           of      sexually         explicit              conduct        and also         theories         of

wrongful            discharge              and breach            of the        implied          covenant           of good faith

and fair             dealing.              In our          present          case,       plaintiff            has     charged        the
defendants                  with    negligent              retention           of     Hoefer.         At     that      point,       the
following              statement              in      Harrison         is     pertinent:

                    As in    this     case,  any claim        based    upon      sexual
            harassment      can be framed        in terms        of numerous       tort
            theories.      The legislature     expressed      its intent    that the
            Commission      provide      the exclusive      remedy      for   illegal
            discrimination        when it enacted    subsection      (7) of § 49-2-

                                                                       7
          509, MCA.                    To allow   such recharacterization                                               of what is                   at
          heart      a                 sexual   discrimination         claim,                                          would    be                   to
          eviscerate                    the mandate of the Human Rights                                                  Commission.
Harrison,                  797        P.Zd        at     ZOO.          Plaintiff                contends                that          the          tort        she

charged             has nothing                   to do with               Hoefer's             sexual            harassment.                        Clearly
that      is         not         a proper               conclusion.                      If     the           sexual          harassment                    were
removed              from          the         factual           picture,                plaintiff                    would         have            no      tort
claim.              Because              the       sexual            harassment                is        at     the      foundation                   of       her
claim          of         negligent               retention,                the      only            remedy            she         has        is      in       the

Montana              Human Rights                       Act,         §§ 49-2-101                    et        seq.,       MCA.         We conclude
that      the        holdings                of Hash and Harrison                             are controlling                         and that                 the

exclusive                  remedy           for        the     claimed         negligent                      retention            of Hoefer                   and
sexual          harassment                     by Hoefer               is      to    be found                    in     the        Montana                Human

Rights          Act.

          Section                 49-z-501,                  MCA,     required                plaintiff                 to     file           her          claim

with      the             MHRC within                   180 days,             or    if        a grievance                     is      filed           first,

300 days.                   Plaintiff              failed            to file        her claims                    within           those            periods
of     time.               Plaintiff               attempts            to      argue           that            she agreed                not        to      file

charges              if      the        County               would     fire         Hoefer               and      he could                not         harass

other          women.                  She        became             frustrated                when             she       learned              that            the

County              had           paid            Hoefer             $30,000,                 and         then           instituted                        these

proceedings.
          Plaintiff                    has failed               to demonstrate                       any contract                     or agreement

on the         part          of       the      defendants              which        was breached                        in     connection                   with

Hoefer.                   Plaintiff               resigned             on April                8,        1992,          and        raised             to       the

County              Attorney                the         issue         of      inappropriate                           behavior              by        deputy

Hoefer.               The County                  Attorney            suspended                Hoefer            on April             9, 1992,                 and


                                                                               8
Hoefer          did      not          work          for       Yellowstone                     County           after           that          time.

         It        is       true                 that        the        MHRC eventually                             determined                     that           the

statutory               filing               time            should            be tolled               on a theory                      of         equitable

estoppel.               However,                   the       District              Court         specifically                       considered                   this

issue         and concluded                         that           equitable              estoppel              did           not      apply          so that

the     complaint                was untimely                         filed.

         Equitable                    estoppel                 is     not          favored            and will                be sustained                       only

upon       clear          and          convincing                    evidence.                    Ducham            v.         Tuma          (1994),              265

Mont.         436,       877 P.2d                   1002.            To constitute                     equitable                    estoppel,                   there

must       be         conduct                amounting                    to       representation                         or        concealment                     of

material              facts;           these               facts        must         be known             to     the          party          estopped                  at

time       of     conduct;                   truth            concerning                  these         facts            must         be unknown                       to
the     other           party           claiming                    benefit              of     estoppel                 at     the         time           it     was

acted         upon;         conduct                 must           be done with                  intention,                    or      at       least            with

expectation                 that            it      will         be acted                upon by the                other            party;           conduct

must     be relied                    upon by the                    other           party        and the                other         party          must             in

fact     act         upon        it     in         such          a manner            as to         change           his         position                for        the

worse.            Kephart              v.          Portmann               (1993),              259 Mont.                 232,        855 P.2d                   120.

         Nothing                 in     the             record             indicates               that         the            County            failed                to

carry           through               any         representations                         to      plaintiff.                        Hoefer            did          not

work       following                   the          filing           of        plaintiff's                resignation.                             Plaintiff

resigned              as of           the          end of           April           in        1992,     yet         it        was not              until           the

end of           May 1992                   that           the       Commissioners                     decided                 to     pay        Hoefer                to

resign           voluntarily                        without               filing              an action              against                 the        County.

Thus,           there          never               was        any         representation                       to        plaintiff                  that           the

County           would           not         pay         Hoefer            money          to     disappear.                         Plaintiff                   never


                                                                                    9
Justice          W. William                  Leaphart           dissenting.



          I dissent.                   For     reasons           outlined                 below,         I would        recognize           the

tort      of     negligent                retention               in       Montana               and     reverse        the     grant        of

summary          judgment.
          The tort           of        negligent            retention:

          arises       when,       during    the    course      of     employment,          the
          employer        becomes aware or should              have become aware of
          problems        with    an employee      that    indicated         his    [or her]
          unfitness,         and the employer       fails    to take further           action
          such      as     investigating,         discharge,         or     reassignment.
          Yunker       [v. Honeywell],          496 N.W.Zd         [4191 423 (quoting
          Garcia     v. Duffy,        492 So.2d 435, 438-39           (Fla.Dist.Ct.App.
          1986) ) .

ML v.      Arndt         (Minn.              App.      1995),          531 N.W.2d                  849,      857       (employee          that

had      previously                shot          a     co-worker                    and      showed         aggression              towards

coworkers            was         retained).                     In     Vollmer               v.         Bramlette         (1984),           594

F.Supp.        243,        the         Federal         District              Court          for     the     District          of Montana

concluded            that          an        employer                has        a     duty         to      protect        his       or      her

employees            from          foreseeable                    employee-caused                          harms.          That          court

concluded           that          in     the         negligent              hiring           context,           "the      question           of

foreseeability,                    such          as     which          would              give      rise       to      a duty       of      the

employer,           is     a question                 of fact          not          properly            disposed        of by summary

judgment."               Vollmer,              594 F.Supp.                   at       248.

                  The basis      of responsibility     under the doctrine          of
          negligent     hiring     is the master's   own negligence      in hiring
          or retaining         in his employ an incompetent         servant     whom
          the master       knows or by the exercise        of reasonable        care
          should     have known was incompetent         or unfit     and thereby
          creating     an unreasonable       risk  of harm to others.

Estate         of   Arrington                  v.      Fields          (Tex.              Civ.     App.       1979),          578    S.W.2d

173,      178.

                                                                           11
          The District               Court       in the case at hand,                       found     that        Bruner's
claim       for       negligent         retention           was founded               in     unrelenting                sexual
harassment                during     her employment              and that      the exclusive                 remedy for
this      type        of conduct           (sexual        harassment)            is    found         in     the Montana
Human Rights                Act.     I disagree.            Exclusivity            only       applies        if     the two
remedies          share indispensable                    elements.          Sexual harassment                    under the
HRA and negligent                    retention           do not      share       indispensable                   elements.
The HRA requires                   proof        of discrimination.                    The tort            of negligent
retention            does not.
          In Retherford               v. AT&T Communications                     of the Mountain                   States,
Inc.      (Utah 1992),               844 P.2d 949, the plaintiff                           alleged,         among other
claims,           that        AT&T negligently                    employed        several             employees             who
harassed              her.            The        court           analyzed        whether              Utah's             Anti-
Discriminatory                 Act     (UADA) provided               the     exclusive              remedy         for      her
claims.              The court        adopted        the     indispensable                 element         test     as the
analytical                model to determine               whether      a statutory                 cause of action
forecloses                a common law            remedy.            Retherford,              844      P.2d        at     963.
Applying          the test,           the court          first      identified              the injury            that      the
statute         was designed               to     address.           Retherford,              844         P.2d     at     965.
Second,         the        court     examined        the         elements     of       the plaintiff's                    tort
claims          to        determine        whether          any      element          of      the         claim         was      a
necessary            element         of the       statutory          cause of          action.             Retherford,
844      P.2d        at     965.      That       court      concluded         that          the     UADA addressed
employment                discrimination           against         members of              specified             protected
groups.           The court           found      that:
          [nloticeably  absent from the list  of the indispensable
          elements of the four claims  [one of which was negligent
                                                             12
         employment]  is an injury   that is a target   of the UAUA:
         retaliation  for complaints   of sexual harassment.   While
         it is true that all four claims arise out of defendants'
         retaliatory  conduct, preemption depends on the nature of
         the injury,  not on the nature of the conduct allegedly
         responsible  for that harm.
Retherford,             844 P.2d at 967.
         I would apply           the two-part         test        from Retherford           to the instant
case.         First,      the    injuries          addressed        by the Montana           Human Rights
Act     (HRA) include           various       employment-related                 discriminatory             acts.
Second, the elements                of Bruner's           tort,     negligent        retention,       require
that    Bruner         prove    that      Yellowstone          County's       "negligence          in hiring,
supervising,            or retaining         its    employees         [Hoeferl       proximately           caused
her     harm."          See Retherford,             844 P.2d         at     967.      The HRA does not
address         negligent          retention          of       an    employee         who     harasses          or
discriminates            against       another      employee.          Rather,       the HRA focuses            on
the discriminatory               acts      of the employer            which directly              impact     upon
the injured            employee.          The HRA provides                in relevant       part     that:
         (1) It     is an unlawful     discriminatory      practice     for:
                 (a)    an employer to refuse employment to a person,
        to bar a person from employment,                  or to discriminate
        against a person in compensation or in a term, condition,
        or privilege           of employment because of race,                creed,
        religion,       color,    or national    origin    or because of age,
        physical       or mental disability,         marital    status,      or sex
        distinctionL.1
Section        49-2-303(l)         (a),    MCA.
         If   Bruner      were alleging            that     Yellowstone            County was harassing
or discriminating               against      her then she would have a claim                        under the
HRA and any common law harassment                          and discrimination             claims      against
Yellowstone            County would be preempted.                      Likewise,        a claim       against
the     County         based upon Hoefer's                harassing        conduct      would      merely       be

                                                          13
derivative          in nature              and would be preempted.                       However,         here,        Bruner

is suing       Yellowstone                 County,         not for         Hoefer's        conduct,        but for         the
County's       own negligence                      in retaining             Hoefer       in a position                 where,
given       his        prior             history          of      harassing           other        women,         it       was
foreseeable            that        he would harass                  Bruner.
           The claim               for      negligent           retention          focuses         on Yellowstone
County's          failure          to terminate                Hoefer       once it        learned        that         Hoefer
was harassing                women employees--i.e.                         Bruner's         predecessors.                  The
factual       basis      of the negligent                      retention         claim      against       Yellowstone
County       started           before            Bruner        was even           hired.         Bruner      presented
deposition          testimony               from        the county          attorney         indicating           that          he
was       concerned                that          Bruner's            two        predecessors              would          file
constructive                discharge              claims         against         the       County        based          upon
Hoefer's       conduct             towards            them.      This      testimony          certainly          raises          a
question          of        fact          as     to      the      County's         prior         knowledge              (i.e.

foreseeability)                sufficient               to defeat          a motion        for   summary judgment
on the claim             of negligent                  retention.
        The       HRA addresses                       discrimination              against         an      employee              as
opposed to negligence                          in hiring       or retaining           an employee.               Burner's
claim     of negligent                   retention          is not premised              upon discrimination.
Secondly,          her      claim          is     based upon the                County's         own actions,              not
those      of Hoefer.                Thus,         her      claim       of negligent             retention         is      not
preempted         by the HBA and is not controlled                                 by the time            constraints
of § 49-2-501,               MCA, which                requires        filing      with       the HRA within               180
days or with             the EEOC within                    300 days.
          I would reverse                 the District             Court's       grant      of summary judgment

                                                                14
on the question                 of negligent        retention.        I do not believe                     that    the
claim       of    negligent           retention      was preempted            by the           HRA nor            do I
believe          that     the     claim    of negligent           retention       is      subject            to    the
filing      deadlines            of the HRA.



                                                                              Just?&       .      I


Justices         William E. Hunt, Sr.,                 and Terry      N. Trieweiler              join         in the
foregoing         dissenting opinion.



                                                                     Justice
                                                                                        dJ&

                                                        7’ . /        ustice
                                                                     4”



Justice          James C. Nelson           specially       concurs.


         I concur         with     the result        reached       in our opinion              because            I am
satisfied          that     application           of our    decision       in Harrison                v.     Chance
(1990),          244 Mont.        215,    797 P.2d 200, mandates                 that      result.                I do
not,     however,         read our opinion             as a refusal           to recognize             the tort
of     negligent          retention        in     a case    involving         different          underlying
facts.       As far        as I am concerned,              that    issue      remains      to be decided
in the future.
