                            No.    90-445
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991



CARLA IRION and RUSSELL IRION,
               Plaintiffs and Appellants,


JOSHUA PETERSON, CITY OF BILLINGS,
a municipal corporation, SCHOOL
DISTRICT NO. 2 OF BILLINGS, MONTANA,
a/k/a BILLINGS PUBLIC SCHOOLS and
CHRISTIAN, SPRING, SIELBACH &
ASSOCIATES, a corporation,
               Defendants and Respondents.



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:
               Robert C. Kelleher, Sr.; Kelleher Law Office; Butte,
               Montana
          For Respondent:
               Ramona Heupel Stevens; Moulton, Bellingham, Longo
               & Mather; Billings, Montana (City of Billings)
               Guy W. Rogers; Anderson, Brown, Gerbase, Cebull,
               Fulton, Harman & Ross; Billings, Montana (Billings
               Public Schools)

                            Submitted on Briefs:       January 17, 1991
                                            Decided:   March 19, 1991
Filed:



                              Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

      Plaintiffs Carla and Russell Irion appeal from an order of
summary judgment granted by the District Court of the Thirteenth
Judicial District, Yellowstone County in favor of defendants City
of Billings and the Billings School ~istrict. The District Court
granted summary judgment on the grounds that immunity pursuant to
§   2-9-111, MCA, and the absence of a compensable claim under 42
U.S.C. 5 1983 barred the Irions' complaint.   We affirm in part and

reverse in part.
      We restate the issues, submitted by Irions, as follows:
      1) Whether the District Court properly determined that the
City of Billings is immune from the allegations of the present
lawsuit pursuant to 5 2-9-111, MCA, and;
      2) Whether the District Court properly held that Irions failed

to assert a compensable claim pursuant to 42. U.S.C.   §   1983.
      In 1985, the City of Billings was constructing Skyview High
School.    While the school was under construction, the former
Lincoln Junior High Building was utilized as a temporary location
for the high school.    Lincoln Junior High is located in downtown
Billings at the intersection of North 30th Street and 4th Avenue
North.
      Apparently, school bus traffic associated with the loading and
unloading of students created a traffic problem in the area.       In
order to remedy this problem, School District and City officials
decided to close one lane of travel on North 30th Street from 4th
Avenue North to 5th Avenue North.    This task was accomplished by
                                 2
using a chain link fence and several barricades allowing the school
buses to proceed in the same direction and facilitate the safe
loading and unloading of students.       This remedy was considered a
temporary solution which was undertaken in order to avoid an
"extremely dangerousw situation existing at the high school.
      Unfortunately, on September 22, 1986, Carla Irion was struck
by a motor vehicle being driven by Joshua Peterson as she was
utilizing the crosswalk at the intersection of 4th Avenue North and
North 30th Street.     Joshua Peterson was a student at Skyview High
School.
      Carla Irion and her husband brought a lawsuit against Peterson
on March 3, 1989. The Irions later amended their complaint to name
the   School    District, the City      and the engineering firm of
Christian, Spring, Sielbach and Associates as defendants.         The
engineering firm designed and erected the bus lane for the School
District.      It was never sewed, however, and is not part of this
lawsuit.
      The Irions settled their claims against Peterson for the sum
of $45,000.00.     Their allegations against the School District and
the City of Billings were not settled and on July 17, 1990 the
District Court dismissed the Irionst complaint against the        two
defendants.     It held that all claims of negligence were barred by
immunity pursuant to 5 2-9-111, MCA.        It further ruled that the
Irionst b 1983      claims were   not    compensable because   neither
defendant acted with the intention to cause Carla Irion injury of
life, liberty or property.     This appeal followed.
       The District Court ruled that the Irionsl allegations of
negligence against the School ~istrictand the City were barred by
§   2-9-111, MCA.   According to the statement of issues submitted by
Irions this ruling, as it applies to the School District, was not
appealed.     Therefore, we need only review the District Court's
determination that the immunity provisions of the statute bar the
Irions' claims against the City.
       Section 2-9-111, MCA, states:
             2-9-111.   Immunity from suit for legislative acts
       and omissions.   (1) As used in this section:
            (a) the term llgovernmentalentity" includes the
       state, counties, municipalities, and school districts;
            (b) the term ttlegislative body" includes the
       legislature vested with legislative power by Article V
       of The Constitution of the State of Montana and any local
       governmental entity given legislative powers by statute,
       including school boards.
            (2) A governmental entity is immune from suit for
       an act or omission of its legislative body or a member,
       officer, or agent thereof.
            (3) A member, officer, or agent of a legislative
       body is immune from suit for damages arising from the
       lawful discharge of an official duty associated with the
       introduction or consideration of legislation or action
       by the legislative body.
            (4) The immunity provided for in this section does
       not extend to any tort committed by the use of a motor
       vehicle, aircraft, or other means of transportation.
       According to subsection 2 of this statute, a governmental
entity is immune from suit for the negligence of its legislative
body    or   *la member,   officer or   agent   thereof."   The    term
governmental entity is defined to include municipalities. Section
2-9-111( 1 (b), MCA.       Therefore in order to resolve the issue
regarding the City's possible liability, we must determine whether
the alleged negligent acts were undertaken by members or agents of
its legislative body.          If they were not, the      immunity provisions
of   §   2-9-111, MCA, are inapplicable and therefore will not bar the
Irionst lawsuit against the City.
         Section   7-3-153,     MCA,    provides   that   charters   of   city
governments are required to be filed with the Department of
Commerce. The statute further provides that all such charters are
subject to judicial notice.            Under the authority of this statute,
we have reviewed the Billings City Charter to determine whether the
City Administrator and Director of Public Works are agents of the
City's legislative body.           We have also reviewed the Charter to
determine whether it provides for Separation of Power between the
Legislative and Executive branches.
         Article I11 of the charter provides as follows:
     ARTICLE 111--Legislation
       Section 3.01. Legislative Branch. The legislative branch
       shall consist of the City Council and the Mayor.
The Mayor, under Section 3.04 is charged with the duty of presiding
over council meetings and performing as the ceremonial head of city
government.        In Section 3.08, the charter provides that "the
Council, its members and the Mayor shall deal with the city
officers and employees who are subject to the direction and
supervision of the City Administrator solely through the City
Administrator.        Neither the Council, its members, nor the Mayor
shall give orders to any city officer publicly or privately."
         The Charter also provides:
         Article IV   -   Executive.
         Section    4.01.   City    Administrator:  Employment,
         Compensation, Qualifications. The Council shall employ
     a City Administrator on the basis of merit for an
     indefinite term.   The ~dministrator shall not be the
     Mayor or a Councilmember at the time of employment and
     need not be a resident of the city or state at the time
     of employment.
Further, in section 4.03, it provides:
     Section 4.03.   City Administrator: Powers and Duties.
     The Administrator shall:
          carry out policies established by the City
          Council ;
          perform the duties required by law, ordinance,
          resolution, or this charter;
          enforce laws, ordinances, and resolutions;
          administer the affairs of the city;
          direct, organize, establish, supervise, and
          administer all departments, agencies, and
          offices of the city;
          appoint, suspend, and remove all employees of
          the local government;
          prepare and present the city budget to the
          Council for its approval and administer the
          budget adopted by the Council;
          report publicly to the Council at least
          quarterly on the financial conditions of the
          city;
          recommend measures to the Council;
          report to the Council as the Council may
          require;
          attend Council meetings and take part in the
          discussion, but shall have no vote;
          appoint with the approval of the City Council
          a qualified acting administrator to exercise
          the powers and perform the duties of the
          Administrator during temporary absences.
As these sections indicate there are distinct Legislative and
Executive Branches of the City government.      Each has different
duties and responsibilities.    The City Administrator has been
granted, by the charter the powers of the executive in a government
of separated powers.     These powers include, inter alia, the
oversight and regulation of traffic.      See   §   24-103 Billings,
Montana, City Code.    In order to carry out the duty, the City
Administrator has established the Department of Public Works, and
specifically, the Director of Public Works to assist him.
        It is clear that the alleged negligent acts which resulted in
Ms. Irion's injury, were not carried out by the legislative body
of the City.     Nor were they performed by any member, officer or
agent of the legislative body.              The City Council may retain
ultimate authority to regulate street traffic; however this does
not lead to the conclusion that the executive is its agent.           This
system of city government established by the charter is merely a
reflection of the separation of powers form of government, which
controls our nation and this state.                Therefore, the immunity
provisions of 5 2-9-111, MCA, do not apply to the actions of the
City Administrator and the District Court's grant of summary
judgment in favor of the City must be reversed.
11.     Section 1983   Claims.

        In a rather convoluted argument, the Irions have attempted to
convert this action, which              is based   on negligence, into a
constitutional claim by invoking the protections of 42 U.S. C.           §

1983.     Congress passed this statute in order to provide legal
redress for persons deprived of legal rights or privileges through
state action.     The United States Supreme Court has held, however,
that in order to set forth a valid cause of action under this
statute, a plaintiff must allege a breach of a duty that is greater
than mere negligence. Davidson v. Cannon (1986), 474 U.S. 344, 106
S.Ct.    668, 88 L.Ed.2d         677.     The   Irions maintain   that the
defendants' actions were greater than negligent and that they
amounted to deliberate indifference to Carla Irion's welfare.
     We reject this argument. The bus lane was set up in an effort
to protect the students of Sky View High School from injury. There
is no evidence that either the City or the District acted in
"disregard of a known or obvious risk that was very likely" [words
of plaintiff ] to result in Carla Irion's injuries. At the absolute
maximum the Irions8 claims support a possible negligence action.
Such allegations do not support an action under 5 1983.         The
District Court's order of summary judgment on this issue is
affirmed.
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