Denke v. Shoemaker, 2008 MT 418 (2008)

Citation: Denke v. Shoemaker, 2008 MT 418 (2008)
Parent Document: Denke v. Shoemaker, 2008 MT 418 (2008)
Jurisdiction: Montana (state)
Effective Date: 2008-12-16
Original Source: https://www.courtlistener.com/opinion/888205/denke-v-shoemaker/ ↗

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¶55 Application of the sovereign immunity defense does not mean that there is an absence of duty to the plaintiff; rather, where the immunity defense exists, the breach of duty is simply not actionable against the sovereign. Orr v. State, 2004 MT 354, ¶ 55, 324 Mont. 391, ¶ 55, 106 P.3d 100, ¶ 55. Thus, although the government may fail in its duty or obligation to the plaintiff, it is not subject to suit for such conduct if the conduct falls within the statutory grant of immunity. Perhaps recognizing the severity of this result, we have said that “it is ‘our duty to strictly construe any attempted governmental immunity-that is, every act expanding statutory immunity must be clearly expressed.’ ” Mitchell v. Univ. of Montana, 240 Mont. 261, 265, 783 P.2d 1337, 1339-*34140 (1989) (quoting B.M. v. State, 200 Mont. 58, 62, 649 P.2d 425, 427 (1982)). Consistent therewith, our approach has been to limit governmental immunity to that which is granted by the plain wording of the immunity statutes. See e.g. Mitchell, 240 Mont. at 263-65, 783 P.2d at 1339-40; Montana Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282, ¶¶ 17-18, 318 Mont. 1, ¶¶ 17-18, 78 P.3d 499, ¶¶ 17-18. Accordingly, in the case at hand, we must strictly construe the grants of immunity in §§ 2-9-111 and -114, MCA, in determining whether they include the conduct alleged to give rise to Denke’s claim.

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