Montana
Montana earns a B+ for its immunity and accountability practices.
quick facts
Can you sue for damages directly under the state constitution?
Yes.
You can only sue for violations of due process, privacy, and search and seizure. But as to those claims, there is no qualified immunity.
Can you sue under a state civil rights statute?
No.
There is no Section 1983 analogue in Montana.
Can you sue under a state tort claims act?
Yes.
The Montana Constitution and the Montana Tort Claims Act make government liability the rule and immunity the exception.
Are there exceptions to the state tort claims act?
Yes.
The Montana Tort Claims Act includes several immunities, including immunity from liability for injury suffered by an inmate as a result of an officer’s, agent’s, or employee’s negligence. Recovery against a government entity will completely immunize the employee whose negligence or wrongful act, error, omission, or other actionable conduct gave rise to the claim.
The Montana Constitution makes government liability the rule and immunity the exception. With a constitutional amendment in 1974, Montana became the first state to abolish sovereign immunity through a constitutional provision. 1 And the Montana Supreme Court has stated that when it comes to “self-executing provisions of the Montana Constitution,” there is “a cause of action for money damages.” 2
The Montana Tort Claims Act (“MTCA”) further solidifies broad liability for government entities with its pronouncement that: “Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function . . . .” 3 The MTCA allows plaintiffs to hold government entities liable for intentional torts as well as negligence. Despite the broad constitutional and statutory language that seemingly abolishes common-law immunity, Montana courts have continued to apply the public-duty doctrine, which provides that unless a special relationship exists, a government entity cannot be held liable for an individual plaintiff’s injury resulting from a governmental officer’s breach of a duty owed to the general public rather than to the individual plaintiff. 4
The MTCA also provides a number of statutory immunities. Most notably, the MTCA immunizes governmental entities “for damages suffered as a result of negligence of an officer, agent, or employee of that entity by a person while the person was confined in or was otherwise in or on the premises of a correctional or detention institution or facility to serve a sentence imposed upon conviction of a criminal offense.” 5
Government employees in Montana will be personally liable to pay judgments in only limited circumstances. Recovery against a government entity will completely immunize the employee whose negligence or wrongful act, error, omission, or other actionable conduct gave rise to the claim. 6 Moreover, government employees must be defended and indemnified by their government employer unless a claim is based on “oppression, fraud, malice” or a “criminal offense,” or the employee fails to cooperate in the defense of the case. 7 While the MTCA limits the amount of damages that can be collected against government entities, there is no analogous provision for government employees. 8