quick facts

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