Bilbruck v. Valley Cnty.

1

SADY BILBRUCK, Plaintiff, v. VALLEY COUNTY, LUKE STROMMEN, & JOHN DOES 1-3, Defendants.

No. CV-21-40-GF-BMM

United States District Court, D. Montana, Great Falls Division

July 2, 2024

ORDER

Brian Morris, Chief District Judge.

INTRODUCTION

Plaintiff Sady Bilbruck (“Bilbruck”) has filed a motion for partial summary judgment on the application of § 214 of the Restatement of Agency. (Doc. 55.) Defendant Valley County (“Valley County”) opposes this motion. (Doc. 90 at 1.) Valley County has filed a motion for summary judgment. (Doc. 49.) Bilbruck opposes that motion. (Doc. 93 at 1.) The Court held a hearing on all the motions on April 29, 2024. (Doc. 111.)

BACKGROUND

Strommen worked as a law enforcement officer for Valley County from 2009 until 2018. (Doc. 94 at 2.) Strommen encountered Bilbruck in December of 2013 while on duty in his capacity as a law enforcement officer. (Doc. 68-4 at 3.) Bilbruck was seventeen years old at the time. (Doc. 68-3 at 1.) Strommen detained Bilbruck and transported her to the detention center. (Doc. 87 at 2.) Bilbruck received citations for MIP, open container possession of drug paraphernalia, and possession of dangerous drugs (marijuana). (Id. at 1-2.) Bilbruck obtained Strommen's phone number from Strommen's sister-in-law, with whom Bilbruck worked. Bilbruck texted Strommen to get her car keys back following her arrest. (Doc 94-1 at 20.) Bilbruck and Strommen later began texting regularly. (Id.)

Strommen and Bilbruck engaged in a sexual relationship for several months. Strommen and Bilbruck had four sexual encounters. The first occurred in Strommen's wife's Jeep while Strommen was off duty. (Doc. 94-2 at 28, 67; Doc. 51 at 7.) The remainder allegedly occurred while Strommen was on duty in the following locations: (1) Bilbruck's car; (2) a remote hunting cabin; and (3) Bilbruck's hotel room. (Doc. 51 at 8.) These sexual encounters involved Bilbruck performing oral sex on Strommen. (Id. at 7-8.) Strommen allegedly engaged in a sexual relationship with a fourteen-year-old girl, J.R., throughout his employment as well. (Doc. 94-4 at 2-3.)

Former Valley County Sheriff, Glen Meier, admitted that he had noticed that Strommen would disappear for long periods of time on shift, would visit a remote hunting cabin on shift and failed to follow Sheriff Meier's directives to put a tracking app on his phone so Sheriff Meier could track his whereabouts. (Doc. 94-4 at 6, 12-13, 25.) Sheriff Meier also admitted to having received reports of inappropriate behavior including reports that Strommen sexually propositioned women during traffic stops, that a sheriff was engaged in a sexual relationship with a high school girl, and that Strommen had sexually assaulted a border patrol agent. (Id. at 6-8.) Valley County contends, however, that Sheriff Meier did not receive the complaints about Strommen until 2015 or 2016 and did not put together that Strommen was the “sheriff” reportedly having the sexual relationship with a minor until 2018. (Id. at 31-33, 35.)

The Department of Criminal Investigations (“DCI”) investigated Strommen beginning in June of 2018. (Id. at 18.) Valley County terminated Strommen's employment on October 29, 2018. (Id. at 20.) Strommen pleaded guilty to sexual abuse of children for his possession of child sexual abuse material, consisting of a photograph of Bilbruck partially clothed. (Doc. 48-1.) A jury convicted Strommen of sexual intercourse without consent for his conduct with J.R. Montana v. Strommen, 547 P.3d 1227, 1234 (Mont. 2024). The Montana Supreme Court recently overturned that conviction for violation of the confrontation clauses of the United States Constitution and the Montana Constitution. Id. at 1242-43.

LEGAL STANDARD

Summary judgment proves appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact requires sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248.

DISCUSSION

I. Section 214 Agency

The Montana Supreme Court has adopted § 214 of the Restatement Second of Agency. Paull v. Park County, 218 P.3d 1198, 1205 (Mont. 2009). Section 214 of the Restatement Second of Agency provides as follows:

[a] master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others from harm caused to them by the failure of such agent to perform the duty.

Id. at 1205. Section 214 operates as an exception to the general rule that an employee must be acting within the scope of employment for the employer to be liable for the employee's conduct. Smith v. Ripley, 446 F.Supp.3d 683, 688 (D. Mont. 2020).

Section 214 holds employers liable for actions taken by an employee outside the scope of their employment where the employer maintains a non-delegable duty. Id.

The Montana Supreme Court has applied the exception where an agent's deliberate reckless driving during the transportation of a prisoner resulted in harm to the prisoner. Paull, 218 P.3d at 1205. Section 214 also has been applied where a child protection specialist raped a mother subject to abuse and neglect proceedings, Smith v. Ripley, 446 F.Supp.3d at 690-92, and where a railroad sleeper car attendant raped a passenger. Shepherd v. Amtrack, CV 17-40-GF-BMM, 2018 U.S. Dist. LEXIS 226726, at *4-5 (D. Mont. Aug. 15, 2018). Shepherd turned primarily on the railroad's duty as a common carrier. Id. Smith and Paull relied heavily on the significant and continuing relationship between the employer and the victim of the agent's conduct. Smith, 446 F.Supp.3d at 691, n.5; Paull, 218 P.3d at 1205.

Bilbruck argues that Valley County had a non-delegable duty to protect Bilbruck. (Doc. 56 at 2.) Bilbruck relies on Mont. Code Ann. § 45-5-501(1)(b)(v), (xi) to argue that Valley County owed Bilbruck a non-delegable duty of protection. (Id.) Bilbruck relies on these same statutes in her motions for partial summary judgment on the issue of consent. Valley County argues that factual issues material to the application of Mont. Code Ann. § 45-5-501(1)(b)(v), (xi) remain in dispute. (Doc. 90 at 3.)

The Court already has found that genuine issues of material fact exist as to the issue of consent and application of Mont. Code Ann. § 45-5-501(1)(b)(v), (xi). (See Doc. 120 at 5-14.) Genuine factual questions exist as to whether Bilbruck was on probation, acting as a witness, or under investigation. Bilbruck has failed to demonstrate the type of continuing relationship present in Paull and Smith. Bilbruck has failed to demonstrate that Valley County owed her a non-delegable duty. The Court declines to award summary judgment on the application of § 214 where material facts remain in dispute as to the relationship, if any, between Valley County and Bilbruck.

II. Valley County's Motion for Summary Judgment

Valley County has moved for summary judgment on all of Bilbruck's claims. (Doc. 50 at 7.) Valley County makes four major arguments in support of its motion for summary judgment. First, Valley County contends that Valley County cannot be liable because Strommen acted wholly outside his employment as a law enforcement officer. (Id. at 9-11.) Second, Valley County argues that the conduct between Strommen and Bilbruck proved consensual. (Id. at 11-14.) Third, Valley County contends that Bilbruck's § 1983 claim must fail because no policy or practice existed that resulted in the violation of Bilbruck's rights. (Id. at 20-26.) Finally, Valley County contends that Bilbruck's negligence claims fail both on the facts and under the public duty doctrine. (Id. at 26-31.)

a. Respondeat Superior

“[T]he common law doctrine of respondeat superior imposes vicarious liability on employers for the tortious conduct of employees committed while acting within the scope of their employment.” L.B. v. United States, 515 P.3d 818, 822 (Mont. 2022) (emphasis added). “A tortious act occurs within the scope of employment if the act was either expressly or implicitly authorized by the employer or was incidental to an expressly or implicitly authorized act.” Id. (citing Brenden v. City of Billings, 470 P.3d 168, 172 (Mont. 2020)). An act may fall within the scope of employment “if the act was incidental to the performance of an authorized act and at least partially motivated by the employee's intent or purpose to serve the employer's interest.” L.B., 515 P.3d at 822. “Characterization of the act as unauthorized does not necessarily place an officer's sexual assault outside the sphere of employee actions for which the employer may be liable.” Id.

Valley County relies heavily on Maguire v. Montana, 835 P.2d 755 (Mont. 1992), to argue that rape proves outside the scope of employment even if committed in the workplace. (Doc 50 at 10.) Valley County suggests that the Court is bound by its statement in Smith that “[r]ape is outside the scope of employment, even if it occurs in the workplace and under conditions conducive to predatory conduct.” Smith, 446 F.Supp.3d at 687. Valley County's argument ignores the Montana Supreme Court's recent determination in L.B. that “Maguire does little to inform the scope of a law enforcement officer's employment.” 515 P.3d at 826. The Montana Supreme Court expressly noted in L.B. that “the scope of employment was not at issue in Maguire” and that “the Court [in Maguire] did not meaningfully consider factors relevant to determining...