KISER v. JACKSON (2024)

OPINION and ORDER

In November 2019, Plaintiff Katherine Kiser was attacked by a dog while walking on a public road near her home on the Flathead Indian Reservation in Moiese, Montana. The dog was owned by Terrance Jackson, who was employed by the Bureau of Indian Affairs (“BIA”) as a maintenance worker for the Flathead Indian Irrigation Project and lived on property owned by the BIA. Kiser sued the United States, alleging liability for negligence, negligence per se, and public nuisance in its capacity as Jackson's landlord and employer. (Docs. 1, 19.) The government seeks summary judgment on all of Kiser's claims, (Doc. 23), and to exclude the testimony of two of her retained experts, (Doc. 26). A motions hearing was held on February 20, 2024. (See Doc. 38.) Having considered the parties’ written submissions and oral argument, the government's motion for summary judgment is granted and the motion in limine is denied as moot.

Background

The following facts are undisputed unless otherwise noted, (see Docs. 25, 32), and viewed in the light most favorable to Kiser, the nonmoving party, Tolan v. Cotton, 572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam).

Kiser lives at 56405 Moiese Valley Road in Moiese, Montana, on the Flathead Indian Reservation. (Doc. 32 at ¶ 1.) About a quarter mile south of her residence is a house owned by the BIA, at 56674 Moiese Valley Road (“the Property”). (Id. ¶ 2.) In 2015, the BIA hired Jackson as a ditch rider for the Flathead Indian Irrigation Project (“the Project”). (Id. ¶ 5.) At the time he was hired, Jackson asked about the availability of housing, (id. ¶ 6), and former Flathead Agency Superintendent Ernest “Bud” Moran allowed him to live at the Property in exchange for Jackson performing upkeep, (id. ¶ 7). Jackson was not required to live at the Property as part of his job, (id. ¶ 9), and contrary to BIA housing policy, (id. ¶ 43), Jackson did not sign any paperwork, have a lease, or pay rent, (id. ¶ 7).¹ Although the BIA intended to remedy this noncompliance, (see Doc. 31-10), it did not do so. Additionally, no one at the BIA told Jackson that he was prohibited from keeping a pit bull at the Property or that the BIA had a housing policy that specifically prohibited pit bulls and other “vicious” dogs. (Doc. 32 at ¶¶ 35, 44.)

Although Jackson did not have any pets when he moved onto the Property in 2015, (id. ¶ 8), he acquired a pit bull (“Bosco”) from his grandson in early 2019, (id. ¶ 10; Doc. 31-7 at 35). Around 4:00 p.m. on November 7, 2019, Kiser was walking down the public road by her house and the Property when she noticed Jackson's dog running toward her, barking. (Doc. 32 at ¶¶ 17–19.) The dog ran at her and jumped, she put her arm out to protect herself, and the dog latched onto her arm, taking her to the ground. (Id. ¶ 20.) A neighbor, Dan Adler, drove by during the attack. (Id. ¶ 21.) Adler stopped to help, fighting off the dog with a tire iron before getting Kiser into his car and driving her to the hospital in Ronan. (Id. ¶ 22.) Kiser was ultimately transferred by helicopter to Kalispell Regional Medical Center. (Id.) Kiser underwent several surgeries and extensive post-operative treatment. (Id. ¶ 23.) She also reports continued physical symptoms and impairments related to the attack, as well as experiencing post-traumatic stress disorder. (Id. ¶ 24.)

Jackson was at work when the attack occurred and was not present at the Property. (Doc. 25-6 at 10–11.) Jackson was not required to have a dog as part of his job with the Project, (Doc. 32 at ¶ 11), and it is disputed whether anyone at the BIA knew that Jackson had the dog prior to this attack, (see id. ¶¶ 15, 25). Although Kiser asserts that she subsequently learned that the dog had been aggressive toward other neighbors prior to the incident here,² she concedes that she did not know it was aggressive at the time of the attack, (Doc. 25-1 at 9), and it had never bitten anyone, (Doc. 32 at ¶ 12). She also concedes that Jackson did not disclose any reports of aggression to the BIA, (id. ¶ 14), despite the fact that Jackson himself had previously considered shooting the dog because it chased a bicyclist, (id. ¶¶ 28–30). After the attack here, the sheriff's department required Jackson to take the dog to be euthanized, (id. ¶ 26), and the veterinarian described it as “the most vicious dog” he had ever encountered. (Id. ¶ 27.)

On November 7, 2022, Kiser filed the present action, alleging claims of negligence, negligence per se, and public nuisance against Jackson and the United States, as well as a claim of strict liability against Jackson and a claim of respondeat superior against the United States. (See Docs. 1, 19.) Jackson has not answered or appeared in the action. The United States seeks summary judgment on all of Kiser's claims, (Doc. 23), and to preclude any testimony by two of Kiser's retained experts, (Doc. 26).

Legal Standard

Summary judgment is 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). Facts are material if they have the potential to affect the outcome of the case and there is sufficient evidence for a jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256, 106 S.Ct. 2505. Nevertheless, the evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505.

Analysis

The United States is immune from suit except to the extent it consents to be sued. Schurg v. United States, 63 F.4th 826, 831 (9th Cir. 2023). Under the Federal Tort Claims Act (“FTCA”), the United States has waived its sovereign immunity for injuries or loss “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Here, Kiser seeks to hold the United States liable for her injuries as both Jackson's landlord and his employer. (See Doc. 19.) But as argued by the government, “the United States bears no responsibility for injuries arising out of Jackson's tenancy or his personal dog ownership.” (Doc. 34 at 15.) Accordingly, the government's motion for summary judgment is granted.

Kiser has alleged four claims against the government: negligence, public nuisance, negligence per se, and respondeat superior. The question of the government's vicarious liability based on Jackson's employment is discussed first below. Kiser's substantive claims are then addressed in turn.

I. Scope of Employment

The FTCA is the exclusive remedy for a tort action against an employee of the United States acting “within the scope of his office or employment.” 28 U.S.C. § 2679(b). Because the FTCA dictates that courts apply the law of the state “where the act or omission occurred,” id. § 1346(b)(1), the scope of Jackson's employment is assessed under Montana law. “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 impliedly authorized act.” L.B. v. United States, 409 Mont. 505, 515 P.3d 818, 822 (2022). “Expressly authorized acts include, inter alia, acts the employer specifically directed or authorized the employee to perform.” Brenden v. City of Billings, 399 Mont. 352, 470 P.3d 168, 173 (2020) (citing Mont. Code Ann. § 28–10–402). “Implicitly authorized acts include acts reasonably necessary or customary under the circumstances to the performance of specifically authorized acts or functions and other acts ‘of the same general nature.’ ” Id. (quoting Restatement (Second) of Agency § 229(1) cmt. a). Relevant factors for assessing implicit authorization include, inter alia:

(1) whether the act was of a type such employees commonly perform; (2) the time, place and purpose of the act; (3) whether the employer had reason to expect that the employee might so act under the circumstances; (4) the extent, if any, to which the act departed from a normal or typical means of accomplishing an authorized task or function; and (5) whether the employer furnished the instrumentality the employee used to harm the third party at issue.

Id. (internal quotation marks omitted). As it relates to “incidental” conduct, “an act was incidental to expressly or implicitly authorized conduct if it ‘arose out of’ and was closely related to the performance of an expressly or implicitly authorized act or function.” Id. at 174.

Applying these standards here, the undisputed facts show that Jackson's possession of and failure to control the dog that attacked Kiser fell outside the scope of his employment as a maintenance worker for the Project. (See Doc. 34-1 at 3–5 (job description for “Maintenance Worker”).) Kiser concedes that Jackson's employment with the BIA neither required that he live at the Property nor have a dog. (Doc. 32 at ¶¶ 9, 11.) The only connection between the dog and the BIA is the fact that Jackson lived in BIA housing and agreed to perform maintenance on the Property. Kiser insists this is enough, relying heavily on Lutz v. United States, a case involving a dog bite in base housing on Malmstrom Airforce Base. 685 F.2d 1178 (9th Cir. 1982). Her position is unpersuasive, however, as the government's liability in Lutz hinged entirely on the unique terms of military employment. The Ninth Circuit explained that the base had specific rules governing dog ownership as part of “base security” and that “base security” is considered “regular military activity.” Id. at 1183. The court also specifically stated that “[m]ilitary housing presents a unique situation. Unlike employees and residents of cities and towns, the employment relationship of residents of military bases continues even during the off-duty, at-home hours.” Id. Additionally, the court considered the fact that the provision “acting in the line of duty,” as defined under 28 U.S.C. § 2671, meant “Congress mandated consideration of special factors characteristic of military activity and discipline.” Id. (internal quotation marks omitted). None of these unique considerations exist here. Moreover, Kiser muddies the waters by mixing the analysis of Jackson's employment with that of his tenancy. While Jackson agreed to perform upkeep on the Property in order to live there, that was not part of his employment with the BIA as a ditch rider.

This case is more similar to Anderson v. Hitchcock, a dog bite case where this Court found no liability on the part of the United States despite the fact that the dog's owner lived in government housing and worked for the government. 2015 WL 12592789 (D. Mont. Apr. 23, 2015). As explained therein,

[s]etting aside the lessor-lessee relationship between the government and Hitchcock, the duty to restrain the dog at issue in this case never extended to the United States. The dog was Hitchcock's personal pet, she retained ultimate control over it, and the duty to manage it in no way transferred to the government simply by virtue of her employment as a leasing technician with the Tribal Lands Department. Anderson's contention that Hitchcock had a professional duty to restrain her dog is without merit—the duty to restrain her dog was her[ ]s alone and is independent from her employment with the Tribal Lands Department.

Id. at *3. Because neither Jackson's possession of nor failure to control the dog fell within the scope of his employment with the BIA, the government is not liable for his conduct under the FTCA. Accordingly, the merits of Kiser's substantive claims ³ are considered below solely in terms of the government's liability as Jackson's landlord.

II. Negligence (Count II)

Four elements are required to prove a negligence claim under Montana law: “(1) duty; (2) breach of duty; (3) causation; and (4) damages.” Dulaney v. St. Farm Fire & Cas. Ins. Co., 375 Mont. 117, 324 P.3d 1211, 1214 (2014). “It is well established that if a plaintiff fails to offer proof of any one of the elements of a negligence claim, the negligence action fails and summary judgment in favor of the defendant is proper.” Id. (quotation marks omitted). While negligence claims are generally a “fact driven” inquiry not susceptible to summary judgment, id., whether the defendant owed the plaintiff a legal duty is a legal question, Harrington v. Crystal Bar, Inc., 371 Mont. 165, 306 P.3d 342, 345 (2013).

Here, Kiser alleges that the “BIA owed [her] a duty to exercise reasonable care in the management and ownership of the Property” and “breached this duty by failing to oversee or investigate its employee's use of the Property, which included housing a vicious dog.” (Doc. 19 at ¶¶ 35–36.) The government argues that the BIA, as the lessor of the Property, had no duty to Kiser. Ultimately, while the BIA's failure to follow or enforce its own housing policies is troublesome, the government has the better argument.

In arguing that the BIA had no duty of care, the government relies heavily on Knapton ex rel. E.K. v. Monk, wherein the Montana Supreme Court determined that the lessor of a private residence did not have a duty to a third party bitten by her tenants’ dog. 379 Mont. 1, 347 P.3d 1257 (2015). The Court explained that “[a]s a general rule, a lessor is under no duty to anyone to look after the premises or to keep them in repair, and is not responsible, either to persons injured on or off the land for conditions which develop or are created by the tenant after possession has been transferred.” Id. at 1260 (internal quotation marks omitted). However, a duty does exist if “(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and (b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.” Id. (internal quotation marks and emphasis omitted) (citing Restatement (Second) of Torts § 379A (1965)). The Court also explained that “had reason to know” is not the same as “should know.” The former—which is operative here—implies no duty on the part of the actor, while the latter “indicates that the actor is under a duty to use reasonable diligence to ascertain the existence or non-existence of the fact in question.” Id. at 1262 (quoting Restatement (Second) of Torts § 12 cmt. a (1965)). Nevertheless, a lessor need not be the animal's “keeper” to be liable under a premises liability theory. Id. at 1260–61 (distinguishing premises liability from an “injury by animal” theory).

The government argues that the “general rule” under Knapton applies here because (1) the BIA did not consent to Jackson keeping a dog nor did he have a dog when he moved into the Property, and (2) there is no evidence that the BIA knew or had reason to know that his tenancy would “unavoidably involve such an unreasonable risk.” Id. at 1260. In response, Kiser argues that Knapton does not apply on the basis that “[a] tenancy relationship arising out of employment is not a traditional lessor-lessee relationship such as the one considered in Knapton.” (Doc. 29 at 13.) Kiser further insists that, even if the Knapton framework applies, the BIA arguably “consented” to the dog and had “reason to know” of the risk because the BIA failed either to inform Jackson that he was not permitted to have a pit bull or other “vicious” dog under the BIA's housing policy or to enforce that policy. Ultimately, neither of Kiser's arguments is persuasive.

A. Application of Knapton

As it relates to the application of Knapton, Kiser provides no authority for the idea that employer-lessors have a different duty to maintain their rented premises than other lessors. While Kiser is indeed correct that occupancy tied to employment is excluded from Montana's Residential Landlord and Tenant Act, see Mont. Code Ann. § 70–24–104(7), premises liability under Knapton arises out of common law, not statute. See 347 P.3d at 1260–61 (describing both injury by animal and premises liability as “common law theories of liability”). During oral argument, Kiser argued Lutz demonstrates a unique landlord/employee relationship that resulted in liability on behalf of the government. Not so. As clarified by the government, the government's liability in Lutz was tied to the scope of the dog owner's employment with the military, not the government's ownership of the property where the dog lived. See generally, 685 F.2d 1178. Lutz does not alter the general rules governing landlord/tenant relationships, and Knapton applies here.

Under the Knapton framework, Kiser's negligence claim fails. As stated above, the general rule is that, as a lessor, the BIA is not responsible for injuries caused by conditions that arose after Jackson took control of the Property unless it (1) “consented to such activity or knew that it would be carried on, and” (2) “knew or had reason to know that it would unavoidably involve such an unreasonable risk.” 347 P.3d at 1260 (internal quotation marks and emphasis omitted). Kiser argues that both requirements are met here because the BIA “fail[ed] to inform of or enforce its own policies prohibiting pit bulls.” (Doc. 29 at 16, 17). While this is sufficient to show implied consent, it is insufficient to show the requisite knowledge to confer a duty.

B. Consent

Kiser argues that the BIA consented to Jackson keeping a pit bull at the Property “[b]y failing to inform of or enforce its own policies prohibiting pit bulls.” (Doc. 29 at 16.) Kiser's argument is based primarily on a footnote found in Anderson. In Anderson, the dog owner did not have a dog at the time she entered into a housing lease with the government, but the lease did not have any provisions limiting dog ownership. 2015 WL 12592789, at *1. Accordingly, this Court posited that “[a]rguably, in the absence of a home site lease provision precluding pet ownership, the government consented to the activity of owning a dog at the time it entered into the lease.” Id. at *3 n.1. Kiser argues that the same holds true here: because the BIA did not tell Jackson that he could not have a dog, it consented to his possession of a dog. While the government insists mere inaction is insufficient to show consent, the existence of the BIA's dog policy indicates that the BIA was aware that tenants might have dogs. The BIA's failure to prohibit such ownership or possession in this case therefore raises at least a genuine issue as to the question of consent.

C. Knowledge

But even if Kiser could show the BIA consented to Jackson's dog, the record here does not show that the BIA “knew or had reason to know that it would unavoidably involve such an unreasonable risk.” Knapton, 347 P.3d at 1260. As argued by the government, Knapton requires that a lessor have fairly specific knowledge of the risk at issue to confer liability. In Knapton, for example, the lessor knew that her tenants owned pit bulls, but because she did not know that the dogs were vicious, the Montana Supreme Court found no evidence she knew or had reason to know of an unreasonable risk. 347 P.3d at 1262 (“There is no direct evidence demonstrating that [the lessor] knew the [tenants]’ dogs had vicious propensities.”). Here, Kiser's only evidence of knowledge is that the BIA had a generally applicable housing policy prohibiting pit bulls and that the BIA had such a policy because such animals “represent a high liability risk for the government.” (Doc. 32 at ¶ 44.) This is not direct evidence that the BIA knew that Jackson had a dog at all, let alone a vicious one. And, as explained in Knapton, this is where the distinction between “should have known” and “had reason to know” matters. See 347 P.3d at 1262. Under the “reason to know” standard that applies in this context, the BIA had no obligation “to use reasonable diligence to ascertain the existence or non-existence of the fact in question.” Id. (internal quotation marks omitted). While it is disputed whether other members of the community knew Jackson's dog to be vicious, (Doc. 32 at ¶ 12), it is undisputed that the BIA did not have such knowledge, (see id. ¶ 14).

The one curveball in this case is that it is undisputed that the Department of the Interior's housing policy requires a lease be put in place before a tenant occupies government housing such as the Property. (See Doc. 25-4 at 8–12.) It is also undisputed that Jackson did not have a lease, did not formally apply to reside at the Property, and did not pay rent. Thus, the BIA permitted Jackson to live at the Property in violation of its own internal policies, policies that both required lease agreements and prohibited pit bulls. This decision is concerning because Jackson testified in his deposition that if he had been told that he could not have a pit bull, he would not have taken in the dog at issue here. (See Doc. 25-6 at 16.) Nevertheless, the government is correct in arguing that a legal duty must arise under state law; it cannot rest solely on the existence of an agency regulation or policy. See Delta Savings Bank v. United States, 265 F.3d 1017, 1026 (9th Cir. 2001) (“[A] federal statute or regulation under which the employee acted only becomes pertinent in an FTCA action when a state law duty is found to exist.” (internal quotation marks omitted)). Thus, the BIA's undisputed failure to follow its own policies does not alter the conclusion that because the BIA did not have reason to know that Jackson's possession of a dog “would entail inevitable, unreasonable, and unmitigated risk,” Anderson, 2015 WL 12592789, at *3, it did not have a duty under Montana law.

Accordingly, summary judgment is granted in favor of the government as to Kiser's negligence claim.

III. Public Nuisance (Count IV)

Kiser claims that the United States “created and allowed the continuation of the dangerous and hazardous condition posed by failing to monitor the Property and to ensure it did not pose a threat to third parties,” and that doing so “resulted in a public nuisance.” (Doc. 19 at ¶¶ 50–51.) Montana defines a nuisance as “[a]nything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Mont. Code Ann. § 27–30–101(1). A “public nuisance is one which affects, at the same time, an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Id. § 27–30–102(1). Here, the government argues that Kiser cannot prove her claim for public nuisance because she fails to show that anyone but her was harmed by the dog. While that specific argument is unpersuasive, the government nonetheless prevails.

As it relates to the number of people affected by the dog in this case, Kiser has raised a genuine dispute of fact whether other people in the neighborhood were “terrorized” by the dog. (See Doc. 32 at ¶ 12.) Thus, this is not a basis for ruling in the government's favor. However, the same “general rule” that limits lessor liability under a premises liability theory also applies to claims based on a public nuisance theory. See Anderson, 2015 WL 12592789, at *2–3 (citing Restatement (Second) of Torts § 837 (1979)); see also Gross v. Turner, 208 Vt. 112, 195 A.3d 654, 661 (2018) (explaining that liability under the Restatement § 379A and § 837 both turn on the landlord's knowledge). Thus, Kiser's public nuisance claim fails for the same lack of knowledge as her negligence claim. Summary judgment is granted in favor of the government as to this claim.

IV. Negligence Per Se (Count III)

“To bring suit under the FTCA based on negligence per se, a duty must be identified, and this duty cannot spring from a federal law.” Delta Savings Bank, 265 F.3d at 1026. Instead, the legal duty “must arise from state statutory and decisional law.” Id. In Montana, “[t]he violation of a Montana statute or ordinance enacted for the protection of the public is negligence per se.” Lutz, 685 F.2d at 1184. “For this rule to apply, the plaintiff must be a member of the class in whose favor a duty was imposed by the statute [ ] and the defendant must be a member of the class against whom a duty is imposed.” Id. (internal quotation marks omitted). “In addition, the violation must be the proximate cause of the plaintiff's injuries.” Id. “Where those three requirements are met, the defendant is negligent as a matter of law.” Id.

Kiser claims that the United States is liable under a negligence per se theory because it violated “CSKT Laws Codified § 2–1–1009, which prohibits a person from maintaining a vicious dog, and provides for strict liability against a party who maintains a vicious dog,” as well as “Lake County Ordinance—Resolution 861, which makes it a misdemeanor offense pursuant to Mont. Code Ann. § 7–23–2019 to own a vicious dog.” (Doc. 19 at ¶¶ 40–48.) Although not pled and limited to certain municipal locations not at issue here, Kiser also invokes Montana Code Annotated § 27–1–715(1), which imposes strict liability on “[t]he owner of a dog that without provocation bites a person while the person is on or in a public place ․ located within an incorporated city or town.” (See Doc. 29 at 23.)

Kiser's negligence per se claim fails for two reasons. First, it is well settled that the FTCA's waiver of sovereign immunity does not include claims for strict liability. Laird v. Nelms, 406 U.S. 797, 804, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972); Bramer v. United States, 595 F.2d 1141, 1144 n.7 (9th Cir. 1979). Thus, this Court lacks subject matter jurisdiction over such claims. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“[T]he existence of consent is a prerequisite for jurisdiction.”). Second, even if the Court could consider this claim, the BIA, as a landlord, is not a member of the class, i.e., dog owners, upon whom the duties identified above are imposed. Lutz, 685 F.2d at 1184. Accordingly, summary judgment is granted in favor of the government as to Kiser's negligence per se claim.

Conclusion

Based on the foregoing, IT IS ORDERED that the government's motion for summary judgment (Doc. 23) is GRANTED and its motion in limine (Doc. 26) is DENIED as MOOT. The United States is DISMISSED from this action.

IT IS FURTHER ORDERED that Kiser has ten (10) days to seek default judgment against Jackson, as the only remaining defendant, or the matter will be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b), 55.

FOOTNOTES

1.   Jackson previously worked for the Project from 2009 to 2010 and lived at the Property after he applied, signed a lease, and paid rent. (See Doc. 32 at ¶ 31.)

2.   The government argues that Kiser's evidence of the dog's prior conduct should not be considered in deciding the present motion because it is inadmissible hearsay. (Doc. 34 at 13–14.) At this stage, however, evidence need only be admissible at trial in some form, not necessarily the form presented here. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.”); Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (“[T]he nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”). Because Kiser's neighbors could testify at trial, that evidence can be considered here.

3.   Kiser is critical of the government's failure to explicitly address her respondeat superior claim (Count VI). (See Doc. 29 at 18.) Under Montana law, however, respondeat superior “is not a free-standing or independent tort cause of action, but, rather, a common law agency theory of vicarious liability for the tortious conduct of another.” Brenden, 470 P.3d at 178 (internal quotation marks omitted). Summary judgment is therefore granted in favor of the government as to this claim.

Donald W. Molloy, United States District Judge