Ann Wilbur; v. STATE OF MONTANA and DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANN WILBUR; et al.,
Plaintiffs - Appellants,
v.
STATE OF MONTANA and
DEPARTMENT OF PUBLIC HEALTH
AND HUMAN SERVICES,
Defendants - Appellees.
No. 11-35642
D.C. No. 1:09-cv-00137-RFC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted July 13, 2012
Seattle, Washington
Before: SCHROEDER, KLEINFELD, and M. SMITH, Circuit Judges.
Because the parties are familiar with the factual and procedural history of
this case, we repeat only those facts necessary to resolve the issues raised on
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
JUL 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
Appellants appeal only the parts of the district court order granting summary
judgment on the negligence count. Appellants make two arguments. The first
argument is that there was a genuine issue of material fact as to whether Brittany
Wilbur’s (Brittany’s) foster parents were state agents. The second argument is that
the state of Montana has a nondelegable duty to foster children that makes it liable
for the negligence of foster parents. We review a district court’s grant of summary
judgment de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,
1019 (9th Cir. 2004). Summary judgment can be affirmed on any ground
supported by the record. Crowley v. Nevada ex rel. Nevada Secretary of State, 678
F.3d 730, 734 (9th Cir. 2012). Appellants have not demonstrated that under
Montana law and whatever contract the foster parents may have had with the state
(which is not in the record), there is a legal basis for vicarious or direct liability
against the state. Nor, even if the state is liable for negligence by the foster
parents, have Appellants established a genuine issue of material fact as to
negligence.
To withstand summary judgment, Appellants must make a showing
sufficient to establish a genuine dispute of material fact regarding the existence of
the essential elements of their case that they must prove at trial. Galen v. County

-- 2 of 3 --

3
of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). To prevail in a negligence
action, “a plaintiff must establish the defendant owed the plaintiff a legal duty,
breach of that duty, causation, and damages.” Emanuel v. Great Falls Sch. Dist.,
209 P.3d 244, 247 (Mont. 2009).
Under the Department of Public Health and Human Service’s regulations,
Brittany’s foster parents were to “provide care and custody including . . . personal
care, supervision and attention appropriate to age.” Mont. Admin. R.
37.97.1002(1)(b) (1998). The foster parents therefore had a duty to supervise
Brittany in a manner appropriate to her age, which was fifteen years old at the time
of the relevant events. Appellants did not meet their burden at summary judgment
to show that, by leaving Brittany at home alone for about three and a half hours,
the foster parents did not provide age-appropriate supervision.
AFFIRMED.

-- 3 of 3 --