Ann Wilbur v. State of Montana

MEMORANDUM

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.

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…