445 P.3d 785
Mont.2019Background
- Brishkas owned a 4.5-million-gallon man-made pond on a mountainside; Coveys owned downhill property and were building a driveway that required crossing adjacent lots.
- On August 2–3, 2013, the Brishkas’ pond breached during a storm, sending water, debris, and changed drainage downslope and saturating the Coveys’ site.
- The Coveys’ driveway bid increased (they claimed final increased cost of $265,512.87); they sued the Brishkas claiming negligence, nuisance, trespass, and strict liability, later preserving only strict liability at trial.
- The District Court ruled the pond was an abnormally dangerous condition and instructed the jury only on causation and damages; evidence about DOT roadwork and Montalban reimbursement was excluded.
- Jury awarded damages to the Covey Trust and to Michael and Stacy Covey; the District Court entered judgment and denied the Brishkas’ motion for new trial.
Issues
| Issue | Plaintiff's Argument (Covey) | Defendant's Argument (Brishka) | Held |
|---|---|---|---|
| Whether strict liability applies for the pond | Pond constituted an abnormally dangerous condition; strict liability appropriate | Court misapplied strict liability; harm not the type strict liability protects; Common Enemy Doctrine applies | Affirmed: pond was abnormally dangerous under Restatement factors; strict liability applied |
| Whether Coveys could claim full increased driveway costs | Coveys contractually paid the increased costs and thus may recover full amount | Award improperly includes damages owed to nonparty Montalbans; Dew v. Dower requires joinder | Affirmed: Coveys alone contracted and paid; exclusion of nonparty apportionment proper; no joinder required |
| Admission of diminution-in-value evidence and related testimony | General property damages were litigated; diminution evidence admissible | Diminution was not pled or disclosed; testimony speculative and improper | Affirmed: even if error, verdict supported by substantial evidence of pleaded damages; no reversible error; objections to instructions waived |
| Whether closing argument improperly argued negligence | Counsel may comment on admitted evidence to challenge credibility | Closing impermissibly argued negligence (a claim withdrawn) and prejudiced Brishkas | Affirmed: evidence was admitted; counsel’s credibility-based comments were permissible; no improper argument warranting reversal |
| Exclusion of evidence that DOT or others caused/ contributed to breach | Evidence of DOT’s roadwork increasing inflow was relevant to causation/superseding cause | District Court improperly barred evidence of other causes after pleading such defenses | Affirmed: court did not abuse discretion—expert testimony on DOT impact was untimely disclosed and district court properly limited evidence; no instruction on superseding cause was offered by defendant |
Key Cases Cited
- Dutton v. Rocky Mt. Phosphates, 151 Mont. 54, 438 P.2d 674 (Mont. 1968) (landowner strictly liable for abnormal, dangerous conditions that harm others)
- Matkovic v. Shell Oil Co., 218 Mont. 156, 707 P.2d 2 (Mont. 1985) (adopts Restatement (Second) of Torts factors for abnormally dangerous activities)
- Chambers v. City of Helena, 310 Mont. 241, 49 P.3d 587 (Mont. 2002) (articulates the Restatement §520 factors and review standard)
- Dew v. Dower, 258 Mont. 114, 852 P.2d 549 (Mont. 1993) (limits recovery for damages belonging to nonparties/co-tenants)
- Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (where verdict form is not apportioned and unobjected to, court will not reweigh jury’s damages)