*1 RICHARD T. M. DALE, DALE, JOANN
and LITTLE BEAR MINING AND
EXPLORATION, INC., Appellants, Plaintiffs THREE RIVERS TELEPHONE
COOPERATIVES,
INC.,
Respondent.
Defendant
No. 02-714.
July 2,
Submitted
Briefs
2003.
Decided March
2004.
2004 MT
Mont.
For Daniel the Opinion JUSTICE REGNIER delivered Court. Dale, Little Bear T. JoAnn M. Dale and Appellants Richard ¶1 (the Dales) Complaint Inc. filed Mining Exploration, and Court, County, against Fifth District Madison Montana’s Judicial Rivers) (Three Inc. Telephone Cooperative, Defendant Three Rivers destroyed the Dales’ as a result of a fire which alleging negligence jury negligence The found no property Bridges, near Montana. Twin appeal. part, affirm part on the of Three Rivers. The Dales part, reverse in and remand. restate as follows: appeal issues which we The Dales raise four on
¶2 it denied the its discretion when 1. Did the District Court abuse ¶3 the on contention that District for a new trial based their Dales’motion 13? Jury Instructions 8 and it their Court erred when refused its when it denied Court abuse discretion 2. Did ¶4 contention that for a new trial based their Dales’motion Proposed Jury Instruction 7? their Court erred when refused when it denied Court abuse discretion 3. Did ¶5 that Three new on their contention for a trial based Dales’ motion advantage an order in limine? unfairly took of grant a trial new err when it refused Did District Court to support evidence of there was insufficient because as a matter law verdict? jury’s issues, not we do and third disposition of first Because our the fourth issue. reach
BACKGROUND underground On September plowing Three Rivers was Twin telephone public right-of-way Bridges, lines on near Montana. trenching spark metal of their created a equipment The tracks dry roadway, resulting in ignited grass destroyed near the a fire which day fire property. danger almost acres of Dales’ That the area “very high.” temperature was rated as The the 90s and winds toup per blowing. 20-30 miles hour were Three crew working Rivers’ at the site suppress extinguishers was unable fire with their fire by local, and other on hand. The fire to be equipment suppressed had state federal authorities. brought against an action Rivers for
as a result of the fire. The found Defendant was not negligent. The Dales appeal, alleging the District Court erred instructions, refusing allowing certain Three Rivers to take refusing of an order in a new trial when evidence was insufficient to jury’s verdict.
STANDARDOF REVIEW “It is within the district courts’ decide how instruct *3 jury, taking into account theories of contending parties, and this Court will not district except overturn the courts for abuse of Lumber, Big (1993), 328, Sky 332, discretion.” Hall v. Inc. 261 Mont. 389, 863 P.2d 392. “The standard of a a review of district court’s denial of motion for
a new trial is manifest of The abuse discretion. decision to or a deny new trial is within the of judge sound discretion the trial and a showing will not be disturbed absent of of manifest abuse Medlin, 260, 14, 234, discretion.” v. 2002 MT ¶ Satterfield 14, 33, 59 P.3d 14. ¶ ¶
DISCUSSION ISSUE ONE Did the District Court when it denied abuse Dales’ motion for a new trial on their contention that the District based Jury Court erred when it refused Proposed their Instructions 8 and 13? give 13 The Dales contend the when it ¶ erred refused Jury The Proposed Plaintiffs’ Instructions 8 and 13. Dales’ numbered higher Instructions would Proposed degree have informed of a potentially of care when in or hazardous engaging hazardous activity a explained engaged dangerous and that Three Rivers was in No. 8
activity day of the fire. Instruction stated: firm, engages in hazardous person, corporation A or which activities, hazardous, or could become potentially activities extraordinarily and heightened obligation has to be careful measures, precautionary and take prudent, appropriate it suppressing from once it prevent occurring, hazard occurs. 13 stated:
Proposed Instruction No. danger in the use of construction great Because of the involved remote, and of land equipment dry timbered areas operating season, ordinary of will exercise person prudence the fire during engaged activity. extreme caution when such 215, Jackson, 2002 MT The rely holding our Schuff Schuff, argument. Mont. P.3d their successfully navigate failed plaintiff's injured when their friend were a hidden a narrow channel located between through his ski boat in the Missouri River. outcroppings sandbar underwater rock of rock driver of the boat knew the formation Schuff, 6-9. The ¶¶ The Schuff, to boaters. dangerous understood that it was ¶ Court in instructed follows: Schuff another, Every injury person for person responsible is is failure to use negligence. Negligence caused his A of action or inaction. Negligence reasonable- care. consist ordinarily prudent as an is if he fails act person negligent would act under circumstances. person regarding the standard of Schuffs instruction Schuff, proposed care stated: always required ofthe is reasonable care. This defendant reasonable to varies but the care which is
standard never danger involved his defendant varies with require of the greater act, danger, to it. The proportionate greater and is which must be exercised. the care 298 of patterned after Proposed Instruction was Schuff, § 35. This (Second) Torts, adopted which was cmt. b the Restatement (1996), 278 Mont. v. Cline by this Court Estate of Strever and we *4 argued appeal, on Schuff, 35. Schuff 924 P.2d trial based granted new Court should have agreed, that held: instruction. We give proposed the above on its failure duty of care expresses general given instruction While the actions, it to inform the in fails of individuals danger where duty of care situations possible greater aof greater, knowledge the case is was here. Jackson’s of the rock potential danger formation’s existence and its increased the him, care imposed on and the should have been informed of that as a of law. matter
Schuff, ¶ present In the there is sufficient evidence to show that Three However, danger activity. Rivers was aware involved their argues Proposed Instruction is Schuff Proposed distinguishable from Dales’ Instructions. The Schuff instruction stated that the reasonable care exercised should be danger proportionate involved; the Dales’ Proposed Instructions stated that a “heightened obligation extraordinarily to be careful and prudent” engaged exists when in certain and that activities “extreme should caution” be exercised. Three Rivers contends the Dales’ Proposed Instructions and 13 are misstatements of the law. agree that the Proposed Dales’ Instructions 8 and 13 ai’e however,
not law; accurate statements ofthe neither is the instruction given the District Court. We note that not was decided until Schuff tried, several present months after the was parties case so neither the nor the District Court had opportunity rely on On Schuff. remand, we instruct to instruct the jury in holding accordance with and our herein. Schuff ISSUE TWO Did District Court abuse its discretion when it denied the motion for Dales’ a new trial based their contention Court erred when it refused Proposed Jury their Instruction 7? trial, based, At part, Three Rivers’ defense at least on the governmental fact that no were in place restrictions which would have prohibited or activity day restricted its construction the fire ignited, therefore no precautions additional were warranted. On appeal argue unfairly was allowed lead the jury to believe that take obligation precautions Three Rivers had no against fire because there were governmental against no restrictions activity. their assign rejecting The Dales error to the District Court for their Instruction which numbered stated: person, firm, corporation A which engages hazardous activities, hazardous, potentially or activities which could become may delegate away obligation not legal to use reasonable liability in the operations, mode and matter ofits nor avoid arising dangerous activity from a over it has sole and
406 control, by party a third to warn it of upon
exclusive its reliance pose public. conditions which its activities to hazardous argue properly this would have informed The Dales instruction care, had use obligation that Three Rivers still an to reasonable due to the government imposed of whether the restrictions regardless danger. fire to Instruction 7: Proposed The Dales cited several sources for
¶19 (9th 1997), 1040; 112 F.3d McCall v. McMillan v. United States Cir. (9th 191; 1990), Kemp Energy v. Cir. 914 F.2d v. Dept, United States of P,2d (1990), County 798 999. The Big Co-op Horn Elec. however, cited, the Dales’ contention that do not cases of the given. 7 should have been none cases Proposed Instruction obligations by parties to rid themselves of try did the hazards involved. stating party’s that it a third to warn of such, agree District Court that Instruction 7 we with the not err when and that the District Court did was not warranted hold new it refused trial on this issue. THREE
ISSUE when denied the Did the District Court abuse on their contention that Three Dales’ motion for a new trial based unfairly advantage of an order limine? Rivers took trial, granted Three Rivers’ motion Prior to the District Court referring the fact that Three the Dales from precluding limine any agency federal or state payment a demand for Rivers received suppression fire person expenses for the costs and or other third a demand did indeed receive such damage. Three Rivers property (DNRC)and local fire from ofNatural Resources Department letter paid. agencies, which Three Rivers suppression unfairly advantage of took The Dales contend that Three Rivers asked Rivers’ when counsel for this order in limine Ostlie, any officer, Three Rivers received safety Shannon whether a result of the fire. local, agencies or federal citations from state that, attorney examination the Dales’ asked Following on redirect for pay government Three Rivers was Ostlie whether objected and Counsel for Three suppression. costs ofthe fire chambers, permit did the District Court discussing the matter in after by DNRC for Three Rivers was billed to ask whether the Dales’ counsel fire suppression. the costs of an unfair situation that this created argue appeal The Dales been they have also and that should misleading
that was paid suppression allowed ask whether Three Rivers had fire bill. agree. We addressed a similar situation Montana Griffith Griffith, Mont. P.2d Company Power 692. In precluded plaintiffs limine from evidence of showing (OSHA) Occupational Safety and Act plaintiffs Health violations. The defendant, honored the order in but the Montana Power (MPC), Company any asked a witness whether there were OSHA subsequently lack violations referred to the of OSHA violations a granted number times. new trial MPC because unfairly had taken order in limine. We affirmed the *6 decision, stating: District Court’s the agree properly granted District Court a new trial and
conclude there was no the abuse discretion. effect of court’s instructions, rulings, including deny plaintiffs was to the an opportunity present any OSHA by evidence of violations MPC byor vicariously Williams for which MPC could be held liable. On hand, the other the was to present theory effect allow MPC to of compliance with regulations, OSHA... to their obvious benefit. We hold that the District Court err in granting plaintiffs did not a new trial. 251, at
Griffith, 243 Mont.
¶25 GRAY, COTTER, LEAPHART,
CHIEF JUSTICE JUSTICES NELSON and RICE concur. dissenting.
JUSTICE WARNER Court, I dissent. I affirm the District as I on Issues ¶26 would dissent One and Three and would reach and Issue Four. affirm One, Regarding question Issue the before the Court is whether the refusing District Court the proposed erred Dales’ instructions on 16, Opinion points of care. the itself out in the Dales’ simply the instructions are not accurate statements of law. (Second) (1965), by Restatement of Torts cmt. b reads as set out § 14, i.e., proposed quoted Opinion the the at ¶ instruction Schuff 408 danger, the the which must be exercised” greater greater
“The be heightened and is to situations where care should applicable Schuff, phrases use of words and such as By exercised. caution,” “extraordinarily,” “prevent,” Dales’ “extreme far, goes beyond use far proposed language instructions 8 and 13 this language adopted by Court. See also Estate the Restatement § Mont, Strever, at at 924 P.2d during settling the argument As the District stated instructions, [with problem “that’s the the Court has the Dales’ ”Therefore, instructions], of... ‘extreme.’ proposed use Indeed, if not error. Court’s refusal of the Dales’ instructions is Dales, by accepted instructions the words proposed court had be to directed verdict for “extraordinarily” would close “extreme” required by greater danger, is not “the the Dales. Such result language of 298. greater the care which must be exercised” § proposed the Dales’ denying Given that the court did not err instructions, or not court’s question then becomes whether 51, M.R.Civ.P., party Rule “No subsequent actions were error. Under any point failure to instruct on of law unless as error the assign Starkenburg State thereon.” party offers instruction 1018, 1032. language Schuff, proper In 934 P.2d § Therefore, the decision plaintiff. was offered Schuff with the duty of standard heightened contrasted the care instruction of the facts. light instruction here, applicable be to the facts although 298 could § this *7 result, gave a not the court simply
a instruction was offered. correct as both The language by parties. offered the standard of care given instructions read: 13) (Defendant’s Proposed Instruction No.
Instruction No. 16 person negligent injury for the the Every person responsible is property or of another. Negligence may to use reasonable care.
Negligence is the failure if that person A is person negligent of action inaction. consist the act under ordinarily person act careful would fails to as circumstances. 12) (Plaintiffs No. Proposed Instruction No.
Instruction in the exercise of person of a The amount of caution to him or apparent ordinary upon the conditions depends under reasonably prudent person to a apparent that should be by evidence. those shown the similar to circumstances instructions of care I the basic standard hold that because would theory represent applicable a the District Court did not err the it did. instructing Further, although a trial court can offer instructions its own 51, M.R.Civ.P., only duty give motion under Rule the is to court’s that, entirety, applicable instructions in their state the law the case. 71, 76, Fillinger Agency, v. Northwestern Inc. 283 Mont. Here, P.2d 1350-51. the standard instruction still permitted argue required heightened the Dales to a circumstances Edwards, standard of care. 2000 MT Hanson ¶ 185, 31, 7 Therefore, P.3d given instructions that were adequate, were Court not instructing jury, did err in and a is not required. reversal Three, Regarding Issue again, I would hold did court, evidentiary
not abuse its discretion. The granted upon Three Rivers’ motion in prevent was intended to inference that Three liability Rivers admitted when its paid insurer suppression agencies. claims from fire I agree that Three Rivers violated that order when it testimony elicited it received no citations as a result of the fire. However, when by Three Rivers’ violation of the order raised was parties, remedy Court had to decide best how
damage. court a chose middle ground suggested part by Dales. It question allowed the Dales Three Rivers’ representative prove Three suppression Rivers was billed for fire time, costs. At the same the court refused to allow a letter from that, by DNRC its language, have constituted an admission of liability by Further, Three specifically Rivers. asked to billed, introduce they evidence that Three but stated did not want payment Therefore, to introduce evidence of of the bills. court did not admit paid evidence that Three Rivers This DNRC. ruling also prevented by liability inadmissible of payment evidence insurer. The court billing by stated believed evidence of government agencies would balance the left impression occurred, Rivers that payment no violations had but that evidence of go would too far. Upon trial, up the Dales’ motion for a new it was to the District grounds
Court to whether Three for a decide Rivers’ violation was new And, light trial. of its the court effect there ruling, earlier decided grounds were for new Its ruling insufficient trial. earlier taken, by allowing counterbalanced the had *8 testimony. time, the the Dales to elicit relevant At the same court effectively could introducing evidence that prevented Dales from balancing liability. By considering amount to an admission of in reference parties from both presented evidence the court avoided the motion original regarding we the district upheld that situation occurred Griffith. introduce party because one was allowed to court’s of a new trial party the other was barred compliance, while one-sided evidence way. Because the court any countering from evidence on the by properly ruling case the violation this addressed Dales, I hold it did not abuse its by the would requested examination trial. denying the motion for new properly Four, I hold the District Court to Issue would law a matter of sufficient evidence as determined there was and, therefore, denied the Dales’ properly the court jury’s verdict trial. motion for new