No. 8 5 - 4 1 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
PAUL and BERNICE M. WILHELM,
Plaintiffs and Appellants,
-vs-
CITY OF GREAT FALLS,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Helena, Montana
For Respondent:
James, Gray, McCafferty; Robert F. James, Great Falls,
Nontana
Submitted on Briefs: July 24, 1986
Decided: February 4, 1987
Filed: &Bl
jC87
Clerk
Mr. J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.
Paul a n d B e r n i c e Wilhel-m, p l a i n t i f f s below, appeal a
Cascade County jury verdict, and the judgment entered
thereon, finding t h a t t h e defendant City of Great F a l l s (the
C i t y ) was n o t n e g l i g e n t i n t h i s n u i s a n c e a c t i o n . The i s s u e s
on a p p e a l a r e :
(1) whether t h e District Court e r r e d i n r e v e r s i n g i t s
g r a n t o f p a r t i a l summary judgment i n a p p e l l a n t s ' f a v o r ;
(2) whether the District Court erred in denying
appellants' motion for a d i r e c t e d v e r d i c t on t h e issue of
comparative negligence;
(3) whether t h e D i s t r i c t Court p r o p e r l y i n s t r u c t e d t h e
(4) whether s u b s t a n t i a l evidence supports t h e j u r y ' s
verdict;
(5) whether the District Court erred in denying
a p p e l l a n t s ' m o t i o n f o r new t r i a l . W e affirm.
W e t a k e t h e f o l l o w i n g summary o f f a c t s from Wilhelm v .
City of Great F a l l s (Mont. 1 9 8 4 ) , 685 P.2d 350, 4 1 St.F.ep.
1471; a p r e v i o u s a p p e a l i n t h i s c a s e .
[ T l h e C i t y of G r e a t F a l l s h a s o p e r a t e d a
city dump continuously in the same
location s i n c e t h e 1950's. B e f o r e 1969,
[ t h e C i t y ] openly burned garbage a t t h e
dump s i t e . I n 1 9 7 3 , [Wilhelms] p u r c h a s e d
p r o p e r t y l o c a t e d on t h e M i s s o u r i R i v e r
a b o u t o n e m i l e e a s t o f t h e dump s i t e .
[Wilhelms] t h e n s p e n t a b o u t $125,000 t o
b u i l d a home o n t h e p r o p e r t y . They
v i s i t e d t h e p r o p e r t y a few t i m e s p r i o r t o
t h e purchase.
[Wilhelms1 acknowledged, a t t h e t i m e o f
t h e p u r c h a s e , t h a t t h e y w e r e aware t h e
C i t y o p e r a t e d t h e dump a b o u t o n e m i l e
from t h e i r p r o p e r t y . A t t h e t i m e of t h e
p u r c h a s e t h e City o p e r a t e d a g a r b a g e
shredder that apparently reduced blowing
litter problems.
In 1977 the City employees operating the
dump went on strike. During the strike,
someone set fire to the dump. This fire
burned a considerable portion of the dump
and created great amounts of smoke and
stench. The fire triggered many
subterranean fires that continued to burn
for the following two years. [Wilhelms']
home ..
. suffered damages due to smoke.
Following the strike, the City quit
operating the garbage shredder. Litter
began to blow onto [Wilhelms'] property.
For the two years the subterranean fires
burned, the City tried many methods to
control the fires. The City finally
extinguished the fires by digging up the
debris and hosing it down.
[Wilhelms] presented evidence that in
1981 their well water became
contaminated. They contended in the
spring the runoff of water from the dump
caused contamination to the groundwater
on their property ...
[Wilhelms] also presented evidence that
the City deposited sewage sludge at the
dump site. [Milhelms] complained of
times when the City failed to cover the
sludge, thereby creating a stench.
In August 1979, the appellants filed a complaint
alleging that they had suffered substantial damages as a
result of the improper operation of the dump. Appellants
complained mainly about smoke damage and blowing litter.
In January 1980, the Cascade County District Court
granted appellants1 motion for summary judgment on the issue
of the defendant's liability. In May 1981, the court
reversed its order granting partial summary judgment and
ordered that the case proceed to trial on the issues of
liability and damages. In May 1983, following a jury trial,
the jury returned a verdict finding appellants 90% negligent
and the City 10% negligent. The District Court ordered a new
trial finding that the facts failed to support the verdict
and that the verdict was contrary to law. The City appealed
and in Wilhelm I we found that the District Court did not
abuse its discretion in ordering a new trial and that the
evidence did not support the jury verdict that appellants
were 90% negligent.
The District Court scheduled a new trial for February
1985. The parties filed a pre-trial order which superseded
all pleadings previously filed. In that order, appellants
claimed they suffered property da-mage due to smoke from fires
at the landfill, litter damage from blowing debris, and
contamination of their we11 and underground springs.
Appellants further claimed that they suffered physical and
emotional damages from the smoke, contaminated water and odor
from the landfill. The court held the new trial from
February 19 - 27, 1985. On February 27, 1985, the jury
returned its verdict, pursuant to a special verdict form,
finding: (1) the Great Falls Sanitary Landfill did constitute
a nuisance at some, unspecified time after July 1, 1977; and
(2) at no time was the nuisance caused by negligence on the
part of the City. Pursuant to the jury's verdict, the court
entered judgment for the City. This appeal followed.
The first issue is whether the District Court erred,
prior to the first trial, in reversing its order granting
summary judgment to appellants on the issue of liability. In
,Tune 1983, following the first trial, the District Court
entered judgment in favor of the City and against the
appellants. Thereafter, the court granted appellants' motion
for a new trial. The City appealed that ruling but
appellants did not appeal, at that time, the order reversing
the grant of summary judgment which was appealable. Although
the order was interlocutory when made, "nonappealable
intermediate orders are reviewable on appeal" from a final
judgment. Riley v. Carl (Mont. 1981), 6 2 2 ~ . 2 d228, 230, 38
Rule 2 of the Montana Rules of Appellate Procedure
provides :
Upon appeal from a judgment, the court
may review the verdict or decision, and
any intermediate order or decision
excepted or objected to within the
meaning of Rule 4 6 of the Montana Rules
of Civil Procedure, which involves the
merits, or necessarily affects the
judgment, except a decision or order
from which an appeal might have been
taken. (Emphasis added.)
Pursuant to Rule 2, we decline to address the merits of the
first issue and hold that appellants have waived their right
to appeal this issue by failing to raise it in a timely
manner.
The second issue is whether the District Court erred in
denying appellants' motion for a directed verdict on the
issue of comparative negligence. The City contended that
appellants were contributorially negligent in constructing
their residence close to the dump when they knew, or should
have known, that the conditions resulting from a landfill
operation could affect the value of their property. The
appellants state that they moved for a directed verdict on
the contributory negligence issue at the close of both their
case-in-chief and the City's case-in-chief. The transcript
provided to this Court on appeal does not reflect that the
motions were made, what the court ruled and why the court
ruled as appellants contend it did. However, the City, by
addressing this issue on appeal, implicitly concedes that
such motions were made and denied. Therefore, we find it
appropriate to address this issue.
Appellants contend that contributory negligence is not
a defense in a nuisance action. Montana has apparently never
decided that question. However,
[Mlost courts hold that where a nuisance
has its origin in negligence, as
distinguished from an absolute nuisance,
contributory negligence is a defense, and
in jurisdictions in which it is
recognized, the doctrine of comparative
negligence may he applied.
58 Arn.Jur.2d Nuisances, 5 221, p. 825 (1971); citing among
others, Copart Industries, Inc. v. Consolidated Edison Co.
(N.Y. 1977), 362 N.E.2d 968. Here, appellants' claim that
the nuisance has its origins in negligence. Where such is
the claim, we agree with the above cited authorities and hold
that contributory negligence can be a defense in a nuisance
action.
When deciding a motion for directed verdict, the trial
court must view the evidence in a light most favorable to the
party opposing the motion. Mydlarz v. Palmer/Duncan Const.
Co. (Mont. 1.984), 682 P.2d 695, 41 St.Rep. 738. "NO case
should be withdrawn from the jury if reasonable men may
differ as to the conclusions dra-wn from the evidence."
Mydlarz, 682 P.2d at 705.
One of appellants' contentions was that their well
water was contaminated by drainage from the landfill. There
was expert testimony that this was extremely unlikely.
Moreover, Richard Rosa, a licensed civil engineer working for
the Water Quality Bureau of the Department of Health and
Environmental Sciences, testified that the top end of
appellants' well casing terminates below the ground thereby
creating a possible contamination problem. Robert Gillespie,
a geological engineer, elaborated on this possibility. He
testified that if well casing ends below a runoff point,
animal waste or other contaminants could be washed into the
well. In this regard, Gillespie also stated that he knew the
appellants had pets. He stated tha-tappellants' problem could
he a classic case of well contamination from an improperly
sealed well. This evidence, in a light most favorable to the
City, could support a conclusion that the appellants were
contributorially negligent in the contamination of their
well.
Further evidence tended to show contributory
negligence. Appellants' counsel asked Lou Fontana, a Cascade
County civil engineer, if he would say that appellants were
negligent in putting their house there. Fontana replied,
"You bet. I wouldn't build a house there." Along this line,
Duane Robertson, the Chief of the Solid and Hazardous Waste
Bureau of the Department of Health and Environmental-
Sciences, stated that he probably would not have built a
$125,000 house where the appellants did. We find that the
court properly denied the motion for a directed verdict as to
contributory negligence. Finally, we also note that the jury
did not reach the issue of contributory negligence under the
special verdict form.
Under the third issue, appellants contend that the
lower court made numerous instructional errors. We address
only those objections appellants raised before the District
Court. Appellants first attack the court's instruction
number 2 which basically told the jury that (1) a witness may
be discredited or impeached by contradictory evidence or
prior inconsistent statements, and (2) if a witness knowingly
testified falsely, the jury could distrust or reject that
witness' testimony. Appellants objected that the instruction
was an incorrect statement of law because it did not instruct
the jury that prior inconsistent statements could be used as
substantive evidence. The court gave the jury another
instruction that prior inconsistent statements could be used
as substantive evidence. Therefore, there was no error under
this instruction.
Appellants object to the court's instruction number 11
which quoted 5 75-10-204, MCA, concerning the powers and
duties of the Department of Health and Environmental
Sciences. The instruction states, in part, that the
department may adopt rules governing certain aspects of solid
waste management systems. The City's compliance with those
rules was an issue before the jury and we find no error in
this instruction.
Appellants' challenge to the court's instruction number
12 is the most troublesome. In part, that instruction states
that there is no evidence that the City violated any
adm.i-nistrativeregulations prohibiting open burning. In a
preliminary discussion of the proposed instructions, the
appel-la.ntsmade a specific objection to this charge. At the
end of this preliminary discussion, the court stated:
We'll reconvene at 8 : 3 0 tomorrow morning,
and at that time, J will have an order of
these instructions, and I will read that.
If vou have any other objections or
arguments that you want to make, you can
do so during that one hour of time we
have between 8 : 3 0 and 9:30.
I guess what I am saying is that if I
denied [an] instruction that you are
particularly offended by or if I grant
one that really offends you, - -
then that
would - - - - to raise the argument.
be the time
(Emphasis added.)
The District Court was following the provisions of Rule 51,
M.R.Civ.P., which states:
[Tlhe court shall rule upon the proposed
instructions . .
. and shall submit to
the parties the instr~~ctions
that will be
given and provide opportunity to make
objections.
The following day the court advised counsel of the
instructions to be given. At that time, appellants' counsel
did not object to the court's instruction number 12 and, in
fact, seemed to accept that instruction. Appellants' counsel
stated that he would stand on his previous objections to the
rest of the instructions, ". . . understanding what the Court
had to say about the air quality rules, we can still argue
about the fires ... " We hold that counsel did not
properly object to this instruction and, therefore, there was
no error in giving the charge.
Appellants objected to the court's instructions 20, 21,
and 22 as not correct statements of ,aw and because
appellants' proposed instructions allegedly covered the
issues better.
Objection to an instruction that it is an
incorrect statement of the law without
specifying the defect has long been
considered an insufficient objection and
we will not review the alleged error
occasioned by the giving of an allegedly
incorrect instruction.
Nott v. Booke (Mont. 1981), 633 P.2d 678, 680, 38 St.Rep.
1507, 1510. That rule applies here.
Appellants also objected to the court's instructions
numbers 15, 29, 30, and 36. They argued that appellants'
proposed instructions covered the issues better. Appellants
interposed no other objection. We find no need to set out
the challenged instructions. The objections were extremely
general in nature and did not advise the District Court of
any specific defect in the instructions. Therefore, given
that the only alleged defect was that other instructions
covered the issues better, we hold that the court did not
commit error in giving these challenged charges.
Appellants objected to instruction number 27 which
primarily stated:
[i]f weaker and less satisfactory
evidence is offered, when it appears that
stronger and more satisfactory could have
been produced, the evidence offered
should be viewed with distrust.
Section 26-1-303, MCA, advises a district court to give this
instruction on "all proper occasions." Appellants argued
that the instruction had no application to this case because
each side had allegedly produced all the evidence that it
could. Appellants contend that. the instruction was
unnecessary but, significantly, they do not argue that, nor
show how, this instruction was prejudicial to them. Our
review of the record does not demonstrate that this
instruction in any way prejudiced appellants. Thus, even if
this instruction was erroneous we would not reverse the
verdict. Rule 61, M.R.Civ.P.
Appellants objected to instruction number 28 which
stated, "A person confronted with a sudden emergency is
required only to act as a reasonably prudent person under
those circumstances." First, we note that in Simonson v.
White (Mont. 1986), 713 P.2d 983, 43 St.Rep. 133, this Court
specifically banned the use of the sudden emergency
instruction in automobile accident cases. The Simonson "ban"
was limited to automobile accident cases and this Court did
not reach the issue of whether the sudden emergency
instruction might be proper in other negligence cases. We do
not reach that issue today either. Appellants did not object
to the instruction on the basis that a sudden emergency rule
might not be appropriate in a negligence case. Appellants'
only objection was that there was no evidence in the case of
any sudden emergency. We disagree with that assertion.
Witnesses testified that in 1980 a 100 year storm (a storm so
unusually severe that it occurs, on the average, once every
100 years) exacerbated the problem of blowing litter. That
storm knocked down all of the City's fences which had. been
erected in an attempt to solve the problem of blowing litter.
Moreover, the City introduced evidence that arson was the
cause of the sizeable fire which ca.used smoke damage to
appellants1 property. Those incidents justified an
instruction on the sudden emergency rule.
Lastly, the appellants objected to instruction number
29, which stated:
The defendants are not liable for injury
caused by a dangerous condition at the
landfill if the defendants establish that
the act or omission that created the
dangerous condition was reasonable.
In determining whether the act or
omission which created a dangerous
condition was reasonable, you shall weigh
the probability and gravity of potential
injury to persons and property the
defendants should have foreseen might be
injured by the condition against the
practicability and cost of having taken
alternative action that would not have
created the risk of injury or would have
protected against it.
Appellants argued at trial that (1) the instruction was not a
correct statement of la.w, (2) the City could not argue that
the landfill was a dangerous condition, and (3) the
instruction assumes a landfill is a dangerous condition. We
will not consider appellants' first complaint because of its
lack of specificity. As to the third complaint, we do not
find that the instruction assumes that a landfill is a
dangerous condition. As to the second complaint, we find
that was proper for the City argue that the landfill
was a dangerous condition. The City introduced evidence that
subterranean fires, which burned at the dump for about two
years, were very dangerous. The fires were especially
dangerous to fight because they burned garbage buried
underground, thereby making the surface unstable and allowing
machinery or people to fall through the surface and into the
fires. As against the objections raised, the court did not
err in giving this instruction.
The fourth issue is whether substantial evidence
supports the jury's verdict. "The appellate rule of review
is that if substantial evidence in the record supports a jury
verdict, it must be sustained." Gibson v. Western Fire Ins.
Co. (Mont. 1984), 682 P.2d 725, 736, 41 St-Rep. 1048, 1058.
We have examined the 995 page partial transcript provided to
us on appeal and many of the almost 100 exhibits. We find
that there is substantial. evidence to support the jury's
verdict. Some of that evidence has been cited in other
contexts previously in this decision. Other evidence showed
(1) that the City made extensive and varied efforts for a
sustained period to extinguish the subterranean fires, ( 2 )
the initial fire was almost certainly caused by arson, (3)
the City made continuous and determined efforts to stop the
problem of blowing litter, (4) the problem of blowing litter
stemmed partially from private persons dumping garbage along
the roadway leading to the landfill, and ( 5 ) the landfill was
almost certainly not the source of the contamination of
appellants' well. We find no error under this issue.
The last issue is whether the lower court erred in
denying appellants' motion for a new trial. "This Court will
not disturb a trial court's ruling regarding motions for a
new trial in the absence of a showing of an abuse of
discretion." Wilhelm, 685 P.2d at 351. Appellants argue
that the jury's verdict (that the landfill was a nuisance but
that the City was not negligent) is contrary to the law as
contained in the jury instructions. Therefore, they contend,
the court abused its discretion in failing to grant a new
trial.
Appellants contend the verdict was contrary to
instructions 14 and 21. Instruction 14 states:
You are instructed that because the City
of Great Falls operates its sanitary
landfill under the provisions of the
Solid Waste Management Act of the State
of Montana and has a license for the
oepration [sic] of the same, you may not
conclude that the landfill is a nuisance
unless you find that the City of Great
Falls is operating its landfill in such a
negligent manner that it interferes with
plaintiffs' comfortable enjoyment of
their life and their property.
Instruction 21 states:
You are instructed that the defendants
have been authorized by statute to do
certain things and their acts are lawful
as long as they act within the scope of
the letter and spirit of the authority
granted. Therefore, in order to
predicate a nuisance against them, it
must be proven that the act done was
wholly unauthorized or that it was
negligently done. In either case,
liability for the consequences exists in
all grants of authority to do an act
which may or may not be productive of
injury to others accordingly as it is
executed. The law presumes that it shall
be done in such a manner as to be
productive of the least possible injury
and if not so done, liability exists for
the consequences.
Appellants argue that under those instructions the jury could
find a nuisance only if they first found negligence. We
disagree with appellant as to instruction 21. That
instruction allows the jury to find a nuisance if the act
done was wholly unauthorized - negligently done.
or Therefore
the verdict was not contrary to instruction 21.
We agree with appellants that under instruction 14 the
jury was required to find the City operated the landfill in a
negligent manner before they could find a nuisance. That
instruction would seem to be contrary to the verdict that
there was a nuisance but that the City was not negligent.
However, taking the instructions as a whole, we find that
that discrepancy is not fatally defective. The court gave
the jury correct and clear definitions of negligence and
nuisance. Using the special verdict form, the jury found a
nuisance existed but that the City was not negligent. The
special verdict form did not require a finding of negligence
prior to finding a nuisance existed. There is ample evidence
to support the findings that there was a nuisance and that
the City was not negligent.
Instruction 14 was an erroneous statement of law.
Under the statutory definition of nuisance at S 27-30-101,
MCA, a nuisance can exist without negligence. Insofar as the
verdict is contrary to the erroneous instruction, we find
that appellants suffered no prejudice. We will not reverse a
judgment where an erroneous instruction, taken in light of
all the instructions, did not prejudice the complaining
party. Wolf v. Barry O'Leary, Inc. (1957), 132 Mont. 468,
318 P.2d 582.
Because of our rulings on appellants' issues, we do not
need to address the issues which the City raises on
cross-appeal.
Affirmed.
We concur: