No. 87-345
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
LESLIE G. WHEELER and WILDA J.
WHEELER, husband and wife,
Plaintiffs and Appellants,
CITY OF BOZEMAN, a Municipal
corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lyman H. Bennett, 111, Bozeman, Montana
For Respondent :
Bruce Becker, City Attorney, Bozeman, Montana
H. William Coder, Great Falls, Montana
Submitted on Briefs: May 12, 1988
Decided: June 28, 1988
Filed* .
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Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Plaintiffs Leslie G. Wheeler and Wilda I. Wheeler,
husband and wife, appeal the order of the District Court of
the Eighteenth Judicial District, Gallatin County, denying
plaintiffs' motion for a new trial. We affirm.
The issues raised on appeal are:
1. Whether the District Court erred by refusing to
grant plaintiffs' proposed instruction no. 15, instructing
the jury that a municipality has a duty to keep its sewers in
repair?
2. Whether the District Court erred by refusing to
grant a new trial on the basis that no substantial evidence
existed to support the verdict?
Leslie and Wilda Wheeler operate a physical fitness and
health center out of their residence in Bozeman. Leslie
Wheeler initiated this business as a result of his interest
in physical fitness. The business had its beginning in the
Wheelers' garage, but by 1981 the Wheelers decided to expand
their existing facilities.
The first expansion of the facilities occurred during
the early part of 1982 and the second expansion was completed
in early 1983, when the Wheelers built a 15 foot addition to
their residence with an 8 foot basement. This newly built
basement contained a hot tub which protruded 2 to 24 feet
below the basement floor. In both instances, the City of
Bozeman issued building permits to the Wheelers for the
construction.
Beginning in 1983, the Wheelers began experiencing water
flooding into their new basement. The Wheelers experienced
nine floods between June 19, 1983 and May 31, 1986. In an
attempt to solve the problems resulting from the floodings,
the Wheelers installed a sump pump in their basement, two
drain ditches, and a sump tank.
The Wheelers informed the City of Bozeman about the
floodings and the City of Bozeman responded by cleaning out
the silt and roots from the storm sewer drain located
directly south of the newly built basement. Nonetheless, the
floodings continued. The Wheelers brought this action in
front of a jury in the Eighteenth Judicial District Court,
Gallatin County, arguing that the City of Rozeman was
negligent in designing, installing, and maintaining the storm
sewer system located near the Wheelers' residence. After a
three day trial, the jury found the City of Bozeman not
negligent in designing, installing and maintaining the storm
sewer. The Wheelers' appealed.
The first issue the Wheelers raise on appeal is whether
the District Court erred by refusing to grant plaintiffs'
proposed instruction no. 15? This instruction states that:
You are instructed that the duty of a municipality
to keep its sewers in repair involves the exercise
of a reasonable degree of watchfulness in
ascertaining their condition from time to time,
preventing them from becoming dilapidated or
obstructed. Where the obstruction or dilapidation
is an ordinary result of the use of the sewer,
which ought to be anticipated and could be guarded
against by occasional examination and cleaning, the
omission to make such examination and keep the
sewers clear is a neglected duty which renders the
municipality liable.
The District Court refused this instruction as well as
defendant's proposed instructions no. 21 and 24 which states
as follows:
Defendant's Proposed Instruction - -
No. 21
The duty of Bozeman to inspect, repair and maintain
its storm drain system is a duty of ordinary care,
and it is not required to dig up its storm drain
system to conduct such inspection and maintenance.
Defendant's Proposed Instruction - -
No. 24
The City of Bozeman is not liable for stoppages of
its storm drains which are caused by objects or
materials thrown into the system by others.
In refusing plaintiffs ' proposed instruction no. 15 and
defendant's proposed instructions no. 21 and 24, the District
Court noted that the case was already being given to the jury
on the basis of negligence, contributory negligence, and
nuisance. The instructions given regarding negligence and
contributory negligence were as follows:
Instruction No. 10
Every person is responsible for injury to the
person or property of another caused by want of
ordinary care or skill. When used in these
instructions, negligence means want of such
ordinary care or skill. Such want of ordinary care
or skill exists when there is a failure to do that
which a reasonable and prudent person would
ordinarily have done under the circumstances of the
situation, or doing what such person under the
existing circumstances would not have done.
Instruction No. 11
Contributory negligence is negligence on the part
of a claimant which contributed as a proximate
cause to his injury.
Instruction No. 12
A proximate cause of an injury is that cause which
in a natural and continuous sequence, unbroken by
any new and independent cause, produces the injury,
and without which it would not have occurred.
Instruction No. 13
Every person who suffers a detriment from the
unlawful act or omission of a municipal corporation
may recover from the municipal corporation a
compensation therefore in money which is called
damages. In this case, detriment is the loss or
harm suffered. The measure of damages is the
amount which will compensate for all the detriment
proximately caused thereby herein defined, whether
it could have been anticipated or not.
Refusing an instruction which has been adequately
covered by other instructions is not reversible error. Burns
v. U & R Express (Mont. 1981), 624 P.2d 487, 489, 38 St.Rep.
302, 304-05; Holland v. Konda (1963), 142 Mont. 536, 545, 385
P.2d 272, 277. In the present case, the instructions as a
whole adequately informed the jury on the issues of
negligence, including the duty of the City of Bozeman,
proximate cause and damages. Therefore, the District Court's
refusal to give plaintiffs' proposed instruction no. 15 is
not reversible error.
The second issue the Wheelers' raise on appeal is
whether the District Court erred by refusing to grant a new
trial on the basis that no substantial evidence existed to
support the verdict? The law is well settled in this area.
When determining whether substantial evidence exists to
support the verdict, this Court must review the evidence in a
light most favorable to the prevailing party. Kukuchka v.
Ziemet (Mont. 1985), 710 P.2d 1361, 1363, 42 St.Rep. 1916,
1917; Anderson v. Jacqueth (1983), 205 Mont. 493, 495, 668
P.2d 1063, 1064; Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187,
1191, 38 St.Rep. 1492, 1495; Groundwater v. Wright (19791,
180 Mont. 27, 29, 588 P.2d 1003, 1004. The evidence may be
inherently weak and still be considered substantial. Local
Union No. 400 of Intern. Union v. Bosh (Mont. 1986), 715 P.2d
36, 42, 43 St.Rep. 388, 394; Anderson, 205 Mont. at 495, 668
P.2d at 1064; Gunnels, 633 P.2d at 1191, 38 St.Rep. at 1495;
In the Matter of the Estate of Holm (1979), 179 Mont. 375,
379, 588 P.2d 531, 534. Further, when conflicting evidence
exist, the credibility and weight given to the conflicting
evidence is within the jury's province. Mountain West Farm
Mutual Insurance Co. v. Girton (Mont. 1985), 697 P.2d 1362,
1363, 42 St.Rep. 500, 501; Kukuchka, 710 P.2d at 1363, 42
St.Rep. at 1917; Gee v. Egbert (Mont. 1984), 679 ~ . 2 d1194,
1203, 41 St.Rep. 515, 525.
The Wheelers contend that substantial evidence does not
exist to support the jury's verdict, arguing that their
expert witness testified 'conclusively' that the water
entering the Wheelers' basement came from the City of
Bozeman's storm sewer system and that the City of Bozeman
could not produce any evidence indicating 'conclusively' the
source of the water. We disagree.
The jury had an opportunity to hear testimony concerning
the source of the water from two expert witnesses. The
Wheelers' expert witness testified that the source of the
water resulted from the City of Bozeman's negligence. On the
other hand, the City of Bozeman offered contrary evidence
through another expert witness stating that the water in the
Wheelers' basement may have resulted from the naturally high
ground water in the area in combination with the Wheelers'
basement and hot tub protruding more than 10 feet below the
surface. The jury, after hearing the conflicting evidence,
determined that the water in the Wheelers' basement was not a
result of the City of Bozeman's negligence. The credibility
and weight given to the testimony of each of these expert
witnesses is within the province of the jury, not this Court.
We will not second guess the jury when, as in this case,
substantial evidence exist to support the jury's verdict.
Affirmed..
A'
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Justice
We Concur: