IF: THE SUPREME COIJRT OF TFE STATE OF MONTANA
HUBERT J. MASSMAN, d/b/a HORSKY BLOCK,
HUBERT J. MASSMAN, d/b/a MASSMAM LAW
FIRM, MILLER ENTERPRISES, INC., a
Montana corporation, and EPISCOPAL
DIOCESE OF MONTANA, a corporation,
Plaintiffs and Appellants,
-vs-
CITY OF HEI,ENA, a Municipal Corporati on,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Mark P , Sullivan, Zudge presidina.
COUNSEL OF RECORD:
For Appel-lant:
Frank R . Morrison, Jr. argued; Morrison TIAW Firm,
Helena, Movtana
For Respondent:
Robert Emmons argued; Emmons & Coder, Great Falls,
Montana
Submitted: February 21, 1989
Decided: 2, 1989
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Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Plaintiffs appeal from the jury verdict and subsequent
judgment of December 23, 1987, and from the denial of their
Irction for a new trial by the First Judicial District Court,
Lewis and Clark Countlr. The jury found the City of Helena
(City) was not negligent in failing to require an operating
sprinkler system in the basement of the Spectrum Building
prior t:o the time of the fire in the building. The jury also
found that the spread of the fire to the adjacent Horsky
Block Building was not caused by any negligent fFrefighting
methods or procedures employed by the City. Defendant filed
a cross-appeal from the final judgnent.
We affirm the jury verdict, judgment entered, and
District. Court's denial of the motion for a new trial.
Appellant raised the following issues on appeal:
1. Did the District Court err in refusing plaintiffs'
offered instruction stating that violation o f a city
ordinance is negligence per se?
?. Did the District Court err- j n refusing to allow
plairltiffs to ask opinion testimony of two people disclosedl
as witnesses but not as experts?
3. Did the District Court err in refusing the rebuttal
testimony of an expert called to dispute the City's evidence
that i.t. was not negligent in fighting the Spectrum Building
fire?
4. Did the City improperly prejudice the jury by
repezted mention of insurance during trial?
Respondent raised numerous cross-appeal issues, which
we w f ' l address in our discussi~nof the four above-mentioned
eppeal issues, including the following:
1. Is the City exempted from any liability for the
fire by the Public Duty Doctrine?
2. Is the City exempted from any liabilitlr for the
Lire by the grandfather clause in 5 502 of the UBC?
3. I s the City exempted from any liability for the
fire by general tort principles extending liability only to
foreseeable act-ions?
On June 17, 1980, a fire started in the basement of the
Spectrum Ruildi-ng in downtown Helena. The fire quickly
spread to the a?jzcent Horsky Block Building and completely
destroyed it. At the time of the fire, the Spectrum Building
was being remocleled by its owner, Ben Brown.
The initial building permit obtained by Brown on May
3 - , 1979 authorized him to make up to $15,00G in 'alterations
to the huildjng. (Brown subsequently obtained various
plumbing, electrical and mechanical remodeling permits.)
Lewis Thorne, the building inspector for the Cityr later
determined as a result of his regular biweekly inspections
that Brown had exceeded those building alterationc
authorized. Consequently, Thorne issued a stop order on Jul:7
31, 1 3 7 9 . Brown then obtained two additional building
permits, one on August 6, 1 3 ' 9 an2 the other on August z7,
1-979, which enabled him to continue remodeling the old Coast
to Coast stcre into various retail shops and a restaurant.
These two permits allowed for additional alterations in the
sum of $78,000. All building permits required Brown to work
in compliance with City Ordinances. One such ordinance,
incorporating the 1976 URC, required an operational sprinkler
sl-stem in the basements of remodeled buildings having a
changed occupational charscter the same or more hazardous
than the prior use. ( G J 502, UFC ( 1 9 7 6 ) . )
Prior to a final inspection and a final certificate of
occupancy, the City issued a temporary certificate which
permitted Rose's Cantina to open its restaurant on the top
fl.oor of t h e remodeled Spectrum Bui 1din.q. This temporary
certificate of occupancy was issued prior to the installation
of an operational sprinkler system in the basement of the
building. Pipes for the sprinkler system were on the
basement floor, but not i n s t a l . l e c 1 at the time of the fire.
The riser for the system had been install-ed but it had not
been connected to the sprinkler hea.ds.
The fire was called in at 9:51 p.m. on June 17, 1 9 8 0 .
Firefigllters arrived on the scene minutes afterwards. Two
firefighters attempted to get t.n the fire, located in the
rear of the basement, from the one entrance located at the
front cf the basement. However, a sheet rocked partition ha?.
been placed just inside the hasement and this blocked access
to the fire. Firefighters thus were unable to directly treat
the fire while it still was contained within the basement,
and it quickly spread upwards and then to the adjacent Horsky
Block Building. John Carroll, one of the two investigators
hired to determine the cause of the fire, stated that had
fire sprinklers been in place in the Spectrum Building
basement, the fire would not have spread to the Horsky Block
Building.
A later examination indicate?. the fire began in a
basement st-orage closet under the stairs. No electrical
appliances were in the im~ediatevicinity of this area. The
origin location, the presence of various combustibles in the
area of the fire origin, and the erected. partj.tion blocking
firefighter access led fire investigators to conclude that
the fire was incendiary (man-male) in origin. The parties
di6. not dispute the incendiary nature of the fire.
Consequently, on December 7, 1987, the District Court grante2
summary judgment on the issue cf the cause of the fire. The
court, however, denied the City's motion for summary judgment
on the issue of the duty owed tc plaintiffs.
A jury trial began on December 14, 1987. The jury
returned a verdict in lavor of the City on December 17, 1987.
Plaintiffs filed a timely motion for a new trial after final
judgnent was entered, but the court denied this nction.
Plaintiffs then filed this appeal from the court's denial of
a new trial and frorr, the f i r l a : j-cidam~nt. Defendant
cross-appealed.
i. T7IOLATION OF A CITY ORDINANCE AS NEGLIGENCE P E R SE
Appellanl-.scontend that their damages resulted from t h c
City's nealigence in failing to enforce section 3802(b) (1) of
the 1976 TJRC. They contend violation of the UBC, expresslv
adopted by City ordinance, constituted negligence per se 2 n d
that the City should therefore be held liable for damage?
arising because of this ~riolation. Appellants thus argue the
District Court erred in refusins to cffer a fury instruction
on negligence per se.
Section 104(a) of the 1976 UBC generally requires all
buildings altered after 1376, even if the buildings existed
pricr to 1976, to comply with all new building requirement?
provided in the UBC. The Spectrum Building as a preexisting
building under extensive remodeling thus ha?. to comply wjth
the requirements of the URC.
UBC requirements mandate the installation and
naintenance cf an operational, standard automatic fire-
extinguishing system jn the basement, and on every story, cf
a31 buil2ings such as the Spectru~Building which contained a
large h s e v e n t a ~ a
i c l ? r c i f i e c ? as a Group F," h u i l c ' i n q .
See, section 3802(b) (I), IJBC (1976). As stated in section
Standard automatic fire-extinguishina
systems shall be installed and maintained
in operable condition . .
. [iln every
story, basement or cellar of all
buildings except Groups R, Division 3 and
M Occupancies when floor area exceeds
1500 square feet and there is not
provided at least 20 square feet oi
opening entirely above the ad joining
ground level in each 5 0 lineal feet or
fraction thereof of exterior wall in the
story, basement or cellar on at least one
side of the building .
. . If any portion
of a basement or cellar is located more
than 75 feet from openings required in
this Section, the hasement or cellar
shall he provided with an approved
automatic fire-extinguishing system.
Section 306 of the UBC provides guidance as to when
this fire-extinguishing system must be installed. Section
3 0 6 (a) generally states that a building may not be used or
occupied "until the Building Official has issued a
Certificate of Occupancy." Section 3 0 6 (c), UBC. The
Building Official may not issue such a certificate until a
final inspection confirms the building's compliance with URC
requirements. No other UBC provisions expressly require the
operation of a fire-extinguishing system prior to issuance o +
this final Certificate of Occupancy. We therefore hold that
although the Ruilding Inspector, acting on behalf of the
City, had the duty of enforcing the requirement of an
operational fire-extinguishing system, this duty did not
arise until such time as the final Certificate of Occrxpancjl
was issued.
The remodeling of the Spectrum Ruj-lding had not been
completed at the time 05 the fire on June 17, 1 9 8 0 . bTo final
inspection or final Certificate of Occupancy had been issue6
prior to this time. The City had, however, issued a
temporary Certificate of Occupancy which permitted the
restaurant located on the top floor of the Spectrum Buildinq
to open for business. The UBC expressly authorizes the City
to issue such a temporary certificate so that the finished
portion of a building may be used before completion of the
e n t i r e building. The UBC d o e s not require the building to be
in compliance with UAC requirements prior to issuance of this
temporary certificate. Section 306 (d), tJBC (1976) .
Because the City had no duty to ensure the operation of
a fire-extinguishing system before it issued the temporary
Certificate of Occupancy or until such time as it issued a
final Certificate of Occupancy, the City may not be held
negligent for failing to enforce the requirement of an
operational fire-extinguishing system before June 17, 1980.
For this reason, we hold that the failure to offer a jury
instruction on negligence per se did not amount to an abuse
of discretion.
Having so ruled, we need not address the various other
issues raised by the City as further support for its argument
that it should not be held liable for damages arising from
the fire. These issues incl-uded whether the City was
protected from liability by the Public Duty Doctrine, by the
grandfather clause found in sections 104 and. 502 of the 1976
UBC, or by general tort principles extending liability only
to foreseeable actions.
11. ADMISSIBILITY OF EXPERT TESTIMONY
Appellants argue that the District Court erred in
refusing to allow John Todd, the assistant fire chief for the
City of Helena fire department. at the time of the Spectrum
fire, and Lewis Thorne, City Building Inspector at the time
the fire, offer their expert opinions trial. The
court prevented both from giving an expert opinion because
they were disclosed only as lay witnesses and not as experts
prior to trial. Appellants argue that the City knew the
field of expertise of each, and thus it would not have been
surprised by the testimony of either. Appellants contend
that the exclusion of their expert opinions amounted to a
hyper-technical ruling contrary to the holding in Ostermiller
v. Alvord (Mont. 1986), 720 P.2d 1198, 43 St.Rep. 1180.
At the outset, we note that the District Court has the
discretion to rule on the admissibility of evidence, and we
w i l l not reverse the court unless the ruling amounts to an
abuse of discretion. Cooper v. Rosston (Mont. 1988), 756
P.2d 1125, 1127, 45 St.Rep. 978, 981; Rule 104, M.R.Evid. We
hold that the District Court did not abuse its discretion
when it excluded the expert opinions of Todc! and Thorne.
Rule 26 (e)(1) and (2), M.R.ci~7.p. requires partles i
:o
list all experts they expect to call at trial.
(I) A party is under a duty seasonably
to supplement his response with respect.
to any question directly addressed to
... (B) the identity of each person
expected to he called as an expert
witness at trial, the subject matter on
which he is expected to testify, and the
suhstance of his testimony.
(2) A party is under a duty seasonably
to amend. a prior response if he obtains
information upon the basis of which . . .
(B) he knows that the response though
correct when made is no longer true and
the circumstances are such that a failure
to amend the response is in suhstance a
knowinq concealment.
This rule serves to minimize the element of unfair surprise,
thereby encouraging a trial on the merits. Consequently,
when no surprise arises from a violation of this rule, thi.s
Court has viewed the violation as hyper-technical and allowed
the previously undisclosed lay or expert witness to testify.
See, Ostermiller, 720 P . 2 d st 1201; Earrett v. Asarco, Inc.
(Mont. 1988), P.2d. , 45 St.Rep. 1865. For example,
in Ostermiller, the Court allowed the defense to elicit
expert testimony from a physician even though the physicja.n
was listed in interrogatory answers on1.y as a lay witness,
and not as an expert. The Court concluded that no surprise
would result from admission of this testimony for the
following reasons: The pretrial order and interrogatory
answers had listed the physician as a witness; both parties
had deposed him prior to trial; and plaintiff had failed to
even alleqe any surprise. - at 1201.
Id.
The facts in Ostermiller are significantly different
from those in the present case. In response to a continuing
interrogatory request for the names of all expert witnesses
that Massman would call at trial, Massman stated that they
had "no proposed expert witness identified." Appellants did
list Todd and Thorne as lay witnesses, but they failed to
amend this earlier interrogatory response to list the two as
expert witnesses. Moreover, neither party had deposed either
proposed expert. Consequently, the City objected when
appellants then attempted to elicit an opinion from Todd as
to the ultimate effect of the firefighting methods employed
by the City upon the containment of the Spectrum ~ui1di.n~
fire. The City has claimed complete surprise. Given the
facts in this case, we hold the ~istrictCourt did not abuse
its discretion when it excluded the proposed expert testimony
of Todd.
Appellants also contend the opinion testimony asked of
Todd was properly admissib1.e as a lay witness opinion. Rule
701, M.R.Evid., allows for the admission of a lay witmess
opinion that is:
( a ) rationally hased on the perception
of the witness and (b) helpful to a
clear understanding of his testimony or
the determination of a fact in issue.
Todd's proposed testimony as to the ultimate effect of
the firefighting meth0d.s on the cont.ainment of the Spectrum
fire was not based on such personal perceptions. Rather, his
opini.on, about the most effective methods for combating such
a fire, was based on that special.ized, technical knowledge
obtained from his fire training and work as an assistant fire
chief. As such, the substance of his opinion constituted an
expert opinion rather then a lay witness opinion. An expert
opinion generally is one "not within the range of ordinary
training or intelligence." See generally, Kelley v. John F.
Daily Co., (1919), 56 Mont. 63, 79, 181 P. 326, 331
(construing Section 7887(9) of the 1907 ~ e v i s e d Codes of
Montana, which was the forerunner of the present statutory
rule on expert testi.mony, Rule 702, M.R.~vid.). The ~istrict
Court thus committed no error when it precluded admission of
this expert opinion testimony an$. advised appellants tc limit
their questions to those requiring an answer base6 on
personal perceptions.
Appellants did not seek an expert opinion from Thorne
during t.rial because of an alleged ruling by the ~istrict
Court in advance of trial that any such t.estimony would not
be admissible. No record, however, exists of this ruling.
This Court will only t-ake notice of those court rulings
attested to by the record or agreed upon by both parties. We
~3'11not assume the truth of a contested statement about an
allegedly unrecorded prior court order; such a statement
would constitute hearsay. See Rule 801Ic), M.R.Evid.
Procedures exist under Rule 9 (d) or (e), M.R.App.P. whereby a
party may bring such evidence, which is not a part of the
record, to the attention of this Court. Appellants failed to
follow this procedure, and we will. not now consider the issue
of whether the ~ i s t r i c tCourt erred in precluding Thorne from
testifying as an expert at trial-, an issue predicated upon
our consideration of an unrecorded ruling and objection.
111. ADflISSIBILITY OF REBUTTAL TESTIMONY
Appellants contend that the District Court erred in
refusing to allow a retired Billings firefighter, Melvin
LaMotte, to give his expert opinion during rebuttal as to the
alleged negligent firefighting by the City on the Spectrum
fire. The court precluded the admission of such testimony
because appellants failed to 6isclose JJaMotte as an expert
witness prior to trial.
The law does not require the advance disc]-osure of
rebuttal witnesses. ~ i l s o nv. Swanson (1976), 169 Mont. 328,
546 P.2d 990. Such previously undisclosed rebuttal
witnesses, however, may offer testimony only about "that
which tends to counteract new matter offered by the adverse
party. " Gustafson v. N. Pac. Ry. Co. /1960), 137 Mont. 154,
164, 351 P.2d 212, 217. F determination of whether proposed
testimony is admissible as rebuttal testimony in any given
case is within the sound discretion of the District Court,
and we will not reverse the District Court's ruling unless it
abused this discretion. Spurgeon v. Imperial El-evator Co.
(1935), 99 Nont. 432, 438, 43 P.?d 891, 893.
We hold that the District Court did not abuse its
discretion when it excluded the rebuttal testimony of
LaMotte. LaMottels proposed t.estimony related to the issue
of whether the City negligently fought the Spectrum fire.
This issue was not a new matter raised by the defense; it was
one of the main issues raised by appellants in their
ccmpl-aint. Appellants had the burden of proving the
allegations in their complaint during their case-in-chief.
Appe1lant.s attempted, but failed, to meet this burden through
the expert testimony of Todd. (The District Court. properly
excluded Tod-d 's proposed expert testi-mony because of
appellants' failure to disclose him as an expert witness
prior to trial.) ~ a v i n g failed to meet this burden durinq
their case-in-chief, appellants could not then assert that
the City's all-eged negligent firefighting was a "new matter"
first raised by the defense and thereafter introduce expert
t.esti.monyon this issue upon rebuttal. The ~ i s t r i c tCourt
properly prevented any unfair surprise by excluding the
expert testimony of LaMotte.
IV. INTERJECTION OF INSURANCE AT TRIAL.
Appel-lants contend they were prejudiced by the City's
alleged mention of insurance on five different occasions
during trial. They argue this improper mention of insurance
constituted reversible error warranting a new trial.
The interjection of liability insurance coverage or
noncoverage generally is prohibited at law. Rule 411.,
M.R.Evid., states:
Evidence that a person was or was
not insured against liability is not
admissible upon the issue whether he
acted negligently or otherwise
wrongfully. This rule does not require
the exclusion of evidence of insurance
against li-ability when offered for
another purpose, such as proof of agency,
ownership, or control, or bias or
prejudice of a witness.
The District Court. is charged with determining if any given
mention of liability insurance is sufficiently prejudicial to
warrant a new trial. Doheny v. Coverdale (1937), 104 Mont.
534, 555, 68 P.2d 142, 148. his determinati-ondepends upon
the circumstances and manner in which the subject of
insurance is brouqht into the case. See, e .q. , D'Hooqe T ~ .
McCann (1968), 151 Mont. 353, 360, 4 4 3 P.2d 747, 751. We
will not disturb a District Court's determination unless the
court abused its discretion in so ruling.
In the present case, we hold that the evidence failed
to show that the Di-strict Court abused its discretion when it
denied appellants' post-trial motion for a new trial b e c a u ~ e
of the alleged interjection of insurance into the case. The
first. claim of an improper mention of insurance occurred
during the cross-examination of Todd. The City7 questioned
whether Todd was told:
. .
. that there was a conflict of
interest in your being someone performing
inspections for the city, and going out
and soliciting insurance for people that-
you were looking at their homes or
bulldings .. .
This question was asked to demonstrate Tod.dlsgeneral lack of
judgment and thereby, to undermine his credibility as a
witness. As such, it falls within the exception to the Rule
prohibiting the introduction of evidence of liability
insurance. See Rule 411, M.R.Evid. Further, the question
only highlights the conflict of interest arising when one
sells insurance and then inspects some of those same insured
buildings; it does not specify that the Spectrum ~uildingwas
one of those insured buildings. 'This general question would
be insufficient to prejudice the appellants.
Appellants' second claim is that respondent improperly
raised the issue of insurance while cross-examining the owner
of the Horsky Block ~uildinq. The City asked the follotring
question:
Q. And on the real. estate, you have
stipulated your uncompensated loss was
$60,000?
Appellant immediately approached the bench and objected
before the owner of the Horsky Block ~uilding could answer
this question indirectly relating to insurance coverage.
This question did not directly ask whether the owner was
covered by insurance, and no evidence was introduced to
indicate that any jury member understood from it that Massman
had liability insurance. Questioning proceeded without any
other allusion to insurance. within the total framework of
the trial, we hold that the District. Court also 3.i.d not abuse
its discretion by holding that this single question alludinq
to insurance was insufficient to warrant a new trial.
Appellants' third claim of the improper mention of
insurance is totally without merit. We will not discuss it,
except to state that appellant objected before any portion of
John Carroll's deposition naming the insurance company
involved in the Spectrum fire could be read to the jury.
Appellants' fourth claim is that several jury members
saw the cover page of Todd's final investigative report which
listed all the City's insurance and which was placed on
respondent's counsel table within view of the jury after it
was excluded from introduction into evidence. No evidence
exists t-hat any jury member in fact saw this cover sheet
prior to it being removed from respondent's counsel table by
counsel for appell.ants.
Finally, appellants claim that the City mentioned
insurance during closing argument. No record exists of the
closing argument in this case. For the reasons previously
stated in section II above, we will not consider this fifth
claim which is based upon a nonexistent record. Finding no
abuse of discretion, we affirm the District Court's denial of
a new trial.
The jury verdict and judgment of the ~istrictCourt is
affirmed.
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We concur: "'
JuCge of the District Court.,
sitting for Mr. Justice
John Cnnway Harrison