IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
ROLF A. JACOBSEN, et al.,
Plaintiffs and Appellants,
VS.
STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: The District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel W. Hileman; Murray, Kaufman, Vidal & Gordon, P.C.,
Kalispell, Montana
For Respondent:
Dana L. Christensen; Murphy, Robinson, Heckathorn & Phillips, P.C.,
Kalispell, Montana
Submitted on Briefs: December 29, 1 9 8 8
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Decided: February 9, 1 9 8 8
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Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal concerns alleged negligence by the State of
Montana in combating a forest fire. Plaintiff Rolf A.
Jacobsen, together with several other homeowners and an
insurance company that sustained losses as a result of the
fire in question (Plaintiffs), appeal from the judgment of
the District Court of the Nineteenth Judicial District,
Lincoln County, entered upon a jury verdict in favor of the
State. We affirm.
Plaintiffs frame three issues for review:
1. Whether the District Court erred by allowing
Defendant's Exhibits "L" and "N" into evidence over
Plaintiffs' objections.
2. Whether there was substantial credible evidence to
support the jury verdict.
3. Whether the District Court's giving of Defendant's
Proposed Jury Instructions 18 and 21, and refusal to give
Plaintiffs' Offered Instruction No. 6 was in error.
In August of 1984, the Houghton Creek area near Libby
was the site of two forest fires relevant to this dispute.
The initial fire was discovered on August 1 5 , and burned
approximately 87 acres. State fire-fighting personnel had
contained and largely extinguished the first fire by August
20, and then began a schedule of daily patrols at the site of
the burn. During these patrols, crews extinguished any fires
or "smokes" they discovered within "two chains" (132 feet) of
the outside perimeter of the burn.
August was a hot and dry month, and on the 37th a "red
flag" warning was posted due to windy conditions. In the
early afternoon, the Libby-area dispatcher for fire fighters
received reports From Houghton Creek residents that the air
-
was becoming smoky and dusty. The dispatcher radioed two
crews and directed them to interrupt their regular patrol
schedules and proceed directly to the Houghton Creek burn.
They were joined by a third, Inter-Unit crew that had been
dispatched from Kalispell because of the red flag condition
in the Libby area.
The first crew on the scene surveyed the burn area,
where the crew boss later testified he observed smoke and
winds of approximately 30 m.p.h. When the other crews
arrived, the first crew boss told them he felt he could
handle the situation and released them to other duties. Upon
the departure of the two crews, the first crew boss returned
to a vantage point on a ridge near the burn, where he saw
fire burning rapidly in his direction. He radioed for help,
and the other two crews returned. Members of the other crews
testified to experiencing winds of 50 m.p.h. or more upon
their return. At that point, the fire fighters were unable
to control the blaze. It grew rapidly, joined with another
fire that had started some distance away, and eventually
burned over 12,000 acres.
Eleven actions were filed against the State for losses
suffered due to the fire. All of the suits sounded in
negligence, and were consolidated for trial on the issue of
liability. At the close of trial, the jury returned its
verdict in favor of the State. Judgment was entered thereon,
and Plaintiffs appealed.
I. The Exhibits.
Plaintiffs assign error to the District Court's rulings
on two pieces of evidence offered by the State. They first
argue that both exhihits were irrelevant under Rule 401-,
M.R.Evid. Plaintiffs further allege that if the exhibj-ts
were relevant, their probative value was outweighed by their
preiud-icial effect , and they should have been excluded under
Rule 403, M. R.Evid. The determination of the admissibility
of evidence is within the wide discretion of the trial court,
and we will not disturb the court's ruling absent a showing
of abuse of discretion. State v. J.C.E. (Mont. 1988), -
,
P.2d - 45 St.Rep. 2373; Preston v. McDonnell (1983), 203
Mont. 64, 659 P.2d 276.
Plaintiffs first address Defendant's Exhibit "N," a map
of the State of Montana. The map had been prepared by Steve
Jorgensen of the Department of State Lands, who testified as
the State's witness when the map was introduced. Jorgensen
used red and orange spots to represent fires occurring within
the state between August 15, 1984 (the date of the first
Houghton Creek fire) , and August 27, 1984 (the date of the
second fire). According to the State, the map was offered to
counter Plaintiffs' contention that the State had not
prioritized its resources properly, and to show the weather
conditions existing during the time in question. It is the
State's contention that the unexpectedly strong winds of
August 27, and not any negligence by the State, caused the
fire to "blow up."
Plaintiffs objected on the ground of relevance, but the
court admitted the exhibit. After Jorgensen's testimony
about the number of fires on the map, Plaintiffs moved for a
mistrial. They argued that the exhibit had inflamed the
passions of the jury, making it impossible for them to
receive a fair trial.
On appeal, Plaintiffs reassert both of these arguments.
They note the definition of relevance in Rule 401, "having a
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable...." According to Plaintiffs, the map made
no facts relative to the issue of the State's negligence more
or less probable. The map did not show the manpower and
equipment available to the State, nor was the time frame
sufficiently narrow to apply to the weather pattern in effect
on the 27th. Plaintiffs assert prejudice in that the map
sought to divert attention from the fire at issue and the
State's performance in fighting it by graphically presenting
the large scale of the fire situation statewide. We
disagree.
The State refers to the testimony by Plaintiffs' expert
witness regarding prioritization of fire-fighting resources.
This witness voiced several criticisms of the fire-fighting
methods employed in the Libby area, including the small size
of the crews used and the overall lack of manpower on the
Houghton Creek fire. On cross-examination, the State brought
out the expert's lack of knowledge concerning other fires
burning in northwest Montana that required attention. Some
representation of the number of fires burning in the area was
therefore relevant to the prioritization issue.
The weather was also an issue. Both sides discussed the
dry conditions present during the summer of 1984, and the
State raised a defense alleging that the unexpectedly strong
winds of the 27th were an intervening cause of the flare-up.
The map was relevant to each of these questions by showing
the large number of fires resulting from the dry, windy
weather occurring throughout the time period at issue.
Plaintiffs argue with merit that the map showed a much
larger area than was required by the scope of these issues.
However, the information offered did make facts concerning
the number of fires requiring State attention and the
severity of the fire season more probable. The information
about the severity of the fire season was also relevant to
Plaintiffs1 contention that greater care shoul-d have been
exercised by the State given the dry conditions.
In support of their claim of prejudice, Plaintiffs cite
cases from this Court requiring the exclusion of evidence
when its probative value is outweighed by its prejudicial
effect, including Ruiper v. Goodyear Tire and Rubber Co.
(19831, 207 Mont. 37, 673 P.2d 1208 (evidence in products
liability case concerning defendant company's political
contributions to persons connected with the Watergate
scandal); and Welnel v. Hall (1985), 215 Mont. 78, 694 P.2d
1346 (largely speculative testimony in motorcycle-auto
collision case that characterized the plaintiff as a
stereotypical "biker").
In Kuiper, we found a "total absence" of evidence
connecting the defendant's political contributions to the
injury caused by its product. The plaintiff's constant
reference to the defendant ' s connection with the
scandal--including a 74-page opening statement--had turned
the trial into a "political circus." In Welnel, the witness
at issue was to testify about seeing a black Harley-Davidson
motorcycle ridden by a bushy-haired man wearing a black
leather jacket traveling at a high rate of speed. The
witness could not identify the plaintiff as the rider, there
was evidence showing that the plaintiff had very short hair
and was not wearing a jacket on the day of the collision, and
the time frame of this observation in reference to the
collision was indefinite.
Here, the map was a single exhibit giving a graphic
representation of the severe forest fire season cited by both
parties in their arguments. Plaintiffs do not dispute its
accuracy. As we said above, the scope of the exhibit was
broader than necessary. It cannot be said, however, that it
was so lacking in probity to he solely for the purpose of
drawing the jury's attention from the main issues. Nor can
it be said that the map was so inaccurate or indefinite that
its possible prejudice outweighed its probative value. We
therefore find no abuse of discretion by the District Court
in admitting the map.
Exhibit "L," an enlarged photograph of the Houghton
Creek burn area taken by Department of State Lands employee
Erik Kurtz on August 24, was likewise properly admitted.
Plaintiffs contend that the photo, which shows no smoke in
the burn area, lacked probative value because it conflicted
with Kurtz's own radio log and the testimony of Plaintiffs'
expert. A piece of evidence that conflicts with other
evidence is not devoid of probity. The conflict affects only
the weight it is to be accorded, which is within the
exclusive province of the jury. 30 Am Jur 2d, Evidence S$
1080, 1082; Wheeler v. City of Rozeman (Mont. 1988), 757 P . ? d
345, 347, 45 St.Rep. 1173, 1176.
Plaintiffs assert that the photo was prejudicial because
the condition of the fire on August 24 had no bearing on the
alleged negligence that took place on August 27. Plaintiffs
themselves, however, presented evidence of the condition of
the burn during the time between the first and second
Houghton Creek fire. Testimony by several of Plaintiffs'
witnesses concerned the patrols conducted by Department of
State Lands employees and whether those patrols dealt
adequately with smoking or burning stumps during that period.
The photograph showed a lack of smoke on one particular day
during that period.
As with the map, the photo was not so lacking in probity
or so inaccurate that it was prejudicial. While plaintiffs'
expert noted the possibility that a photo taken from another
angle may have shown smoke, he did not question the accuracy
of Kurtz's photo. We find no abuse of discretion in the
District Court's decision to admit the photo.
11. Substantial Credible Evidence.
Plaintiffs next contend that the jury's verdict was not
supported by substantial credible evidence. The standard for
review of a jury verdict is whether there is substantial
credible evidence to support it. Weinberg v. Farmers State
Bank of Worden (Mont. 1988), 752 P.2d 719, 45 St.Rep. 391.
However, this Court does not lightly overturn the verdict of
a finder of fact, especially a jury. Palmer by Diacon v.
Farmers Insurance Exchange (Mont. 1988), 761 P.2d 401, 45
St.Rep. 1694. The test of substantial credible evidence
allows for reversal only if there is an absence of probative
facts to support the verdict. Kleinsasser v. Superior
Derrick Service, Inc. (Mont. 19851, 708 P.2d 568, 42 St.Rep.
1662.
The State took the position at trial that the
intervening forces of nature--specifically the sudden, strong
winds--were the cause of the second Houghton Creek fire and
Plaintiffs resulting losses. The State also contended that
its agents and employees acted reasonably in all aspects of
fighting and containing the fire. The record contains the
testimony of ten witnesses called by the State to present its
case in chief. This testimony was supported by a total of 14
exhibits, including those discussed above.
While Plaintiffs have challenged the State's evidence
and shown where some of it conflicts, these questions, as
stated above, go only to the weight to be accorded the
evidence. Plaintiffs have not shown an absence of probative
facts to support the State's position. We decline to hold
that the jury's verdict was not supported by substantial
credible evidence.
111. The Jury Instructions.
Plaintiffs assign error to the District Court for giving
three of the jury instructions proposed b7 the State. They
7
contend that the instructions were mere commentary upon the
evidence, and were contradictory and confusing. The disputed
instructions read as follows:
At the center of negligence is the concept of the
reasonable person. What would a reasonable and
prudent person, confronted by like circumstances
and exercising reasonable care have done? In other
words, negligence involves acting other than as a
reasonable person would do in the circumstances.
The reasonable person has been observed to be the
epitome of ordinariness, never reckless or absent
minded, yet neither endowed with exceptional
courage, foresight, or skill.
[Defendant's Proposed Instruction No. 181
Negligence is not proved merely because someone
later demonstrates that there would have been a .
better way. Reasonable care does not require
prescience nor is it measured with the benefit of
hindsight.
[Defendant's Instruction No. 21?
An intervening cause will relieve a Defendant of
liability for negligent acts where the cause is one
which the Defendant could not reasonably anticipate
under the circumstances.
[Defendant's Proposed Instruction No. 261
This Court has held that a party assigning error to the
giving of a jury instruction will not prevail unless some
prejudice is shown. Wilhelm v. City of Great Falls (Mont..
1987), 732 P.2d 1315, 44 St.Rep. 211; Farmers Union rain
Terminal Ass'n v. Montana Power Co. (1985), 216 Mont. 289,
700 P.2d 994. Where the instructions given state the law
applicable to the case when read as a whole, a party cannot
claim reversible error as to the giving of certain
instructions. Goodnough v. State (1982), 199 Mont. 9, 647
P.2d 364. We have also held that refusal to instruct a jury
or! an important part of a party's theory of the case is
reversible error. Smith v. Rorvik (Mont. 1988), 751 P.2d
The instructions listed above correctly state principles
of negligence law. When read together, they are not
contradictory, nor do they appear confusing. Instructions 18
and 21 deal with the standard of care required of the State
in dealing with the Houghton Creek fire. Plaintiffs charged
the State with failing to exercise reasonable care, and
presented evidence of the events leading up to the second
Houghton Creek fire to show this. The State countered this
allegation by arguing that its employees acted reasonably
under the circumstances. Instructions 18 and 21 were not
prejudicial to Plaintiffs.
Instruction No. 26 deals with the principle of
intervening causes. Again, this is a correct statement of
negligence law. It fits logically with the other
instructions on negligence proposed by both sides for that
reason. The State's main defense, as discussed above, was
that the unusually strong winds that occurred on August 2 7
were the unforeseeable, intervening cause of the second
Houghton Creek fire. Instruction 26 was not prejudicial to
Plaintiffs.
Plaintiffs next contend that the District Court erred in
refusing to give their Proposed Jury Instruction No. 6:
A legal doctrine called "res ipsa loquitur" is
involved in this case. The meaning of the term is,
"it speaks for itself." Under this doctrine, even
though negligence has not been proven by other
evidence, you may infer negligence from the
circumstances surrounding an event if you find from
a preponderance of the evidence that (1) the event
is of a kind which ordinarily does not occur in the
absence of negligence; (2) other causes, including
the conduct of the plaintiff and other persons,
have been sufficientlv eliminated by the evidence.
Plaintiffs fail, however, to present an argument to support
their assertion that failure to give this instruction was
error. By the definition given in the instruction, the
doctrine does not appear to apply in this case. It is
entirely possible, as the jury apparently believed, for a
forest fire to occur or for an existing fire to break through
a fire line in the absence of negligence. The State
presented substantial evidence on that very question.
The decision of the District Court is affirmed.
/
&ea Justice
We Concur:
Chief Justice
Mr. Chief Justice J. A. Turnage did not participate.