Valley Properties Ltd. Partnership v. Steadman's Hardware, Inc.

NO. 91-042
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

VALLEY PROPERTIES LIMITED
PARTNERSHIP, a Montana Limited
partnership: and VALLEY MOTOR
SUPPLY COMPANY OF MILES CITY,
a Montana corporation,
Plaintiffs and Appellants.
-vs-
STEADHAN'S HARDWARE, INC.,
Defendant and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Kenneth R. Wilson, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Richard M. Kovak, Cozen and OtConner,
Seattle, Washington; James L. Jones,
Dorsey & Whitney, Billings, Montana.
For Respondent:
T. Thomas Singer, Moulton, Bellingham,
Longo & Mather, Billings, Montana.

Submitted on briefs: November 14, 1991
Decided: January 7, 1992
Filed:

r
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellants were the owners of a warehouse and commercial
property in Miles City. A fire started in the portion of the
building rented to respondent, and destroyed the building.
Appellants filed a complaint in the Sixteenth Judicial District
Court, Custer County, for damages resulting from the fire.
Respondent counterclaimed for its damages. Following a jury trial,
the ~istrictCourt entered a directed verdict in appellants' favor
on the counterclaim. The jury returned a verdict in respondent's
favor on appellants' complaint. Appellants appeal from the
District Court's judgment. We affirm.
Appellants raise the following issues:
1. Did the District Court err by refusing to instruct the
jury on appellants' theory of res ipso kquitur?

2. Did the District Court err by refusing to give an
instruction based upon Tlzayer v. Hicks (1990), 243 Mont. 138, 793 P.2d

784?
3. Did the District Court err by allowing an expert witness
to testify as a rebuttal witness, where the witness had not been
disclosed before trial?
In 1988, appellant Valley Properties Limited Partnership
(Valley Properties) was the owner of a commercial property at
809 Bridge Street in Miles City. It had purchased the property in
December 1986. Appellant Valley Motor Supply Company of Miles City
(Valley Motor Supply) occupied part of this building and used it

2
for a parts and accessory tool warehouse. Valley Properties and
Valley Motor Supply are related in that Valley Properties owns all
of the real estate in the Northwest Division of Valley Motor Supply
Company, the parent corporation which controls Valley Motor Supply.
Appellants will be referred to collectively as "Valley."
Respondent Steadman's Hardware, Inc., d/b/a Coast to Coast
Stores, rented a portion of the Bridge Street property and used it
as a warehouse. Steadman's Hardware had been occupying part of the
warehouse since 1980 or 1981. Steadman's Hardware had exclusive
control over its section of the warehouse. All of the doors except
one were barred or permanently sealed. Steadman's Hardware put a
lock on the one operable overhead door, and only its employees had
keys to the lock.
Steadman's Hardware paid a monthly rent for the warehouse, and
Valley Properties provided electricity and took care of major
repairs to the building. The warehouse had been remodeled in 1980
to provide more space and upgrade the portion of the building
occupied by Valley Motor Supply. The electrical service was
replaced on that side of the building at that time. However, the
wiring for the portion of the building rented to Steadman's
Hardware was not remodeled nor upgraded. At least some of the
wiring was quite old, probably dating from the 1930s. The wiring
was an old-fashioned type, with twisted wire covered by cloth
insulation.
 On March 10, 1988, the warehouse was quite full. Steadman's
Hardware had stored water heaters, mowers, bicycles, PVC pipe,
garbage cans, barbecues, snow blowers, different appliances,
fertilizer, and various other items in the warehouse. Shortly
after 2 p.m., two employees, Robert Torgrimson and Lynn Harbaugh,
went to the warehouse to retrieve an exercise bicycle. Torgrimson,
who was off duty at the time, wanted to buy the bike. They went
through the 10' x 10' overhead door and proceeded to the bicycle
storage area.
The bicycles were stored in cardboard boxes, stacked three
high along an aisle. In order to read the labels on the bicycle
boxes, Harbaugh turned on the lights in the bicycle aisle. The
lights in this aisle consisted of a heavy cord with a socket at the
end containing a bare bulb, and a pull chain with a string hanging
down to operate the light. Rather than being above the aisle, the
lights were directly above the stacked bicycle boxes. The pull
string from the lights was draped over the bicycles.
Because the aisle was rather narrow, Torgrimson waited at the
end of the aisle. Harbaugh found the exercise bicycle at the
bottom of the stack, underneath one of the lights. He had to
remove other bicycles to get at the exercise bike. He took one
box, or possibly two, and put it on top of the adjacent stack. In
doing so, the box bumped the light and pushed it over about a foot.
The pull cord caught on the box and turned off the light. Harbaugh
untangled the cord and pulled the light back on. Harbaugh dragged
the exercise bicycle out of the aisle to Torgrimson and the two men
carried the box out of the warehouse to Torgrimson's car.
It is not clear whether Harbaugh replaced the cardboard box or
boxes he had placed on top of the other bicycle boxes. He may have
left a box on top of the three-high stack, and this box could have
been in contact with the light bulb. It is also not clear whether
Harbaugh turned off these lights before leaving the warehouse.
Torgrimson testified at trial that he did not see Harbaugh restack
the boxes and he could not tell if any of the boxes were touching
the light bulb. Torgrimson told a fire investigator the boxes were
not replaced in the stack. Torgrimson could not remember if the
lights were left on in the bicycle aisle after they removed the
exercise bicycle. Harbaugh testified he replaced the other boxes
before leaving the aisle. He also testified that he thought he
turned off one of the lights and was not sure about the other one.
However, at an earlier deposition, and in a statement to fire
investigators, he stated that he left the lights on because his
hands were full carrying out the exercise bicycle. Harbaugh did
not go back into the warehouse to check that the lights were turned
off.
About 2:30 p.m., Martin O'Dea, another employee, went to the
warehouse to get a refrigerator. He opened the overhead door and
went inside. He noticed a smell that reminded him of burning
leaves. He was putting the refrigerator on a cart when he noticed
the lights flicker at the end of the aisle. Then he noticed smoke
up near the ceiling. He left the refrigerator and went toward the
main aisle. As he passed the bicycle aisle, he saw flames in that
aisle at between four and eight feet off the floor. He considered
trying to put out the fire, but decided it was already too big. He
crossed the alley to the hardware store and told them to call the
fire department. The call came into the fire department at 3 p.m.
Fire fighters arrived within minutes, but flames were already
shooting out of the overhead door. The firemen had difficulty
fighting the fire because the other doors were all barred and the
warehouse was full of merchandise. It took nearly two hours to
bring the fire under control. The fire fighters were unable to
save any significant portion of the building.
In July 1989, Valley Properties and Valley Motor Supply filed
a complaint for damages in the District Court against Steadman's
Hardware.' The plaintiffs alleged that the employees of Steadman's
Hardware had negligently stacked cardboard boxes too close to an
electric light and caused the fire in the warehouse. Alterna-
tively, the plaintiffs alleged that the fire originated in the
portion of the warehouse over which Steadman's Hardware had
exclusive control, and that Steadman's Hardware should be held
liable for the damages under the doctrine of ref ipsa locfuirur.

'~eganPlumbing & Heating, Inc., and the County of Custer were
also plaintiffs in the lawsuit, and Charles Steadman was named as
a defendant. These parties have settled and/or been dismissed by
the District Court and are not parties in this appeal.
 Steadman's Hardware answered the complaint, denying any
negligence and denying that it or its employees caused the fire.
Steadman's Hardware counterclaimed for the losses it suffered in
the fire, alleging that the fire originated in the electrical
system. Steadman's Hardware contended that the owner of the
building was responsible for the electrical system, that the
electrical system was inadequate and deteriorated, and that the
owner should have known of the condition of the electrical system.
A jury trial was held from July 10-18, 1990. Several
employees of the various parties testified, as well as several fire
investigators and other experts. The experts agreed it was
difficult to ascertain the cause of the fire and there was very
little direct physical evidence to aid them in determining the
cause. They generally eliminated arson, spontaneous combustion,
cigarette smoking, and use of heaters or other appliances as likely
causes. This left Valley's theory (a cardboard box was left in
contact with a lighted bulb), and Steadman's Hardware's theory (the
electrical system malfunctioned or shorted) as the probable
explanations for the fire. The experts reached quite different
conclusions, however, as to which of these causes was more likely.
Chris Rallis, Valley's expert, stated his opinion that the
fire was caused by a light bulb being left in contact with a
cardboard box. He had performed tests in which he was able to
ignite a bicycle carton by placing a light bulb against the box
under certain conditions. Based on his investigation, he ruled out
an electrical cause.
Wesley Sherman, another expert for the plaintiffs, felt that
the electrical malfunction theory was unlikely, but that the fire
could have been caused by a light bulb placed against a cardboard
box.
Jerry Smith, Battalion Chief of the Miles City Fire
Department, felt that both theories were plausible, but that the
light bulb was the more likely cause.
Donald Howard, a fire investigator retained by the defendant,
initially felt that the fire was not electrically caused. However,
after investigating further and conducting tests, he concluded that
the light bulb was an unlikely source of the fire, and the most
probable cause was a malfunction in the electrical system.
Charles King, another expert retained by the defendant,
expressed the opinion that the light bulb could not have caused the
fire. He felt that the most probable cause was something in the
electrical system.
Kevin Vogel, another defense witness, also testified that the
fire was probably caused by some electrical incident.
At the end of the trial, Valley moved for a directed verdict
on Steadman's Hardware's counterclaim, based on lack of sufficient
evidence and lack of a showing that Valley had breached any legal
duty. The District Court granted this motion. The jury returned
a verdict in favor of Steadman's Hardware on Valley's complaint.
 The District Court entered its judgment on August 3, 1990.
Valley Properties and Valley Motor Supply appeal from this
judgment.

Did the District Court err by refusing to instruct the jury on
appellants ' theory of res ipsa loqnitur?

Valley contends the District Court erred by refusing to give
proposed instructions under the theory of res ipsa loy~iir~ir. We

disagree. This Court has stated the doctrine of resipsu ioquitztr in the

following terms:
(1) It may be inferred that harm suffered by
the plaintiff is caused by negligence of the
defendant when
(a) the event is of a kind which ordinarily
does not occur in the absence of negligence;
(b) other responsible causes, including the
conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the
scope of the defendant's duty to the plaintiff.
Totnpkitzs v. Norilzwes~ernUnion Trust Co. (1982), 198 Mont. 170, 176, 645 P.2d

402, 406 (quoting Restatement (Second) of Torts 5 328D).
Under the facts of the present case, the doctrine is not
applicable. A fire in a warehouse, of unknown origin, may occur in
the absence of negligence. Further, the evidence did not clearly
eliminate causes, such as a malfunction in the electrical system,
which were not chargeable to the occupants of the warehouse. The
fire investigators and other experts disagreed regarding the cause
of the fire. Several of these experts suggested that the
instrumentality causing the fire may have been outside of the
control of Steadman's Hardware. As noted by the court in Wn'ghl, v.

L~nitedStates (D-Mont. 1979), 472 F.Supp. 1153, 1156: "[Tlhe doctrine

of res ipsa ioquilur is not usually applicable in cases of fires of

unknown origin . . . ." This is such a case.
II
Did the District Court err by refusing to give an instruction
based upon Thayer v Hicks (lggo), 243 Mont. 138, 793 P.2d 784?
.
Valley contends that the District Court erred by refusing to
give the following instruction, which was based upon language from
our opinion in Titnyerv. [-ticks (1990)' 243 Mont. 138, 793 P.2d 784:

"Plaintiffs are not required to eliminate all possible causes of
damages in order to prove causation." Valley contends this
instruction was necessary for Valley to be able to argue its theory
of the case to the jury. We disagree.
The District Court gave the following instructions, among
others:
INSTRUCTION NO. 5
Burden of proof means burden of persuasion. A party who
has the burden of proof must persuade you by the evidence
that his claim is more probably true than not true. In
other words, the evidence supporting the propositions
which a party has the burden of proving must outweigh the
evidence opposed to it. In determining whether a party
has met this burden you will consider all the evidence,
whether produced by the plaintiff or defendant.
INSTRUCTION NO. 9
The plaintiffs have the burden of proving:
 1. That the defendant was negligent.
2. That the plaintiffs* property was damaged.
3. That the defendant's neqliqence was a cause of the
damage to plaintiffs' property ..
. .
INSTRUCTION NO. 10
The defendant's negligent conduct is a cause of the
damage if it helped produce it and if the damage would
not have occurred without it. [Emphasis added.]
These instructions informed the jury what Valley was required to
prove in order to establish causation. Where other instructions
adequately cover the law relating to a particular issue, it is not
error to refuse a proposed instruction on the same subject. NoNv.

Cily of Bozemarz (l977), 172 Mont. 447, 564 P.2d 1296 (refused

instruction similar to Valley's proposed instruction).
I11

Did the District Court err by allowing an expert witness to
testify as a rebuttal witness, where the witness had not been
disclosed before trial?
Steadman's Hardware called Kevin Vogel, an engineer and
consultant, as a rebuttal witness. Valley's counsel objected to
Vogel's testimony on the basis that he had not been listed in the
pretrial order or previously disclosed to Valley. Valley contends
the District Court erred by allowing Vogel to testify.
The determination of whether proposed testimony is admissible
as rebuttal testimony in a given case is within the sound
discretion of the District Court, and this Court will not reverse
the District Court's ruling unless it abused this discretion. !'The
 law does not require the advance disclosure of rebuttal witnesses."
Massmarz v. City o Helenu (1989), 237 Mont. 234, 243, 773 P.2d 1206,
f

1211.
Here, we note that Valley was allowed to present testimony of
rebuttal witness Wesley Sherman, in spite of the objection by
Steadman's Hardware that Sherman was only named as a rebuttal
witness at the time of the pretrial order, and Steadman's Hardware
had not had an opportunity to depose him. It does not seem unfair
that the District Court similarly allowed a belatedly disclosed
witness to testify in surrebuttal for Steadman's Hardware. We
conclude that the District Court did not abuse its discretion by
allowing the witness to testify.
Accordingly, finding no error in the challenged rulings of the
District Court, we affirm the judgment.

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Justices
 January 7, 1992

CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Richard M. Kovak
COZEN AND O'CONNOR
5200 Washington Mutual Tower
1201 Third Avenue
Seattle, WA 98101-303.1

James L. Jones
DORSEY & WHITNLY
P.O. Box 7 188
Billings, MT 59103

T. Thomas Singer, Esq.
MOULTON, BELLING1 IAM LAW FIRM
P.O. Box 2559
Billings, MT 59103

E D SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA