Hall v. Big Sky Lumber & Supply, Inc.

NO. 93-118
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

LEONARD J. HALL,
Plaintiff and Appellant,
-v-
BIG SKY LUMBER & SUPPLY, INC.,
a Montana Corporation: STUART
RASMUSSEN; DANIEL RASMUSSEN:
PATRICIA RASMUSSEN: and WESLEY
N. NORMANDIN,
Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Kenneth E. O'Brien, Hash, O'Brien and Bartlett,
Kalispell, Montana
For Respondent:
Shelton C. Williams, Williams & Ranney, Missoula,
Montana

Submitted on Briefs: September 2, 1993
Decided: November 2, 1993

(-LE*K OF S&pRE?,?E C0"r-m
ST&TF: OF I\'IOW~ANU
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Eleventh Judicial

District, Flathead County, finding for the defendant, Big Sky

Lumber. We affirm in part and reverse in part.

We consider the following issues:

1. Did the District Court abuse its discretion in instructing the

jury?

2. Did the District Court abuse its discretion in excluding

certain testimony by Patrolman Monthye concerning his evaluation of
the connection between the metal post he found in the ditch and the

rig's brake system?

3. Did the District Court abuse its discretion in denying

evidence of Normandin's citation because of defense counsel's

conduct during closing argument?
This case involves a motor vehicle accident that occurred on

August 19, 1985 on U.S. Highway 93 about 4.2 miles west of

Whitefish, Montana. Construction was occurring at this stretch of

the roadway. Both appellant Leonard Hall (Hall) and respondent Wes

Normandin (Normandin) were headed west within the stretch of road

under construction. Several flagpersons were located along this

stretch of road. Hall was in his Ford pickup directly in front of

Normandin's fully loaded logging rig. Four other vehicles were in

front of Hall. A road paver with several workmen on it was also

located within the area of the construction.

Normandin approached the rear of Hall's pickup going

approximately 35 miles per hour. Normandin's brakes failed and he

2
was unable to bring the loaded logging rig to a stop. The flag
person located at the far end of the construction motioned the four
cars in front of Hall to keep going. Hall attempted to get out of
his truck because of the runaway truck behind him, but was unable
to get out of the way of the careening rig. The men on the paver
jumped clear of the machine and were able to retreat from the
impact site. Hall's pickup was struck from behind and he allegedly
suffered personal. injury.
The accident was investigated by Highway Patrolman Ervin
Monthye (Monthye). Monthye arrived at the scene approximately 40
minutes after the accident had occurred. Monthye checked the
brakes of the tractor and found that they were warm. The brakes on
the loaded trailer were not warm, indicating that they had not been
engaged. Monthye noticed that the trailer brakes were covered with
an orange substance. Both the regular brakes and the emergency air
reservoir which enabled the emergency brake system to function had
the orange substance on them.
Normandin contends that a professional checked the brakes only
one and a half months before the accident and they were in good
working condition. Further, he asserts that he had himself checked
the entire brake system on the rig before he moved it on the day of
the accident. Normandin contends that the brake failure was
totally unexpected and that it must have been caused by whatever
left the orange color on the brake systems.
Of possible significance was testimony at trial that while
traveling through the construction site, Normandin passed a flatbed

3
truck carrying orange colored road markers. AlSO, Monthye
testified that following the accident an orange post was found in
a ditch where Normandin's truck had finally stopped. Testimony
indicated that the post was possibly from the rear end of the road
paving machine and could have been knocked off when the rig rushed
past the paving machine. Normandin contends that whatever caused
the brake failure left the orange color on the brakes and that must
have happened prior to his loss of brakes at the construction site.
Hall argues that the orange color on the brakes came from the
paving machine post found several days after the accident in a
nearby ditch. Hall's contention is that if the orange color found
on the brakes came from the paving machine post, Normandin's brake
failure occurred before the brakes acquired the orange color.
A trial was held on August 4 through 10, 1992. A jury found
no negligence on the part of defendants. This appeal follows.

Did the District Court abuse its discretion in instructing the
jury?
Hall argues that the trial court erred in giving Normandin's
instruction #22 and in refusing to give his own instructions #23
and #42. It is within the district courts' discretion to decide
how to instruct the jury, taking into account theories of
contending parties, and this Court will not overturn the district
courts except for abuse of discretion. Cline v. Durden (1990), 246
Mont. 154, 803 P.2d 1011. On review by this Court, all jury
instructions must be read as a whole and the party assigning error
to the court's instructions must show prejudice in order to
4
prevail. Walden v. State (1991), 250 Mont. 132, 818 P.2d 1190.
such prejudice will not be found if the jury instructions in their
entirety state the applicable law of the case. Walden, 250 Mont.
at 137, 818 P.2d at 1193.
Court's Instruction #25
The court gave defendants' proposed instruction #22 as its
instruction #25:
An involuntary violation of a statute in an emergency due
to circumstances beyond an operator's control is not
negligence as a matter of law. (Emphasis added.)
Hall argues that this instruction was taken from Lyndes v. Scofield

(1979), 180 Mont. 177, 589 P.2d 1000, and that the instruction was
misquoted. Normandin agrees that the source of the instruction was
the Lvndes case but argues that the instruction was proper. We
disagree.
While instructions must be read as a whole, the above
instruction was not taken from the Lvndes case in its correct form.
Lvndes involved a vehicular accident occurring on icy roads. The
defendant hit a chuckhole in the road and her car skidded and hit
another car driven by the Lyndes.
The Lvndes jury returned a verdict that defendant was not
negligent. In granting a new trial, the district court determined
that Scofield was guilty of negligence as a matter of law. On

appeal, we disagreed, stating that:
The trial court concluded that the chuckhole hit by
Scofield was a "condition of the surface" which Scofield
was bound to take into account in operating her vehicle.
While a chuckhole undoubtedly is a condition of the
surface whose presence should be taken into account, we
disagree under the facts of this case that Scofield was
5
 negligent as a matter of law.
Lvndes, 180 Mont. at 181, 589 P.Zd at 1002. We concluded that the
court erred in determining a jury question.
Whether under the circumstances present the defendant was
negligent appears to be a fact question and fact
questions must be submitted to a jury under annrooriate
instructions.. (Emphasis added.)
Lvndes, 180 Mont. at 181, 589 P.2d at 1002. In stating that the
district dourt erred in making its determination "as a matter of
law," we determined that:
It is well established that involuntary violation of a
statute in an emergency due to circumstances beyond the
actor's control does not constitute negligence per se .
. . . Rather, Scofield's presence in the incorrect lane
is only prima facie evidence of negligence which may be
rebutted . . . This raises a factual issue which must be
left to the jury to decide.
Lvndes, 180 Mont. at 185, 589 P.2d at 1004.
As in the aforementioned quote from Lvndes, negligence per se
describes the situation where violation of a statute was the
proximate cause of the injury received and the resulting damages.
Hendrickson v. Neiman (1983), 204 Mont. 367, 665 P.2d 219. While
it is true that "as a matter of law" may be construed as the
equivalent of "per se," a jury instruction which uses the 'Ias a
matter of law*' language instead of the "per se" wording is
basically misleading. In substance, the jury could interpret the
instruction:
As a matter of law, an involuntary violation of a statute
in an emergency due to circumstances beyond an operator's
control is not negligence.
This is not the holding in Lvndes. In addition, it is not a
correct statement of the law. As given, the instruction improperly
6

-.
limits the fact finding function of the jury.
We conclude that because the trial court presented an

instruction on a key issue of law which was incorrect as a matter

of law, a reversal is required. We hold that the District Court

improperly instructed the jury by issuing its instruction #25. We
reverse on this issue and remand for trial.

Plaintiff's Drowosed Instruction No. 23

For assistance on retrial, we review plaintiff's objection to

the court's refusal to use his proposed instruction #23 which
stated:

You are instructed as a matter of law that the Defendant
was negligent.
The defendant correctly argues that the inclusion of such an

instruction would have amounted to a directed verdict on the issue

of liability. This is not a correct statement of the law to be

applied in this case. The court correctly declined to instruct the

jury with this instruction.

Plaintiff's Prowosed Instruction #42
This proposed instruction concerns fi§ 61-g-308 and 61-g-301,

MCA. These statutes provide that a "towing vehicle" must be

equipped with two sets of brakes in case one of the systems fails.

One of the two systems must be manual. Hall argues that the

court's failure to give these proposed instructions prejudiced his

case. Normandin argues that this was not an issue at trial: that

no evidence one way or the other was introduced during the trial.

No evidence was produced at trial to indicate that the vehicle

driven by Normandin was or was not a lVtowingV1 vehicle of the type

7
meant by the statute. Hall's proposed instruction c0n~ern.s a
"towing vehicle, when used to tow another vehicle." Section 61-9-
308(1), MCA. The record is devoid of any evidence that the vehicle
driven by Normandin was this type of vehicle and that it did not
conform to statutory regulations. We conclude the instruction was
properly excluded.
II.
Did the District Court abuse its discretion in excluding certain
testimony by Patrolman Monthye concerning his evaluation of the
connection between the metal post he found in the ditch and the
damage to the rig's brake system?
Hall called Monthye to testify that the damage and orange
coloration of Hall's braking system was caused by the collision
with the paving machine which broke off a metal post located at the
back of the paver, causing the post to rumble around under the
trailer. Normandin objected to this line of questioning as
improper opinion evidence from a lay witness; the court sustained
the objection.
Hall argues that Rule 701 M.R.Evid., permits non-expert
witnesses to give their opinion as long as that opinion is based
upon their own perceptions or is helpful to a determination of the
fact at issue. Normandin contends that the District Court acted
properly in sustaining the testimony because it called for an
opinion only an expert would be qualified to make and Monthye was
not qualified as an expert witness. Further, Nonnandin points out
that an offer of proof was made to the trial judge who heard, out
of the presence of the jury, the intended testimony and determined
that it was not permissible lay witness testimony.
8
 The court permitted Monthye to testify that he was uncertain
after his investigation at the Scene of what had caused the damage
to the brakes. He further testified that he went to the scene
three days after the accident and found an orange pipe in the ditch
where the loaded rig had come to rest after failing to stop. He
testified that the color of the pipe was the same orange color as
that found on the brakes. Also, he testified that the pipe had
come from the vertical corner mount on the paver. Monthye was not
permitted to testify as to how the pipe got in the ditch or to the
relation of the pipe to the accident.
The questionable testimony was presented to the trial judge as
an offer of proof out of the hearing of the jury:
Q [to Monthye]. . . . based upon what you had observed
in looking at the orange post and in looking at the
damage to the brakes what you had determined what, if
anything, the orange post had to do with damaging the
brakes. Would you tell the judge what you had determined
in that regard based on your investigation?
A. Well, yes. I had determined that the truck tractor
and trailer came down the road, tried to go between the
paver and the Burlington Northern [Hall's truck], pushed
them both aside and, as it brushed by the paver, it
knocked that corner post off and the corner post got down
and rumbled around underneath the trailer. That was my
conclusion.
The District Court refused to allow this testimony in the presence
of the jury because in the pre-trial ruling, Officer Monthye had
not been listed as an expert witness and could not be questioned as
one. From the record in the case, the court could have concluded
that Monthye as a patrolman should have been listed as an expert
witness. For Monthye to testify as an expert he would have to be
listed as an expert witness on the pre-trial order. At retrial,
9
any foundation for a particularized skill in accident
reconstruction could be laid. Without such skill, Monthye is only
a lay witness.
A non-expert witness is generally limited to testifying to
matters of fact. Walden, 250 Mont. at 144, 818 P.2d at 1197. Any
lay opinions given must be based upon the witness's own perceptions
or helpful to a clear understanding of the witness's testimony or
a determination of a fact at issue. Rule 701, M.R.Evid. As a lay
witness, Monthyeas testimony concerning the cause of the accident
would be error. This testimony has no foundation in Monthye's own
perception nor is there evidence here of Monthye's specialized
skill in reconstructing accidents. On retrial, if Monthye is to
testify as an expert, he should be listed as such prior to trial
proceedings, and qualified as an expert at trial.
We conclude that a review of the record indicates that as a
lay witness, Monthye correctly testified to those activities which
he had perceived. We hold that the District Court did not abuse
its discretion in excluding certain testimony by Patrolman Monthye
concerning his evaluation of the connection between the metal post
he found in the ditch and the damage to the rig's brake system?
III.
Did the District Court abuse its discretion in denying evidence of
Normandin's citation because of defense counsel's conduct during
closing arguments?
Monthye issued Normandin a citation at the scene for
"inadequate or defective brakes." Normandin made a motion in
limine that evidence of this citation be excluded at trial. The

10
court granted Normandin's motion. Normandin's counsel made a
statement during his closing arguments that "if there were any
defects or problems with that braking system at all, you can be
sure that Patrolman Monthye or Patrolman Jacobson or somebody would
have told you about that." Following the argument, Hall's counsel
sought permission of the court to enter into evidence the citation
Normandin had been given at the scene for defective brakes. The
court denied the request. Hall then moved for a mistrial which the
court also denied.
Hall argues that his case was prejudiced by defense counsel's
statement to the jury and by the failure of the court to admit the
citation. Normandin argues that the comment objected to by Hall
was taken out of context, and that when viewed in the proper
context, the sentence was proper.
The objectionable statement was made within the following
context of the closing argument:
The undisputed evidence shows that the truck was in
compliance with all brake statutes. If it wasn't, it was
examined by a highway patrolman within about 45 minutes
of the time of the accident. It was impounded by the
highway patrol after the accident for examination. If
there were any defects or problems with that braking
system at all, you can bet that Patrolman Monthye or
Patrolman Jacobson or somebody would have told you about
that. There is [sic] no problems with that braking
system other than the orange impact damage.
District courts have great discretion in the admittance of
evidence and we will not overturn a court's decision unless the
court abused its discretion. Miranti v. Onus (1992), 253 Mont.
231, 833 P.2d 164. Hall argues that it is unfair for Normandin to
seek a motion in limine to prevent evidence of the initial citation
11
 and then tell the jury that if any defect had been found it would
have been a part of Monthye's testimony. The citation itself is
not indicative of anything but that the trailer brakes failed.
Evidence of the issuance of a citation is not determinative of the
cause of an accident. Hart-Anderson v. Hauck (1989), 239 Mont.
444, 781 P.2d 1116. We conclude that it was properly excluded.
However, the subsequent argument by defense counsel to the
jury is improper legal maneuvering. Defense counsel cannot ask to
have evidence excluded and then argue that if the evidence existed
it would have been admitted. Such argument should not be made on
retrial.
We affirm in part and reverse in part and remand for further
proceedings consistent with this opinion.

We Concur: I

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i--“--,.. I,
 November 2. 1993

CERTIFICATE OF SERVICE

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

Kenneth E. O’Brien
HASH, O’BRIEN & BARTLETT
P.O. Box 1178
Kalispell, MT 59903

Shelton C. Williams
WILLIAMS & RANNEY
P.O. Box 9440
Missoula, MT 59807-9440

ED SMITH
CLERK OF THE SUPREME COURT
STAR OF MONTANA