NO. 92-068
IN THE SUPREME COURT OF THE STATE OF MONTANA
JAMES and LINDA NELSON, d/b/a
GOODTIME SPORTS, and NORTHWESTERN
NATIONAL INSURANCE GROUP, an
insurance company,
Plaintiffs and Appellants,
-v-
THE MONTANA POWER COMPANY,
a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. Eugene Atherton, Kalispell, Montana: Tara DePuy,
Kalispell, Montana
For Respondent:
Robert T. O'Leary, The Montana Power Company, Butte,
Montana
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from a Sixth Judicial District Court, Park
County judgment, granting the defendant's motion for summary
judgment. We affirm.
The sole issue on appeal is whether the trial court erred in
granting the defendant's motion for summary judgment.
On November 14, 1988, firefighters for the city of Livingston
were called to the scene of a fire at Goodtime Sports, a local
business, at about 12:30 p.m. No flames were evident but smoke was
observed coming from under the eaves.
Livingston Fire Chief Frederick called the dispatch a short
time later and requested that they alert Montana Power Company
(MPC) about the fire and send workers out to turn the gas and
electricity off. Jack Swanson, and Tom Petty, employees of MPC,
arrived around 1:40 a.m. Swanson terminated the electricity and
Petty stated that he observed a gas meter on the I Street side of
the building and it appeared to be off. Petty then walked to the
other side of the building and shut off a gas meter there and one
at an adjacent building, in the company of Chief Frederick and
Assistant Chief Parks.
An affidavit of Jack Swanson states that when he arrived at
the scene of the fire, a few minutes before Perry, the building
"was totally engulfed in flames and the back of the roof had fallen
in." Tom Petty, in an interview on December 22, 1988, stated that
the fire involved the whole building and the roof was caved in.
Chief Frederick concluded that the Nelson's loss for the fire
was total. (Chief's investigative report) Chief Frederick also
stated that between 7:00 and 7:30 a.m., he noticed a gas meter on
the I Street side was on so he used a wrench to turn the valve off.
State Assistant Fire Marshall, Tom Selleck, stated in his
investigative report that the probable cause of the fire was
electrical wiring.
After the fire, the Nelsons filed a complaint, later amended,
in which they claimed that a MPC employee "negligently, carelessly
and recklessly carried out its duty of turning of (sic) the gas
service.... As a proximate cause of the negligence ...the fire in
the subject building was fed by natural gas which severely
complicated suppression efforts and created long and sustained
burning leading to considerably more property damage than would
have or should have occurred had the Defendant properly shut off
the gas utility.11
The defendant filed a motion for summary judgment in August of
1991. The motion was granted on December 2, 1991, and the judgment
was entered on December 9, 1991. This appeal from that decision
followed.
"Under Rule 56(c), M.R.Civ.P., summary judgment is proper if
the record discloses no genuine issues of material fact, and the
moving party is entitled to judgment as a matter of law." Kaseta
v. N. Western Agency of Gr. Falls (1992), 252 Mont. 135, 138, 827
P.2d 804, 806.
The Nelsons contend that there is a factual controversy which
precludes a grant of summary judgment - "whether MPC carried out
its duty to turn off the gas service to the bui1ding.l' MPC
3
counters that whether the gas was on or off, "there was no evidence
that natural gas either fed the fire or contributed to its spread
and resulting damage." Although there is a question about whether
MPC turned off the gas service to Goodtime Sports, this Court
agrees with MPC that no evidence was presented to show that natural
gas fed the fire or increased the fire damage, regardless of
whether the gas was on.
Firefighters Wagman and Spannring made full reports after the
fire and neither mentions seeing blue flames or smelling natural
gas, nor do they provide any information that might lead one to
believe that natural gas was involved in feeding or increasing the
fire. Also, neither Chief Frederick nor Assistant Fire Marshall
Tom Selleck mention any such information in their reports. The
Fire Chief's investigative report asks whether a fuel shutoff was
involved in the fire and the Fire Chief answered that a fuel
shutoff was "not applicable." The Assistant Fire Marshall's report
did show that "[elxamination of the suspended gas heater showed it
had broken loose snapping the gas line when the roof collapsed on
it. The area of the gas heater did not show the fire damage nor
did it show the fire started in that area."
An affidavit by Jack Swanson, the MPC employee who arrived at
the scene to turn off electrical service to Goodtime Sports, stated
that he "never observed the distinctive blue flame of burning
natural gas, nor did he smell any natural gas at the fire scene.
Further, neither Chief Frederick nor any fireman at the scene
mentioned or complained of natural gas to your Affiant."
Fire Chief Frederick's deposition statements do not reflect
evidence that natural gas fed the fire either. When the Chief was
asked whether he noticed any particular fire coming from any gas
appliances, he stated, "No, I didn't." He was then asked if he
noticed any fire coming from any gas piping and he replied, "No, I
could not see any gas piping." He was then asked whether he could
smell any gas and he answered that he did not.
The Chief stated that the fire was under control at about 6:00
a.m. when Fire Truck 1 returned to the station but he was still at
the scene about 7:00 or 7:30 a.m. when he noticed the gas meter was
still on. He was asked whether he smelled any gas between 6:00
a.m. and when he noticed the gas meter was on, and he noted that he
had not smelled any gas. When asRed whether he believed the fire,
which was determined to have started because of an electrical
wiring malfunction, would have completely destroyed the building
whether the gas line was open, he replied that he did not have an
opinion. Finally, MPC counsel asked whether it would be fair to
say that as far as the Chief knew, there was no evidence that he
saw or that was reflected in the firefighters1 statements that
"natural gas fed that fire in any way?" Fire Chief Frederick
replied that there was no such evidence.
When the Chief was examined by Mr. Atherton, plaintiff's
counsel, the attorney stated that he understood that the Chief I-
t
- of the opinion that the reason you lost this particular building
be
is not so much because it was a cockloft fire as much as it was
because possiblv it was being fed by some other fuel?" The Chief
replied, "That's possible, yes." (Emphasis added.) Mr. Atherton
5
also asked if the Chief could think of any other reason that the
fire may have been hotter in the area where the fire vented through
the roof other than the possibilitv "of having a gas line feeding
the fire at that l o c a t i ~ n ? ~ ~ Chief responded that he could not
The
think of another reason.
The statements immediately preceding are speculative and
conclusory. As we stated in Benson v. Diehl (1987), 228 Mont. 199,
203, 745 P.2d 315, 317, "[a] suspicion, regardless of how
particularized it may be, is not sufficient to sustain an action or
to defeat a motion for summary judgment. Unsupported conclusory or
speculative statements do not raise a genuine issue of material
fact. The trial court has no duty to anticipate possible proof."
We conclude that summary judgment was properly granted because no
genuine issue of material fact was raised.
AFFIRMED.