97-088
No. 97-088
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
THOMAS JAY HARWOOD, ELSIE RUBY HARWOOD
and THOMAS JOSEPH ARKINSON,
Plaintiffs and Appellants,
v.
GLACIER ELECTRIC COOPERATIVE, INC.,
a Montana Utility Company,
Defendants and Respondents.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Patrick A. Flaherty, Attorney at Law, Great Falls, Montana
Randy S. Laedeke, Laedeke Law Office, Billings, Montana
For Respondent:
Larry D. Epstein and Thane P. Johnson; Werner, Epstein
& Johnson; Cut Bank, Montana
Submitted on Briefs: October 30, 1997
Decided: November 25, 1997
Filed:
__________________________________________
Clerk
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Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiffs, Thomas J. Harwood, Elsie Ruby Harwood, and Thomas Joseph
Arkinson, filed a complaint in the District Court for the Thirteenth Judicial
District in
Yellowstone County, in which they alleged that the defendant, Glacier Electric
Cooperative, Inc., had been negligent and that its negligence caused the destruction
of
their home by fire. Venue was transferred to the District Court for the Ninth
Judicial
District in Glacier County, which ordered that the trial be conducted in Toole
County.
Following trial by jury, a verdict was returned in favor of Glacier Electric. The
plaintiffs
appeal. We affirm the judgment of the District Court.
There are six issues presented on appeal:
1. Did the District Court err when it failed to dismiss this case and defer to
Tribal Court jurisdiction?
2. Did the District Court err when it denied the plaintiffs' attempts to
introduce
evidence of and instruct the jury regarding the National Electrical Code and the
National
Electrical Safety Code?
3. Did the District Court err when it held that the doctrine of negligence per
se did not apply?
4. Did the District Court err when it denied admission of several items of
evidence offered by the plaintiffs?
5. Did the District Court engage in conduct prejudicial to the plaintiffs
based
on comments made during plaintiffs' closing argument?
6. Did the District Court deny the plaintiffs a fair trial?
FACTUAL BACKGROUND
Ruby Harwood and her stepson, Thomas Harwood, each own an interest in real
estate in Pondera County, which is also within the boundaries of the Blackfeet Indian
Reservation. In December 1989, Ruby and Tom Arkinson, a foster child, lived in the
home located on the property.
On December 9, 1989, Ruby informed the Glacier Electric Cooperative, the
electrical supplier to the home, that the lights in her home were flickering.
Glacier
Electric sent two linemen to the home, where they discovered that the stab knob
supporting electrical wires had detached from its anchor to the home. As a result,
the
wires which brought power into the house had been damaged. The linemen repaired the
wires and reattached the stab knob. The next day, the home and all its contents were
destroyed by fire.
The Harwoods filed a complaint on December 9, 1991, in the Thirteenth Judicial
District in Yellowstone County. They alleged that Glacier Electric negligently
repaired
the wires and that its negligence caused the fire. On December 9, 1992, they filed
an
amended complaint to add Arkinson as a plaintiff. After Glacier Electric moved to
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change venue, the District Court granted the motion and transferred the case to the
Ninth
Judicial District Court in Glacier County. A year later, the plaintiffs filed a
complaint
in the Blackfeet Tribal Court and moved the District Court to defer jurisdiction to
the
Tribal Court, pursuant to Rule 41(a)(2), M.R.Civ.P. The District Court denied that
motion.
The parties agreed to bifurcate the liability and damage portions of the
trial. The
plaintiffs were concerned about their ability to select a jury of nonmembers of the
Glacier
Electric Cooperative and, therefore, moved the District Court to change the place of
the
trial. On September 5, 1996, the District Court decided to try the first phase of
the
bifurcated case in Toole County. After a three-day trial in October 1996, the jury
found
by a special verdict that Glacier Electric had not been negligent.
ISSUE 1
Did the District Court err when it failed to dismiss this case and defer to
Tribal
Court jurisdiction?
The decision whether to grant a motion for voluntary dismissal pursuant to
Rule 41(a)(2), M.R.Civ.P., is within the discretion of the trial court, and we
review the
district court's decision to determine if the district court abused its discretion.
See Petritz
v. Albertsons, Inc. (1980), 187 Mont. 102, 107, 608 P.2d 1089, 1092. See also May v.
First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. "[T]he
court should consider the expense and inconvenience that will result to the
defendant,
other prejudicial consequences, and whether terms and conditions attached to the
dismissal may make the defendant reasonably whole." Petritz, 187 Mont. at 107, 608
P.2d at 1092.
Here, the plaintiffs brought their motion for a voluntary dismissal in October
1995,
almost four years after they filed their original complaint and after considerable
discovery
and multiple proceedings had occurred. The District Court considered the
"significant
efforts and expense" incurred by Glacier Electric to prepare for trial in the years
prior
to the plaintiffs' motion, and it also found that the plaintiffs had not been
diligent in their
efforts to bring this case to trial. Based on these considerations, the District
Court found
unpersuasive the plaintiffs' preference for another forum.
The parties agree that the District Court and the Tribal Court have concurrent
jurisdiction and, therefore, that it was appropriate for the District Court to
consider the
nature of the claim. Plaintiffs concede that, even though they are enrolled Tribal
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members and the home was on Tribal land, this action does not involve any special
issues
of Blackfeet sovereignty or issues that require the unique expertise of the Tribal
Court.
The plaintiffs maintained significant control of this action from the time that they
initiated
it, and they chose not to seek Tribal jurisdiction until almost four years after its
commencement. Accordingly, we conclude that the District Court did not abuse its
discretion when it denied the plaintiffs' motion to dismiss and remand to the Tribal
Court.
ISSUE 2
Did the District Court err when it denied the plaintiffs' attempts to introduce
evidence of and instruct the jury regarding the National Electrical Code and the
National
Electrical Safety Code?
The standard of review of a district court's refusal to give jury instructions
is
whether the district court abused its discretion. See Northwest Truck & Trailer
Sales,
Inc. v. Dvorak (1994), 269 Mont. 150, 157, 887 P.2d 260, 264. A district court has
broad discretion regarding the instructions it gives or refuses to give to a jury.
See Savik
v. Entech, Inc. (1996), 278 Mont. 152, 158, 923 P.2d 1091, 1095; Lacock v. 4B's
Restaurants, Inc. (1996), 277 Mont. 17, 20, 919 P.2d 373, 375.
The plaintiffs contend that the District Court erred when it disallowed their
proposed jury instructions regarding the NEC and the NESC. Glacier Electric, on the
other hand, contends that the instructions were properly withheld from the jury
because
the plaintiffs failed to present any evidence at trial regarding the NEC or the
NESC. We
stated in King v. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902, that "[a]
party [is] not prejudiced by a refusal of his proposed instructions where the
subject matter
of the instruction is not applicable to the pleadings and facts, or not supported by
the
evidence introduced at trial." See also Busta v. Columbus Hosp. Corp. (1996), 276
Mont. 342, 359-60, 916 P.2d 122, 132; Cottrell v. Burlington N. R.R. Co. (1993), 261
Mont. 296, 306, 863 P.2d 381, 387.
Upon review of the record, we agree with the District Court and conclude that
although the plaintiffs at certain times during the trial referred to the NEC or the
NESC,
at no time did they offer evidence of how either standard applies to the alleged
facts of
this case such that it would merit an instruction to the jury or be relevant to their
deliberation. Therefore, we conclude that the District Court did not abuse its
discretion
when it denied the proposed jury instructions.
The plaintiffs assert that they attempted, through expert testimony, to
introduce
evidence of the NEC and the NESC at trial, but that the District Court improperly
denied
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those attempts. We stated in Busta, 276 Mont. at 353, 916 P.2d at 128, that a
district
court has broad discretion to determine if evidence is admissible, and absent an
abuse of
discretion, we will not reverse the district court's determination. Furthermore,
"all
questions of law, including the admissibility of testimony, [and] the facts
preliminary to
such admission . . . must be decided by the court." Section 26-1-201, MCA.
Here, the District Court stated that "[the plaintiffs' expert] will not be
allowed to
testify as to the legal burdens that [the NEC and the NESC] impose upon the Co-op . .
. . That's a legal conclusion and he doesn't get to testify on that." See generally
Crow
Tribe of Indians v. Racicot (9th Cir. 1996), 87 F.3d 1039, 1045 (stating that the
role of
expert testimony is to interpret and analyze factual evidence, not to testify about
the law).
We conclude after a review of the record that the District Court did not abuse its
discretion when it excluded the testimony based on its determination that there were
insufficient factual grounds to establish the relevancy of the NEC and the NESC, and
furthermore, that the plaintiffs' expert testimony regarding the NEC and the NESC was
directed to a question of law. We affirm the District Court's evidentiary rulings
regarding the NEC and the NESC and its subsequent denial of proposed jury
instructions
related to those sources.
ISSUE 3
Did the District Court err when it held that the doctrine of negligence per se
did
not apply?
We review a district court's conclusion of law to determine whether its
interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995),
271
Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603-04.
The plaintiffs moved for a directed verdict at the conclusion of the evidence.
They
relied on testimony that the Glacier Electric linemen violated certain company
procedures
when they repaired the damaged wires, and asserted that those violations constituted
negligence per se. Although the record supports the plaintiffs' contention that the
linemen, in fact, violated company procedures during their repairs at the Harwood
home,
the District Court denied the motion based upon the issue of causation. Thereafter,
the
plaintiffs proposed that the jury be instructed regarding negligence per se;
however, the
District Court denied the instructions. The District Court stated that the
plaintiffs failed
to satisfy the essential elements of negligence per se in Montana law and,
therefore, were
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not entitled to an instruction on that theory of liability.
Negligence per se requires that: (1) the defendant violated a particular
statute; (2)
the statute was enacted to protect a specific class of persons; (3) the plaintiff is
a member
of that class; (4) the plaintiff's injury is of the sort which the statute was
enacted to
prevent; and (5) the statute was intended to regulate members of the defendant's
class.
See Patten v. Raddatz (1995), 271 Mont. 276, 283-84, 895 P.2d 633, 638; Hislop v.
Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 391. In order to impute liability to
a
defendant as a matter of negligence per se, this Court has repeatedly stated that the
defendant must have violated a statute, as opposed to merely an administrative
regulation,
safety code, or professional standard. See Thayer v. Hicks (1990), 243 Mont. 138,
150,
793 P.2d 784, 792; Taylor, Thon, Thompson & Peterson v. Cannaday (1988), 230 Mont.
151, 155, 749 P.2d 63, 65-66; Cash v. Otis Elevator Co. (1984), 210 Mont. 319,
326-27, 684 P.2d 1041, 1045; Stepanek v. Kober Constr. (1981), 191 Mont. 430, 438,
625 P.2d 51, 56. The violation of a non-statutory standard may be used as evidence
of
negligence, but it is insufficient grounds on which to find the defendant negligent
per se.
Thayer, 243 Mont. at 150, 793 P.2d at 792; Cannaday, 230 Mont. at 155, 749 P.2d at
66; Cash, 210 Mont. at 326-27, 684 P.2d at 1045.
The plaintiffs failed at trial to assert that the linemen had violated any
statute.
Nonetheless, they contend that the Glacier Electric policies are in fact statutory,
based
upon Glacier Electric's status as a licensed Montana corporation and its attendant
obligation to follow its own corporate bylaws and procedures. We decline to
recognize
such a tenuous connection as sufficient grounds to elevate what are essentially just
a
private corporation's internally created rules to the same status as a statute
passed or a
code adopted by this State's Legislature. Accordingly, we hold that the plaintiffs
do not
allege the threshold elements of a negligence per se claim, and that the District
Court was
correct when it refused to direct the verdict or offer jury instructions based on
negligence
per se.
ISSUE 4
Did the District Court err when it denied admission of several items of evidence
offered by the plaintiffs?
We review a district court's evidentiary rulings to determine whether the
district
court abused its discretion. Busta, 276 Mont. at 353, 916 P.2d at 128; Galbreath v.
Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 22, 890 P.2d 382, 384.
First, the plaintiffs sought to introduce a video of their expert witness
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conducting
an experiment with wires to demonstrate evidence of arcing, and then again to rebut
testimony from the Glacier Electric expert. Wire arcing generally involves a small
flow
of electricity between two wires, which, although usually not capable of blowing a
circuit
breaker, is able to create intense heat of up to 4000 degrees Fahrenheit.
Plaintiffs alleged
that the fire occurred after the wires in the house had been damaged and then arced.
Based on the plaintiffs' failure to establish an adequate foundation for the video,
the
District Court refused to allow its use.
Plaintiffs contend that arcing was a legitimate issue at trial and, as such,
that they
should have been allowed to present the video demonstration for the jury's
understanding.
However, Glacier Electric alleged and the plaintiffs did not deny that the
conditions of
the arcing experiment in the video differed significantly from the conditions at the
Harwood home.
We have held that to provide a proper foundation for demonstrative evidence of
an experiment, the offering party must establish that the experiment was conducted in
substantially similar conditions to the conditions at the time of the original
occurrence.
See Richardson v. Farmers Union Oil Co. (1957), 131 Mont. 535, 548, 312 P.2d 134,
142. See also Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 194-95, 657
P.2d 594, 599; Bernhard v. Lincoln County (1968), 150 Mont. 557, 561, 437 P.2d 377,
380. Moreover, the admissibility of evidence of an experiment depends on whether it
would assist the jury to more intelligently consider the issue. See Barmeyer 202
Mont.
at 194-95, 657 P.2d at 599. Here, we hold that the District Court did not abuse its
discretion when it found that the conditions in the experiment were not similar
enough
to establish a foundation for the video, and when, based upon the substantial expert
testimony already presented, it found that the jury had heard sufficient testimony to
understand the concept of arcing and did not need a further demonstration.
Second, the plaintiffs also sought to submit as an exhibit asbestos shingles
from
the Harwood home. An investigator for the plaintiffs testified that he had
retrieved the
shingles from inside the home's foundation after the fire. The record reveals that
although all the shingles on the home were of the same material, the shingles which
the
plaintiffs offered as evidence had been cracked, broken apart, and pieced together
again
by the investigator. Glacier Electric objected to admission of the shingles as an
exhibit,
but stipulated to their use as demonstrative evidence. The District Court admitted
them
for that purpose.
The plaintiffs contend that the District Court should have admitted the shingles
unconditionally because they were relevant to demonstrate that the wires may have
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been
damaged by the sharp shingles and, therefore, been made more likely to arc. The
record
reflects that the plaintiffs could not show that the shingles which they sought to
admit
were in fact the shingles that surrounded the area where the wires entered the home.
Therefore, it was not an abuse of discretion for the District Court to conclude that
the
shingles offered were not in the same condition as those shingles which the wires may
have actually contacted. As demonstrative evidence, the shingles still permitted the
plaintiffs to provide the jury with an understanding of the shingles' texture and
their
potential for damaging the wires, without the risk of suggesting that the shingles
at issue
were in the identical condition. Accordingly, we conclude that the District Court
did not
abuse its discretion when it limited the shingles' use as demonstrative evidence.
ISSUE 5
Did the District Court engage in conduct prejudicial to the plaintiffs based on
comments made during plaintiffs' closing argument?
The standard of review of discretionary trial court rulings is abuse of
discretion.
See May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386,
388. Discretionary trial court rulings include such things as trial administration
issues,
scope of cross-examination, post-trial motions, and similar rulings. See Steer,
Inc. v.
Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.
Here, the District Court interrupted the plaintiffs' closing argument and
instructed
counsel in chambers to "stop testifying" as to facts not in the record. The
District Court
stated that some of the statements and demonstrations that the plaintiffs were
making in
their closing argument were not proven. Before the plaintiffs continued their
closing
argument, the District Court instructed the jury as follows:
I previously instructed you on a couple of occasions, that what attorneys say
or do in the course of opening arguments or closing arguments is not
evidence. The evidence in this case is what you have heard from witnesses
who appeared in the witness box and from the exhibits which were admitted
into evidence and those which you will take into the jury room.
The plaintiffs contend that the District Court's interruption of their argument and
its
subsequent instruction to the jury constituted interference and prejudiced the
jury.
Section 25-7-301(6), MCA, states in relevant part that "[c]ounsel, in arguing
the
case to the jury, may argue and comment upon the law of the case as given in the
instructions of the court, as well as upon the evidence in the case." Furthermore,
it is
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well-accepted that a party may not in his or her closing argument discuss or
introduce
facts not previously proven. See, e.g., People v. Roberts (Cal. 1992), 826 P.2d 274,
294;
State v. Potts (Kan. 1970), 468 P.2d 78, 83.
Here, the District Court interrupted the closing argument when the plaintiffs'
attorney began to discuss and demonstrate how the shingles allegedly cracked and wore
the wire bare. Upon review of the record, we conclude that the District Court did
not
err when it determined that the plaintiffs had failed to present any evidence that
the wires
were in fact cracked or stripped bare from the shingles. Accordingly, we conclude
that
the District Court did not abuse its discretion when it interrupted the closing
argument
and directed the plaintiffs' attorney not to introduce or discuss evidence that was
not
already a matter of record.
As to the plaintiffs' assertion that the District Court inappropriately
interrupted the
closing argument and prejudiced their case, we conclude otherwise. The court's
statement to the jury made no specific reference to the statements in the plaintiffs'
closing, nor to their theory of the case. Its initial interruption of the argument
in front
of the jury was similarly benign: "Excuse me, Mr. Flaherty, will you approach--
let's go
into chambers. Ladies and gentlemen of the jury, we'll be right back." Therefore,
we
hold that the District Court did not abuse its discretion by its interruption and
admonition
during plaintiffs' closing argument.
ISSUE 6
Did the District Court deny the plaintiffs a fair trial?
The plaintiffs allege a number of other errors by the District Court, the
cumulative
result of which they assert was an unfair trial. However, they cite no relevant
legal
authority in support of their claims. Furthermore, after a review of the record, we
conclude that their allegations that the District Court erred and acted with bias
throughout
the trial are without merit. Accordingly, we hold that the District Court did not
deny the
plaintiffs a fair trial.
We affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
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/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
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