NO. 94-490
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
BRIAN ROBERT CONTRERAS,
Plaintiff and Appellant,
-v-
VANNOY HEATING & AIR
CONDITIONING, INC.
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
1n and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James D. Walen, Stacey & Walen, Billings, Montana
For Respondent:
Don M. Hayes, Herndon, Hartman, Sweeney & Halverson,
Billings, Montana
Submitted on Briefs: January 26, 1995
Decided: March 30, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court
This is an appeal from a jury verdict in the Thirteenth
Judicial District court, Yellowstone county, finding for
defendants. We affirm.
We consider the following issues on appeal:
I. Did the District Court err when it denied plaintiff's motions
for partial summary judgment and for directed verdict on the issue
of liability?
II. Did the District Court improperly instruct the jury?
Brian Contreras (Contreras) worked for the City of Billings on
June 30, 1987, when the explosion that is in controversy here
occurred. Contreras was a fifteen year old and worked through the
District Seven Human Resources Development Council, an agency that
provides employment and training for underprivileged minors.
Contreras worked as a maintenance trainee at the Parmly Library
Building.
On June 30, 1987, Contreras's supervisor, James Southworth
(Southworth), instructed Contreras to clean the boiler room
situated on the fourth floor of the building. While cleaning the
room with a backpack vacuum cleaner, Contreras hit a valve on a gas
line, approximately six inches from the boiler. The valve fell off
the gas line and natural gas began to leak out of the line.
Contreras ran after Southworth who immediately came to the
boiler room and unsuccessfully attempted to stop the leak. A pilot
light on the boiler ignited the gas and an explosion resulted,
causing Contreras severe burns.
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Contreras filed a complaint on June 20, 1990, against the City
of Billings, Southworth, and a number of John Does. Southworth and
the City of Billings were dismissed following their motion for
summary judgment. Contreras then amended his complaint to add
Vannoy Heating & Air Conditioning, Inc. (Vannoy) as a defendant.
Vannoy had a contract with the library for the heating, ventilating
and air conditioning system (HVAC) maintenance. Contreras alleged
he would not have been injured had Vannoy inspected the valve as it
was required to do.
Both parties filed cross motions for summary judgment which
were denied on March 15, 1994. Trial was held on April 18, 19 and
20, 1994, followed by both parties' move for a directed verdict.
Both were denied. On April 25, 1994, the jury found that Vannoy
was not negligent. Contreras' May 9, 1994, motion for a new trial
was denied on May 25, 1994. Contreras appeals from the judgment
entered for defendant Vannoy.
Did the District Court err when it denied plaintiff's motions
for partial summary judgment and for directed verdict on the issue
of liability?
Contreras argues that under its contract, Vannoy was
responsible for all hand valves in the HVAC system and that the gas
shut off valve was such a hand valve. Contreras also contends that
no one from Vannoy ever inspected the valve; and because the
contract specifically calls for inspection of the system of which
the valve was a part, the court should have directed a verdict or
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granted partial summary judgment to Contreras.
Vannoy argues that the gas shut off valve was a
nonmaintainable part of the system for which it had no
responsibility under the contract. Vannoy further asserts that the
contract is ambiguous concerning the valve in question and the jury
had the responsibility to decide whether Vannoy had a duty or not.
If there is any evidence that warrants submission to the jury,
a directed verdict is inappropriate. Kearney v. KXLF
Communications, Inc. (1994), 263 Mont. 407, 869 P.2d 772. A party
is entitled to summary judgment only if no genuine issues of
material fact exist and it is entitled to judgment as a matter of
law. McDonald v. Anderson (1993), 261 Mont. 268, 862 P.2d 402. In
order to prove any claim of negligence, a party has to show duty,
breach of that duty, and resulting damage caused by the defendant.
Lindey's v. Goodover (1994), 264 Mont. 449, 872 P.2d 764.
The court denied summary judgment because it determined that
genuine issues of material fact existed. Following the trial, the
court denied both plaintiff's and defendant's motion for directed
verdict.
In order for Contreras to be granted summary judgment or a
directed verdict on the issue of Vannoy's liability, he had to show
that all evidence submitted proves that Vannoy had a duty to
Contreras and that it breached that duty. Contreras argues that
the existence of a legal duty is a question of law for the court.
If there are issues of fact as to the presence or absence of a duty
owed to the plaintiff, then the court must instruct the jury to
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make the initial fact determination, and then apply the correct
standard as furnished by the court. Olson v. Kayser (1973), 161
Mont. 241, 505 P.2d 394.
The two parties presented facts demonstrating a controversy as
to the existence of a duty owed to Contreras. To make a
determination as to the presence of a duty, the jury had to decide
whether the valve was a "hand valve" or a "nonmaintainable" part of
HVAC or not a part of HVAC at all. Contreras argues that the valve
was a hand valve and under the contract repair and maintenance of
all hand valves was required. Contreras also referred to another
part of the contract which required Vannoy to inspect the entire
system and he contends the valve was a part of the system.
Vannoy introduced evidence which demonstrated that the valve
was not a part of the HVAC system. Vannoy pointed out that if the
valve was part of the piping and duct work on the boiler, then
Vannoy was not responsible for inspection or maintenance.
Witnesses Aron Schenk and Rod Putnam testified that the valve in
question was not part of their responsibility under the contract
between Vannoy and the City of Billings. Southworth testified that
his maintenance staff worked on valves such as this and only called
Vannoy when there was a problem. There is substantial evidence
from which the jury could have concluded that under its contract,
Vannoy was not responsible for the valve.
In addition to employees of Vannoy, Vannoy presented evidence
that the company responsible for the HVAC system before Vannoy took
over the contract did not consider the valve as part of its
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responsibility to inspect or repair. Also, an engineer testified
that it was possible to consider the valve as part of the piping
and duct work for which Vannoy had no responsibility.
We conclude there were significant issues of material fact
which precluded summary judgment. In a similar manner, there
remained significant issues of fact as to the presence or absence
of a duty owed to Contreras which precluded a directed verdict.
Depending on which set of facts the jury believed, a different
duty would ensue. The fact finder had to determine whether the
contract was applicable to the valve in question and then, if it
was applicable, which section of the contract described the valve
in question: the section relating to hand valves as being within
Vannoy's scope of responsibility or the section that describes non-
maintainable parts of the system for which Vannoy did not have
responsibility. There is no way the duty and breach elements of
negligence could have been determined without a determination of
which facts were applicable.
Both sides also presented testimony about the element of
causation. Vannoy contended that Contreras was responsible for his
own injury. Vannoy's manager testified that if the valve had been
damaged prior to Contreras' hitting it with the vacuum cleaner, gas
would have been leaking from the valve. Contreras' own supervisor,
Southworth, who had been in the boiler room a short while before
the explosion, testified that there was no gas odor before
Contreras hit the valve. The State Boiler Investigators who
inspected the boiler in 1986, passed the boiler after an inspection
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found everything in working condition. Thus, evidence was
presented that the valve did not leak. Further, Southworth
testified that when he smelled the strong gas odor on the fourth
floor after being summoned by Contreras, he yelled for everyone to
get out because the boiler was going to blow. Contreras did not
move from the doorway of the boiler room. We finally conclude
that substantial evidence was presented from which the jury could
have determined that the actions of Vannoy did not cause Contreras'
injury.
The record shows that both sides produced evidence and
testimony to support their arguments concerning all three elements
of negligence in contention: duty, breach of duty, and causation.
Because of the conflict in the evidence as to the duty on the part
of Vannoy, the court instructed the jury as follows:
Instruction #lO
Plaintiff contends Defendant had a duty under the
maintenance contract between Defendant and the City of
Billings to maintain and service the valve which caused
the explosion. Plaintiff further contends that Defendant
had the duty to exercise reasonable care and skill in
inspecting, servicing and maintaining the HVAC system.
Defendant contends it did not have a duty under the
maintenance contract between it and the City of Billings
to maintain and service the valve which caused the
explosion.
In resolving the question of Defendant's duty, the
jury may consider the contract, exhibit 9, the intent of
the parties when they made the contract and the actions
of the parties in fulfillment of the contract.
The court went on to instruct the jury about all facets of
negligence including the burden of proof and elements of
negligence, proximate causation, and intervening cause. While we
do not know from the jury verdict which element of negligence was
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not proven to the jury's satisfaction, the record indicates that
they were instructed properly concerning the negligence theory.
We conclude that SJllNXXy judgment would have been
inappropriate because genuine issues of material fact existed as to
Vannoy's liability. A directed verdict on the issue of liability
would have been inappropriate because the determinative question in
this case was one of fact and both sides presented facts to support
their positions. The District Court did not err in denying the
motion for partial summary judgment and the motion for directed
verdict on the issue of liability.
II.
Did the District Court improperly instruct the jury?
Contreras argues that the court improperly instructed the jury
by not giving instructions on his theory of the case. Vannoy
argues that the instructions were appropriate and presented an
accurate view of the law. It is within the District Court's
discretion to decide how to instruct the jury, taking into account
theories of contending parties, and we will not overturn the court
except for abuse of discretion. Hall v. Big Sky Lumber & Supply,
Inc. (1993), 261 Mont. 328, 863 P.2d 389.
Plaintiffs Proposed Instructions #20, 20A, 20B and 2OC
Contreras argues that he was denied a fair trial because the
court did not give these four instructions and, therefore, the jury
was denied consideration of his side of the case. The above
instructions acted to direct a verdict on the element of duty:
"YOU are instructed that the gas hand valve in question was covered
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by the HVAC Maintenance Agreement . .'I Proposed instruction #20.
This assumes facts in question. All four instructions were worded
to direct the jury that Vannoy had a duty under the contract. The
court did not err in failing to give these four instructions.
Plaintiff's Proposed Instruction #17, 24, and 25
Contreras argues that these instructions were needed to
properly present his theory of the case. A review of these
instructions reveals that they are duplicitous and not correct
statements of the law.
Proposed Instruction #17 states:
More than one person may be liable for causing an
injury. A defendant may not avoid liability by claiming
that some other person (whether or not named as a
defendant in this action) helped cause the injury.
The idea of multiple liable parties was handled adequately by the
court's instructions #lO through 18. The proposed wording is not
totally accurate because it does not present the entire picture to
the jury. The court's instructions #13 and #14 talk about the
specifics of both plaintiff's and defendant's burden of proof for
their theories of liability.
Proposed Instruction #24 states:
Where one has negligently caused a condition of
danger, he is not relieved of responsibility for damage
caused to another merely because the injury also involved
the later misconduct of someone else, if that conduct was
foreseeable.
The court gave instead Instruction #lS:
An intervening cause does not relieve an actor from
liability for his negligent acts where the intervening
cause is one which the defendant might reasonably
anticipate under the circumstances.
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a duty which, we have already stated, cannot be assumed under the
facts of this case.
Proposed Instruction #21 stated:
Defendant and its employees owed a duty to perform
its work with reasonable care and skill so as not to
cause injury to the person of another.
The court gave instruction #ll which stated that "Every person" is
responsible for injury to the person or property of another, caused
by his or her negligence. Contreras' version is confusing as it
could be construed by the jury as a directed verdict on the element
of duty. As mentioned before, whether the element of duty was
satisfied depended upon the set of facts that the jury found to be
true.
Plaintiff's Proposed Instruction #23
Contreras offered Proposed Instruction #23 which stated:
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 sufficiently eliminated by the evidence.
Contreras argues that this is a "classic res ipsa loquitur" case.
That is not accurate.
Res ipsa loquitur does not permit the presumption of
negligence; a plaintiff must make a prima facie case that
defendant breached a duty of care before the question
goes to the jury.
Clark v. Norris (19871, 226 Mont. 43, 48, 734 P.2d 182, 185. The
elements of duty and breach of duty were very much in question
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under the facts of this case.
Further, the doctrine of res ipsa loquitur encompasses an
element of "exclusive control" of the instrumentality involved.
Dalton v. Kalispell Hospital (1993), 256 Mont. 243, 846 P.2d 960.
The "instrumentality" involved, the valve, would have to have been
under the exclusive control of Vannoy. Control is a significant
issue in the case. Further, the key to the boiler room hung on a
hook in an adjoining room where anyone could have taken it.
Contreras cannot use this theory to bypass presentation of evidence
on the elements of negligence.
We conclude that the court properly instructed the jury on all
theories of the case and on the appropriate law. We hold that the
District Court did not abuse its discretion in instructing the
jury.
Affirmed.
We Concur:
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Contreras v. Vannoy Heating & Air Conditioning, Inc.
Court: Montana Supreme Court
Date filed: 1995-03-30
Citations: 892 P.2d 557, 270 Mont. 393, 52 State Rptr. 246
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