MASSMAN v CITY OF HELENA
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IF: THE SUPREME COIJRT OF TFE STATE OF MONTANA HUBERT J. MASSMAN, d/b/a HORSKY BLOCK, HUBERT J. MASSMAN, d/b/a MASSMAM LAW FIRM, MILLER ENTERPRISES, INC., a Montana corporation, and EPISCOPAL DIOCESE OF MONTANA, a corporation, Plaintiffs and Appellants, -vsCITY OF HEI,ENA, a Municipal Corporati on, Defendant and Respondent. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Mark P , Sullivan, Zudge presidina. COUNSEL OF RECORD: For Appel-l ant: Frank R . Morrison, Jr. argued; Morrison TIAW Firm, Helena, Movtana For Respondent: Robert Emmons argued; Emmons Montana & Submitted: ~i fdd :t-i-.: \ II L. ." 2, 1989 . .'.f . .. . . ,... : . L. February 21, 1989 Decided: ,. Coder, Great Falls, ... ;; ? < ? ' - Clerk - -- -- Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Plaintiffs appeal from the jury verdict and subsequent judgment of December 23, 1987, and from the denial of their Irction for a new trial by the First Judicial District Court, Lewis and Clark Countlr. The jury found the City of Helena (City) was not negligent in failing to require an operating sprinkler system in the basement of the Spectrum Building prior t:o the time of the fire in the building. The jury also found that the spread of the fire to the adjacent Horsky Block Building was not caused by any negligent fFrefighting methods or procedures employed by the City. Defendant filed a cross-appeal from the final judgnent. We affirm the jury verdict, judgment entered, and District. Court's denial of the motion for a new trial. Appellant raised the following issues on appeal: Did the District Court err in refusing plaintiffs' offered instruction stating that violation o f a city ordinance is negligence per se? ?. Did the District Court err- j n refusing to allow 1. plairltiffs to ask opinion testimony of two people disclosedl as witnesses but not as experts? 3. Did the District Court err in refusing the rebuttal testimony of an expert called to dispute the City's evidence that i.t. was not negligent in fighting the Spectrum Building fire? 4. Did the City improperly prejudice the jury by repezted mention of insurance during trial? Respondent raised numerous cross-appeal issues, which we w f ' l address in our discussi~nof the four above-mentioned eppeal issues, including the following: 1. Is the City exempted from any liability for the fire by the Public Duty Doctrine? 2. Is the City exempted from any liabilitlr for the Lire by the grandfather clause in 5 502 of the UBC? 3. I s the City exempted from any liability for the fire by general tort principles extending liability only to foreseeable act-ions? On June 17, 1980, a fire started in the basement of the Spectrum Ruildi-ng in downtown Helena. The fire quickly spread to the a?jzcent Horsky Block Building and completely destroyed it. At the time of the fire, the Spectrum Building was being remocleled by its owner, Ben Brown. The initial building permit obtained by Brown on May 3 - , 1979 authorized him to make up to $15,00G in 'alterations (Brown subsequently obtained various to the huildjng. plumbing, electrical and mechanical remodeling permits.) Lewis Thorne, the building inspector for the Cityr later determined as a result of his regular biweekly inspections alterationc that Brown had exceeded those building authorized. Consequently, Thorne issued a stop order on Jul:7 31, 1 3 7 9 . Brown then obtained two additional building permits, one on August 6, 1 3 ' 9 an2 the other on August z7, 1-979, which enabled him to continue remodeling the old Coast to Coast stcre into various retail shops and a restaurant. These two permits allowed for additional alterations in the sum of $78,000. All building permits required Brown to work in compliance with City Ordinances. One such ordinance, incorporating the 1976 URC, required an operational sprinkler sl-stem in the basements of remodeled buildings having a changed occupational charscter the same or more hazardous than the prior use. ( G J 502, UFC ( 1 9 7 6 ) . ) Prior to a final inspection and a final certificate of occupancy, the City issued a temporary certificate which permitted Rose's Cantina to open its restaurant on the top fl.oor of t h e remodeled Spectrum Bui 1din.q. This temporary certificate of occupancy was issued prior to the installation of an operational sprinkler system in the basement of the building. Pipes for the sprinkler system were on the basement floor, but not i n s t a l . l e c 1 at the time of the fire. The riser for the system had been install-ed but it had not been connected to the sprinkler hea.ds. The fire was called in at 9:51 p.m. on June 17, 1 9 8 0 . Firefigllters arrived on the scene minutes afterwards. Two firefighters attempted to get t.n the fire, located in the rear of the basement, from the one entrance located at the front cf the basement. However, a sheet rocked partition ha?. been placed just inside the hasement and this blocked access to the fire. Firefighters thus were unable to directly treat the fire while it still was contained within the basement, and it quickly spread upwards and then to the adjacent Horsky Block Building. John Carroll, one of the two investigators hired to determine the cause of the fire, stated that had fire sprinklers been in place in the Spectrum Building basement, the fire would not have spread to the Horsky Block Building. A later examination indicate?. the fire began in a basement st-orage closet under the stairs. No electrical appliances were in the im~ediatevicinity of this area. The origin location, the presence of various combustibles in the area of the fire origin, and the erected. partj.tion blocking firefighter access led fire investigators to conclude that the fire was incendiary (man-male) in origin. The parties di6. not dispute the incendiary nature of the fire. Consequently, on December 7, 1987, the District Court grante2 summary judgment on the issue cf the cause of the fire. The court, however, denied the City's motion for summary judgment on the issue of the duty owed tc plaintiffs. A jury trial began on December 14, 1987. The jury returned a verdict in lavor of the City on December 17, 1987. Plaintiffs filed a timely motion for a new trial after final judgnent was entered, but the court denied this nction. Plaintiffs then filed this appeal from the court's denial of a new trial and frorr, the f i r l a : j-cidam~nt. Defendant cross-appealed. i. T7IOLATION OF A CITY ORDINANCE AS NEGLIGENCE P E R SE Appellanl-.scontend that their damages resulted from t h c City's nealigence in failing to enforce section 3802(b) (1) of the 1976 TJRC. They contend violation of the UBC, expresslv adopted by City ordinance, constituted negligence per se 2 n d that the City should therefore be held liable for damage? arising because of this ~riolation. Appellants thus argue the District Court erred in refusins to cffer a fury instruction on negligence per se. Section 104(a) of the 1976 UBC generally requires all buildings altered after 1376, even if the buildings existed pricr to 1976, to comply with all new building requirement? provided in the UBC. The Spectrum Building as a preexisting building under extensive remodeling thus ha?. to comply wjth the requirements of the URC. UBC requirements mandate the installation and naintenance cf an operational, standard automatic fireextinguishing system jn the basement, and on every story, cf a31 buil2ings such as the Spectru~Building which contained a large h s e v e n t a ~ a i c l ? r c i f i e c ? as a Group F," h u i l c ' i n q . See, section 3802(b) (I), IJBC (1976). As stated in section Standard automatic fire-extinguishina systems shall be installed and maintained . [iln every in operable condition story, basement or cellar of all buildings except Groups R, Division 3 and M Occupancies when floor area exceeds 1500 square feet and there is not provided at least 20 square feet oi opening entirely above the ad joining ground level in each 5 0 lineal feet or fraction thereof of exterior wall in the story, basement or cellar on at least one . . If any portion side of the building of a basement or cellar is located more than 75 feet from openings required in this Section, the hasement or cellar shall he provided with an approved automatic fire-extinguishing system. . . . Section 306 of the UBC provides guidance as to when this fire-extinguishing system must be installed. Section 3 0 6 (a) generally states that a building may not be used or occupied "until the Building Official has issued a Certificate of Occupancy." Section 3 0 6 (c), UBC. The Building Official may not issue such a certificate until a final inspection confirms the building's compliance with URC requirements. No other UBC provisions expressly require the operation of a fire-extinguishing system prior to issuance o + this final Certificate of Occupancy. We therefore hold that although the Ruilding Inspector, acting on behalf of the City, had the duty of enforcing the requirement of an operational fire-extinguishing system, this duty did not arise until such time as the final Certificate of Occrxpancjl was issued. The remodeling of the Spectrum Ruj-lding had not been completed at the time 05 the fire on June 17, 1 9 8 0 . bTo final inspection or final Certificate of Occupancy had been issue6 prior to this time. The City had, however, issued a temporary Certificate of Occupancy which permitted the restaurant located on the top floor of the Spectrum Buildinq to open for business. The UBC expressly authorizes the City to issue such a temporary certificate so that the finished portion of a building may be used before completion of the e n t i r e building. The UBC d o e s not require the building to be in compliance with UAC requirements prior to issuance of this temporary certificate. Section 306 (d), tJBC (1976) Because the City had no duty to ensure the operation of a fire-extinguishing system before it issued the temporary Certificate of Occupancy or until such time as it issued a final Certificate of Occupancy, the City may not be held negligent for failing to enforce the requirement of an operational fire-extinguishing system before June 17, 1980. For this reason, we hold that the failure to offer a jury instruction on negligence per se did not amount to an abuse of discretion. Having so ruled, we need not address the various other . issues raised by the City as further support for its argument that it should not be held liable for damages arising from the fire. These issues incl-uded whether the City was protected from liability by the Public Duty Doctrine, by the grandfather clause found in sections 104 and. 502 of the 1976 UBC, or by general tort principles extending liability only to foreseeable actions. 11. ADMISSIBILITY OF EXPERT TESTIMONY Appellants argue that the District Court erred in refusing to allow John Todd, the assistant fire chief for the City of Helena fire department. at the time of the Spectrum fire, and Lewis Thorne, City Building Inspector at the time the fire, offer their expert opinions trial. The court prevented both from giving an expert opinion because they were disclosed only as lay witnesses and not as experts Appellants argue that the City knew the prior to trial. field of expertise of each, and thus it would not have been surprised by the testimony of either. Appellants contend that the exclusion of their expert opinions amounted to a hyper-technical ruling contrary to the holding in Ostermiller v. Alvord (Mont. 1986), 720 P.2d 1198, 43 St.Rep. 1180. At the outset, we note that the District Court has the discretion to rule on the admissibility of evidence, and we w i l l not reverse the court unless the ruling amounts to an abuse of discretion. Cooper v. Rosston (Mont. 1988), 756 We hold that the District Court did not abuse its discretion when it excluded the expert opinions of Todc! and Thorne. Rule 26 (e)(1) and (2), M.R.ci~7.p. requires partles i : o list all experts they expect to call at trial. (I) A party is under a duty seasonably to supplement his response with respect. to any question directly addressed to (B) the identity of each person expected to he called as an expert witness at trial, the subject matter on which he is expected to testify, and the suhstance of his testimony. P.2d 1125, 1127, 45 St.Rep. 978, 981; Rule 104, M.R.Evid. ... (2) A party is under a duty seasonably to amend. a prior response if he obtains information upon the basis of which . . . (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in suhstance a knowinq concealment. This rule serves to minimize the element of unfair surprise, thereby encouraging a trial on the merits. Consequently, when no surprise arises from a violation of this rule, thi.s Court has viewed the violation as hyper-technical and allowed the previously undisclosed lay or expert witness to testify. See, Ostermiller, 720 P . 2 d st 1201; Earrett v. Asarco, Inc. (Mont. 1988), P.2d. , 45 St.Rep. 1865. For example, in Ostermiller, the Court allowed the defense to elicit expert testimony from a physician even though the physicja.n was listed in interrogatory answers on1.y as a lay witness, and not as an expert. The Court concluded that no surprise would result from admission of this testimony for the following reasons: The pretrial order and interrogatory answers had listed the physician as a witness; both parties had deposed him prior to trial; and plaintiff had failed to Id. even alleqe any surprise. - at 1201. The facts in Ostermiller are significantly different from those in the present case. In response to a continuing interrogatory request for the names of all expert witnesses that Massman would call at trial, Massman stated that they had "no proposed expert witness identified." Appellants did list Todd and Thorne as lay witnesses, but they failed to amend this earlier interrogatory response to list the two as expert witnesses. Moreover, neither party had deposed either proposed expert. Consequently, the City objected when appellants then attempted to elicit an opinion from Todd as to the ultimate effect of the firefighting methods employed by the City upon the containment of the Spectrum ~ui1di.n~ fire. The City has claimed complete surprise. Given the facts in this case, we hold the ~istrictCourt did not abuse its discretion when it excluded the proposed expert testimony of Todd. Appellants also contend the opinion testimony asked of Todd was properly admissib1.e as a lay witness opinion. Rule 701, M.R.Evid., allows for the admission of a lay witmess opinion that is: ( a ) rationally hased on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. Todd's proposed testimony as to the ultimate effect of the firefighting meth0d.s on the cont.ainment of the Spectrum fire was not based on such personal perceptions. Rather, his opini.on, about the most effective methods for combating such a fire, was based on that special.ized, technical knowledge obtained from his fire training and work as an assistant fire chief. As such, the substance of his opinion constituted an expert opinion rather then a lay witness opinion. An expert opinion generally is one "not within the range of ordinary training or intelligence." See generally, Kelley v. John F. Daily Co., (1919), 56 Mont. 63, 79, 181 P. 326, 331 (construing Section 7887(9) of the 1907 ~ e v i s e d Codes of Montana, which was the forerunner of the present statutory rule on expert testi.mony, Rule 702, M.R.~vid.). The ~istrict Court thus committed no error when it precluded admission of this expert opinion testimony an$. advised appellants tc limit their questions to those requiring an answer base6 on personal perceptions. Appellants did not seek an expert opinion from Thorne during t.rial because of an alleged ruling by the ~istrict Court in advance of trial that any such t.estimony would not be admissible. No record, however, exists of this ruling. This Court will only t-ake notice of those court rulings attested to by the record or agreed upon by both parties. We ~3'11 not assume the truth of a contested statement about an allegedly unrecorded prior court order; such a statement would constitute hearsay. See Rule 801Ic), M.R.Evid. Procedures exist under Rule 9 (d) or (e), M.R.App.P. whereby a party may bring such evidence, which is not a part of the record, to the attention of this Court. Appellants failed to follow this procedure, and we will. not now consider the issue of whether the ~ i s t r i c tCourt erred in precluding Thorne from testifying as an expert at trial-, an issue predicated upon our consideration of an unrecorded ruling and objection. 111. ADflISSIBILITY OF REBUTTAL TESTIMONY Appellants contend that the District Court erred in refusing to allow a retired Billings firefighter, Melvin LaMotte, to give his expert opinion during rebuttal as to the alleged negligent firefighting by the City on the Spectrum fire. The court precluded the admission of such testimony because appellants failed to 6isclose JJaMotte as an expert witness prior to trial. The law does not require the advance disc]-osure of rebuttal witnesses. ~ i l s o n v. Swanson (1976), 169 Mont. 328, 546 P.2d 990. Such previously undisclosed rebuttal witnesses, however, may offer testimony only about "that which tends to counteract new matter offered by the adverse party. " Gustafson v. N. Pac. Ry. Co. /1960), 137 Mont. 154, 164, 351 P.2d 212, 217. F determination of whether proposed testimony is admissible as rebuttal testimony in any given case is within the sound discretion of the District Court, and we will not reverse the District Court's ruling unless it abused this discretion. Spurgeon v. Imperial El-evator Co. (1935), 99 Nont. 432, 438, 43 P.?d 891, 893. We hold that the District Court did not abuse its discretion when it excluded the rebuttal testimony of LaMotte. LaMottels proposed t.estimony related to the issue of whether the City negligently fought the Spectrum fire. This issue was not a new matter raised by the defense; it was one of the main issues raised by appellants in their ccmpl-aint . Appellants had the burden of proving the allegations in their complaint during their case-in-chief. Appe1lant.s attempted, but failed, to meet this burden through the expert testimony of Todd. (The District Court. properly excluded Tod-d 's proposed expert testi-mony because of appellants' failure to disclose him as an expert witness ~ a v i n g failed to meet this burden durinq prior to trial.) their case-in-chief, appellants could not then assert that the City's all-eged negligent firefighting was a "new matter" first raised by the defense and thereafter introduce expert t.esti.monyon this issue upon rebuttal. The ~ i s t r i c tCourt properly prevented any unfair surprise by excluding the expert testimony of LaMotte. INTERJECTION OF INSURANCE AT TRIAL. Appel-lants contend they were prejudiced by the City's alleged mention of insurance on five different occasions during trial. They argue this improper mention of insurance constituted reversible error warranting a new trial. The interjection of liability insurance coverage or noncoverage generally is prohibited at law. Rule 411., M.R.Evid., states: IV. Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance li-abi lity when offered for against another purpose, such as proof of agency, ownership, or control, prejudice of a witness. or bias or The District Court. is charged with determining if any given mention of liability insurance is sufficiently prejudicial to warrant a new trial. Doheny v. Coverdale (1937), 104 Mont. 534, 555, 68 P.2d 142, 148. his determinati-ondepends upon the circumstances and manner in which the subject of insurance is brouqht into the case. See, e .q. , D'Hooqe McCann (1968), 151 Mont. 353, 360, 4 4 3 P.2d 747, 751. We will not disturb a District Court's determination unless the court abused its discretion in so ruling. In the present case, we hold that the evidence failed to show that the Di-strict Court abused its discretion when it denied appellants' post-trial motion for a new trial b e c a u ~ e of the alleged interjection of insurance into the case. The first. claim of an improper mention of insurance occurred during the cross-examination of Todd. The City7 questioned whether Todd was told: . that there was a conflict of interest in your being someone performing inspections for the city, and going out and soliciting insurance for people thatyou were looking at their homes or bulldings . T . ~ . . . This question was asked to demonstrate Tod.dlsgeneral lack of judgment and thereby, to undermine his credibility as a witness. As such, it falls within the exception to the Rule prohibiting the introduction of evidence of liability insurance. See Rule 411, M.R.Evid. Further, the question only highlights the conflict of interest arising when one sells insurance and then inspects some of those same insured buildings; it does not specify that the Spectrum ~uildingwas . one of those insured buildings. 'This general question would be insufficient to prejudice the appellants. Appellants' second claim is that respondent improperly raised the issue of insurance while cross-examining the owner of the Horsky Block ~uildinq. The City asked the follotring question: Q. And on the real. estate, you have stipulated your uncompensated loss was $60,000? Appellant immediately approached the bench and objected before the owner of the Horsky Block ~uilding could answer this question indirectly relating to insurance coverage. This question did not directly ask whether the owner was covered by insurance, and no evidence was introduced to indicate that any jury member understood from it that Massman had liability insurance. Questioning proceeded without any other allusion to insurance. within the total framework of the trial, we hold that the District. Court also 3.i.d not abuse its discretion by holding that this single question alludinq to insurance was insufficient to warrant a new trial. Appellants' third claim of the improper mention of insurance is totally without merit. We will not discuss it, except to state that appellant objected before any portion of John Carroll's deposition naming the insurance company involved in the Spectrum fire could be read to the jury. Appellants' fourth claim is that several jury members saw the cover page of Todd's final investigative report which listed all the City's insurance and which was placed on respondent's counsel table within view of the jury after it was excluded from introduction into evidence. No evidence exists t-hat any jury member in fact saw this cover sheet prior to it being removed from respondent's counsel table by counsel for appell.ants. Finally, appellants claim that the City mentioned insurance during closing argument. No record exists of the closing argument in this case. For the reasons previously stated in section II above, we will not consider this fifth claim which is based upon a nonexistent record. Finding no abuse of discretion, we affirm the District Court's denial of a new trial. The jury verdict and judgment of the ~istrictCourt is affirmed. / We concur: " ' JuCge of the District Court., sitting for Mr. Justice John Cnnway Harrison
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