author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WESLEY A. McKEE, Defendant and Appellant.
    No. 97-349.
    Submitted on Briefs March 26, 1998.
    Decided May 5, 1998.
    1998 MT 110.
    55 St.Rep. 433.
    958 P.2d 700.
    288 Mont. 454.

      For Appellant: David E. Stenerson, Attorney at Law, Hamilton.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; Jeffrey B. Hays, Darby Town Attorney, Hamilton.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Following a bench trial in Darby City Court, Wesley A. McKee was found guilty on misdemeanor charges of driving under the influence of alcohol, reckless driving, and leaving the scene of an accident. McKee appealed his conviction de novo to the Twenty-First Judicial District Court, Ravalli County. Prior to trial, McKee filed a motion to dismiss the charges pending against him or, in the alternative, to suppress certain evidence. The District Court denied McKee’s motion, and McKee subsequently pled guilty to the three charges on which he had been convicted in Darby City Court, but reserved his right to appeal from the District Court’s order denying his alternative motions. For the reasons stated below, we affirm in part and reverse in part.

¶2 McKee presents the following issues on appeal:

¶3 1. Did the District Court err in concluding it could not act as a court of review, thereby denying McKee’s motion to dismiss based on his assertion that he was denied his right to a jury trial in the Darby City Court?

¶4 2. Did the District Court err in concluding McKee was arrested pursuant to a valid arrest warrant, thereby denying McKee’s motion to dismiss the charges leveled against him or, in the alternative, to suppress certain evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Early in the afternoon on December 24, 1994, Officer Larry Rose, Marshall for the town of Darby, was dispatched to the scene of a traffic accident. When Rose arrived at the scene, he spoke with Thomas Boe, whose parked vehicle had been sideswiped. Boe identified McKee as the driver of the other vehicle and told Rose that McKee had appeared intoxicated. Boe also told Rose that McKee had stated he was going home, and that he had left the scene of the accident.

¶6 Rose then drove to the McKee residence and met McKee’s wife, Mitzi McKee, at the door. Mitzi initially told Rose that her husband was not home. After Rose explained that it appeared McKee had just left the scene of an accident, Mitzi replied that McKee was inside the house washing a dog. Rose asked Mitzi to go inside and bring McKee to the door, so Mitzi left briefly, but returned, explaining that she had been unable to find him.

¶7 Rose made several calls for backup, and learned through dispatch that Ravalli County Sheriff’s Detective Pete Clarkson was responding from Hamilton. In the meantime, Darby Mayor, Rich Higgins, and Darby resident, Keith Fisher, also heard Rose’s calls, and arrived at the McKee residence to provide assistance. Higgins and Fisher agreed to watch the McKee residence until Clarkson arrived, while Rose left to obtain a warrant.

¶8 Rose drove home, and contacted Darby Town Judge, Martha Bethel, by telephone at her home. In their unrecorded conversation, Rose explained to Judge Bethel that a witness had seen McKee, in an apparently intoxicated condition, leaving the scene of an accident. Rose told Judge Bethel he had proceeded to McKee’s residence, and told her of his discussion with Mitzi. Judge Bethel verbally authorized the arrest, and drafted an arrest warrant on her home computer. Whether Judge Bethel physically executed the warrant, however, is unclear. In any event, Rose did not have a written arrest warrant in hand when he returned to apprehend McKee at his residence on the afternoon of December 24, 1994.

¶9 Upon receiving Judge Bethel’s verbal authorization, Rose returned to the McKee residence and, without providing any documentation, informed Mitzi that the judge had issued a warrant for the arrest of her husband. In response, Mitzi permitted Rose and Clark-son to enter the home and search for McKee. Unable to locate McKee, Rose telephoned Mitzi’s mother, the owner of the house, who told him of a crawl space located beneath the house. Rose found McKee hiding in the crawl space and placed him under arrest.

¶10 McKee was charged with the misdemeanor offenses of driving under the influence of alcohol (DUI), reckless driving, leaving the scene of an accident, and obstructing a peace officer. McKee appeared at his January 4,1995, arraignment before Judge Bethel with court-appointed counsel, and entered a plea of not guilty to each of the charges leveled against him. At a May 30,1995, omnibus hearing, the court scheduled McKee’s trial for June 30, 1995. On June 5, 1995, McKee waived his right to a speedy trial. Shortly thereafter, McKee’s original counsel relocated her practice, and David Stenerson became McKee’s counsel of record on July 13, 1995.

¶11 McKee subsequently filed a motion to continue the trial date, and on October 6, 1995, the court ordered that McKee appear for a trial before the bench on October 11,1995. Judge Bethel presided over McKee’s bench trial and, on October 11, 1995, convicted McKee of DUI, reckless driving, and leaving the scene of an accident. On October 16, 1995, McKee filed a notice of appeal, requesting a trial de novo in the district court.

¶12 The District Court scheduled a jury trial for April 11,1996, and on February 12, 1996, McKee filed a motion to dismiss the charges against him or, in the alternative, to suppress certain evidence. The District Court denied McKee’s alternative motions by way of a May 22, 1996, order. McKee subsequently pled guilty to the offenses of DUI, reckless driving, and leaving the scene of an accident, but reserved his right to appeal the court’s adverse ruling on his motion to dismiss and alternative motion to suppress. The District Court sentenced McKee to the terms previously imposed by the Darby City Court, ordering that McKee serve sixty days in jail with fifty-nine suspended for the DUI conviction, ten days in jail with nine suspended for the conviction of leaving the scene of a traffic accident, and ninety days in jail with eighty-nine suspended for the conviction of reckless driving. McKee filed his notice of appeal on July 19,1996.

DISCUSSION

¶13 A district court’s decision to grant or deny a motion to dismiss in a criminal case involves a question of law which we review de novo to determine whether the court’s interpretation of the law is correct. State v. Nye (1997), 283 Mont. 505, 509, 943 P.2d 96, 99.

¶14 We review a district court’s decision denying a motion to suppress to determine whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Woods (1997), 283 Mont. 359, 359, 942 P.2d 88, 93.

ISSUE 1

¶15 Did the District Court err in concluding it could not act as a court of review, thereby denying McKee’s motion to dismiss based on his assertion that he was denied his right to a jury trial in the Darby City Court?

¶16 On appeal, McKee asserts he never waived his right to a trial by jury, and contends he acquiesced to a bench trial in Darby City Court “only after it became apparent that the Court was determined to proceed and that it would be in his best interest” to do so. Asserting he “was effectively forced into trial before the Bench without a verifiable waiver of [his] right” to a trial by jury, McKee asserts “his constitutional rights to due process of law were violated” and the District Court thus erred in denying his motion to dismiss.

¶17 In response, the State concedes there exists “no written record to demonstrate [that McKee] waived his right to a jury trial in justice court,” but disputes McKee’s assertion that Judge Bethel “compelled” him to proceed with a bench trial. The State instead asserts that McKee’s verbal agreement to proceed with a bench trial constitutes a valid waiver. Even assuming McKee did not properly waive his statutory right to a jury trial, the State asserts his exclusive remedy was an appeal to the District Court for a trial de novo.

¶18 We have recognized that, with few exceptions, “a defendant’s exclusive remedy for a conviction injustice court is an appeal to the district court for a trial de novo.” State v. Barker (1993), 260 Mont. 85, 91, 858 P.2d 360, 363. On an appeal from justice court, the district court does not “sit as a court of review, but tries the cause de novo.” City of Billings v. McCarvel (1993), 262 Mont. 96, 101, 863 P.2d 441, 444 (quoting State v. O’Brien (1907), 35 Mont. 482, 491, 90 P. 514, 516-17). An appeal to the district court thus provides a defendant with the opportunity to have a trial de novo, thereby curing whatever prejudice may have resulted in city court. See, e.g., McCarvel, 262 Mont. at 101, 863 P.2d at 445.

¶ 19 Similarly, in the present case, the District Court was not sitting as a court of review, but was responsible for providing McKee with a de novo trial. Had McKee chosen to proceed to trial before the District Court, the trial would have cured any prejudice he suffered when “compelled” to proceed with a bench trial in city court. That McKee chose to forego a new trial and instead pled guilty to the charges against him, does not alter the fact that his exclusive remedy in this case was a de novo trial. Based on the foregoing, we hold the District Court properly denied McKee’s motion to dismiss, and correctly concluded that “any jury trial right violation was statutory in nature and is remedied by trial de novo before a jury in this court.”

ISSUE 2

¶20 Did the District Court err in concluding McKee was arrested pursuant to a valid arrest warrant, thereby denying McKee’s motion to dismiss the charges leveled against him or, in the alternative, to suppress certain evidence?

¶21 In its order denying McKee’s motion to dismiss and alternative motion to suppress certain evidence, the District Court determined that McKee had been arrested pursuant to a valid arrest warrant. In so holding, the District Court concluded “that Judge Bethel had adequate grounds to issue an arrest warrant,” and held “[t]he fact that she has only produced an unsigned warrant for this hearing is not deemed to be of such significance that it affects the substantial rights of the accused in this case, § 46-6-204, MCA, particularly where the warrant was issued upon probable cause and met all other statutory requirements.”

¶22 On appeal, McKee first argues the warrant pursuant to which he was arrested violated select provisions of § 46-6-214(1), MCA, and that the District Court thus erred in upholding its validity and the legality of his arrest. More specifically, McKee argues the warrant approved telephonically by Judge Bethel violated § 46-6-214(1)(a), MCA, which requires an arrest warrant to “be in writing in the name of the state of Montana or in the name of a municipality if a violation of a municipal ordinance is charged,” as well as § 46-6-214(l)(f), MCA, which mandates that an arrest warrant “be signed by the judge of the court with the title of office noted.” McKee notes that, although Judge Bethel verbally approved Rose’s request for an arrest warrant and apparently drafted a warrant on her home computer, she did not provide Rose with a signed or written copy. In the absence of a signed and written warrant, McKee argues that both his arrest and the related search of his home were illegal. Based on the foregoing, McKee argues the District Court erred in denying his alternative motions to dismiss and to suppress, and asserts this Court ought to order the charges against him be dismissed. In the alternative, McKee asks that this Court order the suppression of all evidence gained after the alleged illegal entry into McKee’s home.

¶23 The State, in contrast, asserts the District Court correctly concluded that the arrest warrant in this case was valid. Conceding that there exists no statute in Montana explicitly authorizing telephonic arrest warrants, the State nevertheless argues the warrant in this case was valid because it complied with the substantive mandates of § 46-6-214(1), MCA. For instance, the State argues the warrant was based on probable cause, was supported by an oath, and particularly described the person to be seized. Pointing to the case of State v. Andries (Minn. 1980), 297 N.W.2d 124, the State asserts the statutory requirement that the warrant “be signed by the judge of the court with the title of office noted” amounts to nothing more than a ministerial task, and that Judge Bethel’s failure to sign the warrant at issue did not affect its validity.

¶24 In Andries, the Minnesota Supreme Court upheld the validity of a search warrant “authorized over the telephone by a judge who fully complied with the requirements of the relevant statutes except that he did not personally sign the warrant but instead delegated that ministerial act to the applicant.” Andries, 297 N.W.2d at 125. In that case, a county attorney with probable cause to believe that marijuana would be found at a certain residence, sought telephone authorization for a search warrant from a judge located eighty-five miles away. Andries, 297 N.W.2d at 125. The judge convened a three-way conference call with the county attorney and the deputy sheriff involved in the case, during which the deputy sheriff signed and read an affidavit prepared by the county attorney, and read a proposed warrant. Andries, 297 N.W.2d at 125. The judge determined there was probable cause upon which to base a search warrant, and “delegated to the deputy the task of signing the judge’s name to the warrant.” Andries, 297 N.W.2d at 125. In upholding the warrant’s validity despite the absence of a statute explicitly authorizing telephonic search warrants, the court in Andries cautioned that it did “not mean to sanction the indiscriminate use of such a procedure,” but noted that under the circumstances of that case “there was a demonstrated need for such a warrant, the procedures specified in the statute were substantially followed, and a record was made which was thereafter available for use by defendant in challenging the issuance of the warrant.” Andries, 297 N.W.2d at 125-26.

¶25 Under the circumstances present in this case, we decline the State’s invitation to follow the Minnesota Supreme Court’s decision in Andries and to declare the statutory requirement that the authorizing judge sign an arrest warrant an inconsequential, ministerial task. Section 46-6-214(1), MCA, clearly mandates that an arrest warrant “be in writing” and “be signed by the judge” by whom it is issued. It is undisputed that, for whatever reason, Judge Bethel never signed the warrant she drafted for McKee’s arrest. Moreover, although the District Court record in this case does contain a copy of the unsigned warrant, presumably drafted and dated by Judge Bethel on the afternoon of December 24, 1994, whether the warrant was actually in writing at the time of McKee’s arrest is unclear.

¶26 Furthermore, in light of the fact that two individuals agreed to stand guard over the McKee residence in Officer Rose’s absence, and in light of the relatively short distance between Officer Rose’s location and Judge Bethel’s residence, we conclude the State has failed to adequately demonstrate its need for the immediate issuance of a telephonic arrest warrant. Finally, we note that the conversation between Officer Rose and Judge Bethel, and upon which Judge Bethel relied in authorizing McKee’s arrest, was not recorded. Thus, although Judge Bethel documented the facts upon which she made her probable cause determination, there exists no electronic recording upon which McKee may rely in challenging the warrant at issue. Based on the foregoing, we hold the District Court erred in concluding that McKee was arrested pursuant to a valid arrest warrant.

¶27 Having so held, we must next determine whether the appropriate remedy lies in a dismissal of all charges, or the suppression of any evidence seized after the illegal arrest. We have recognized that the appropriate course of action in the event of an illegal arrest is not to dismiss all charges, but to suppress all evidence seized or otherwise gained as a result of the arrest. See, e.g., State v. Hendrickson (1997), 238 Mont. 105, 112, 939 P.2d 985, 989; City of Billings v. Whalen (1990), 242 Mont. 293, 298, 790 P.2d 471, 475 (concluding that, where an arrest is illegal, “all evidence against defendant seized as a result of such arrest is inadmissible.”); State v. Ellinger (1986), 223 Mont. 349, 356, 725 P.2d 1201, 1205 (recognizing that “an unlawful arrest has no impact on subsequent prosecution” and that such an arrest does not prevent the State from proceeding with criminal charges). Accordingly, the appropriate remedy in the instant case is for the court to suppress all evidence gained as a result of the invalid arrest warrant.

¶28 Based on the foregoing, we conclude that although the court did not err in denying McKee’s motion to dismiss, it did err in denying his motion to suppress all evidence gained as a result of the invalid arrest warrant.

¶29 Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    ANGELA HEATH, Petitioner and Appellant, v. MONTANA MUNICIPAL INSURANCE AUTHORITY, Respondent and Insurer for CITY OF LEWISTOWN POLICE DEPARTMENT, Respondent.
    No. 97-669.
    Submitted on Briefs April 23, 1998.
    Decided May, 5, 1998.
    1998 MT 111.
    55 St.Rep. 437.
    959 P.2d 480.
    288 Mont. 463.

      For Appellant: Cameron Ferguson, Hartelius, Ferguson, Baker & Kazda, Great Falls.
    For Respondent: Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal by petitioner Angela Heath (Heath) from a September 25,1997 order of the Workers’ Compensation Court granting summary judgment in favor of Montana Municipal Insurance Authority and the City of Lewistown Police Department (collectively referred to as the City). We affirm.

BACKGROUND

¶2 Heath began working as a dispatcher for the City of Lewistown Police Department on April 2,1996. The police department is located in the Lewistown City Building. This building fronts on Watson Street, a public street maintained by the City of Lewistown. Adjacent to and abutting the street is a public sidewalk, which for ease of reference will be referred to as the “Watson Street sidewalk.”

¶3 On the side facing Watson Street, the Lewistown City Building has three separate entrances, one for the fire department, one for the police department, and the third for other city offices. Separate sidewalks link each of the three entrances to the Watson Street sidewalk. In addition to the front entrances, the police department has an additional entrance at the rear of the building. The police department’s rear entrance is locked, but police department employees are provided keys to that entrance. Heath had not yet received a key when she was injured.

¶4 Parking lots are located behind the Lewistown City Building and adjacent to and on the right side of the building when viewed from Watson Street. A “throughway” or alley separates the adjacent lot from the building. There is also a third parking lot across Watson Street from the building. The rear parking lot has several parking spaces reserved for police department employees. Otherwise, all spaces in the parking lots and on the street, with the exception of a fire lane directly across from the Lewistown City Building, are unreserved and open for parking not only by city employees but by the general public as well. The parking lot adjacent to the building serves both the Lewistown City Building and a nearby community center.

¶5 Heath was not required to drive to work and was not paid to do so. She was told that she could park in any of the parking lots on or near the street, except on Watson Street immediately in front of the building.

¶6 On her second day of work, April 3, 1996, Heath left her home for work at approximately 7:30 a.m. She drove to work in her car, arriving at the Lewistown City Building approximately five minutes later. She parked in the lot adjacent to the building and after exiting her car walked across the throughway and then down the Watson Street sidewalk. As she approached the sidewalk leading to the police department, she slipped and fell, injuring herself. At the time of her fall she was still on the Watson Street sidewalk and had not entered the sidewalk leading to the police department. Moreover, at the time she fell, Heath’s shift had not begun, she was not being paid, nor was she performing work-related duties.

¶7 On the date of her injury, the City of Lewistown was insured by Montana Municipal Insurance Authority. Heath submitted a claim for workers’ compensation benefits to the City’s insurer. The insurer denied the claim on the ground that Heath’s injuries did not occur in the course and scope of her employment. Thereafter, Heath petitioned the Workers’ Compensation Court to enter an order requiring the insurer to accept liability for her injuries, to pay her medical expenses, and to determine and order payment for any disability arising from her injuries. Following discovery, the matter was submitted to the Workers’ Compensation Court on cross motions for summary judgment. The motions were orally argued, and following Heath’s deposition, the court deemed the motions submitted. On September 25, 1997, the court entered its order granting summary judgment to the City and dismissing Heath’s petition with prejudice. This appeal followed.

ISSUE

¶8 The sole issue presented by Heath on appeal is whether her injury of April 3, 1996, arose within the course and scope of her employment.

STANDARD OF REVIEW

¶9 This Court’s standard of review of a grant or denial of summary judgment by the Workers’ Compensation Court is the same as that used by the trial court in ruling upon the motion for summary judgment. Heisler v. Hines Motor Co. (1997), 282 Mont. 270, 274, 937 P.2d 45, 47 (citations omitted). We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Our review of the court’s conclusions of law is plenary; we simply determine whether its legal conclusions are correct. Loss v. Lumbermens Mut. Cas. Co. (1997), 282 Mont. 80-81, 936 P.2d 313, 314 (citations omitted).

¶10 In the case at bar, neither party contends that genuine issues of material fact are in dispute. Accordingly, we determine only whether the trial court correctly ruled in favor of the party entitled to judgment as a matter of law. We hold that the trial court did.

DISCUSSION

¶ 11 Historically, the general rule in Montana is that employees are not covered under the Workers’ Compensation Act while going to and from work. This rule was established in Murray Hospital v. Angrove (1932), 92 Mont. 101, 109, 10 P.2d 577, 580, and has been reaffirmed in numerous cases during the intervening years. See, e.g., Griffin v. Industrial Acc. Fund (1940), 111 Mont. 110, 115, 106 P.2d 346, 348; Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 251, 570 P.2d 893, 894; Gorden v. H.C. Smith Const. Co. (1980), 188 Mont. 166, 170, 612 P.2d 668, 670; Courser v. Darby School Dist. No. 1 (1984), 214 Mont. 13, 16, 692 P.2d 417, 418; Correa v. Rexroat Tile (1985), 217 Mont. 126, 128, 703 P.2d 160, 162; Ogren v. Bitterroot Motors, Inc. ( 1986), 222 Mont. 515, 520, 723 P.2d 944, 947; Hetland v. Magnum Petroleum (1987), 225 Mont. 389, 391, 733 P.2d 343, 345; Buhl v. Warm Springs State Hosp. (1989), 236 Mont. 363, 364, 769 P.2d 1258, 1259. The exceptions to this general rule of no coverage typically involve cases in which the employee is paid for his or her travel and/or the travel benefits the employer. Hetland, 225 Mont. at 391, 733 P.2d at 345; Courser, 214 Mont. at 16, 692 P.2d at 418-19.

¶12 In 1987, the Legislature enacted a statute specifically addressing travel. This statute, § 39-71-407, MCA (1995), was in effect at the time of Heath’s injury and provides in pertinent part:

(1) Each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section, to an employee of an employer that it insures who receives an injury arising out of and in the course of employment or, in the case of death from the injury, to the employee’s beneficiaries, if any.
(3) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:
(a) (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee’s benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b) the travel is required by the employer as part of the employee’s job duties.

¶13 In State Comp. Mut. Ins. Fund v. James (1993), 257 Mont. 348, 849 P.2d 187, we noted that this statute encompassed the historical “going and coming” rule as well as the exceptions which had evolved to it over the years. James, 257 Mont. at 350, 849 P.2d at 188-89. Accord Dale v. Trade Street, Inc. (1993), 258 Mont. 349, 357, 854 P.2d 828, 832- 33; Carrillo v. Liberty Northwest Ins. (1996), 278 Mont. 1, 8, 922 P.2d 1189, 1194.

¶14 In James, we stated:

Under subparagraph (b), [of § 39-71-407(3)] the employee is not covered unless the travel is required as “part of’ the employee’s job duties. Prior to the enactment of the above statute, we held in Massey v. Selensky (1987), 225 Mont. 101, 731 P.2d 906, that the general rule was that travel to and from an employee’s place of work was outside the course and scope of his employment. We here construe the phrase “as part of’ from paragraph(b) of § 39-71-407(3), MCA, as equivalent to the phrase “in the course and scope of’ employment from the previous common law.

James, 257 Mont. at 352, 849 P.2d at 190.

¶15 Here, applying the facts of this case to the elements of the statute as interpreted in James and our prior case law, it is clear that Heath cannot satisfy the statutory exception in order to claim compensation for injury while traveling.

¶16 Heath was traveling to work at the time of her slip and fall. It is undisputed that the City did not furnish Heath transportation nor did it reimburse her for any costs of travel, gas, or oil as part of her benefits or employment agreement. Heath’s travel was not necessitated by or on behalf of her employer as an integral part or condition of her employment and, of particular importance here, Heath’s travel was not required by her employer as part of her job duties. She was simply on her way to work. In this regard, the Workers’ Compensation Court correctly noted that going to and from work does not in itself provide a special benefit to the employer. “If merely securing the employee’s presence at work is in every case a ‘special benefit,’ the exception swallows up the rule.” Buhl, 236 Mont. at 365, 769 P.2d at 1259. Clearly, on the facts here and given the requirements of the statute and our prior case law, Heath was not in the course and scope of her employment when she was injured traveling to work.

¶17 Notwithstanding, Heath argues that our decision in Nicholson v. Roundup Coal Mining Co. (1927), 79 Mont. 358, 257 P. 270, mandates a different result. In that case we stated:

The employer has control of the ways of ingress and egress within its property and leading to and from the place of work, and it is universally held that, where an industrial accident occurs while an employee is going to or from work while on the premises of the employer and while passing over ways of egress and ingress furnished by the employer, without deviation for purposes of his own, an injury suffered by reason of the accident arose out of and in the course of his employment, as he was under the protection of, and using the things furnished him by, his employer.

Nicholson, 79 Mont. at 379-80, 257 P. at 276.

¶ 18 In further support of her position that her case falls outside the statute because her accident did not occur away from the employer’s premises, Heath cites to several pages ofVolume 4 of Larson’s Workers’ Compensation Law. The cited sections state that benefits are properly awarded to the injured employee under circumstances where the employee travels along or across a public road between two portions of the employer’s premises either going, coming or pursuing his active duties. This view would include travel on a parking lot owned or maintained by the employer and an off-premises route of travel which lies on the normal route which employees must traverse to reach their employment. Heath contends that where the employee is injured on the employer’s premises or within the “zone of employment,” compensation should be awarded for injuries sustained. Heath maintains that because the City maintained the sidewalk on which she fell she was, thus, on her employer’s premises and that the going and coming rule does not apply.

¶19 We rejected a similar contention in Griffin v. Industrial Acc. Fund (1940), 111 Mont. 110, 106 P.2d 346, wherein we stated:

The rule has been settled in this state that a workman is not entitled to compensation for injuries received while traveling to and from his place of work by an instrumentality not under the control of the employer, and when he is subjected only to the ordinary street hazards common to all pedestrians. [Citing Murray Hospital v. Angrove, supra.] Here it is true that the instrumentality causing the injury — the sidewalk — was an instrumentality under the control of the employer — the city; in other words, the injury occurred on premises under the control of the employer. But unless the instrumentality causing the injury, or the premises on which the injury occurred were used in connection with the actual place of work where the employer carried on the business in which the employee was engaged, there can be no recovery.

Griffin, 111 Mont. at 115, 106 P.2d at 348 (emphasis added) (citations omitted).

¶20 Here, Heath was not required to drive to work, was not assigned a parking space or provided with any special parking area, and was traversing a public sidewalk when injured. She had not reached the sidewalk leading into her workplace and was, therefore, not on a sidewalk used only by employees or persons conducting City business. See McMillen v. Arthur G. McKee and Company (1975), 166 Mont. 400, 404, 533 P.2d 1095, 1097 (“the sidewalk was not used by the employer in carrying on his business in which the employee was employed and consequently the employee was injured only by an ordinary street hazard common to all pedestrians”).

¶21 While Heath attempts to distinguish Griffin on the basis that her place of injury “did not occur at a location distant from the place of employment” our decision in Voorhies v. Park Cafe, Inc. (1978), 175 Mont. 232, 573 P.2d 202, made clear that the legal principle applicable to sidewalks and other public ways does not fade or disappear as the worker gets closer to her place of employment. We stated:

There is no legal support in the record to suggest that Montana has recognized the so-called “special hazard” doctrine. The fact there was ice in the alley [behind claimant’s place of employment and where she parked her vehicle] would not present a special hazard for cafe employees. Any person traversing the alley would be subject to the same condition.

Voorhies, 175 Mont. at 234, 573 P.2d at 203.

¶22 Furthermore, the facts in the case at bar are distinguishable from Nicholson. In that case a coal miner died of shock when he was exposed to extreme temperature fluctuations as he exited the mine through a tunnel into which outside air was being forced. We agreed that the miner’s death occurred in the course of his employment and that he was “placed in a position wherein he was ... specially and peculiarly subject to a risk and danger not shared by members of the community generally. ...’’ Nicholson, 79 Mont. at 379, 257 P. at 275. There, the tunnel was part of the employer’s premises and was used by miners to enter and leave the mine and was not open to the general public. That is obviously not the fact situation in this case. Heath was injured when she slipped and fell on a public sidewalk adjacent to her employer’s premises and she was not specially and peculiarly subject to any risk and danger not shared by members of the community generally.

¶23 Moreover, we made clear in Strickland v. State Comp. Mut. Ins. Fund (1995), 273 Mont. 254, 901 P.2d 1391, that whether injuries sustained while traveling to and from work are compensable is governed solely by § 39-71-407, MCA, and that subsection (3) of this statute “provides the only circumstances under which an employee’s travel-related injuries are compensable.” Strickland, 273 Mont. at 258-59, 901 P.2d at 1394.

¶24 Finally, Heath attempts to avoid the statutory requirements on the basis that at the time of her slip and fall she was no longer traveling to work but, in fact, had arrived. Heath’s argument, however, is not supported by the record. In her deposition Heath admitted that at the time of her fall she was still on her way to work.

Q. At the time of — what is your best estimate of what the time was when you fell?
A. I would say once again probably between 25 and 20 till the hour of 8:00.
Q. And you were not being paid at that time, is that right?
A. That is correct.
Q. Your shift hadn’t started at that time?
A. Correct.
Q. And you weren’t performing any work related duties at that time?
A. Correct.
Q. Just on your way to work?
A. Correct.
Q. On a sidewalk that the general public traverses also, is that right?
A. That’s correct.
Q. Coming from a parking lot where the general public parks?
A. They can, correct.

¶25 In summary, we conclude that on the undisputed facts in this case, Heath is not entitled to workers’ compensation benefits for the injury which she sustained traveling to her place of employment. She has failed to satisfy the requirements of § 39-71-407(3), MCA, and accordingly, her petition was properly dismissed with prejudice by way of summary judgment.

¶26 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and TRIEWEILER concur.


author: JUSTICE LEAPHART

text:
    ANITA K. BUELING, surviving spouse and personal representative of the Estate of DAVID S. BUELING, Plaintiff and Appellant, v. DOUGLAS E. SWIFT, M.D. and DAVID ANDERSON, M.D., Defendants and Respondents.
    No. 97-167.
    Submitted on Briefs April 2, 1998.
    Decided May 5, 1998.
    1998 MT 112.
    55 St.Rep. 441.
    958 P.2d 694.
    288 Mont. 472.

      For Appellant: John C. Doubek; Small, Hatch, Doubek & Pyfer, Helena.
    For Respondents: James E. Aiken; Jardine, Stephenson, Blewett & Weaver, Great Falls (for Dr. Swift); John Maynard, Marcia Davenport; Browning, Kaleczyc, Berry & Hoven, Helena (for Dr. Anderson).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Anita Bueling (Bueling) appeals from the April 10, 1997 order of the Eighth Judicial District Court, Cascade County, denying Bueling’s motions to set aside the jury verdict and for a new trial. We reverse in part, affirm in part, and remand for a new trial.

¶2 Bueling raises the following issues:

¶3 1. Did the District Court err in granting Respondents Dr. Douglas Swift (Dr. Swift) and Dr. David Anderson (Dr. Anderson) four peremptory challenges each?

¶4 2. Did the District Court err in granting Respondents’ motion in limine prohibiting Dr. Randall Schaffer (Dr. Schaffer) from testifying as a fact witness for Bueling?

Factual and Procedural Background

¶5 In the afternoon of September 11, 1993, Bueling’s husband, David, who was suffering from flu-like symptoms, visited the Doctor’s Convenience Care Clinic in Great Falls. The doctor on duty at the clinic, Dr. William Gertson (Dr. Gertson), determined that David was quite ill and immediately ordered that he be transported by ambulance to the Columbus Hospital Emergency Room (ER). David’s regular physician was not on call, and that doctor’s patients were being covered by Dr. Swift, an internist. Dr. Gertson contacted Dr. Swift and informed him that David was very ill and being transferred to the ER.

¶6 David arrived at the ER at approximately 2:45 p.m., where he was examined by Dr. Betty Kuffel (Dr. Kuffel). The parties dispute the time at which Dr. Swift arrived at the ER. Bueling maintains that Dr. Swift did not arrive until about 5:45 p.m., nearly three hours after David was admitted. Dr. Swift testified that he arrived at about 3:30 p.m. The director of medical records testified that Dr. Swift’s notes indicated that he dictated David’s medical history and physical examination at 5:44 p.m.

¶7 After examining David, Dr. Swift consulted with Dr. Anderson, a pulmonologist, over the telephone. Dr. Anderson testified that he received the phone call from Dr. Swift between 4:15 and 4:30 p.m. Dr. Swift told Dr. Anderson that David was very ill with bilateral pulmonary infiltrates and possibly pneumonia. Dr. Anderson agreed to see David and initiated his transfer to the Intensive Care Unit. Dr. Anderson examined David at about 6:30 p.m. Dr. Anderson performed a bronchoscopy and inserted a Swan-Ganz catheter into David’s pulmonary artery to obtain cardiac output data. David died of a heart attack before Dr. Anderson received the data. It was later determined that David was suffering from hantaviral pulmonary syndrome, the first reported case in Montana.

¶8 Bueling filed a wrongful death and survival action against Drs. Swift and Kuffel and Columbus Hospital. During the discovery phase, Bueling amended her complaint to add Dr. Anderson as a defendant. Subsequently, Bueling moved the District Court to limit the number of peremptory challenges allowed the defendants collectively to four. Bueling argued that because the defendants were not hostile to each other, they should not receive additional peremptory challenges. At the pretrial conference, the District Court determined that Drs. Swift and Anderson would each get four peremptory challenges and that Dr. Kuffel and Columbus Hospital, who were represented by the same counsel, would share four.

¶9 At the pretrial conference, the District Court also granted Dr. Anderson’s motion in limine to prevent Bueling from calling Dr. Schaffer as a witness. Dr. Schaffer is a family friend of the Buelings who examined David’s records at Columbus Hospital a week after his death. Bueling sought to call Dr. Schaffer to testify as an expert witness on the standard of care and as a fact witness regarding what he found in David’s file. The District Court found that Dr. Schaffer was not qualified as an expert and that the jury would be likely to confuse his fact testimony with that of an expert. The District Court ruled that Dr. Schaffer would not be allowed to testify.

¶10 Prior to trial, Bueling settled with Dr. Kuffel and Columbus Hospital. She did not ask the court to reconsider its decision on peremptory challenges prior to trial. The case proceeded to trial, and Drs. Swift and Anderson each exercised four peremptory challenges. A jury entered a verdict in their favor, finding no negligence on the part of either doctor. Bueling filed motions to set aside the jury verdict and for a new trial. The District Court denied her motions.

Discussion

¶11 1. Did the District Court err in granting Drs. Swift and Anderson four peremptory challenges each?

¶12 In King v. Special Resource Management (1993), 256 Mont. 367, 374, 846 P.2d 1038, 1042, this Court specifically set forth a procedure for district courts to follow in determining whether to grant additional peremptory challenges:

Additional peremptory challenges are granted to multiple parties on one side only if they are hostile to one another. The trial court determines hostility prior to the beginning of voir dire and bases its decision only on the facts presented to it before its ruling. Whether or not the pretrial procedures were followed prior to the determination of hostility, if an appellate review determines that peremptory challenges were improperly granted, prejudice is presumed as a matter of law.
The parties seeking additional peremptory challenges must request them prior to trial. In the rare instance when the District Court holds no pretrial conference, the question of peremptory challenges should be raised by appropriate written motion filed prior to voir dire, setting forth all facts and references tending to support its claim of hostility. The trial court should rule on the peremptory challenge issue before voir dire begins. If a pretrial order is used, the District Corut is required to include its decision on the number of peremptory challenges in the pretrial order. To afford a basis for review, the trial court should expressly set forth in the record the reasons for its ruling and the facts on which it relied in making its decision. [Citations omitted.]

¶13 In this case, Bueling moved the District Court to limit the number of peremptory challenges allowed the defendants collectively to four. At the pretrial conference, the court granted four challenges to Dr. Swift, four to Dr. Anderson, and four to Columbus Hospital and Dr. Kuffel. The following discussion provides the District Court’s rationale:

The Court:... [T]here is a question that was raised in the pretrial order regarding number of peremptory challenges. My reading of the law is the doctors are adverse to each other, each of them will receive four peremptory challenges, Dr. Kuffel and Columbus Hospital, they will receive four peremptory between the two of them. They are represented by the same counsel, I don’t believe their interests are adverse in this case.
Mr. Walsh [counsel for Dr. Kuffel]: We agree.
The Court: Mr. Dubek, I recognize the case you cited, but the answer to me that these doctors, reading the depositions and who they are going after, they are saying it’s somebody else’s problems rather than their own, they are—
Mr. Dubek [counsel for Bueling]: For the record, I don’t think anywhere in [any] of the depositions does one defendant point the finger at the other defendant, according to that case we cited, it’s incumbent upon the defendants to seek out and demonstrate to the court they are hostile, and they haven’t done that. Therefore, I think we are entitled to maintain that each side has four peremptory challenges.
Mr. Aiken [counsel for Dr. Swift]: I make the comment, Judge, certainly there is a clear delineation in care that occurred at 6:30. I don’t know any of us of [sic] raised specifically somebody else’s defense, I think the court is correct that at 6:30 the transfer of care occurred.
I think the court can do whatever it wants in the number of peremptories, and some sort, of either four to each of the physicians and four to the hospital, and Dr. Kuffel, or some compromise thereof, I think would be fair.
The Court: Okay. Mr. Walsh, do you have argument?
Mr. Walsh: If you analyze the case in terms of breach of duty, the doctors pretty much agree. They all agree no one breached a duty. The case involves existence of duty. It looks that way. There are definite distinctions between physicians. Dr. Kuffel — I am taking the position, she never was the primary treating physician, and her duty was seriously limited. Dr. Swift may not agree with that. The issue of intent and when duties changed between Dr. Swift and Anderson, look at it that way; each need four separate. They are not necessarily attacking each other, but their interests are distinctly different. There is potential for one physician to escape liability at possibly the expense of another. That’s all you need.
The Court: All right. I will stand by original ruling on that....

Bueling argues that because the defendants failed to set forth sufficient facts to show hostility and because the defendants did not move the court for additional peremptories, the District Court erred in granting them.

¶ 14 We do not agree with Bueling that a defendant must move for additional peremptories before the District Court is allowed to grant them. Bueling moved the court to consider the issue of additional peremptories, and the District Court addressed it. However, in addressing the issue, the District Court failed to make specific findings in the pretrial order or on the record to explain its decision to grant additional peremptory challenges. The procedure set forth in King is meant to afford this Court a basis of review, and the District Court erred in disregarding it. As stated in Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 317, 588 P.2d 493, 501, “if there is not a sound basis in the record at the time of the ruling, and if the reasons for the ruling are not set forth, we cannot say the parties have had the benefit of the trial court’s best judgment” However, King requires this Court to review the District Court’s grant of peremptory challenges regardless of whether it followed the appropriate pre-trial procedures. King, 846 P.2d at 1042. Thus, we review the record at the time of the District Court’s ruling to determine whether the peremptory challenges were properly granted.

¶15 Section 25-7-224, MCA, states that “each party is entitled to four peremptory challenges ....” This Court has interpreted “each party” to mean each side, unless the codefendants are hostile to one another. Leary v. Kelly Pipe Co. (1976), 169 Mont. 511, 549 P.2d 813, overruled on other grounds by King, 846 P.2d at 1042. As we noted in King, “district courts have no discretion in granting additional peremptory challenges. Multiple parties on one side are either hostile or they are not hostile.” King, 846 P.2d at 1042-43. The district court must determine hostility on a case-by-case basis. King, 846 P.2d at 1044.

¶16 We reviewed the district court’s finding of hostility in Hunsaker, 588 P.2d at 493. Hunsaker was admitted to the hospital with heart problems and suffered serious emotional strain resulting in nervousness, hallucinations, and a seizure while in the hospital’s care. Hunsaker, 588 P.2d at 497. Ultimately, Hunsaker was injured when he left his hospital security room, ran down the hall, jumped through a solarium window, and fell twenty feet to the ground. Hunsaker, 588 P.2d at 497. Hunsaker filed an action against Bozeman Deaconess Foundation, operator of the hospital, alleging that the hospital was negligent in caring for him. Hunsaker, 588 P.2d at 497. He filed a separate action against the treating physicians for their negligent diagnosis and care. Hunsaker, 588 P.2d at 497. His wife also filed a negligence claim against the hospital for loss of consortium. Hunsaker, 588 P.2d at 497. Over Hunsaker’s objection, the district court consolidated the three actions and, at trial, granted each defendant four peremptory challenges. Hunsaker, 588 P.2d at 498. The jury returned a verdict for the defendants. Hunsaker, 588 P.2d at 497.

¶17 On appeal, Hunsaker argued that the district court erred in granting additional peremptory challenges because the defendants had not made the requisite showing of hostility. Hunsaker, 588 P.2d at 498. This Court agreed, finding that “[t]he defense theories of the hospital and defendant physicians meshed like the finest gearshift mechanism.” Hunsaker, 588 P.2d at 500. We noted that though each defendant was represented by separate counsel, each essentially asserted no negligence on its part or on the part of the other defendants. Further, we held: “Defendants did not try to pass the blame off to each other. It is true each defendant had his own interest to protect in that each could have suffered an adverse jury verdict — but there is no showing that their interests were hostile to each other.” Hunsaker, 588 P.2d at 500-01.

¶18 At the pretrial conference, counsel for defendants argued that while they “are not necessarily attacking each other,... their interests are distinctly different. There is potential for one physician to escape liability at possibly the expense of another. That’s all you need.” To the contrary, this Court held in Hunsaker that a defendant’s interest in protecting him or herself from an adverse jury verdict does not necessarily indicate hostility toward codefendants.

¶19 Drs. Swift and Anderson argue that Bueling alleged separate acts of negligence against each defendant occurring at separate times. Dr. Anderson also asserts that Dr. Swift’s theory — that David was in a stable condition when care was transferred to Dr. Anderson — implicitly shifts responsibility to him. In Kudrna v. Comet Corp. (1977), 175 Mont. 29, 572 P.2d 183, this Court did state that allegations of separate acts of negligence against each defendant suggest hostility. Kudrna is distinguishable; in that case, not only did each party present a separate defense, but also blamed the negligence of the other for the accident. Kudrna, 572 P.2d at 187. In this case, both doctors assert that they were not negligent in their diagnosis and care of David. Dr. Swift did not plead any affirmative defenses or cross-claim against Dr. Anderson, and Dr. Anderson’s affirmative defenses, i.e., failure to state a claim and contributory negligence, do not suggest any hostility toward Dr. Swift. Further, we do not agree that by maintaining that his care of David was not negligent, Dr. Swift was necessarily implying that Dr. Anderson’s care was negligent. Nothing in the record supports such an implication.

¶20 Dr. Swift argues that he and Dr. Anderson retained separate counsel, filed separate answers, conducted separate discovery, and were insured by different insurers. In Hunsaker, each defendant retained separate counsel, and the claims against each were brought in an entirely separate action; however, we determined that the defendants’ interests and theories of defense were not hostile. Hunsaker, 588 P.2d at 500. Likewise, in this case, the record does not contain sufficient evidence on which to base a finding of hostility. We hold that the District Court erred in granting Drs. Swift and Anderson additional peremptory challenges.

¶21 This Court has held that when one side is granted additional peremptory challenges in error, a new trial must be granted. King, 846 P.2d at 1042. In King, we noted that with a grant of additional peremptory challenges comes a tactical advantage that is unmistakable, but nearly impossible to prove. King, 846 P.2d at 1042. The difficulty of proving that one was prejudiced by the improper grant of additional peremptories caused this Court to overrule its previous case law and hold that “if an appellate review determines that peremptory challenges were improperly granted, prejudice is presumed as a matter of law.” King, 846 P.2d at 1042 (overruling Leary, 549 P.2d at 813).

¶22 Accordingly, we hold that Bueling was prejudiced by the District Court’s grant of additional peremptory challenges. We reverse and remand for a new trial.

¶23 2. Did the District Court err in granting Respondents’ motion in limine prohibiting Dr. Schaffer from testifying as a fact witness for Bueling?

¶24 A district court has broad discretion to determine whether evidence is admissible; thus, we will not overturn a district court’s evidentiary ruling absent an abuse of discretion. Waller v. Hayden (1994), 268 Mont. 204, 885 P.2d 1305. In this case, the District Court found that the jury would likely confuse Dr. Schaffer’s testimony with that of a medical expert. Thus, it precluded Dr. Schaffer from testifying regarding his review of David’s medical records.

¶25 Dr. Schaffer resides in Ohio and has been a friend of the Bueling family for about 20 years. When he was in town for David’s funeral, the family asked Dr. Schaffer if he would review David’s records at Columbus Hospital. Bueling contends that Dr. Schaffer was prepared to testify that when he reviewed David’s records the week after his death, he found them void of a history and physical examination. Bueling argues that Dr. Schaffer’s testimony would have supported her theory that David did not receive adequate or timely care and that the history and physical examination found in David’s records were fabricated by Dr. Swift after the fact.

¶26 Under Rule 403, M.R.Evid., relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....” After reviewing Dr. Schaffer’s deposition, the District Court found his proffered testimony to have minimal probative value. When asked about whether he recalled seeing the history and physical examination in David’s medical records, Dr. Schaffer testified: “I don’t recall seeing that. Now, that doesn’t mean it wasn’t there. I’m just saying I don’t recall seeing it.” We agree with the District Court that, assuming Dr. Schaffer’s testimony was relevant, it was of minimal probative value.

¶27 Further, Bueling called other medical doctors to testify as experts at trial regarding the standard of care. The District Court determined that if it allowed Dr. Schaffer to testify as to his review of David’s records, the jury would likely confuse his testimony with that of an expert. We hold that the District Court did not abuse its discretion in finding that the minimal probative value of Dr. Schaffer’s testimony was outweighed by the possibility of confusing or misleading the jury and prejudicing Drs. Anderson and Swift. Thus, we affirm the District Court’s granting of the motion in limine prohibiting Dr. Schaffer from testifying.

¶28 Based on the foregoing, we reverse in part, affirm in part, and remand to the District Court for a new trial.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, HUNT, REGNIER and TRIEWEILER concur.


text:
    HOLLIE NEWBAUER, Plaintiff and Appellant, v. STEVEN HINEBAUCH, Defendant and Respondent.
    No. 97-561.
    Submitted on Briefs April 23, 1998.
    Decided May 5, 1998.
    1998 MT 115.
    55 St.Rep. 454.
    958 P.2d 705.
    288 Mont. 482.

      For Appellant: James M. Kommers, Kommers & Roth, Bozeman.
    For Respondent: Gene I. Brown, Landoe, Brown, Planalp, Braaksma & Reida, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal by Hollie Newbauer (Newbauer), plaintiff, from a final judgment entered May 1,1997, and from the June 3,1997 Order of the District Court denying her motion for a new trial. We affirm.

BACKGROUND

¶2 The underlying action involved a suit for personal injuries arising out of an automobile accident in Bozeman, Montana. Newbauer’s vehicle, while stopped at a traffic light, was struck from the rear by a vehicle driven by Steven Hinebauch (Hinebauch). The case proceeded to trial on April 21-23,1997, before a Gallatin County jury. The jury returned a verdict determining that both Newbauer and Hinebauch were negligent but that Hinebauch’s negligence was not the cause of Newbauer’s injuries.

¶3 Subsequent to the trial, Newbauer moved for a new trial pursuant to Rule 59, M.R.Civ.P., and §§ 25-11-102 and -104, MCA. As one of the grounds for her motion, Newbauer contended that she was prejudiced at trial by being induced to mention the existence of Hinebauch’s insured status during defense counsel’s cross examination.

¶4 Specifically, the following exchange took place:

[DEFENSE COUNSEL]: You did tell Mr. Hinebauch that you weren’t hurt in the accident?
[NEWBAUER]: He did ask me, “Are you okay?” and I told him ‘Yeah.” I know it was really cold and I was just numb and I — even, you know — when you’re scared, you get the little jitters. And I remember that I was kind of shaky but feeling pain, no.
[DEFENSE COUNSEL]: You say you were scared. What were you scared of?
[NEWBAUER]: Well, that had never happened to me before and I was faced with a big decision to make, whether to call the police or not. And I didn’t do it and I didn’t know if I was doing all the right things. I was just going along with — or talking and he was nice. He gave me his name and number and address and said, “If your husband saw damage, call me. I have insurance.” It was just — you know, I just thought, okay, I’d go home and let him look at it. I didn’t feel like he was giving me a false name or anything, you know, taking off the other way or something. I felt confident that he was a nice guy.

¶5 At that point the court ordered the noon recess and excused the jury. Defense counsel immediately moved for a mistrial because Newbauer injected insurance into the case by stating that Hinebauch advised her that he was insured. Defense counsel argued to the court that there was no way to cure the problem and that an instruction or an admonition to the jury would merely compound the situation.

¶6 In response to defense counsel’s oral motion for mistrial, Newbauer’s counsel stated:

[NEWBAUER’S COUNSEL]: Well, we object. The statement was made in response to council’s [sic] questions. It was about what his client said. It’s not made with reference to any particular element of the case. The — council [sic] has asked the jury to be aware of — to use their common sense in the case and clearly there is no citation for failure to have insurance in this case.
THE COURT: All right. Motion for mistrial is denied. I assume you don’t want a cautionary instruction, [defense counsel]?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: All right. So, we’ll let it go.

¶7 Following the lunch recess, but prior to the jury returning to court, Newbauer’s counsel filed a motion to strike testimony with a request for cautionary instruction. Defense counsel requested the court to instruct the jury as follows:

You are instructed that the testimony of the Plaintiff about the conversation between the Plaintiff and Defendant immediately after the accident is stricken from the record and is to not be considered by you in making your decision.

In arguing the motion, Newbauer’s counsel observed that her reference to Hinebauch’s insurance was “such an innocuous element of the case and an inadvertent one, that the jury, without prejudiced [sic] to anybody, can be told to ignore the last exchange.”

¶8 The trial court denied the motion and refused the instruction stating that Newbauer’s reference to Hinebauch’s insurance was inadvertent, was not flagrant, and that the record would be left with the jury as is and without a cautionary instruction unless Hinebauch wanted one. Defense counsel stated he did not want a cautionary instruction.

¶9 During the settling of instructions the court reiterated its rejection of the cautionary instruction and neither of the parties’ attorneys had’ any further objection.

¶10 In denying Newbauer’s motion for new trial, the court reiterated that any mention of insurance was inadvertent, did not prejudice Newbauer, and did not warrant a special instruction. Newbauer timely appealed.

ISSUES

¶11 On appeal Newbauer raises two issues:

¶12 1. Whether the District Court erred by its failure to strike testimony and by its failure to give a curative instruction following the introduction of evidence concerning insurance coverage.

¶13 2. Whether the District Court erred by refusing Newbauer’s Instruction No. 24 on the evidence of insurance.

¶14 We address both of these issues together.

STANDARD OF REVIEW

¶15 The law regarding a district court’s determination of a motion for new trial is well established. The general rule is that the decision whether to grant a new trial is committed to the sound discretion of the trial judge and "will not be disturbed absent a showing of manifest abuse of discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶30, [288 Mont. 1], 955 P.2d 160, ¶30. Similarly, questions concerning the admissibility of evidence are within the discretion of the trial court, subject to our review in situations that indicate an abuse of discretion. Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 230.

DISCUSSION

¶16 Citing Massman v. City of Helena (1989), 237 Mont. 234, 773 P.2d 1206, and Rule 411, M.R.Evid., Newbauer argues that the interjection of liability insurance coverage or non-coverage generally is prohibited by law. Accordingly, Newbauer maintains that the District Court abused its discretion by failing to strike her testimony mentioning that Hinebauch was insured and failing to issue a curative instruction.

¶17 We do not disagree with the general rule that the introduction of evidence of liability insurance is generally not admissible under Rule 411, M.R.Evid., or under Montana case law or that placing such evidence before the jury may necessitate a curative instruction or the granting of a new trial. See Sioux v. Powell (1982), 199 Mont. 148, 152-54, 647 P.2d 861, 863-64; D’Hooge v. McCann (1968), 151 Mont. 353, 359-60, 443 P.2d 747, 750.

¶18 We note further, however, that in Massman we held that the interjection of insurance into the case did not rise to the level of reversible error. Massman, 237 Mont. at 244, 773 P.2d at 1212. Rather, we stated that the District Court is charged with determining whether any given mention of liability insurance is sufficiently prejudicial to warrant a new trial and that the court’s determination depends upon the circumstances and manner in which the subject of insurance came up. Massman, 237 Mont. at 244, 773 P.2d at 1212. Here, both the court and Newbauer agreed that her mention of insurance was inadvertent and innocuous. While Newbauer believed, nevertheless, that her remark should have been stricken and a cautionary instruction given, the trial judge, in the exercise of his discretion determined otherwise. We are hard pressed, on the facts here, to conclude that the trial court abused its discretion in making this ruling.

¶19 Moreover, we also note that a failure to object or to request corrective action immediately after the mentioning of insurance constitutes a waiver of the objection. Rasmussen v. Sibert (1969), 153 Mont. 286, 294-95, 456 P.2d 835, 839-40; Reno v. Erickstein (1984), 209 Mont. 36, 40-41, 679 P.2d 1204, 1206-07. Accord Stewart v. Fisher (1989), 235 Mont. 432, 437, 767 P.2d 1321, 1324; Cosner v. Napier (1991), 249 Mont. 153, 154-55, 813 P.2d 989, 990-91. Here, defense counsel moved for a mistrial immediately after Newbauer injected Hinebauch’s insured status into the case. Defense counsel’s motion was, however, opposed by Newbauer and was denied by the trial court. Notwithstanding that Newbauer subsequently changed her mind and requested that the court strike the offending testimony and give a cautionary instruction, we conclude that her objection was neither contemporaneous nor immediate as required by the case law.

¶20 Finally, even were we to determine that the District Court erred in refusing Newbauer’s motion to strike and to give the cautionary instruction, such error was harmless. Again, it is well established that no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless. Rafanelli v. Dale (1996), 278 Mont. 28, 48, 924 P.2d 242, 254-55 (citation omitted). Reversal cannot be predicated upon an error in the admission of evidence, where the evidence in question was not of such character to have affected the result in the case. Mason v. Ditzel (1992), 255 Mont. 364, 371, 842 P.2d 707, 712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834).

¶21 Here, the jury determined that while both Newbauer and Hinebauch were negligent, Hinebauch’s negligence was not the cause of Newbauer’s injuries. The jury never reached the issue of damages. If the mention of insurance had in some way influenced the jury in their assessment of the case, it would have been in the area of damages and not on the issue of causation. Newbauer argues that Hinebauch built his case around the theory that she was a gold digger and that the mention of insurance prej udiced her by fitting into this theory. This argument is speculative at best, however. The jury never reached the issue of damages. There was no significant impact upon the result of the case, and, thus, Newbauer has failed to demonstrate substantial injustice. In short, even if the court erred, it was harmless. Rafanelli, 278 Mont. at 48, 924 P.2d at 255.

¶22 We hold that the court did not manifestly abuse its discretion in denying Newbauer’s motion for new trial.

¶23 Affirmed.

JUSTICES HUNT, REGNIER, GRAY and LEAPHART concur.


text:
    DORIS A. SCOTT, individually and as Personal Representative of the Estate of John William Scott, Deceased, Plaintiff and Appellant, v. JAMES L. HENRICH, DAVID J. FLAMAND, BUTTE-SILVER BOW LAW ENFORCEMENT AGENCY, CITY OF BUTTE and COUNTY OF SILVER BOW, Defendants and Respondents.
    No. 97-590.
    Submitted on Briefs April 2, 1998.
    Decided May 5, 1998.
    1998 MT 118.
    55 St.Rep. 457.
    958 P.2d 709.
    288 Mont. 489.

      For Appellant: Curtis G. Thompson, William D. Jacohsen and Steven T. Potts; Thompson, Jacobsen & Potts, Great Falls.
    For Respondents: Marshal L. Mickelson, Attorney at Law, Butte; Brendon J. Rohan, Attorney at Law, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Doris A. Scott (Doris) appeals from the decision of the Second Judicial District Court, Silver Bow County, granting James L. Hen-rich, David J. Flamand, Butte-Silver Bow Law Enforcement Agency, City of Butte and County of Silver Bow’s (collectively Respondents’) motion for summary judgment. Doris asserts that Respondents acted negligently during a police confrontation which occurred in 1984 and resulted in the shooting death of Doris’ husband, John William Scott (John). The District Court determined that the officers acted reasonably as a matter of law, were not negligent and thus were not hable for damages as a result of John’s death. As a result, the District Court found that there were no genuine issues of material fact and that the Respondents were entitled to summary judgment as a matter of law. We reverse and remand.

Factual and Procedural Background

¶2 The events giving rise to this action were recently reviewed by this Court in Scott v. Henrich (1997), 283 Mont. 97, 938 P.2d 1363. We review and expand the facts for purposes of this appeal.

¶3 In August 1984, John was landlord of an apartment building on the corner of Clark and Park Streets in Butte, Montana. He and Doris lived in apartment number one and rented one of the other apartments to Patrick Sullivan (Sullivan). Sullivan later obtained a roommate, Dean Maestas (Maestas). The record indicates that Sullivan and Maestas were disruptive tenants and were suspected of burglarizing the apartment of another tenant. As a result, John had served Sullivan and Maestas with an eviction notice.

¶4 On August 4, 1984, Sullivan and Maestas were in the process of moving to a new apartment. At 12:57 on that day, John called law enforcement complaining of a disturbance caused by Sullivan and Maestas at their apartment on the corner of Park and Clark. Officers Hanninen and Miller responded to the call, confirmed the disturbance and warned Sullivan and Maestas against causing further trouble. At 3:25 p.m., John again summoned law enforcement with reports of a disturbance. Officers Driscoll and Henrich arrived at the scene, but were informed by John that he had transported Sullivan away from the scene and that everything was fine.

¶5 Later that day, approximately 8:20 p.m., law enforcement received a report that someone had fired a gun at 623 South Colorado Street. Officers Henrich, Flamand, Maylevac and Cassidy responded to the call. Henrich and Flamand were the first to arrive at the location, which turned out to be Maestas’ new apartment. Maestas indicated that someone had shot at him. The officers observed a bullet hole in the porch and retrieved an expended 30/30 cartridge. When the officers inquired as to who had shot at Maestas, Maestas said he did not know the individual’s name, but produced the eviction notice he and Sullivan had received from John.

¶6 Within minutes of the officers responding to the call at Maestas’ apartment, the officers received a second report of a man firing a gun at 701 West Park Street. The officers abandoned their investigation at Maestas’ apartment and quickly responded to this second report. Officer Flamand was the first to arrive at West Park Street. He quickly questioned the manager of the City Center Motel about the alleged shooting. The manager motioned that the individual went toward an apartment building across the street. A bystander then informed Officer Flamand that the person firing the rifle was acting strangely, staggering, and had entered one of the two doors of the apartment complex. The coroner’s report later indicated that John had a .26 blood alcohol concentration, well beyond the legal limit for a presumption of intoxication.

¶7 As the officers appeared on the scene, Officer Henrich approached and banged on one of the apartment doors and shouted “open up, police.” Henrich testified that he then heard someone fumbling with the locks. As the door opened, John appeared on the other side allegedly armed with a weapon. Meanwhile, Flamand had retrieved a weapon from his patrol car and stationed himself outside the apartment to cover Henrich. Although the entire confrontation lasted only seconds, Flamand recalls that John’s weapon was pointed down when he opened the door, but that John raised the barrel of the weapon and pointed it toward the officers.

¶8 Officer Henrich shouted “drop the gun,” or “he’s got a gun,” then fired a shot into the doorway. Henrich’s shot missed John. Officer Flamand, however, mistakenly believing that John had fired the shot, shot four rounds, one of which hit and killed John.

¶9 Doris brought action in United States District Court (U.S. District Court) seeking redress under 42 U.S.C. § 1983 and alleging state law negligence claims of wrongful death and survivorship. The U.S. District Court granted summary judgment in favor of Respondents on the § 1983 action determining that the officers’ actions were objectively reasonable and refused to exercise jurisdiction over the state law claims. As a result, Doris refiled her state law claims in the Second Judicial District Court, Silver Bow County (District Court), and concurrently appealed the decision of the U.S. District Court to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the decision of the U.S. District Court, and the United States Supreme Court subsequently denied certiorari.

¶10 Having exhausted her federal appeals, Doris proceeded with her state law claims in the District Court. The District Court initially determined that the state law claims were barred by res judicata and entered summary judgment in favor of the Respondents. Doris appealed the summary judgment ruling to this Court. In Scott, this Court was presented with the issue of whether the District Court properly entered summary judgment in favor of the Respondents on the basis of res judicata. We explained that summary judgment based on res judicata was not proper because the U.S. District Court ruled that the conduct of the officers did not rise to the level of gross negligence as required by 42 U.S.C. § 1983, and that in her state court action Doris was only required to show that the officers’ conduct fell below that of a reasonable and prudent person under the circumstances in accordance with traditional negligence standards in Montana. Thus, we determined that the District Court improperly relied on the opinions of the U.S. District Court and the Ninth Circuit that the officers acted reasonably. This Court remanded the matter to the District Court for further consideration.

¶11 On remand, the Respondents again moved for summary judgment asserting that there were no genuine issues of material fact. The District Court determined that the dispositive issue was whether the manner in which the officers approached the door and their conduct at the time of the shooting were reasonable. The District Court determined that expert testimony presented by Doris, which indicated that the officers’ conduct was unreasonable, was speculative and that she failed to produce competent evidence to overcome the Respondents’ motion for summary judgment. The District Court concluded as a matter of law that Officers Henrich and Flamand reasonably feared the imminent use of deadly physical force and were therefore justified in responding with deadly force. As a result, the court entered summary judgment in favor of the Respondents. Doris appeals to this Court asserting that summary judgment was improper. Doris presents one issue on appeal: Did the District Court err in granting summary judgment in favor of the Respondents on the grounds that the officers acted reasonably as a matter of law?

Discussion

¶12 Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court reviews a district court’s ruling granting summary judgment de novo, using the same legal standards as the district court. Smith v. Kerns (1997), 281 Mont. 114, 116, 931 P.2d 717, 718.

¶13 Upon a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Bowen v. McDonald (1996), 276 Mont. 193, 199, 915 P.2d 201, 205. In addition, all reasonable inferences must be drawn in favor of the party opposing the summary judgment. Porter v. Galarneau (1996), 275 Mont. 174, 179, 911 P.2d 1143, 1146. Finally, this Court has held that issues of negligence are generally not susceptible to summary judgment and are properly left for a jury determination at trial. Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869.

¶14 Doris asserts that there are several genuine issues of material fact which should preclude summary judgment in this matter. Doris’ claims are grounded in the expert testimony of Dennis Payne (Payne), an expert in police practices and procedures who holds a masters of science degree in criminology and is a 25-year veteran of the Michigan Department of State Police. Payne opines that the officers’ role in the events leading up to the shooting death of John was unreasonable. Payne is of the opinion that the officers should have treated John as a “barricaded suspect.” The Butte-Silver Bow Law Enforcement Agency Manual of Policies and Procedures stresses that “[a] barricaded suspect poses an extreme danger to officers who try to arrest him .... Officers should not immediately flush a barricaded suspect. Rather, they should develop and proceed with a tactical plan.... All efforts should be made to persuade the suspect to surrender before force is used.” Payne indicates that the officers failed to follow procedures required by their own law enforcement agency. Payne further suggests that the officers could have followed any number of tactical procedures. In his opinion, their complete disregard for their own policies and procedures in favor of an “assault” on the doorway and the suspect was simply unreasonable.

¶15 In addition, Payne testified that John was likely a frightened and intoxicated landlord who felt threated by troublesome tenants and probably would have welcomed the officers’ assistance. Payne asserts that, had the officers taken appropriate action, John’s death could have been avoided. Doris maintains that Payne’s testimony alone raises a factual issue which is sufficient to defeat summary judgment.

¶16 In addition, Doris points to several other factual issues which she asserts raise doubts regarding the veracity of the officers’ testimony in this case. Both Officer Henrich and Officer Flamand claim that when John opened the door of the apartment he was holding a gun and that the gun was pointed down. The officers further contend that during the split second confrontation in which Henrich shouted “he’s got a gun” or “drop the gun,” John raised the barrel and pointed the gun at the officers. However, Doris asserts that since John was the only other witness and his testimony is not available, the officers’ testimony is self serving. Additionally, Doris presents circumstantial evidence which she believes would support the possibility of a different finding by a jury.

¶17 For example, immediately following the confrontation, Officer Cassidy investigated the scene. Officer Cassidy’s report, written shortly after the shooting, indicated that the weapon found near John’s body was the type of gun that breaks down or is hinged in the middle for loading. Officer Cassidy’s report indicates that he believed that the gun (allegedly pointed at the officers) was open as if ready to be loaded or unloaded. Doris asserts that if the gun was broken down, there would be no way for John to point the gun at the officers. Two months after his initial report, however, Officer Cassidy retracted that portion of his written statement which indicated that the gun was open. In addition, Doris maintains that the State Crime Lab, which performed testing on John’s weapon, was unable to confirm any fingerprints on the gun which the officers alleged John pointed at them. Finally, evidence also shows that the gun allegedly held by John was not loaded during or after the confrontation. Doris asserts that it is unlikely John would have aimed an unloaded weapon at police officers who had weapons pointed at him.

¶18 Doris further asserts that, although the officers testified that they shot John in the chest because he had a weapon pointed at them and the initial autopsy performed by County Coroner Robert Krause, M.D. indicated that the fatal shot hit John in the chest, Dr. Krause, upon further investigation, amended his conclusions indicating that the fatal shot hit John in the back. Doris claims that if the confrontation occurred in “milliseconds” as the officers indicated, there would have been no time for John to turn around and be in a position to be shot in the back. Doris maintains that if she presented a jury with Payne’s expert testimony that the officers acted unreasonably and the circumstantial evidence which calls into question the veracity of the officers’ testimony, the jury could find the Respondents negligent for the wrongful death of John. As a result, Doris asserts that the District Court improperly granted summary judgment.

¶19 Respondents assert that the rationale used by the Louisiana Supreme Court in, Mathieu v. Imperial Toy Corp. (La. 1994), 646 So.2d 318, should be employed in this case. In Mathieu, the New Orleans Police Department was notified that a suspicious person with a gun was seen near a nursing home. Officers responded to the complaint, but could not find the individual. Shortly thereafter, the officers received another report of an individual with a gun in the same area peering into the nursing home windows. When the officers arrived on the scene, they were informed that the individual was lying in the grass, possibly asleep. The officers decided to approach the individual and attempt to disarm him. When the officers were within 4 to 6 feet of the individual, he raised his head and pointed the gun at the officers. The officers fired on the individual and eventually shot him. When they disarmed the individual, they discovered that the gun was a plastic toy and later learned that the individual was a delusional, paranoid schizophrenic who had stopped taking his medication and was detached from reality.

¶20 Mathieu sued the City of New Orleans, the officers, and the toy company for negligence. Mathieu presented expert testimony that indicated that alternative methods existed for confronting and disarming the suspect which may have avoided any need for using deadly force. The trial court found that the manner in which the officers approached Mathieu was negligent and the legal cause of his injuries and thus awarded damages. The appellate level court agreed, determining that the method employed by the officers left no alternative but to use deadly force if Mathieu made any movement. However, the Louisiana Supreme Court reversed. Using a seven-factor test to determine whether the officers were negligent, the court concluded that the conduct of the officers was reasonable under the circumstances and that the officers were not required to choose the “best” possible alternative for approaching the suspect, only a reasonable alternative. Mathieu, 646 So.2d at 325.

¶21 Respondents assert that Mathieu is controlling because, like the officers in Mathieu, Officers Henrich and Flamand were not required to use the best method of confronting John. However, we determine that Mathieu is not controlling in this case because Doris is not asserting that the officers were required to use the best method. Rather, Doris has presented expert testimony from Payne that the method employed by the officers was simply not reasonable under the circumstances.

¶22 When presented with Payne’s expert testimony and the circumstantial evidence regarding the officers’ veracity, reasonable jurors could differ as to whether the officers acted reasonably on the day of the shooting, thus genuine issues of material fact remain that preclude summary judgment. We hold that the District Court improperly entered summary judgment in favor of the Respondents on the grounds that the officers acted reasonably as a matter of law. Reversed and remanded.

JUSTICES REGNIER, NELSON, HUNT and GRAY concur.