author: CHIEF JUSTICE TURNAGE JUSTICE HUNT

text:
    A. C. LEWIS, d/b/a SCORPION MANUFACTURING, Plaintiff and Appellant, v. NINE MILE MINES, INC., and NORTH LILY, Defendants and Respondents. NINE MILE MINES, INC., Third-Party Plaintiff, v. CHARLES B. DOTEN, Third-Party Defendant.
    No. 94-298.
    Submitted on Briefs October 28, 1994.
    Rehearing Denied Jan. 12, 1995.
    Decided December 8, 1994.
    51 St.Rep. 1283.
    268 Mont. 336.
    886 P.2d 912.

      For Appellant: Jon R. Binney, Milodragovich, Dale & Dye, P.C., Missoula.
    For Respondent: Christopher B. Swartley, Datsopoulos, MacDonald Lind, Missoula; William B. Kebe, Johnson, Skakles & Kebe, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A.C. Lewis appeals the decision of the Fourth Judicial District Court, Missoula County, granting partial summary judgment in favor of Nine Mile Mines, Inc. We affirm.

The sole issue is whether the District Court erred in determining, as a matter of law, that Lewis was not entitled to damages under § 30-2-713, MCA, nor consequential damages under § 30-2-712 or -715, MCA.

On June 25, 1990, Lewis entered into an agreement to log timber from thirteen patented mining claims located near Missoula, Montana, owned by Nine Mile and operated by a mining company called North Lily. Lewis agreed to pay Nine Mile $70.00 per thousand board feet ($70/mbf) for the timber located on the Nine Mile Mine. The parties also agreed to continue negotiating a deal for the timber rights to ten adjacent, patented mining claims known as the Martina Mine. The agreement between Lewis and Nine Mile contained a non-interference clause, prohibiting Lewis from interfering with Nine Mile’s or North Lily’s mining operations or explorations.

During this same period, Lewis also negotiated a logging agreement with the Midas Mine in Lincoln County, Montana. This contract was negotiated before, but signed after, Lewis entered into the logging agreement with Nine Mile. Pursuant to the Midas contract, Lewis paid Midas $50/mbf for the timber. Lewis sold the Midas timber to Champion International in Libby, Montana, for $200/mbf, resulting in a $150/mbf profit.

Shortly after entering into the Nine Mile logging agreement, Nine Mile accused Lewis of staking unpatented mining claims adjacent to the Nine Mile and Martina Mines in apparent violation of the noninterference clause. Nine Mile also claimed that it discovered that Lewis did not have sufficient logging equipment to adequately complete the project. Nine Mile refused to allow Lewis to enter the property to remove the timber. In October 1991 Lewis brought this suit, claiming breach and anticipatory repudiation of the logging contract. Lewis also sued North Lily for tortious interference with contract. North Lily moved for, and the District Court granted, summary judgment on the tortious interference with contract claim.

On December 3,1993, Nine Mile moved for summary judgment on the issue of damages. Nine Mile alleged that if the court found that it breached the logging contract, Lewis should not be entitled to consequential damages or lost profits.

Oral argument was set for January 26, 1994. During oral argument Lewis attempted to establish the market value for timber during the summer of 1990, but failed to introduce any independent evidence to verify his assertions. Following the oral argument, Lewis moved the District Court to continue its ruling on Nine Mile’s summary judgment motion on the grounds that he had attempted, but had been unable, to schedule the necessary depositions of lumber company officials who could establish the market value of timber in the summer of 1990. The District Court denied Lewis’s motion to continue, stating that Lewis had over two years since the filing of the complaint to produce evidence of the market value of timber in the Missoula area in the summer of 1990 but failed to do so. The court held that Lewis did not file affidavits stating why he was unable to take the necessary depositions in a timely manner. The court refused to consider the affidavit of Lewis’s witness, Stephen Haas, as it also was filed in an untimely manner.

The District Court granted Nine Mile’s motion for summary judgment on the issue of damages. The court determined that Nine Mile had met its burden of establishing the market price for timber in the summer of 1990 as $70/mbf and Lewis had come forward with no evidence to rebut this. The court held that since Lewis did not procure substitute timber to cover for the loss of the Nine Mile contract, did not establish a question of fact as to the market price of timber in the summer of 1990, and did not have general or particular requirements for the timber from the Nine Mile contract, he is entitled to no consequential damages or lost profits under Montana’s version of the Uniform Commercial Code. Lewis appeals. We affirm.

Did the District Court err in determining, as a matter of law, that Lewis was not entitled to damages under § 30-2-713, MCA, nor consequential damages under § 30-2-712 or -715, MCA?

A district court may grant a summary judgment motion 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.R This Court’s standard of review of a summary judgment motion is the same as that of the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212. The moving party must establish that there is a “complete absence of any genuine issue of material fact.” D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. While the initial burden is on the movant, the non-moving party must then produce some evidence which shows a genuine issue of fact is in question. This can be done through sworn testimony or affidavits. First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152, 818 P.2d 384, 386. Mere conclusionary or speculative statements will not raise a genuine issue of material fact. Anderson v. Burlington Northern, Inc. (1985), 218 Mont. 456, 462, 709 P.2d 641, 645. In Palin v. Gebert Logging, Inc. (1986), 220 Mont. 405, 716 P.2d 200, we stated, “summary judgment is proper when the party opposing the motion fails either to raise or to demonstrate the existence of the genuine issue of material fact, or to demonstrate that the legal issue should not be determined in favor of the movant.” Palin, 716 P.2d at 202.

The provisions of the Uniform Commercial Code, as adopted in Montana, apply to the sale of timber. Palin, 716 P.2d at 202. Sections 30-2-711, -712, -713, and -715, MCA, govern a buyer’s potential damages when a seller breaches a contract for the sale of goods. Under these statutes, a buyer has two options when a seller breaches a sales contract. First, the buyer can cover by purchasing substitute goods and recover the difference between cover price and the contract price. Alternatively, the buyer can recover the difference between the market price and the contract price. R.B. Matthews v. Transamerica Transportation Services, Inc. (9th Cir. 1991), 945 F.2d 269, 274-75; §§ 30-2-711, -712, -713, and -715, MCA.

Section 30-2-712, MCA, states:

“Cover” — buyer’s procurement of substitute goods. (1) After a breach within the preceding section the buyer may “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental and consequential damages as hereinafter defined (30-2-715), but less expenses saved in consequence of the seller’s breach.
(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.

In this case Lewis did not purchase substitute timber to cover for the loss of the Nine Mile timber. The Midas contract does not constitute cover for the Nine Mile contract. The terms of the Midas contract were negotiated prior to Nine Mile’s alleged breach. The Midas contract was therefore intended as a timber cutting project in addition to the Nine Mile project, not to replace it.

Lewis’s failure to cover likewise affects his right to recover consequential damages under § 30-2-715, MCA. This section states:

Buyer’s incidental and consequential damages....
(2) Consequential damages resulting from the seller’s breach include:
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; ... [Emphasis added.]

Lewis did not procure cover, nor did he show that he could not have reasonably procured such cover.

Lewis cites several cases which stand for the proposition that if the buyer is unable to cover due to scarcity of the product or other market forces, he may still recover consequential damages. See, e.g. Jewell-Rung Agency, Inc. v. Haddad Org., Ltd. (S.D.N.Y. 1993), 814 F.Supp. 337; R.B. Matthews v. Transamerica Transportation Service, Inc. (9th Cir. 1991), 945 F.2d 269; Calbag Metals Co. v. Guy F. Atkinson Co. (Or.App. 1989), 770 P.2d 600. However, each of these cases is distinguishable in that the buyers presented evidence that, due to some market force beyond their control, they were unable to reasonably cover following the seller’s breach. As we discuss further in this opinion, Lewis presented no evidence which established the market price of timber in the summer of 1990. Lewis failed to show, through reasonable means, that there existed a timber shortage in the summer of 1990 which precluded procuring cover for the Nine Mile timber. Lewis had over two years in which to acquire such information, yet failed to do so. He relied on his own speculative testimony concerning the availability of substitute timber. Such testimony is insufficient to raise a genuine issue as to a material fact. Apparently realizing he failed to create a question of fact on this point, Lewis asked this Court to “take judicial notice of the dramatically-rising prices from 1990 on and the scarcity of timber supply all over the northwest, including Western Montana.” This request is clearly beyond the scope of Rule 201, M.R.Evid.

Lewis is further barred from recovering consequential damages under § 30-2-715, MCA, because he has failed to raise a question of material fact concerning any general or specific requirements he had for the Nine Mile timber. Lewis had not contracted to resell the Nine Mile timber at the time he learned of the alleged breach. He had not received any price quotes from lumber mills for the timber, nor did he have any potential buyers view the timber at the Nine Mile Mine in preparation for making a bid. Lewis clearly did not have any general or specific requirements for the Nine Mile timber at the time of the alleged breach, thus precluding recovery of consequential damages under § 30-2-715, MCA.

Lewis’s other option is to seek damages pursuant to § 30-2-713, MCA. This section states:

Buyer’s damages for nondelivery or repudiation. (1) Subject to the provisions of this chapter with respect to proof of market price (30-2-723), the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this chapter (30-2-715), but less expenses saved in consequence of the seller’s breach.
(2) Market price is to be determined as of the place of tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.

The place of tender in this case was the Nine Mile Mine located in Missoula County. Nine Mile presented evidence that the market price for the timber was $70/mbf. This price was established by introducing the logging agreement between Lewis and Nine Mile which set the price at $70/mbf. Lewis failed to create a question of fact that the price for similar timber in Missoula County during the summer of 1990 was higher than $70/mbf.

Lewis introduced the sale of the Midas timber to attempt to establish the market price as $200/mbf. However, the Midas timber was located in Lincoln County, a substantial distance from Missoula County. The District Court stated that, “[g]iven the nature of the logging industry and the distance between Lincoln and Missoula Counties, Lincoln County can not be considered a reasonable substitute market for Missoula County.” Lewis admitted that the lumber mill which purchased the Midas timber would not purchase the Nine Mile timber.

The speculative testimony of Lewis that he intended to sell the Nine Mile timber for more than $70/mbf does not create a question of fact as to the market price in Missoula County in the summer of 1990. Nor does the testimony of Lewis’s witness, Stephen Haas, that a price of $200/mbf for timber in the summer of 1990 would not surprise him, create such a question of fact. As previously stated, mere speculative and conclusionary statements do not create a question of material fact. First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152, 818 P.2d 384, 386. Lewis presented no evidence which established that the price of comparable timber in Missoula County in the summer of 1990 was greater than $70/mbf. Since the District Court found that the market price was equal to the contract price, there are no damages available under § 30-2-713, MCA.

We conclude that the District Court did not err in granting Nine Mile’s summary judgment motion precluding Lewis from recovering damages under § 30-2-713, MCA, or consequential damages under § 30-2-712 or -715, MCA. Affirmed.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.

JUSTICE HUNT

dissenting.

I dissent from the majority opinion. Summary judgment is proper only when no genuine issue of material fact exists. Rule 56(c), M.R.Civ.P.; Spain-Morrow Ranch, Inc. v. West (1994), 261 Mont. 441, 442, 872 P.2d 330, 331-32. Conversely, if a genuine issue of material fact exists, summary judgment is not proper. The record shows that there exist genuine issues of material fact as to the damages suffered by Lewis, therefore, summary judgment was not proper.

The majority correctly states that when a seller breaches a contract for the sale of goods, the buyer can either recover the difference between the cost to cover and the contract price, along with any consequential and incidental damages, or the buyer can recover lost profits measured by the difference between the market price and the contract price, along with consequential and incidental damages. The second option is available to the buyer who chooses not to cover or who is unable to do so.

The majority affirmed the District Court’s conclusion that Nine Mile met its burden by presenting evidence of stumpage in Missoula County in the summer of 1990 in the form of the $70/MBF price found in the logging agreement, and that Lewis failed to raise a genuine issue of fact of a market price higher than $70/MBF. Based on these conclusions, the District Court held that Lewis was not entitled to consequential damages in the form of lost profits under § 30-2-713, MCA. The record does not support these conclusions.

For the purposes of determining damages under § 30-2-713, MCA, the market price is to be determined as of summer 1990, Missoula County, the time and place of tender. However, if evidence of market price at the time and place of tender is not readily available, any other place within commercial judgment or under usage of trade may be used as a reasonable substitute. Section 30-2-723(2), MCA. Lewis testified as to his difficulty in procuring similar agreements in Missoula County on or about the time of the Nine Mile agreement. Lewis also testified as to the volatile and rising nature of the market at the time in question. Norman Schweizer, an expert for Nine Mile, testified that Nine Mile’s timber was comparable, if not bigger, than the timber Lewis purchased from Midas Mines for $50/MBF and later sold to Champion International, Lincoln County, for $200/MBF. Stephen Haas, a senior accountant at Champion who reviewed contracts for purchases of timber on the stump and delivered to mills in Lincoln County and Missoula County, testified that he was confident that the average amount paid for stumpage in Missoula County in the summer of 1990 exceeded $70/MBF and that $200/MBF would not have surprised him.

As the party opposing the summary judgment, Lewis is entitled to have any inference drawn from the factual record resolved in his favor. Rucinsky v. Hentchel (Mont. 1994), 881 P.2d 616, 618, 51 St. Rep. 887, 888; Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028. The testimony of Haas and Schweizer as to market price is part of the factual record. Based on their testimony, it is reasonable to infer that comparable, if not bigger, timber from Nine Mile would have generated a comparable, if not better, MBF in Missoula County than the $200/MBF generated in Lincoln County. Resolving this inference in favor of Lewis raises a genuine issue of material fact as to the market price of stumpage in Missoula County in the summer of 1990, and consequently, raises a genuine issue of fact as to whether Lewis is entitled to damages for lost profits under § 30-2-713, MCA.

The majority also affirmed the District Court’s conclusion that Lewis was not entitled to consequential damages as defined by § 30-2-715(2)(a), MCA, which provides:

(2) Consequential damages from the seller’s breach include:
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise ....

The record shows that while Lewis did not cover following Nine Mile’s breach, there is a factual question as to whether cover was possible. On or about the time Lewis negotiated the Nine Mile agreement, Lewis attempted unsuccessfully to secure six similar agreements. Lewis entered into the agreement with Nine Mile on June 25, 1990. Nine Mile breached 24 days later on July 18, 1990. However, the record shows that as early as July 3,1990, eight days after executing the contract, Lewis was notified by Nine Mile that he would be prevented from exercising his rights under the contract. It is at least a factual issue whether the market conditions that prevented Lewis from securing similar contracts at the time the contract with Nine Mile was executed existed days later and for a reasonable time thereafter.

In addition, there is nothing in the record to show that Nine Mile provided the District Court with evidence that substitute goods were available to Lewis following the breach. The burden of proof rests with the party seeking summary judgment to provide the court with evidence which excludes any real doubt as to the existence of a genuine issue of fact. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Only after the moving party has met this burden of proof does the burden shift to the nonmoving party to show that a genuine issue of fact exists. Morton v. M.W.M., Inc. (1994), 263 Mont 245, 249, 868 P.2d 576, 579. Nine Mile’s failure to produce evidence which excludes any real doubt as to Lewis’s reasonable ability to prevent consequential damages by covering, coupled with Lewis’s testimony as to the scarcity of similar opportunities, raises a genuine issue of material fact.

Finally, the majority asserts that “Lewis is further barred from recovering consequential damages under § 30-2-715, MCA, because he failed to raise a question of material fact concerning any general or specific requirements he had for the Nine Mile timber.” A review of the agreement between the parties demonstrates that Lewis’s requirements for the timber were anticipated by the parties during negotiations and are implicit in the language of the final agreement which provides:

As payment to the landowners of the logging agreement, A.C. Lewis shall pay to the landowners a stumpage rate of $70/MBF for all merchantable timber to be removed from said mining claim. All such payment to the landowners shall be paid directly by the saw mills purchasing said timber produced from the Nine Mile claim.

(Emphasis added.) The record supports a conclusion that, as to the issues of requirements and consequential damages, there exist genuine issues of material fact.

I would reverse the District Court’s granting of Nine Mile’s motion for summary judgment.

JUSTICE TRIEWEILER joins in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE HUNT

license: Public Domain

text:
    DONNA MAY PAPPAS, Plaintiff and Appellant, v. MIDWEST MOTOR EXPRESS, INC., and FREIGHTMASTERS, INC., Defendants and Respondents.
    No. 94-143.
    Submitted on Briefs September 8, 1994.
    Decided December 12, 1994.
    51 St.Rep. 1288.
    268 Mont. 347.
    886 P.2d 918.

      For Appellant: Larry R. Cole, Attorney at Law, Billings.
    For Respondents: Michael W. Tolstedt; Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Donna May Pappas (Pappas) appeals from a judgment of the Thirteenth Judicial District Court, Yellowstone County, dismissing her complaint after granting summary judgment in favor of Midwest Motor Express, Inc. (Midwest) and Freightmasters, Inc. (Freightmasters). We affirm, concluding that no genuine issue of material fact exists with regard to whether the defendants were the proximate cause of the accident and, therefore, that the defendants were entitled to summary judgment as a matter of law.

Pappas, a stained glass artist operating a home-based business in Billings, Montana, ordered a large quantity of stained glass from an out-of-state company in June of 1991. Midwest shipped the glass to Montana and Freightmasters delivered it to Pappas.

Pappas expected Freightmasters to deliver the glass on July 8, 1991. She had arranged with a friend, B.R. Buckingham (Buckingham), for assistance unloading the glass as well as help providing tools to break open the crate and gloves to move the glass sheets. Buckingham offered to help Pappas because he knew Freightmasters would not deliver the glass upstairs to her apartment. Pappas was supposed to call him when the shipment arrived.

Freightmasters arrived at Pappas’ apartment complex with a large wooden crate weighing approximately 325 pounds on July 8. Pappas requested Freightmasters to deliver the crate to the porch of her upstairs apartment. Freightmasters’ driver had neither the equipment nor the personnel available to honor her request; instead, he unloaded the crate in a common driveway in the apartment complex. At Pappas’ request, but without success, he did attempt to push the crate off to the side of the driveway.

Pappas continued to insist that Freightmasters’ driver move the crate from the driveway. After learning that the crate was filled with individual glass sheets, the driver offered to help carry the glass up to her apartment. Before they began, Pappas asked the driver if he had any gloves she could wear; he did not. Pappas and the driver began moving the glass without gloves. The second sheet of glass Pappas carried slipped in her grip, resulting in injury to the web space of her left hand. Buckingham was not called until after the accident occurred. Pappas later acknowledged she had seven years’ professional experience working with and handling stained glass and taught classes on the subject. She also freely admitted she should not have moved the glass without gloves.

Pappas sued Midwest and Freightmasters for negligence. The defendants moved for summary judgment. The District Court granted the motion, entered summary judgment and dismissed Pap-pas’ complaint. Pappas appeals, raising the issue of whether the District Court erred in granting summary judgment in favor of the defendants.

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review an order granting summary judgment by applying the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Ordinarily, issues of negligence are questions of fact not susceptible to summary adjudication. Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018 (citations omitted). In certain cases, however, where reasonable minds could reach but one conclusion as to the cause of the accident, questions of fact may be determined as a matter of law. Dillard, 824 P.2d at 1018.

A plaintiff must prove four elements to maintain an action in negligence: (1) duty; (2) breach of the duty; (3) causation; and (4) damages. U.S.F. & G. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 588-589. Pappas’ complaint alleged that the defendants owed her the following duties: (1) to bring the required unloading equipment; (2) to place the crate on her property; (3) to place the crate where she asked; (4) to unload the crate in a safe place; (5) to warn of the danger of uncrating the glass; and (6) to furnish her with gloves.

In this case, the propriety of summary judgment can be determined by addressing the existence or absence of a genuine issue of material fact as to whether the defendants’ acts were the proximate cause of the accident. We have separated the causation element into two separate components: causation in-fact and proximate or legal causation. U.S.F. & G., 831 P.2d at 589. Thus, as to the causation element of a negligence claim, the plaintiff must prove first, that the defendant’s act is the cause-in-fact of the injury and second, that the injury is the direct or indirect result, proximately caused by the negligent act. U.S.F. & G., 831 P.2d at 589; Kiger v. State of Montana (1990), 245 Mont. 457, 459, 802 P.2d 1248, 1250. Stated differently, proximate cause is an act or omission which, “in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred.” Bickler v. Racquet Club Heights Assoc. (1993), 258 Mont. 19, 23, 850 P.2d 967, 970; quoting Young v. Flathead County (1988), 232 Mont. 274, 282, 757 P.2d 772, 777.

In a case where the plaintiff’s own negligence contributed to the accident or injury, proximate causation can be determined as a matter of law if the comparative negligence of the plaintiff exceeds the negligence of the defendant. Brohman v. State (1988), 230 Mont. 198, 205, 749 P.2d 67, 70. This is so because if the plaintiff’s own negligence exceeds the defendant’s, the plaintiff could not prove by a preponderance of the evidence that it was the defendant’s negligence that proximately caused the injury. Brohman, 749 P.2d at 72.

For purposes of analysis, we will assume the defendants breached the duties alleged by Pappas in failing to deliver the glass safely into her apartment, provide gloves or warn as to the dangers of uncrating the glass. See Dillard, 824 P.2d at 1019. We will also assume that these presumed breaches of duty were the cause-in-fact of Pappas’ injuries, thereby focusing our attention on the question of proximate causation.

The material facts are undisputed. After working with stained glass for seven years and teaching classes in the subject, Pappas was aware of the risk of injury from carrying large sheets of glass without gloves. She understood from Buckingham that Freightmasters would probably not deliver the glass to her upstairs apartment and, as a result, made preparations in advance of receiving the shipment by having Buckingham available to provide gloves and assistance. To avoid the risk of injury, Pappas could have called Buckingham, as arranged, and waited for the gloves to arrive before picking up the glass.

Section 27-1-701, MCA, provides that except as otherwise provided by law, everyone is responsible for injury by want of ordinary care or skill in the management of property or person. Based on the record before us, there is no doubt that Pappas breached her duty of ordinary care when she began moving the glass, and that her breach contributed to her injury.

In order for summary judgment to be appropriate in this case, however, we must determine whether Pappas’ negligent act clearly exceeded the presumed negligence of the defendants such that reasonable minds could not differ that her own actions constitute the proximate or legal cause of her injuries. Brohman, 749 P.2d at 72. The facts and analysis in Brohman provide clear guidance.

Brohman involved an automobile accident which occurred during a snowstorm, producing limited visibility on a dark and intermittently snow-packed highway. While in the act of passing a slow-moving truck in a no passing zone marked by double yellow lines, Brohman struck another vehicle traveling in the opposite direction. She then brought a negligence action against the State of Montana based on the highway design and failure to install no passing signs which would have identified the zone. The State successfully moved for summary judgment and Brohman appealed. We affirmed, stating that:

Even assuming, as the District Court did, that there was negligence on the part of the State, Brahman’s act of attempting to pass without a clear view was the proximate cause and far exceeded any negligence on the part of the State.

Brohman, 749 P.2d at 72. Faced with a situation like the one in Brohman, any reasonable driver would have realized that passing the truck at night, in a snowstorm, on a partially snow-packed highway was likely to result in an accident and injury. Even though no passing signs and a better designed highway may have prevented the accident, we determined that reasonable minds could not differ in concluding that the plaintiff’s negligence constituted the proximate cause of the accident as a matter of law. Brohman, 749 P.2d at 72.

Like the plaintiff in Brohman, Pappas’ actions demonstrate substantial disregard of a known danger. From her past experience, she knew injury could result from picking up glass without gloves. Having assumed that she would have to move the glass into her apartment from the crate, Pappas had made arrangements with Buckingham which included his providing gloves to avoid the exact injury she suffered. Given her prior arrangements and knowledge of the danger of handling glass without gloves, Pappas’ own negligence in moving the sheets of glass without gloves clearly exceeds the presumed negligent acts of the defendants in failing to deliver the glass upstairs to the apartment, provide gloves or warn about the dangers of uncrating the glass.

We hold, therefore, that reasonable minds could not differ in concluding that Pappas’ actions constitute the proximate cause of her injury in that they exceeded the negligence of the defendants which we have presumed and comprised the acts directly producing her injury. The District Court did not err in granting the motion of Midwest and Freightmasters for summary judgment and dismissing Pappas’ complaint.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and WEBER concur.

JUSTICE HUNT

dissenting.

I dissent from the majority opinion.

It is clear to me that in order to arrive at the conclusion the majority has come to, requires findings of fact which are better left to a jury. I do not think that, in moving sheets of glass, the plaintiff clearly exceeded the presumed negligent acts of the defendants in failing to deliver the glass upstairs to the apartment. I do not have the confidence of the majority that a jury could not possibly find otherwise than that the plaintiff’s negligence exceeded that of the defendants. A jury might well find the same facts that are found by the majority, but on the other hand, it might not, and plaintiff is entitled to have a jury make that decision. I would reverse the summary judgment.


author: JUSTICE WEBER

text:
    IN THE MATTER OF THE TERMINATION OF WAYNE ABBEY, Petitioner and Appellant, v. CITY OF BILLINGS POLICE COMMISSION, CITY OF BILLINGS, MONTANA, and BRUCE McCANDLESS, Acting City Administrator, Respondents and Respondents.
    No. 94-271.
    Submitted on Briefs October 5, 1994.
    Decided December 15, 1994.
    51 St.Rep. 1374.
    268 Mont. 354.
    886 P.2d 922.

      For Appellant: Carter N. Picotte, Helena.

      For Respondents: James L. Tillotson, Billings City Attorney, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a review by the Thirteenth Judicial District Court, Yellowstone County, of a decision by the Billings City Police Commission and subsequent modification of that decision by the City Administrator. We affirm.

We consider the following issues on appeal:

I. Did the District Court err in affirming the Billings City Police Commission’s denial of Abbey’s Prehearing Motion to Dismiss?

II. Did the District Court err in holding that the expert testimony of Officer John Carpani and Captain Douglas Dreezen regarding the accident was proper and that any opinion testimony from Larry Deschene and Cliff Fillner was harmless error?

III. Did the District Court err in upholding the Billings Police Commission’s denial of Abbey’s motion for a ruling of “Not Proven” following the City’s case-in-chief?

IV. Did the District Court err in upholding the Billings Police Commission’s finding that there was substantial evidence to show that Abbey was guilty of the alleged misconduct?

V. Did the District Court err in affirming the Acting City Administrator’s decision to modify Abbey’s punishment?

Wayne Abbey (Abbey) was a Billings City Policeman. Abbey was assigned Car #1421 for his regular shift beginning in the evening of March 24, 1992. Something happened to severely damage the car either before or during Abbey’s shift. Abbey claimed the damage was done to the car before he began his shift and while the car was parked in the city parking complex. Abbey did not report the damage immediately upon beginning his shift. He claims that he believed that the car had been damaged by someone prior to his shift and that that person had already reported the damage.

Abbey claims that he continued his shift, putting a piece of side molding trim that had been knocked loose from the car in the back seat and later throwing it out in a dumpster on Minnesota Avenue. Much evidence was presented at Abbey’s hearing that showed that the accident actually happened at a railroad switch close to this dumpster during Abbey’s work shift.

The Police Department charged Abbey Avith four counts of violating various Billings Police Department directives such as: neglect of duty, misconduct in his office, conduct imbecoming a police officer, guilt of a crime and/or conduct such as to bring reproach upon the police force. Abbey moved to dismiss the charges against him during a prehearing conference. The motion was denied. Pursuant to § 7-32-4151, et seq., MCA, a hearing was held before the Police Commission on September 2 and 3,1992.

The Commission found that substantial evidence existed to support all four counts charged against Officer Abbey and suspended Abbey for three weeks. The Acting Billings City Administrator, Bruce McCandless, agreed with the Commission’s findings and conclusions and pursuant to § 7-32-4160(2) and (3), MCA(1991), modified Abbey’s punishment from suspension to termination.

Abbey appealed the Commission’s decision and the modification of his punishment to the Thirteenth Judicial District Court, Yellowstone County. Abbey appeals the District Court order dated April 21,1994, affirming the Commission.

I.

Did the District Court err in affirming the Billings City Police Commission’s denial of Abbey’s Prehearing Motion to Dismiss?

Abbey maintains that he was prejudiced before the hearing began. The prejudice was caused by the inclusion with the complaint of various documents including a City of Billings investigative police report and the results of a polygraph test conducted on a fellow officer who shared Abbey’s police car, #1421. Abbey argues that he was prejudiced by the Police Commission having seen the erroneously admitted polygraph test. Abbey argues that the Commission did not follow the rules of evidence and that such a departure caused him a lack of due process.

The City of Billings argues that the investigative report to which Abbey objects was a Billings Police Department Internal Affairs Summary dated May 19, 1992. The report contained a summary of the evidence against Abbey, including reference to the polygraph test. Captain Douglas Dreezen (Captain Dreezen) who had recovered the side trim from car #1421 wrote the report. Captain Dreezen also testified to the actual site of the accident. According to the City of Billings, this report was neither admitted into evidence nor was it considered by the Police Commission.

The District Court must review the findings of a police commission as to whether the commission findings are supported by substantial evidence. Gentry v. City of Helena (1989), 237 Mont. 353, 773 P.2d 309. When the decision on review by a district court of proceedings before a police commission is conducted under § 7-32-4164, MCA, and the district court decision is appealed to us, we adopt the standard of review set forth in the Montana Administrative Procedure Act, § 2-4-704(2)(a), MCA. Termination of Wong (1992), 252 Mont. 111, 827 P.2d 90.

Here, Abbey has claimed that he was prejudiced because his due process rights were violated by the Commission’s refusal to grant a dismissal due to having seen improper evidence. Therefore, we will review the Commission’s decision as to whether the Commission was in “violation of constitutional or statutory provisions” and whether the Commission’s refusal to dismiss was “arbitrary or capricious or characterized by abuse of discretion.” Section 2-4-704(2)(a)(i) and (vi), MCA.

The District Court found that Abbey was not prejudiced by the Commission’s having seen the objectionable documents. The court stated that many times a court acting as a finder of fact has to determine whether evidence can be admitted. Here, the Commission determined that it would not consider the results of the polygraph test nor permit the officer involved to testify. The Commission determined that such prohibition would prevent prejudice to Abbey.

In evaluating Abbey’s due process rights, we note that firefighters have a property interest in their position because of the civil service nature of their employment. Welsh v. City of Great Falls, (1984), 212 Mont. 403, 690 P.2d 406. We alluded to the same property interest held by police officers. Termination of Wong (1992), 252 Mont. at 118-19, 827 P.2d at 95. In Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494, 504, the United States Supreme Court held that notice and an opportunity to respond to the charges constitutes the process due an employee with a property interest in his employment.

The Police Commission provided Abbey his due process rights. The Commission provided notice and a hearing at which Abbey was adequately represented by counsel. Abbey’s contention that strict adherence to the rules of evidence is the minimum process due him has no foundation in the law. Nor is there any indication here that the rules of evidence have been ignored or applied incorrectly.

Further, Abbey has not demonstrated prejudice from the Commission’s refusal to dismiss his action following the Commission’s perusal of objectionable papers. The Commission correctly cited Montana’s law concerning polygraph results, and refused to consider such results or permit testimony of the officer in question. The Commission did not act arbitrarily in its refusal to dismiss because the Commission considered the appropriate law and specifically refused to accept into evidence the results of the polygraph test and the summary of evidence against Abbey. Abbey was provided proper hearing and no action by the Commission prejudiced Abbey’s ability to be heard.

We conclude the Commission did not abuse its discretion by acting arbitrarily when it refused to dismiss the action because of the questionable documents.

We hold the District Court did not err in affirming the Billings City Police Commission’s denial of Abbey’s Prehearing Motion to Dismiss.

II.

Did the District Court err in holding that the expert testimony of Officer John Carpani and Captain Douglas Dreezen regarding the accident was proper and that any opinion testimony from Larry Deschene and Cliff Fillner was harmless error?

At the Commission hearing Officer Carpani, Captain Dreezen, and Motor Pool Manager Larry Deschene (Deschene) and City of Billings Purchasing Agent Cliff Fillner (Fillner) testified concerning technical information and certain opinions as to the possible place of damage to car #1421.

On review of the Commission proceedings, the District Court determined that Deschene and Fillner were not expert witnesses in accident reconstruction and, therefore, they should not have testified concerning their opinions as to what actually happened to police car #1421. However, the court determined that this was harmless error. The court also determined that Officer Carpani and Captain Dreezen had been sufficiently qualified to testify as expert witnesses.

Abbey argues that it was not harmless error to allow Fillner and Deschene to testify concerning their opinions of the accident. Abbey further contends that Officer Carpani and Captain Dreezen are not experts in accident reconstruction. The City of Billings argues that both Officer Carpani and Captain Dreezen investigated many vehicular accidents. According to the City of Billings, Officer Carpani had special training in accident reconstruction. The City of Billings also contends that the opinion testimony of Deschene and Fillner should not have been permitted by the Commission but that its inclusion did not prejudice Abbey.

A. Expert Testimony

An expert witness is one who is able to provide understanding thatis beyond the jury’s experience. Mason v. Ditzel (1992), 255 Mont. 364, 842 P.2d 707. The District Court had to determine whether the Commission made an “error of law” in permitting the opinions of Captain Dreezen, Officer Carpani as well as Deschene and his assistant Fillner. Section 2-4-704(2)(a)(iv), MCA. We will use the same standard when reviewing the District Court.

Officer Carpani testified that he had investigated many vehicular accidents in his years on the police force. In addition, Officer Carpani testified that he had attended a two week school at Northwest University for the purpose of studying accident reconstruction. Officer Carpani also testified that part of his job with the police force involved investigating serious accidents.

There is no question that Officer Carpani was qualified as an expert in accident reconstruction. He has special knowledge in accident reconstruction gained at a reputable University and has used that knowledge in his employment with the City of Billings. He was qualified as an expert and his opinions as to the site and cause of the accident were appropriate. The District Court did not err in finding Officer Carpani qualified as an expert.

Captain Dreezen is the Captain of Operations Division; his job responsibilities include internal affairs investigations of his officers. He testified that part of his job duties involved investigations into police vehicle damages. The present action is an outgrowth of his internal investigation concerning the damage to Abbey’s car. Captain Dreezen testified that he had investigated many vehicular accidents in his years on the force. In a prior case we determined that a policeman with 14 years experience was properly permitted to testify to the cause of an accident. Hart-Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116. Although the record does not tell us the number of years Captain Dreezen has spent on the police force, his testimony clearly evinced years of investigation into vehicle damage and his familiarity with investigation of vehicular accidents in general:

A. ... Two vehicles strike each other, it knocks debris, dirt, mud, whatever from underneath the fender wells, and ends up on the street or the pavement or whatever.
Q. In your experience, does that happen when a car is merely parked in a spot with no collision?
A. With no collision?
Q. No impact.
A. No.

Captain Dreezen went on to testify that the parking spot in which Abbey claimed to have found the damaged car, had none of those things. The parking spot was clean when Captain Dreezen inspected it. Captain Dreezen subsequently investigated the dumpster where Abbey said that he had thrown the piece of strip molding trim that had been loose on the car.

Captain Dreezen testified that he also investigated the area around the dumpster because he did not feel that the damage had occurred as reported by Abbey. Captain Dreezen testified at length about where he felt the real site of the damage occurred. The City introduced pictures of the railroad switch which allegedly did the damage and also pictures of the switch in relation to the damage on the car. Captain Dreezen testified to the white paint on the switch and the white paint chips found at the base of the switch. Car #1421 is white. Further Captain Dreezen testified that the black substance found on car #1421 was the same substance that existed on the switch itself.

Captain Dreezen supported every detail of his testimony by logical analyses from his experience and reasons for his assumptions concerning the damage and the site of the damage. The only piece of unsupported speculation in Captain Dreezen’s testimony was objected to by Abbey’s counsel and sustained by the Commission.

We conclude that the District Court did not err in determining that Captain Dreezen and Officer Carpani were sufficiently qualified as expert witnesses and could, therefore, give their opinions concerning the possible sources of damage to car #1421.

B. Lay Opinions

Abbey objects to the following opinions in the testimony of Deschene and Fillner:

Deschene: And to me it didn’t look like — it looked highly unlikely that the damage could have happened in that spot.
Deschene: There was damage underneath the fender part on the bottom part of the vehicle that appeared that the car was hit on the bottom, or ran over something.
Fillner: The direction of the scrape appeared to me that the car had been moving backwards.

The Commission allowed this testimony over Abbey’s counsel’s objection. Both parties in this case recognize that the above testimony is improper lay witness testimony. The District Court concluded that the testimony should not have been permitted. The court determined that the inclusion of these opinions from lay witnesses was harmless error.

Abbey argues that the cumulative effect of the lay testimony prejudiced him. The City of Billings argues that the lay witnesses merely testified to facts already in evidence.

Harmless error is an error committed during the trial proceedings which does not affect the substantial rights of the party. Barrett v. Asarco Inc. (1990), 245 Mont. 196, 799 P.2d 1078. Thus, in order for the District Court to reverse the Commission, Abbey had to show that Deschene’s and Fillner’s testimony violated his substantial rights. We conclude that he has not shown that.

The majority of Deschene’s and Fillner’s testimony constituted their observations of the parking space occupied by car #1421 as well as their observations of the car itself. Personal observations by lay witnesses are admissible in evidence. The objectionable opinions, although not properly permitted by the Commission, are no more than repetitions of the much more detailed testimony of the police experts, Captain Dreezen and Officer Carpani. Because the opinions of Deschene and Fillner added nothing new and controversial to the hearing, and Abbey has not shown that the testimony affected his substantial rights, we conclude that the opinions offered by Deschene and Fillner were harmless error.

Therefore, we hold that the District Court did not err in determining that the opinions erroneously admitted during the Commission proceedings from Deschene and Fillner were merely harmless error.

III.

Did the District Court err in upholding the Billings Police Commission’s denial of Abbey’s motion for a ruling of “Not Proven” following the City’s case-in-chief?

At the end of the City of Billing’s case-in-chief, Abbey’s attorney petitioned the court to make a finding of “not-proven” concerning all four counts of the charges against Abbey. This motion is the same as a directed verdict. A directed verdict is properly granted when it appears as a matter of law that the nonmoving party could not recover upon any view of the evidence. Nautilus Ins., Inc. v. First National Ins., Inc. (1992), 254 Mont. 296, 837 P.2d 409.

The Commission determined that enough evidence had been presented to it to require continuation of the hearing. When reviewing denial of motion for directed verdict, only substantial evidence in the record supporting the jury’s [trier of fact’s] finding is required. Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 824 P.2d 263. Also in reviewing a denial of a motion for directed verdict, we must take the plaintiff’s evidence as presented to be true. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340. Here, when accepting the City’s evidence as true, the District Court was correct in determining that substantial evidence existed to continue the hearing.

Two experts testified that the accident could not have happened where Abbey found the car at the beginning of his shift. Further, the City introduced evidence in the form of photographs that showed a direct match between the damage to the car and the railway switch that Captain Dreezen determined had been the cause of damage to car #1421. Both the Motor Pool Manager and Purchasing Agent testified that they observed no evidence of an accident at the spot that Abbey claimed he found the car already damaged. This evidence constitutes enough evidence to warrant a continuation of the hearing.

We conclude that the District Court did not err in upholding the Billings Police Commission’s denial of Abbey’s motion for a ruling of “Not Proven” following the City’s case-in-chief.

IV.

Did the District Court err in upholding the Billings Police Commission’s finding that there was substantial evidence to show that Abbey was guilty of the alleged misconduct?

Abbey argues that the City had no evidence for their case except for inadmissible hearsay and conjecture. Abbey claims that the only appropriate evidence at the hearing came from his own two eye-witnesses who testified that the damage had been done to the car before the time Abbey testified he became responsible for the car. The City of Billings argues that the record presents overwhelming evidence that Abbey was not telling the truth about the damage to car #1421.

The Commission was required to use the substantial evidence standard of proof. Gentry, 237 Mont. at 358, 773 P.2d at 312-13. “Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Barrett, 245 Mont. at 200, 799 P.2d at 1080.

The Commission issued the following findings:

1. Police Car #1421 was damaged by being backed into a railroad switching device located on Montana Rail Link right-of-way near Minnesota Avenue and South 27th Street.
2. The damage occurred sometime between 9:00 p.m. on March 24, 1992, and 3:00 a.m. on March 25, 1992. The vehicle strip molding located in a dumpster near Minnesota Avenue and South 23rd Street came from police car #1421.
3. Officer Abbey placed the strip molding from police car #1421 in the dumpster.
4. Officer Wayne Abbey was driving car #1421 at the time it was damaged. He did not disclose essential information concerning that damage, including his knowledge of where the accident occurred. Officer Abbey did not report the accident when the accident occurred, nor did he remain at the scene of the accident.
5. Officer Abbey’s written supplement concerning the damage to police car #1421 was inaccurate and misleading.

The District Court in reviewing these findings used the substantial evidence test. Gentry, 237 Mont. at 358, 773 P.2d at 312-13. The court found substantial evidence to support the Commission’s findings. In reviewing the record, we conclude that substantial evidence exists to uphold the court’s findings.

The record shows overwhelming physical evidence that the damage could not have happened in the parking spot where Abbey first took responsibility for car #1421, Both testimony and physical evidence showed that it occurred at the railroad switch near the dumpster where Abbey deposited the car trim. Further, there is no question that Abbey did not report the accident when it happened but waited until approximately five hours into his shift to inform the police department of the damage. Even if one assumes the truthfulness of Abbey’s claims that the damage was waiting for him at the beginning of his shift, the fact remains that he did nothing to report the damage as required by police regulations.

A number of witnesses testified that the parking spot in which the car was located showed no signs of any accident having occurred there. The only person to have noticed anything about the parking spot was Abbey as reported in his accident report. He claims that he found physical evidence of the damage having been done there, but this evidence was never presented at trial nor corroborated by any of the other witnesses. The only physical evidence presented showed that the accident occurred in a railroad yard.

Abbey argues that he had two eye-witnesses that testified that the damage happened before he took responsibility for his car on the evening of March 24, 1992. The record shows that the testimony of three officers was presented concerning the damaged car. None of these witnesses were “eye-witnesses.” Their testimony was contradictory and equivocal.

We conclude that the record contains substantial evidence that the City’s charges against Abbey were correct and that the court was not in error in upholding the Commission’s decision.

V.

Did the District Court err in affirming the Acting City Administrator’s decision to modify Abbey’s punishment?

In an order dated October 2,1992, the Acting City Administrator, Bruce McCandless (McCandless) confirmed the Police Commission ruling and modified the three-week suspension that the Commission had levied. McCandless stated that Abbey had violated the trust of the citizens of Billings by submitting an untruthful report. He, therefore, terminated Abbey from the police force.

Abbey argues that the City Administrator acted beyond his authority. The City of Billings argues that the City Administrator has the jurisdiction to modify the decision of the Police Commission.

In reviewing the actions of the City Administrator, the District Court concluded that the City Administrator had not exceeded his authority pursuant to § 7-32-4160, MCA, when he modified the ruling of the Police Commission.

The law in effect at the time of the hearing before the Commission was the 1991 version of our codes. Section 7-32-4160, MCA (1991), reads:

Decision by police commission — veto power of mayor. (1)
The police commission must, after the conclusion of the hearing or trial, decide whether the charge was proven or not proven and shall have the power, by a decision of a majority of the commission, to discipline, suspend, remove, or discharge any officer who shall have been found guilty of the charge filed against him.
(2) Such action of the police commission shall, however, be subject to modification or veto by the mayor, made in writing and giving reasons therefor, which shall become a permanent record of the police commission; provided, however, that where and when the police commission decides the charge not proven, the decision is final and conclusive and is not subject to modification or veto by the mayor or to any review.
(3) Where the police commission decides the charge proven, the mayor, within 5 days from the date of the filing of such findings and decision with the city clerk, may modify or veto such findings and decision. (Emphasis added.)

Section 7-32-4153, MCA (1991), describes a mayor as a:

.... “city manager”, “city commissioner”, or any other name or designation used to identify or designate the chief executive of any city or municipality.

It is clear from the wording of this statute that McCandless did not exceed his authority by modifying Abbey’s punishment. The record shows that McCandless filed his modification within the time limit permitted by the statute.

This Court upheld the plain meaning of this statute. In Gentry, 237 Mont. at 362-63, 773 P.2d at 315, the Police Commission recommended that three officers receive only temporary suspensions. The City Manager modified the ruling terminating all officers and we upheld that action.

However, we note that the 1993 Legislature has deleted subsection (2) and (3) of § 7-32-4160. 1993 Mont. Laws 1661. That statute now reads:

Decision by police commission. The police commission shall, after the conclusion of the hearing, decide the appeal and must have the power, by a decision of a majority of the commission, to sustain, modify, or overrule the disciplinary order of the mayor, city manager, or chief executive.

This is a drastic departure from the 1991 version.

We conclude that pursuant to the 1991 version of § 7-32-4160, MCA, the City Administrator had the authority to modify the decision of the Police Commission. We hold the District Court did not err in affirming the Acting City Administrator’s decision to modify Abbey’s punishment.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and GRAY concur.