Albert v. City of Billings
| Decision Date | 24 July 2012 |
| Docket Number | No. DA 11–0597.,DA 11–0597. |
| Parties | Charles Eugene ALBERT, Plaintiff and Appellant, v. CITY OF BILLINGS, Defendant and Appellee. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Elizabeth J. Honaker, Honaker Law Firm, Billings, Montana.
For Appellee: Gerry Fagan, Moulton Bellingham PC, Billings, Montana.
[365 Mont. 455]¶ 1 In July 2009, Charles Albert's Billings, Montana home caught fire. Despite response by the City of Billings Fire Department, the house burned to the ground. Subsequently, Albert sued the City for negligence of the Billings Fire Department, discrimination based upon age and disability, slander, and violation of his constitutional and statutory right to know and obtain documents held by the City. The District Court for the Thirteenth Judicial District granted the City's motion for summary judgment on all issues. Albert appealed. We affirm.
¶ 2 A restatement of the issues presented by Albert is:
¶ 3 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim of slander?
¶ 4 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim of negligence by the City firefighters?
¶ 5 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim of discrimination?
¶ 6 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim that he was denied his constitutional and statutory right to know?
¶ 7 Albert is a 77–year–old man with a self-acknowledged history of mental illness. Beginning in 1996, the City of Billings charged Albert with numerous violations of the Billings Montana City Code (Code) pertaining to the status and condition of his property. The charges included dumping raw human waste into the dumpster behind his home and feeding raw meat to numerous feral animals on his property. Between 2006 and spring 2009, Albert obtained at least two copies of his record of Code violations from the City.
¶ 8 When the fire broke out in July 2009, the Billings Fire Department responded. Albert had suffered burns to his head and hands and was transported to the hospital. The house was, and had been for many years, in very poor condition. The firefighters initially entered the home but subsequently were instructed to fight the fire from outside because the roof was sagging and unstable and the inside of the structure was extraordinarily cluttered with materials fueling the fire, making it an even more dangerous house fire than firefighters regularly encounter. The battalion commander, Brian McDermott, described why he prohibited his firefighters from fighting the blaze from within: The firefighter explained that finding the “heart” of the fire would allow them to more strategically attack the flames and gain control.
¶ 9 Firefighters remained at the scene all night trying to pinpoint the heart of the fire. Eventually, they determined they must wait for the fire to break through the roof to employ a different firefighting strategy. However, when early the next morning the flames finally broke through the roof, the fire, being fueled by substantial debris and clutter in the attic, was too ferocious to control, and the house was completely consumed.
¶ 10 Believing that the firefighters chose to let his home burn because the City considered it a “blight,” Albert requested another copy of his Code enforcement record because his earlier copy was destroyed in the fire. He asserts that he submitted a letter requesting his file on August 28, 2009, but claims that the material he received was “censored” or incomplete because the copy charges for the file were less than they had been previously. He also believed he recalled a document that was not included in the newly-obtained record. The City denied censoring the file and explained that the cost of copying the file was less than Albert's previous acquisition because the City copied the file on both sides of the paper rather than on a single side as it had done earlier.
¶ 11 On February 17, 2010, Albert, with counsel, again requested his Code enforcement records. They were told that his file had been transferred to the City Attorney. Albert claims the City Attorney did not return his calls. On April 16, 2010, Albert filed a pro se complaint in this action, and on June 14, he filed an amended complaint. He alleged that the City (1) violated his constitutional and statutory right to know by taking approximately four months to provide him with the requested Code enforcement records; (2) was negligent in not properly fighting the fire on his property; (3) violated the Montana Human Rights Act by discriminating against him on the basis of age and disability; and (4) slandered him to the public.1 In June 2010, the City provided Albert'sCode enforcement records via a document production. Again, the document Albert believed would support his claim that the City was trying to get rid of his house was not in the record.
¶ 12 On January 18, 2011, the City moved for summary judgment on all claims. The District Court granted the motion. The court concluded that Albert's Human Rights Act and discrimination claims were “a repackaging of [his] negligent firefighting and public records request claim.” The court determined that Albert failed to make a prima facie case defeating summary judgment because he failed to present any facts that he “was treated differently than anyone else who was a member of his protected class.” Addressing Albert's negligence claim, the District Court held that the public duty doctrine precluded Albert's negligence claim because the City firefighters owe a legal duty to fight fires to the public at large, not to Albert individually. The court further decided that Albert's negligence claim required an expert witness who could address firefighting tactics and strategy. Because Albert had not provided such an expert, his negligence claim failed.
¶ 13 The District Court dismissed Albert's slander claim on the grounds that there was a general lack of evidence to support the claim. Additionally, the court found that because the City's statements were made in the proper discharge of an official duty or within the scope of the official's authority, such statements could not constitute slander. Lastly, the court ruled that Albert's public records/right to know claim was moot because Albert ultimately obtained the records he wanted.
¶ 14 Albert appeals.
¶ 15 We review the grant of summary judgment de novo, using the same M.R. Civ. P. 56 criteria used by the district court. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230.
¶ 16 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim of slander?
¶ 17 On July 30, 2009, the Billings Gazette published an article reporting the fire and destruction of Albert's home. The article stated that Albert's home had no toilet and that Albert “reportedly” slept with goggles and a mask as protection against cockroaches. This statement was not attributed by the Gazette to any of the fire or police officials. The City's answers to interrogatories indicated that one of the officials may have made the statement, but there was no specific recollection. Albert argues that the statement subjected “him to ridicule” and the District Court should have ruled “as a matter of law, that the City's statement would tend to disgrace and degrade Albert or cause him to be shunned and avoided.”
¶ 18 Section 27–1–803, MCA, defines “slander” as “a false and unprivileged publication other than libel that: (1) charges any person with crime or with having been indicted, convicted, or punished for crime; or (2) imputes in a person the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure a person in respect to the person's office, profession, trade, or business ...; (4) imputes to a person impotence or want of chastity; or (5) by natural consequence causes actual damage.” Applying this definition to Albert's claim that firefighters told people that he slept with a mask and goggles, the statement does not meet any of the statutory categories of actionable slander. Moreover, as we noted in Wainman v. Bowler, 176 Mont. 91, 96, 576 P.2d 268, 271 (1978), “[i]t is not sufficient, standing alone, that the language is unpleasant and annoys or irks him, and subjects him to jests or banter, so as to affect his feelings.” We therefore affirm the District Court's grant of summary judgment to the City on this issue.¶ 19 Did the District Court err by granting the City of Billings' motion for summary judgment on Albert's claim of negligence by the City firefighters?
¶ 20 The District Court granted summary judgment on this issue on two independent grounds: (1) Albert did not produce the necessary evidence to support his negligence claim, and (2) the Public Duty Doctrine (PDD) precluded a claim of negligence against the City's firefighters.
¶ 21 On appeal, Albert maintains that the City's firefighters negligently fought the fire that ultimately consumed his home; therefore, he is entitled to damages. He challenges several of the City's firefighting decisions, such as when the firefighters applied water to his home and how they used a fan to exhaust the smoke....
To continue reading
Request your trial
-
Mont. Immigrant Justice Alliance v. Bullock
...court's entry of summary judgment de novo. McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 8, 380 Mont. 204, 354 P.3d 604 (citing Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704 ). “Summary judgment is appropriate when the moving party demonstrates both the absence of a......
-
Mont. Indep. Living Project v. Department of Transportation
...Indus. Ass’n v. State , 2016 MT 44, ¶ 12, 382 Mont. 256, 368 P.3d 1131. ¶15 We review an entry of summary judgment de novo. Albert v. City of Billings , 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. On cross-motions for summary judgment, where the district court is not called to resolve f......
-
Walden v. Yellowstone Elec. Co.
...moving party demonstrates an absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Albert v. City of Billings , 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704 (citation omitted). Reasonable inferences are to be drawn in favor of the non-moving party. ......
-
Serrania v. LPH, Inc.
...Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 16–17, 364 Mont. 390, 276 P.3d 867. This Court reviews summary judgment orders de novo. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the moving party demonstrates an absence of a genuine......