Harwood v. Glacier Elec. Co-op., Inc.

• Decision Date: 25 November 1997
• Docket Number: No. 97-088,97-088
• Citation: 285 Mont. 481,949 P.2d 651,54 St.Rep. 1257
• Parties: Thomas Jay HARWOOD, Elsie Ruby Harwood and Thomas Joseph Arkinson, Plaintiffs and Appellants, v. GLACIER ELECTRIC COOPERATIVE, INC., a Montana Utility Company, Defendants and Respondents.
• Court: Montana Supreme Court

Page 651

949 P.2d 651

285 Mont. 481

Thomas Jay HARWOOD, Elsie Ruby Harwood and Thomas Joseph Arkinson, Plaintiffs and Appellants, v. GLACIER ELECTRIC COOPERATIVE, INC., a Montana Utility Company, Defendants and Respondents.

No. 97-088.

Supreme Court of Montana.

Submitted on Briefs Oct. 30, 1997.

Decided Nov. 25, 1997.

Patrick A. Flaherty, Great Falls, Randy S. Laedeke, Laedeke Law Office, Billings, for Plaintiffs and Appellants.

Larry D. Epstein and Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank, for Defendants and Respondents.

TRIEWEILER, Justice.

The plaintiffs, Thomas J. Harwood, Elsie Ruby Harwood, and Thomas Joseph Arkinson, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone There are six issues presented on appeal:

County, in which they alleged that the defendant, Glacier Electric Cooperative, Inc., had been negligent and that its negligence caused the destruction of their home by fire. Venue was transferred to the District Court for the Ninth Judicial District in Glacier County, which ordered that the trial be conducted in Toole County. Following trial by jury, a verdict was returned in favor of Glacier Electric. The plaintiffs appeal. We affirm the judgment of the District Court.

1. Did the District Court err when it failed to dismiss this case and defer to Tribal Court jurisdiction?

2. Did the District Court err when it denied the plaintiffs' attempts to introduce evidence of and instruct the jury regarding the National Electrical Code and the National Electrical Safety Code?

3. Did the District Court err when it held that the doctrine of negligence perse did not apply?

4. Did the District Court err when it denied admission of several items of evidence offered by the plaintiffs?

5. Did the District Court engage in conduct prejudicial to the plaintiffs based on comments made during plaintiffs' closing argument?

6. Did the District Court deny the plaintiffs a fair trial?

FACTUAL BACKGROUND

Ruby Harwood and her stepson, Thomas Harwood, each own an interest in real estate in Pondera County, which is also within the boundaries of the Blackfeet Indian Reservation. In December 1989, Ruby and Tom Arkinson, a foster child, lived in the home located on the property.

On December 9, 1989, Ruby informed the Glacier Electric Cooperative, the electrical supplier to the home, that the lights in her home were flickering. Glacier Electric sent two linemen to the home, where they discovered that the stab knob supporting electrical wires had detached from its anchor to the home. As a result, the wires which brought power into the house had been damaged. The linemen repaired thewires and reattached the stab knob. The next day, the home and all its contents were destroyed by fire.

The Harwoods filed a complaint on December 9, 1991, in the Thirteenth Judicial District in Yellowstone County. They alleged that Glacier Electric negligently repaired the wires and that its negligence caused the fire. On December 9, 1992, they filed an amended complaint to add Arkinson as a plaintiff. After Glacier Electric moved to change venue, the District Court granted the motion and transferred the case to the Ninth Judicial District Court in Glacier County. A year later, the plaintiffs filed a complaint in the Blackfeet Tribal Court and moved the District Court to defer jurisdiction to the Tribal Court, pursuant to Rule 41(a)(2), M.R.Civ.P. The District Court denied that motion.

The parties agreed to bifurcate the liability and damage portions of the trial. The plaintiffs were concerned about their ability to select a jury of nonmembers of the Glacier Electric Cooperative and, therefore, moved the District Court to change the place of the trial. On September 5, 1996, the District Court decided to try the first phase of the bifurcated case in Toole County. After a three-day trial in October 1996, the jury found by a special verdict that Glacier Electric had not been negligent.

ISSUE 1

Did the District Court err when it failed to dismiss this case and defer to Tribal Court jurisdiction?

The decision whether to grant a motion for voluntary dismissal pursuant to Rule 41(a)(2), M.R.Civ.P., is within the discretion of the trial court, and we review the district court's decision to determine if the district court abused its discretion. See Petritz v. Albertsons, Inc. (1980), 187 Mont. 102, 107, 608 P.2d 1089, 1092. See also May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. "[T]he court should consider the expense and inconvenience that will result to the defendant, other prejudicial consequences, and whether terms and conditions attached to the dismissal may make the defendant reasonably whole." Petritz, 187 Mont. at 107, 608 P.2d at 1092.

Here, the plaintiffs brought their motion for a voluntary dismissal in October 1995, almost four years after they filed their original complaint and after considerable discovery and multiple proceedings had occurred. The District Court considered the "significant efforts and expense" incurred by Glacier Electric to prepare for trial in the years prior to the plaintiffs' motion, and it also found that the plaintiffs had not been diligent in their efforts to bring this case to trial. Based on these considerations, the District Court found unpersuasive the plaintiffs' preference for another forum.

The parties agree that the District Court and the Tribal Court have concurrent jurisdiction and, therefore, that it was appropriate for the District Court to consider the nature of the claim. Plaintiffs concede that, even though they are enrolled Tribal members and the home was on Tribal land, this action does not involve any special issues of Blackfeet sovereignty or issues that require the unique expertise of the Tribal Court. The plaintiffs maintained significant control of this action from the time that they initiated it, and they chose not to seek Tribal jurisdiction until almost four years after its commencement. Accordingly, we conclude that the District Court did not abuse its discretion when it denied the plaintiffs' motion to dismiss and remand to the Tribal Court.

ISSUE 2

Did the District Court err when it denied the plaintiffs' attempts to introduce evidence of and instruct the jury regarding the National Electrical Code and the National Electrical Safety Code?

The standard of review of a district court's refusal to give jury instructions is whether the district court abused its discretion. See Northwest Truck & Trailer Sales, Inc. v. Dvorak (1994), 269 Mont. 150, 157, 887 P.2d 260, 264. A district court has broad discretion regarding the instructions it gives or refuses to give to a jury. See Savik v. Entech, Inc. (1996), 278 Mont. 152, 158, 923 P.2d 1091, 1095; Lacock v. 4B's Restaurants, Inc. (1996), 277 Mont. 17, 20, 919 P.2d 373, 375.

The plaintiffs contend that the District Court erred when it disallowed their proposed jury instructions regarding the NEC and the NESC. Glacier Electric, on the other hand, contends that the instructions were properly withheld from the jury because the plaintiffs failed to present any evidence at trial regarding the NEC or the NESC. We stated inKing v. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902, that "[a] party [is] not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial." See also Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 359-60, 916 P.2d 122, 132; Cottrell v. Burlington N. R.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d 381, 387.

Upon review of the record, we agree with the District Court and conclude that although the plaintiffs at certain times during the trial referred to the NEC or the NESC, at no time did they offer evidence of how either standard applies to the alleged facts of this case such that it would merit an instruction to the jury or be relevant to their deliberation. Therefore, we conclude that the District Court did not abuse its discretion when it denied the proposed jury instructions.

The plaintiffs assert that they attempted, through expert testimony, to introduce evidence of the NEC and the NESC at trial, but that the District Court improperly denied those attempts. We stated in Busta, 276 Mont. at 353, 916 P.2d at 128, that a district court has broad discretion to determine if evidence is admissible, and absent an abuse of discretion, we will not reverse the district court's determination. Furthermore, "all questions of law, including the admissibility of testimony, [and] the facts preliminary to such admission ... must be decided by the court." Section 26-1-201, MCA.

Here, the District Court stated that "[the plaintiffs' expert] will not be allowed to testify as to the legal burdens that [the NEC and the NESC] impose upon the Co-op.... That's a legal conclusion and he doesn't get to testify on that." See generally Crow Tribe of Indians v. Racicot (9th Cir.1996), 87 F.3d 1039, 1045 (stating that the role of expert testimony is to interpret and analyze factual evidence, not to testify about the law). We conclude after a review of the record that the District Court did not abuse its discretion when it excluded the testimony based on its determination that there were insufficient factual grounds to establish the relevancy of the NEC and the NESC, and furthermore, that the plaintiffs' expert testimony regarding the NEC and the NESC was directed to a question of law. We affirm the District Court's evidentiary rulings regarding the NEC and the NESC and its subsequent denial of proposed jury instructions related to those sources.

ISSUE 3

Did the District Court err when it held that the doctrine of negligence per se did not apply?

We review a district court's conclusion of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve...